Hispanic Nat'l Law Enforcement Ass'n NCR v. Prince George's Cnty.
| Decision Date | 21 April 2021 |
| Docket Number | Civil Action No. TDC-18-3821 |
| Citation | 535 F.Supp.3d 393 |
| Parties | HISPANIC NATIONAL LAW ENFORCEMENT ASSOCIATION NCR, United Black Police Officers Association, Michael Anis, Michael Brown, Thomas Boone, Paul Mack, Joseph Perez, Tasha Oatis, Clarence Rucker, Chris Smith, Richard Torres, Sonya L. Zollicoffer, Patrick McClam, Sharon Chambers and Adrian Crudup, Plaintiffs, v. PRINCE GEORGE'S COUNTY, Henry P. Stawinski, III, individually, Mark A. Magaw, individually, Christopher Murtha, individually, and Major Kathleen Mills, individually, Defendants. |
| Court | U.S. District Court — District of Maryland |
Adam Michael Pergament, Pro Hac Vice, Danait Mengist, Pro Hac Vice, James W. Feeney, III, Pro Hac Vice, John Arak Freedman, Mei Wah Lee, Pro Hac Vice, Michael Modesto Gale, Pro Hac Vice, Peter T. Grossi, Jr., Pro Hac Vice, Preston Smith, Arnold and Porter Kaye Scholer LLP, Joanna Karolina Wasik, Dennis A. Corkery, Tristin Brown, Washington Lawyers Committee for Civil Rights and Urban Aff., Washington, DC, Deborah A. Jeon, American Civil Liberties Union of Maryland Foundation, Baltimore, MD, Kaitlin Robinson, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, San Francisco, CA, for Plaintiffs Hispanic National Law Enforcement Association NCR, United Black Police Officers Association, Michael Anis, Michael Brown, Thomas Boone, Paul Mack, Joseph Perez, Tasha Oatis, Chris Smith, Richard Torres, Sonya Zollicoffer.
Adam Michael Pergament, Pro Hac Vice, Danait Mengist, Pro Hac Vice, James W. Feeney, III, Pro Hac Vice, John Arak Freedman, Mei Wah Lee, Pro Hac Vice, Michael Modesto Gale, Pro Hac Vice, Peter T. Grossi, Jr., Pro Hac Vice, Preston Smith, Arnold and Porter Kaye Scholer LLP, Dennis A. Corkery, Joanna Karolina Wasik, Washington Lawyers Committee for Civil Rights and Urban Aff., Washington, DC, Deborah A. Jeon, American Civil Liberties Union of Maryland Foundation, Baltimore, MD, Kaitlin Robinson, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, San Francisco, CA, for Plaintiff Clarence Rucker.
James W. Feeney, III, Pro Hac Vice, John Arak Freedman, Michael Modesto Gale, Pro Hac Vice, Peter T. Grossi, Jr., Pro Hac Vice, Preston Smith, Arnold & Porter Kaye Scholer LLP, Joanna Karolina Wasik, Tristin Brown, Washington Lawyers Committee for Civil Rights and Urban Aff., Washington, DC, Kaitlin Robinson, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, San Francisco, CA, for Plaintiff Patrick McClam.
Danait Mengist, Pro Hac Vice, James W. Feeney, III, Pro Hac Vice, John Arak Freedman, Michael Modesto Gale, Pro Hac Vice, Peter T. Grossi, Jr., Pro Hac Vice, Preston Smith, Arnold & Porter Kaye Scholer LLP, Joanna Karolina Wasik, Tristin Brown, Washington Lawyers Committee for Civil Rights and Urban Aff., Washington, DC, Kaitlin Robinson, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, San Francisco, CA, for Plaintiffs Sharon Chambers, Adrian Crudup.
Craig A. Thompson, Christine Ellen White, Todd James Horn, William Bollinger King, Venable LLP, Baltimore, MD, Andrew J. Murray, Prince George's County Office of Law, Largo, MD, Christine C. Carey, Kurt J. Fischer, Matthew Ryan Alsip, Venable LLP, Towson, MD, Courtney A. Sullivan, Pro Hac Vice, Karel Mazanec, Robert G. Ames, Robin Lynn Stevenson Burroughs, Vincent E. Verrocchio, Venable LLP, Lauren Stocks-Smith, Washington, DC, Doreen Martin, Pro Hac Vice, Venable LLP, New York, NY, for Defendants Prince George's County, Henry P. Stawinski, III, Mark A. Magaw, Major Kathleen Mills.
THEODORE D. CHUANG, United States District Judge Plaintiffs Hispanic National Law Enforcement Association NCR ("HNLEA") and United Black Police Officers Association ("UBPOA") (collectively, "the Organizational Plaintiffs"), along with 13 of their members ("the Individual Plaintiffs") who are or were employed by the Prince George's County Police Department ("PGCPD"), have brought this civil rights action against Prince George's County, Maryland ("the County") and four PGCPD officials in their individual capacities, alleging discrimination and retaliation against Black and Hispanic officers perpetrated pursuant to County customs and practices of discrimination and retaliation. Plaintiffs have filed a Motion for a Preliminary Injunction seeking to enjoin further administration of PGCPD promotion tests until the PGCPD can replace the existing promotion system with one that reduces or eliminates its discriminatory effect and complies with United States Equal Employment Opportunity Commission ("EEOC") and professional standards. Also pending before the Court is Defendants' Motion to Strike All or Portions of Plaintiffs' Declarations filed in support of the Motion for a Preliminary Injunction. The Court held a hearing on the Motion for a Preliminary Injunction on March 26, 2021. For the reasons set forth below, Defendants' Motion to Strike will be DENIED, and Plaintiffs' Motion for a Preliminary Injunction will be GRANTED IN PART and DENIED IN PART.
