Despite public assurances that the city will no longer impose or enforce clauses restricting speech in police misconduct settlement agreements, Baltimore is arguing that it should not have to pay the woman whose federal lawsuit prompted the policy change.
Ashley Overbey Underwood, who received only half of her $63,000 settlement in 2014 under the nondisparagement provision she later successfully challenged in court, is still seeking the rest of her money.
At a Jan. 1 public demonstration, Deputy City Solicitor Dana P. Moore said nondisparagement and gag provisions “will not come back.” City Solicitor Andre Davis confirmed in December that the clause used since 2017 — a clause that was less restrictive than the one in Underwood’s agreement but that still limited plaintiffs’ speech — would no longer be enforced.
After Underwood defended herself — and discussed the settlement — in an online comments section, the city sent her attorney a check for half of the settlement amount, claiming Underwood had breached a clause in her agreement that prohibited her from speaking about the case other than to say that a settlement had been reached.
Represented by the ACLU of Maryland, Underwood filed a federal lawsuit in 2017 challenging the clause, which she referred to as a “gag order.” Though the lawsuit was initially dismissed, the 4th U.S. Circuit Court of Appeals reversed and declared the clause, included in nearly every Baltimore police misconduct settlement until 2017, “unenforceable and void.”
Since the 4th Circuit ruling, the City Council proposed and passed a law banning the use of gag orders or any restrictions on speech in police misconduct cases, and the Baltimore Law Department, after initially declaring the new law unenforceable, publicly stated it would comply with the measure.
Underwood has not received any money since the 4th Circuit ruling. In a motion for summary judgment filed last month, Underwood asked a federal judge to rule that, in light of the 4th Circuit opinion, she is entitled to judgment in her favor and the $31,500, plus interest.
“The Court should apply basic principles of tort law and compensate Ms. Overbey for the harm caused by the City’s wrongful enforcement of an unconstitutional and unenforceable provision,” the motion states.
Attorneys for Underwood were not immediately available for comment Thursday.
Awarding less than $31,500 would “reward the City for its use of a nondisparagement provision in violation of the Constitution” and punish Underwood for exercising her rights, according to the motion.
But in an opposition filed Wednesday, the city criticized the 4th Circuit opinion as “an astonishing rule of constitutional law” and said Underwood has not been punished for speaking publicly but instead has simply not been paid because she chose not to restrict her comments to the fact that a settlement was reached.
Davis declined to comment Thursday.
The 4th Circuit did not order the trial court to enter judgment in Underwood’s favor but instead remanded the case for further proceedings, according to the city, which said in its opposition filing that “it is quite unclear what the Fourth Circuit truly intended” by its ruling.
The city said that “one view” of the 4th Circuit opinion is that Underwood is “entitled to the balance of her agreed settlement sum” but that the “better view” is that she is “entitled, at most, to nominal damages of one dollar for a presumed infringement (somehow) of her First Amendment right to speak (even though, as set forth above, she did indeed speak), perhaps coupled with a formal declaration to that effect.”
The city also opposes the award of interest because, it said, no one could have foreseen Underwood’s victory, which it likened to “a virtual lightning strike.”
The case is Ashley Overbey v. Mayor and City Council of Baltimore et al., 1:17-cv-01793.