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Plaintiffs challenging Baltimore police settlement gags claim violations of First Amendment

(Vladimir Cetinski /

(Vladimir Cetinski /

Plaintiffs in an ACLU of Maryland lawsuit challenging Baltimore’s practice of including non-disparagement clauses in police misconduct settlements responded to the city’s motion seeking dismissal of the suit Friday, accusing the defendants of systemically violating the First Amendment through their policies.

The lawsuit, filed by Ashley Overbey and the Baltimore Brew in U.S. District Court in June, alleges the city has a pattern of requiring the inclusion of so-called gag orders when settling police misconduct cases and claims the condition is an unconstitutional free speech violation. A similar case was also filed in state court against Salisbury and its police.

Overbey lost half of her settlement with police after she defended herself in comments on a blog post discussing the settlement; the Baltimore Brew alleges reporters cannot present a full and accurate picture of police encounters without being able to speak to victims.

The city government filed a motion to dismiss in July, alleging the plaintiffs’ claims “have no basis in law or public policy” and are essentially contract-based, not an allegation that a city statute, ordinance or regulation has limited their speech.

“Ms. Overbey’s decision to accept the terms and conditions of the Settlement Agreement was a deliberate choice that she made after considering the recommendations and advice of her counsel,” the motion states.

The city also argues the Baltimore Brew lacks standing to sue because it cannot allege injury because its reporting has not been chilled substantially and it is not entitled to access information all parties have agreed to keep from the public.

But the plaintiffs argue in response that “context matters in determining how the City’s conduct infringes on Plaintiffs’ First Amendment rights,” referencing the 2015 death of Freddie Gray after an injury sustained in police custody, “countless incidents of police brutality,” and the U.S. Department of Justice’s determination that complaints were discouraged or went uninvestigated.

The city is in a state of crisis because of the often fraught relationship between the police and minority communities, according to the plaintiffs, but the city’s filings “ignore the role of the gag order in the larger pattern and practice, intentional or not, of stifling public and press access in cases of police brutality.”

Baltimore has paid more than $33 million in police settlements and court judgments since 2009, according to the complaint. About 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.

The widespread practice has risen to the level of a pattern of shielding police misconduct from public view, according to the plaintiffs, and “muzzles victims of police brutality.”

Though Overbey expressly acknowledged she had read the settlement agreement and was willing to limit her right to speak publicly about her case, she says she did not understand how the city would then interpret that clause and her lawyer advised her it only extended to comments to the news media.

The city also argues the clause does not undermine public interest because it does not seek universal silence about police misconduct, just binds one person to its terms and only in reference to one set of events, and provides closure for the city.

The plaintiffs call the city’s expressed desire for the clause to provide closure “sanctimonious” because city officials spoke about Overbey’s case shortly after the settlement in a way that appeared to blame her for the alleged mistreatment she experienced.

The police department also seeks a dismissal of the case on the grounds that the settlement agreement was between the city and Overbey and it was not a party to the underlying lawsuit. The plaintiffs claim it is premature to dismiss the department because the bulk of the claims stem from the gag order policy that is attributable to them.

The case is Ashley Amaris Overbey et al. v. Mayor and City Council of Baltimore et al., 1:17-cv-01793-JFM.

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