Black, Hispanic officers in PG fight move to limit discrimination claim

Black and Hispanic officers are opposing Prince George’s County’s motion to limit the scope of their discrimination and retaliation claims against its police department, saying the agency’s “pattern and practice” of racial bias is at the heart of the current and former officers’ federal lawsuit and evidence should not be limited at trial.

In papers filed Thursday in U.S. District Court, the officers’ counsel assailed the county’s pending motion to forestall the introduction of 121 alleged acts of discrimination or retaliation involving more than 150 department employees because the actions are “untethered” to, or do not directly involve, the officers who are suing.

The dueling filings mark the latest action in a lawsuit 13 current and former officers filed in December 2018 alleging the county police department has been “pervaded by race discrimination and retaliation,” including white officers who used racial slurs and abused their power with impunity while black and Hispanic officers who complained of the behavior were given punitive reviews or transferred.                  The county, represented by Venable LLP in Baltimore, has denied the allegations of discrimination and retaliation.

In its motion, the county stated that the officers should be permitted to introduce at trial just 20 untethered acts regarding their allegation of a pattern and practice of bias and retaliation.

“The 121 untethered acts bear no relation to the individual plaintiffs or to the treatment they purportedly endured, which treatment necessarily undergirds their discrimination and retaliation claims” against the department, wrote the county’s attorneys from Venable LLP in Baltimore. “The introduction of a voluminous amount of alleged prior acts that are unrelated to the individual plaintiffs’ experience creates a great danger of unfair prejudice, particularly where the overwhelming number of vague allegations prevents the county from discovering and investigating what actually happened.”

In opposing the motion, the officers’ counsel stated that evidence of widespread discrimination — including allegations that white officers were spared the discipline meted out against black and Hispanic officers for similar infractions – is relevant and tethered to the claim of pattern and practice discrimination, known in the law as a Monell claim.

“Faced with an array of racist and discriminatory conduct, the breakdown of any system to investigate and punish such acts, a widespread custom of using disciplinary process to further racial discrimination, and the systemic retaliation against officers who complained about such conduct, defendants’ motion represents nothing more than an attempt to avoid accountability for their misconduct,” stated the lawyers from the ACLU of Maryland, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and Arnold & Porter Kaye Scholer LLP in Washington.

“At root, defendants’ motion is both an implicit acknowledgment that there are simply too many acts evidencing their discriminatory policies, practices and customs, coupled to a meritless plea to set an arbitrary limit on the number that can be presented at trial,” the lawyers added.  “Courts trying discrimination claims routinely consider such evidence of a defendant’s conduct as to persons other than the named plaintiff integral to assessing whether there is an illegal policy, custom or practice.”

The officers’ written response to the department’s motion included a 94-page report by the plaintiffs’ policing policy expert that cited allegations of white county police officers facing no discipline for having used racially derogatory language or engaging in racially offensive behavior.

The report by Michael Graham, a former senior officer with the Los Angeles County Sheriff’s Office, also cited alleged instances of black and Hispanic officers being involuntarily transferred after complaining of the white officers’ conduct.

The officers’ response also included sworn statements from 10 current or former offices recounting alleged instances of discrimination or retaliation.

“Given the pandemic of police terror happening across the nation, the fact that black and brown officers also face retaliation by white leadership in a majority black county for raising concern about police misconduct against community members speaks to how deep and destructive white supremacy is within law enforcement,” Deborah Jeon, ACLU of Maryland’s legal director, said in a statement announcing Thursday’s filing.

U.S. District Judge Theodore D. Chuang, who sits in the federal courthouse in Greenbelt, has not stated when he will rule on the county’s motion.

The case is Hispanic National Law Enforcement Association NCR et al. v. Prince George’s County et al., No. 8:18-cv-03821.