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Attorney questions confidentiality clauses in Baltimore police brutality cases

U.S. court case concerns Baltimore police settlements

Baltimore’s practice of barring alleged victims in police brutality cases from disparaging officers as a condition of settlement agreements violates the accusers’ free-speech rights and the freedom-of-the-press rights of news organizations trying to report on police activities, a civil rights attorney told an outwardly skeptical federal judge Thursday.

“The ‘gag’ provision (in settlements) just shuts people up,” Daniel W. Wolff said. “That’s why we have a First Amendment. The government doesn’t get to shut people up.”

But U.S. District Judge Marvin J. Garbis said such “gag agreements” between governmental entities and individuals are common nationwide and “ample” legal precedent exists upholding their constitutionality when people sign the settlements voluntarily and knowing the rights they forfeit in return for the payment. Plaintiffs can forgo settling, speak freely and litigate their claims, the judge added as he considers whether to allow the lawsuit to proceed.

Wolff was pressing the case of Ashley Overbey, a jobless and homeless mother of three who lost half of a $63,000 settlement after she commented on a blog post about the alleged beating she received from three Baltimore police officers who responded to her report of a burglary in 2012. Wolff was also representing Baltimore Brew, an online site that claims it cannot report fully and accurately on police brutality without hearing from proven and alleged victims.

Countering Wolff, city attorneys Frederic N. Smalkin Jr. and Jason R. Folton said Overbey was represented by an attorney at settlement who presumably informed her she was surrendering her rights to speak about the alleged brutality and to litigate the case in signing the accord.

“There is no ‘gag order,’” Smalkin told Garbis. “It is a voluntary agreement.”

Smalkin said Overbey could have rejected the settlement, spoken her piece and taken the city to court.

“That is a significant bargaining chip” for individuals, Smalkin said of litigation. “She agreed to be bound.”

Wolff, however, questioned if those brutalized by police – so often in desperate financial and personal straits, like Overbey – ever sign a settlement voluntarily and knowingly.

Such indigent people have “seen hell,” said Wolff, of Crowell & Moring LLP in Washington. “They (the city) are waving tens of thousands of dollars in front of her and saying ‘sign here.’”

In such cases, the settlement negotiations are “entirely one sided” in favor of the city, Wolff said.

While contract law enables people to forfeit certain rights in return for compensation, public policy militates against the forfeiture of one’s right “to speak freely about injustices,” Wolff added.

The government does not have the right “to shut the Ashley Overbeys of the world up,” he said. “Settlements alone cannot override public policy.”

When victims cannot speak, Wolff added, media outlets like Baltimore Brew are stymied in their efforts to report on police brutality.

But Smalkin, the city attorney, called that argument ironic. Despite the settlement agreements, skilled investigative reporters can and do uncover official wrongdoing by interviewing witnesses, collecting documents through leaks and public information requests and speaking with alleged victims before they have signed the accords.

“The irony in this situation is that Baltimore Brew is asking us to do their job for them,” Smalkin said.

News organizations are “a day late and a dollar short” when they seek to invalidate valid settlements in which the alleged victims have agreed not to speak with the press, Smalkin added.

Reinstated case

Overbey’s agreement stipulated she would forfeit half of her $63,000 settlement with city if she violated the confidentiality provision. After she discussed the alleged brutality online, the city sent her attorney a check for $31,500, noting the violation in an accompanying letter.

Overbey then sued the city, alleging a violation her First Amendment right to free speech. Baltimore Brew joined, claiming a freedom-of-the-press violation.

U.S. District Judge J. Frederick Motz dismissed Overbey’s claim last month without having held a hearing. Motz ruled the settlement provision did not violate her First Amendment rights.

But Chief U.S. District Judge James K. Bredar reinstated the case and reassigned it to Garbis for a hearing on Overbey’s and Baltimore Brew’s constitutional claims.

Garbis did not say when he would rule on the preliminary motions.

The case is Ashley Amaris Overbey et al. v. Mayor and City Council of Baltimore et al., 17-1793-MJG.


Daily Record Legal Affairs Writer Heather Cobun contributed to this report.

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