The claims in this case and relevant background information are described in the Court's previous opinions on Defendants' Motion to Dismiss, Hisp. Nat'l Law Enf't Ass'n NCR v. Prince George's Cty. ("HNLEA I "), No. TDC-18-3821, 2019 WL 2929025, at *1-2 (D. Md. July 8, 2019), and Defendants' Motion for Partial Dismissal of Plaintiffs' Amended Complaint, Hisp. Nat'l Law Enf't Ass'n NCR v. Prince George's Cty. , No. TDC-18-3821, 2020 WL 903205, at *1-2 (D. Md. Feb. 25, 2020), both of which are incorporated herein by reference.
Prince George's County, Maryland, located adjacent to Washington, D.C., has an estimated population of over 909,000 that is 64 percent Black, 12 percent non-Hispanic white ("white"), 20 percent Hispanic, and 4 percent Asian American. Within PGCPD, as of July 2020, 43 percent of officers are white, 43 percent are Black, 11 percent are Hispanic, 4 percent are Asian American or Pacific Islander, and 0.1 percent are Native American. It is undisputed that white officers are disproportionately represented in the higher ranks of PGCPD, with the percentage of white officers within a rank generally increasing with each higher rank. As set forth below in Table 1, addressing the demographic groups at issue in this case, as of July 2020, 51 percent of Sergeants, 61 percent of Lieutenants, and 81 percent of Captains were white, while only 41 percent of Sergeants, 27 percent of Lieutenants, and 19 percent of Captains were Black, and only 5 percent of Sergeants and 5 percent of Lieutenants were Hispanic. PGCPD does not currently have any Hispanic Captains. At the lower ranks of Police Officer, Police Officer First Class ("POFC"), and Corporal, Black and Hispanic officers are represented in percentages comparable to, or greater than, their overall numbers in the PGCPD. Notably, these disparities have remained in place over time, and in the case of Captains the disparity has even increased, with the percentage of white Captains rising from 77 percent to 81 percent from 2015 to 2020.
| Rank | 2015 | 2020 | ||||
| White | Black | Hispanic | White | Black | Hispanic | |
| Captain | 76.7% | 16.7% | 3.3% | 80.7% | 19.4% | 0.0% |
| Lieutenant | 61.2% | 34.1% | 3.5% | 60.9% | 27.2% | 5.4% |
| Sergeant | 53.1% | 39.1% | 4.7% | 51.2% | 41.4% | 5.4% |
| Corporal | 43.1% | 44.4% | 8.6% | 39.5% | 44.5% | 11.1% |
| POFC | 40.3% | 49.1% | 7.9% | 40.2% | 47.9% | 9.5% |
| Police Officer | 42.5% | 40.4% | 11.5% | 31.2% | 46.5% | 19.1% |
| Overall Force | 45.5% | 42.2% | 8.4% | 42.5% | 43.0% | 10.5% |
Related but different data shows that as of 2017, 27 percent of white PGCPD officers were in the top five ranks (Chief, Major, Captain, Lieutenant, and Sergeant), while only 17 percent of Black officers and 14 percent of Hispanic officers were among those ranks. By 2019, these disparities had grown, with 31 percent of all white officers in the top five ranks, but only 18 percent of Black officers and 12 percent of Hispanic officers in the top five ranks. Analysis conducted by-Marc Simon, a certified public accountant retained by Plaintiffs as an expert witness, revealed that these differences are statistically significant, in this instance meaning that there is a less than .01 percent probability that they are due to chance. Thus, available data establishes that at least from 2015 to the present, there have been substantial disparities between the number of white officers in leadership ranks at PGCPD and the number of Black and Hispanic officers in those same ranks.
Based on current PGCPD policy, promotions from Police Officer to POFC, and then from POFC to Corporal, are based on a written test consisting of 50 multiple-choice questions, administered twice a year, on which a passing score is 70 percent. An officer's test score is the sole factor in promotions to POFC or Corporal. Moreover, a promotion to POFC or Corporal is a "non-competitive" promotion in that there is no limit to the number of such promotions that may be granted in any promotion cycle. J.R. 493. Accordingly, any officer who receives a 70 percent score or higher on the test generally will be promoted.
Under PGCPD policy, candidates for promotion to Sergeant, Lieutenant, and Captain must first take a written test given once every two years that consists of 100 multiple-choice questions. Candidates must obtain a score of 70 percent or higher to move to the second part of the promotion process, a scored "skills assessment" in which candidates must engage in certain simulated exercises during which they produce written or video-recorded products evaluated by designated assessors. J.R. 495. The scores from both components are then combined with predetermined weights assigned to each part to form an overall score. Scores of the candidates who completed both assessments are then rank-ordered on an eligibility list, and individuals are promoted from the top of the list to fill open positions at the higher rank across the PGCPD. Because promotions to Sergeant, Lieutenant, and Captain...
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...it whatever weight is appropriate under the circumstances. See Hispanic Nat'l Law Enforcement Assoc. NCR v. Prince George's Cnty, 535 F.Supp.3d 393, 409-10 (D. Md. 2021) (denying a motion to strike allegedly inadmissible declarations in support of a preliminary injunction motion); Stone v. ......