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Judge upholds confidentiality clause in Baltimore police brutality cases

Steve Lash//November 30, 2017

Judge upholds confidentiality clause in Baltimore police brutality cases

By Steve Lash

//November 30, 2017

Baltimore’s practice of barring alleged victims in police brutality cases from disparaging officers as a condition of settlement agreements does not violate the accusers’ constitutional free-speech rights so long as they knowingly and voluntarily signed the accords, a federal judge ruled Thursday.

Similarly, U.S. District Judge Marvin J. Garbis ruled, the confidentiality clause in brutality settlements does not violate the free-press rights of news organizations seeking information on police wrongdoing because they are not “entitled” to what accusers’ might tell them if not bound by the agreements.

Garbis issued his rulings in dismissing First Amendment challenges Ashley Overbey and online news site Baltimore Brew brought against the city’s practice, which critics say buys the silence of those brutalized by the police. The judge noted Overbey was represented by counsel during her lawsuit and the resulting financial settlement.

“Constitutional rights, including First Amendment rights, may be waived in a contract under certain circumstances,” Garbis wrote in a memorandum opinion accompanying his dismissal order.

“She (Overbey) was advised by counsel to enter into the agreement, and did so, despite some initial hesitations,” Garbis added. “She was not coerced in any way to sign the agreement. Therefore, the court finds that her waiver was ‘knowing’ and ‘voluntarily given.’”

In addition, Baltimore Brew lacks standing to bring a claim because the press is not entitled to “’special access to information not available to the public generally,’” Garbis said, quoting from the Supreme Court’s 1972 decision in Branzburg v. Hayes.

Baltimore Brew “appears to be arguing that Overbey, as a party to the agreement, had the right to ignore confidentiality clauses if a member of the press asked for information covered by the clause,” he said.

“The Supreme Court’s jurisprudence precludes a finding that the press has unrestricted access to any information they seek,” the judge added. “Because Baltimore Brew was not entitled to the information at issue in the first place, it would not suffer a legally cognizable injury if Overbey agreed not to provide the information.”

But Baltimore Brew was not without means to gather information in the case, Garbis continued, noting Overbey’s civil complaint is a public record and she could have been interviewed before signing the agreement.

The American Civil Liberties Union of Maryland, which represents Overbey and Baltimore Brew, said they will appeal Garbis’ dismissal to the 4th U.S. Circuit Court of Appeals.

“The gag provision challenged in this lawsuit is part of a broader and by now well-documented pattern by the City of Baltimore of trying to close down avenues for the public to learn about abuses of the city’s residents by the Baltimore Police Department,” Deborah Jeon, the ACLU of Maryland’s legal director, said in a statement. “This strikes us a blatant snubbing of our clients’ First Amendment rights, and we are optimistic that the 4th Circuit will agree with us.”

Baltimore Mayor Catherine Pugh’s office did not return telephone and email messages seeking comment on the dismissal.

Overbey’s agreement stipulated she would forfeit half of her $63,000 settlement with city if she violated the confidentiality provision.

The city enforced that provision against the jobless and homeless mother of three by sending her a check for $31,500 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.

Overbey then sued the city, alleging a violation of 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 in October 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.

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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