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As council weighs ‘gag order’ ban, city asks for rehearing on ruling

Baltimore City Councilman Brandon Scott has proposed a charter amendment that would create the position of city administrator. (File Photo)

Baltimore City Council President Brandon M. Scott, with Councilwoman Shannon Sneed, has announced a bill to ban “gag orders” in police settlement agreements. (The Daily Record / File Photo)

The day after two Baltimore City Council members introduced a bill to ban “gag orders” in police settlement agreements, the city’s lawyer filed a petition to reverse an appellate opinion that found such orders unconstitutional.

Council President Brandon M. Scott and Councilwoman Shannon Sneed announced an ordinance Monday evening that would prohibit the use of provisions limiting what individuals can say after they settle a lawsuit with police and the city. The ordinance was introduced with 12 sponsors, including Scott and Sneed.

The legislation would codify a 4th U.S. Circuit Court of Appeals decision from earlier this month that found language the city included in nearly all settlement agreements violates the First Amendment and is void.

The appellate panel voted 2-1 to reverse a lower court decision tossing out the lawsuit and concluded that enforcement of the so-called gag order at issue “was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.”

On Tuesday, the city filed a petition for the full 4th Circuit to rehear the case, arguing the decision was “an extraordinary reconceptualization of the work done by the First Amendment.”

The language used in the settlement agreement challenged in the lawsuit required the plaintiff to limit her public comments to the fact that a settlement had been reached and prohibited her from discussing opinions, facts or allegations connected to her case with the news media.

The city has since changed the language it uses to limit comments to the facts alleged in pleadings and motions filed with the court, according to sample wording provided by the Baltimore City Law Department.

Scott praised the 4th Circuit decision in announcing the legislation and said the city and the Baltimore Police Department needed to allow for honest dialogue.

“Victims of police brutality have a constitutionally protected right to speak about their experiences,” he said in a prepared statement. “We have an obligation to own our mistakes and be accountable to Baltimore’s residents. Transparency at all levels is critical to that mission.”

The proposed legislation would prohibit settlement agreements with provisions that require claimants to waive their right to make statements about the city, any city agency, officials, facts of the claim or terms of the settlement. The Board of Estimates would also be prohibited from approving any settlement agreements containing such language and the Law Department could not enforce or threaten to enforce the provision in any previous lawsuits.

The draft ordinance also mandates record-keeping and reporting by the Law Department about civil actions filed against an agency or official for police misconduct as well as discrimination lawsuits.

The ordinance has been in the works since the fall, according to a news release from Scott’s office.

A spokesman for Mayor Bernard “Jack” Young did not respond to a request for comment Tuesday.

The ACLU of Maryland worked on the lawsuit and also assisted with drafting the legislation. Attorney David Rocah said the nondisparagement clauses were “indefensible” and lacked a legitimate government interest.

“It’s an attempt to silence the victims of misconduct,” he said. “It’s an attempt to give the city license to police the speech of people complaining about government misconduct.”

Though the city argued in the lawsuit that it had an interest in the finality of litigation and in preventing claimants from defaming city employees, Rocah said he does not expect the city to offer less money to settle future cases if the ordinance passes.

“This theory that they were somehow offering people more to silence them, I think, has always been a fantasy,” he said. “I think they were simply seeking to coerce silence by taking advantage of people.”

City Solicitor Andre M. Davis declined to comment on the petition or the proposed ordinance Tuesday.

4th Circuit

The petition to the 4th Circuit argues the majority opinion “infantilized less wealthy litigants even where they are represented by counsel of their own choosing” and made it impossible for local governments to protect themselves from “defamatory utterances” by plaintiffs whose cases never went before a jury.

“This Court should not blink at the immeasurable damage this precedential opinion will inflict on the governments and individuals in this Circuit,” according to the filing.

The majority opinion, written by Judge Henry F. Floyd and joined by Judge Stephanie D. Thacker, found that citizens can choose to waive their First Amendment rights in a contract with the government but that such contracts are not enforceable when public policy outweighs the government’s interests.

Prohibiting the plaintiff in the case, Ashley Overbey Underwood, from speaking about her experience with alleged police misconduct and the settlement process “was contrary to the public’s well-established First Amendment interest in ‘uninhibited, robust, and wide-open’ debate on ‘public issues,’” Floyd wrote.

By making Underwood’s silence about her claims a condition of settlement and being the sole arbiter of whether she violated that condition, the city “has used its power in an effort to curb speech that is not to its liking,” he continued.

In dissent, Judge A. Marvin Quattlebaum Jr. said the majority undermined the right of parties to rely on a contract they enter knowingly and voluntarily.

The case is Ashley Overbey v. Mayor and City Council of Baltimore, 17-2444.

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