Black Police to Seek Class Action Lawsuit

Posted March 2, 2010 at 6:45pm

About 300 black police officers are hoping to file a class action lawsuit against the Capitol Police, more than eight years after they originally filed individual discrimination lawsuits against the department.

But their plight seems full of obstacles. Calls to Congressional leadership to intervene have gone mostly unheeded, and the Capitol Police’s attorneys argue that 250 of the officers are not actually represented by the firm that filed their cases.

The cases have been dragging on since 2001, when former Capitol Police Lt. Sharon Blackmon-Malloy initiated the lawsuit in her capacity as president of the U.S. Capitol Black Police Association. Blackmon-Malloy’s claim — along with that of the other officers — is that the department has a long history of discriminating against black officers, with superiors creating a hostile working environment and denying promotions to qualified black officers.

Since then, the cases were dismissed in the U.S. District Court for the District of Columbia, only to recently win an appeal in a federal appeals court.

Now the case is back at square one in the district court, where Judge Emmet Sullivan on Friday will hold its first status hearing. Joe Gebhardt, one of the officers’ attorneys, has refiled the complaints and the motion for a class action clarification — but he’s also approached Members of Congress with appeals to force a settlement.

Sen. Arlen Specter (D-Pa.) is so far the only Member to respond. In a recent letter to both parties, he suggests mediation as a way “to bring closure to this long running lawsuit.”

“The long and short is that the plaintiffs brought the dispute to Sen. Specter’s attention in his capacity as chairman of the Crime and Drugs Judiciary Subcommittee,” a Specter spokeswoman said. “Sen. Specter then urged both parties, through their counsel, to resolve the dispute with mediation as this could free both parties from remaining bogged down in what has become a costly and lengthy lawsuit.”

So far, however, the U.S. Attorney’s Office — which is representing the Capitol Police — has declined to take the case to the settlement table. Instead, attorneys are hoping to convince the court that the cases of 250 officers were dismissed back in 2007 and never went through the appeals process.

In a recently filed motion to strike, the department’s attorneys argue that the firm Gebhardt & Associates and attorney Nathaniel D. Johnson “do not appear to have an extant attorney-client relationship.” In short: Since each officer did not submit an individual appeal to the U.S. Court of Appeals, they should not benefit from the overturning of the lower court’s dismissal.

“As an initial matter, no attorney should be pursuing claims on behalf of individuals that he or she does not represent. Such conduct is patently inappropriate by the attorney,” the motion states. “Filing or pursuing claims on behalf of individuals that an attorney does not represent also needlessly burdens the Court and the other parties with litigation that is being pursued by and for counsel alone rather than on behalf of a client.”

But Gebhardt claims that Blackmon-Malloy has always been the lead plaintiff and thus has the authority to secure representation for the rest of the affected officers.

Though Capitol Police officials won’t comment on ongoing litigation, they have taken steps to increase diversity in recent years by retooling their administrative arm. Earlier this year, they hired a diversity officer in response to a report that discovered that the same office that represents the department in Equal Employment Opportunity complaints was determining the “legal sufficiency” of those same complaints.

Gebhardt predicted that it would be a “long road ahead” to a resolution.

“We had been hoping that the Democratic Congressional leaders and Attorney General Eric Holder would have stepped in and asked for a settlement,” he said Tuesday. “The black officers are deeply disappointed.”