It turns out the story of Yakov Shapiro’s mistaken arrest was public all along. You just had to know where to look.
And until this month, Baltimore City Solicitor George A. Nilson was not interested in playing guide through the thicket of nearly 600 cases filed against the city police department in state and federal court.
When the settlement went to the city’s Board of Estimates for approval in March, it didn’t give the parties’ names, the amount of the settlement (later revealed as $200,000) or anything but the vaguest description of what happened.
Instead, the city’s spending panel was asked to approve a confidential settlement in “Unnamed Individual vs. Baltimore Police Department,” to resolve a claim for “significant damage … to professional career and reputation with a loss of clientele.”
|Watch video of Kupferberg discussing the case
On March 10, the five-member board approved the settlement unanimously. The Daily Record’s request under the Maryland Public Information Act was filed on March 12, but denied. The mayor’s office and City Solicitor George A. Nilson said the plaintiff insisted on confidentiality.
The Daily Record wrote about its attempts to learn more about the settlement in July and retained counsel to bring an MPIA suit.
After negotiations with The Daily Record’s attorneys and its executive editor, Nilson agreed to name the plaintiff’s lawyer: Steven Kupferberg, of Rockville.
Among other things, Kupferberg said it was the city’s lawyers who insisted on confidentiality.
“They wouldn’t settle it unless there was a gag order,” he said. “I told them generally I was opposed to those types of things.”
The confidentiality language is actually buried within another settlement provision, known as a non-disparagement clause. The clause bars either party from defaming and or disparaging each other and from making any public communications about the incident or the settlement except those “required by law.”
“It was never ever our position to have this confidential — never,” Kuperberg said. “We just acquiesced.”
Kupferberg said he made this clear to the police department lawyer who handled the case, Neal M. Janey Jr., in both a February letter, before the settlement was consummated, and another e-mail after the first press reports about the settlement.
Janey did not return three calls for comment in the past two weeks. But Nilson, in an interview for this article, said he stood by Janey’s account.
“It’s a he-said, she-said situation,” Nilson said.
Nilson also said he was “surprised” when he heard of Kupferberg’s willingness to publicly discuss the case.
“It was when I heard for the first time … that the plaintiff’s lawyer now says he didn’t really want confidentiality and perhaps would still be of that view, that I took the initiative and said, ‘OK, if the plaintiff’s lawyer wants to put all this out and take that on … then that’s an appropriate resolution of this,’” Nilson said last week.
Kupferberg said the non-disparagement clause was “pretty well intact until Nov. 22, 2010,” when Nilson agreed that Kupferberg would be allowed to discuss anything that was submitted in court and answer a reporter’s questions truthfully.
Kupferberg said he proposed doing away with the non-disparagement clause entirely, but Nilson said that would require going back to the Board of Estimates.
“I don’t understand why not, but that’s his ballgame, not mine,” Kupferberg said.
Former Maryland Attorney General Stephen H. Sachs, who questioned Nilson’s legal basis for keeping the details of the case confidential in an interview last June, called the saga a “hell of a story” — evocative, he said, of both “Car 54, Where Are You?” and also “Fiddler on the Roof” — but seemed puzzled by the conflict over the origin of the confidentiality requirement.
On the one hand, the plaintiff might have felt he had to file a lawsuit as a public document and a way of proclaiming his innocence, but also might have wanted everything kept quiet to avoid further bad publicity.
“I can understand a sort of double-think on the part of the plaintiff,” Sachs said.
The city’s motive?
“It was the embarrassment to the officer who screwed up, I guess,” he said.
Sachs said Nilson, his former deputy at the attorney general’s office, “would not invent that it was somebody else’s request.”
“I wouldn’t be surprised if he did believe, erroneously perhaps … that the request was from the victim,” Sachs said.
Regardless, “the public has a right to know the facts. End of story,” Sachs said.
Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press, said The Daily Record should “absolutely not” have had to lawyer-up to learn and tell the story of Yakov Shapiro’s arrest. She said the expungement of his criminal case should not have affected discussion of the civil suit Shapiro initiated in U.S. District Court.
“They can’t do that,” Dalglish said. “City pays money, city checkbook public.”
Several of the city’s leaders continue to dispute that.
Comptroller Joan Pratt and a spokesman for Council President Bernard C. “Jack” Young each said they stand by the decision to keep the settlement confidential. A spokesman for the mayor did not return calls for comment this week, and former Public Works Director David E. Scott, who resigned in July, is no longer on the Board of Estimates.
As for the fifth member, Nilson said that while the Shapiro case is unique in his tenure, he would not promise a blanket confidentiality provision wouldn’t happen again.
“It may be that the next time a settlement comes along where the same idea is floated … maybe we’ll handle it differently, but I haven’t formulated a set of new and different policies and I won’t know until we get there,” he said.