Attorneys for the city of Salisbury will argue Thursday for dismissal of an ACLU of Maryland lawsuit alleging violations of the Maryland Public Information Act for withholding documents related to a police settlement.
The ACLU and the Real News Network claim the city failed to disclose information about the resolution of excessive force lawsuits brought by four Salisbury University students, which was settled in 2016.
A Baltimore judge denied a motion to dismiss the case, filed in Baltimore City Circuit Court last year, but granted a motion to transfer it to Wicomico County.
The complaint argues the city violated the MPIA by failing to disclose public records when the plaintiffs filed a request seeking the settlement agreement and other associated documents discussing the settlement, and the city’s public information officer responded there were no responsive documents.
The defendant’s motion to dismiss reiterates there are no records to produce, citing affidavits of city officials, including Mayor Jake Day. The city administrator at the time was briefed verbally the lawsuit was settled, and the case was handled by outside counsel because the city is not self-insured. If records existed, they also would be privileged, according to the motion to dismiss.
The motion also states a “fundamental defect” of the litigation is the fact the students were not included in the MPIA lawsuit because they signed the contract which ensured confidentiality, meaning their rights would be impacted.
The Baltimore judge previously denied a motion to dismiss made on similar grounds, which the plaintiffs pointed out in their response.
“Defendants now regurgitate the same failed arguments while also maintaining that because they do not personally have physical possession of documents responsive to Plaintiffs’ request, but have left those documents in possession of their counsel, the City has no obligation to produce any documents or provide specific reasons why responsive documents are exempt from production,” the filing states.
Attorneys from Crowell & Moring LLP in Washington, D.C. represent the plaintiffs in both matters. E. I. “Skip” Cornbrooks IV of Karpinski, Colaresi & Karp P.A. in Baltimore represents the city.
The case is American Civil Liberties Union Foundation of Maryland et al. vs. City of Salisbury et al., C-22-CV-17-000440.
A second lawsuit, announced at the same time as the Salisbury case but filed in U.S. District Court in Baltimore, challenged the use of confidentiality clauses in Baltimore police settlements. It was dismissed last fall but the plaintiffs appealed and filed their opening brief with the 4th U.S. Circuit Court of Appeals on Monday.
In the underlying case, Ashley Overbey signed an agreement stipulating she would forfeit half of her settlement with the city if she violated a confidentiality provision, which the city invoked after she commented on a blog post about the incident. Overbey sued and was joined by The Baltimore Brew, which alleged its right to report on Overbey’s settlement and others was infringed.
U.S. District Judge Marvin J. Garbis upheld the non-disparagement clauses, which the plaintiffs called “gag orders,” finding they do not violate the free speech rights of the settling plaintiff or the rights of media outlets seeking to report on police brutality. He also ruled the Baltimore Brew lacked standing because it was not entitled to special access to information and was not a party to the agreement.
Garbis also ruled Overbey waived her First Amendment rights by signing a contract while advised by counsel.
On appeal, the plaintiffs ask the 4th Circuit to find Baltimore’s non-disparagement policy violates the First Amendment by restricting public discourse through “economic coercion.”
“Insulation from public opinion subverts the purpose of the form of government so critical to this nation’s founding and identity,” the brief states. “Under no set of circumstances may government lawfully silence into perpetuity victims of police misconduct through non-disparagement clauses and general gag provisions in settling civil rights lawsuits.”
The plaintiffs also note the subject matter is newsworthy and what led to the U.S. Department of Justice launching an investigation that found patterns and practices of constitutional violations.
“What victims of police brutality have to say about the City’s police department is important,” the brief states. “Difficult and messy? Yes. Embarrassing to the City? Possibly. But they are important in a big way.”
The city’s response is due June 19.
The appellate case is Ashley Amaris Overbey et al. v. Mayor and City Council of Baltimore et al., 17-2444.