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ACLU of Md. files suits challenging confidentiality clauses in police settlements

1.12.2017 BALTIMORE, MD- Mayor Catherine E. Pugh joined by U.S. Attorney General Loretta E. Lynch to announce agreement on the Department of Justice Consent Decree concerning practices by the Baltimore Police Department. (The Daily Record/Maximilian Franz)

(The Daily Record/Maximilian Franz)

The practices of prohibiting plaintiffs in police misconduct lawsuits from speaking critically of police as a condition of receiving settlements and otherwise shielding records of the agreements are being challenged in two lawsuits. The cases, announced Thursday by the ACLU of Maryland, challenge policies in Baltimore city and Salisbury.

“This is a coordinated effort to take on gag orders that have silenced numerous victims,” said Susan Goering, the ACLU of Maryland’s executive director.

Baltimore has a pattern of requiring the inclusion of so-called gag orders when settling police misconduct cases, according to ACLU of Maryland Legal Director Deborah A. Jeon, a condition the lawsuit alleges is an unconstitutional free speech violation.

“Free speech and police accountability to the communities they serve are both under attack when police departments block transparency and gag orders are used to silence victims of misconduct as a condition of the settlement,” Jeon said in a prepared statement.

The Baltimore lawsuit was filed in U.S. District Court on behalf of Ashley Overbey, who lost half of her settlement with police after she defended herself in comments on a blog post discussing the settlement, and the Baltimore Brew, which alleges reporters cannot present a full and accurate picture of police encounters without being able to speak to victims.

Overbey’s agreement stipulated she would forfeit half of her $63,000 settlement from the city if she violated the confidentiality clause. She believed both she and the city were bound and that she was only prohibited from speaking to the media. When the city sent a check to Overbey’s attorney, it was for half of her settlement amount; an accompanying letter stated the remainder was being withheld because of her online comments.

“The only apparent purpose of the gag order was to keep Ms. Overbey from speaking any further about her abuse at the hands of the Police Department so that the City might keep the public ignorant of the misconduct of its police officers,” the lawsuit alleges.

Baltimore attorney A. Dwight Pettit, who has settled many lawsuits against Baltimore police, said he remembers thinking at the time that Overbey was “perfectly within her rights” to respond to comments. Pettit was not involved in Overbey’s case.

“I’m glad she took the action,” he said of Thursday’s lawsuit.

J. Wyndal Gordon, another Baltimore lawyer who files lawsuits against the police, agreed.

“She’s one of my heroes for the First Amendment,” said Gordon, who also was not involved in Overbey’s case.

95 percent

Baltimore has paid more than $33 million in police settlements and court judgments since 2009, according to the ACLU of Maryland complaint, and approximately 95 percent of the settlements include language prohibiting the plaintiff from speak about the details of the incident other than to indicate a satisfactory settlement has been reached.

Gordon said the facts of a settled case included in the agenda of the city’s Board of Estimates, which must approve settlements of more than $25,000, are drafted by the City Law Department.

“One of the most shocking things about (the confidentiality requirement) is as soon as you sign that agreement and your claim goes before the Board of Estimates, they come out with their version of the facts that you don’t even get to challenge,” he said, noting that he was being cautious in his comments Thursday to avoid violating clauses in settlement agreements he is party to.

Pettit said his clients often balk at the confidentiality clauses involved in their settlement agreements.

“That becomes just as much an issue as the amount of money that’s in the settlement,” he said.

Though he has never had a client’s settlement threatened, Pettit said he advises them that any criticism of the police jeopardizes the money that has been paid out. But he also offers to represent them on First Amendment grounds if they have problems with the city later.

Gordon said he hopes the lawsuit helps reform efforts by encouraging transparency.

“I think that in order for the police department to better serve the community, the community needs to have better information about what’s going wrong so that these things can be corrected, and the gag orders substantially hinder information from getting out to the public,” he said.

Press and public information

Writers for the online Baltimore Brew, another plaintiff in the case, has been reporting about police lawsuits and settlements since 2011 and frequently attempted to question city officials, police and plaintiffs involved in the lawsuits but we largely unsuccessful with police citing the personnel record exception to the Maryland Public Information Act and plaintiffs citing the confidentiality clause in their settlement agreement.

“The City’s policies have severely limited Baltimore Brew’s ability to fully and accurately report on the issue of police brutality and abuse of power in Baltimore,” the lawsuit states.

The lawsuit alleges the city unlawfully penalized Overbey’s protected free speech and that gag orders impinge on the freedom of the press. The complaint also contends contracts involving gag orders “are invalid to the extent they are patently offensive to the public good” and violate public policy.

The Salisbury case was filed in Baltimore City Circuit Court on behalf of the Real News Network, which filed a Maryland Public Information Act request seeking documents about a settlement the Eastern Shore city reached with four Salisbury University students who filed an excessive force lawsuit.

The city claimed neither it nor the Salisbury Police Department had any documentation about the settlement. The plaintiffs in the case cannot speak due to a confidentiality clause.

Jeon, of the ACLU of Maryland said there is no allegation of a pattern of confidentiality clauses in Salisbury but one might eventually emerge.

Washington law firm Crowell & Moring LLP also is representing the plaintiffs pro bono in the cases.

Ashley Amaris Overbey et al. v. Mayor and City Council of Baltimore et al., 1:17-cv-01793-JFM, and American Civil Liberties Union Foundation of Maryland et al. v. City of Salisbury et al.

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