Citizens who have settled cases with Baltimore over alleged police misconduct are free to speak about their experiences regardless of any clause in their settlement agreement that restricts their speech, the city’s attorney said Wednesday.
Baltimore City Solicitor Andre M. Davis said the city is no longer using any kind of nondisparagement or gag provisions in police settlements and will not enforce the language in any past contracts.
Davis would not say when his office’s policy changed — he confirmed as recently as September that a nondisparagement clause was still being used — or why. He said he changed the language “recently” after discussions within the city’s Law Department.
David Rocah, senior staff attorney at the ACLU of Maryland, called Davis’ statements “a start” after months of debate.
“If the city’s position is now that they will not limit what people can say, that’s all we ever sought to achieve,” Rocah said. “If that’s what they’re doing, good, but that needs to be clearly articulated and all the people who have previous agreements need to know they are now free and clear.”
Under Davis, police settlement agreements had included a provision requiring plaintiffs to “strictly limit their public comments … to the facts alleged in the pleadings and motions filed with the court.”
A $45,000 settlement reached in November and approved by the Board of Estimates on Wednesday had the two-page-long nondisparagement clause blacked out and Davis said future agreements will not include the language at all.
Complying with the law
The Law Department’s use of contract language limiting public statements, which used to be standard in all police misconduct settlements, has drawn increased scrutiny in recent years.
A broad clause in use before Davis’ tenure prohibiting plaintiffs from discussing their cases at all except to confirm that a settlement had been reached was invalidated by the 4th U.S. Circuit Court of Appeals earlier this year. The ACLU of Maryland filed suit in 2017 when a woman lost half of her settlement after writing about her case in the comments section of a news story.
The 4th Circuit majority concluded that “enforcement of the nondisparagement clause at issue here 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.”
The 4th Circuit case did not address the nondisparagement language in use for approximately two years under Davis.
Following the ruling, Baltimore City Council member Shannon Sneed and Council President Brandon Scott introduced a bill that prohibits nondisparagement agreements in police misconduct and discrimination cases.
The law went into effect Dec. 2 after Mayor Bernard C. “Jack” Young decided not to sign it. Andre Davis has been a vocal opponent of the bill, which he said “impinges” on the Law Department’s power to negotiate legal settlements, a power given to the solicitor in the city charter. On Wednesday, Davis said his opinion on the law had not changed even though city policy regarding nondisparagement agreements had changed.
Last week, the mayor’s spokesperson, Lester Davis, said Young will not enforce the law because it’s “illegal” and “violates the city charter.”
“The mayor wants nothing more than to enforce the laws passed by the City Council; they just need to pass legal laws and every single one of them will be enforced,” the mayor’s spokesperson said.
David Jaros, a professor at the University of Baltimore School of Law, said the city solicitor’s latest stance clouds the picture of what police misconduct victims can bargain for since they cannot be sure the city will enforce its new ordinance prohibiting nondisparagement agreements.
“Rather than solve this for all future litigants, they’ve created more uncertainty and complicated the relationship between the attorneys and the people they represent,” Jaros said.
Jaros added that Andre Davis’ refusal to enforce the City Council’s law could “protect” future administrations and law departments if they choose to include nondisparagement agreements again.
“The concern is while this may be a more enlightened mayor and solicitor, the position they’re taking – despite 4th Circuit precedent – means that subsequent solicitors and mayors may take a different position,” Jaros said.
Rocah said the city needs to make its position very clear and potentially put something in writing to give to past plaintiffs who signed settlement agreements.
“We’re very happy that the city seems to have ceased seeking to limit what victims of police misconduct say about their experiences and will be obeying the First Amendment and the City Council’s legislation, however they frame their motives for doing so,” he said. “But we have to also acknowledge that the city has sown a vast amount of confusion about their policies, practices and plans. … As a result of all that, there remains tremendous understandable public confusion about what the city is doing and people remain fearful of speaking freely, so there is a tremendous need for the city to clearly articulate, regardless of notice, what they will be doing.”
Tawanda Jones, an advocate whose brother Tyrone West was killed by officers from the Morgan State Police Department and the Baltimore Police Department, said she was encouraged by Andre Davis’ statements but is not entirely sure the city will keep its word. Jones refused to sign a settlement agreement that involved a gag provision after West’s death and organizes events to raise awareness of police misconduct.
Jones said if someone who previously settled with the city wanted to speak at one of her events, she would tell them “to do it with caution.”
“I wouldn’t want anyone to be put in a circumstance and I’d be held accountable for telling them, ‘Go for it,’” she said. “I just want to see that (the city) absolutely (stands) true to their word.”
Attorney Nathaniel K. Risch, who settled a case with the city over the summer, said his client’s settlement agreement contains the nondisparagement clause. Michael Johansen, who was shot by police in 2014 while he was unarmed and fleeing, received $40,000, approved by the Board of Estimates in October. Risch practices with the Law Offices of Mann & Risch LLC in Towson.
Risch initially said he believed the clause was still enforceable, but he said he is “more confident” relying on Andre Davis’ statements and the latest settlement agreement that removed the nondisparagement clause.
“The City Council’s bill prohibiting the city from using the nondisparagement language in settlement agreements is the law,” Risch said in a statement. “Even if the mayor does not want to enforce it, the city is now taking steps to conform to the requirements of the law.”
Baltimore attorney A. Dwight Pettit, who has handled multiple high-profile police misconduct cases in recent years, said he would use the 4th Circuit ruling to invalidate any future nondisparagement agreements the city tries to put into a police settlement.
“I don’t see the city having a leg to stand on exacting any punishment if there was a violation of the agreement,” said Pettit, of the Law Office of A. Dwight Pettit P.A. in Baltimore. “If it became an issue, I would rely on what was a very distinct ruling by the 4th Circuit on the First Amendment. The city can’t run around telling its side of the story without letting the victims do the same.”