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Judge orders Baltimore to pay $44K in nondisparagement case

01.29.10 BALTIMORE, MD.  Newly sworn-in Chief U.S. District Judge Deborah K. Chasanow, right, listens as former Chief Judge Benson Everett Legg, left, gives opening remarks during the Chief Judge Transition Ceremony Friday January 29, 2010. Chief Judge Chasanow is the first woman to hold the position. (The Daily Record/Rich Dennison)

U.S. District Judge Deborah K. Chasanow, shown in a 2010 photo, ordered Baltimore to pay back, with interest, the money it had withheld from a woman in a police brutality settlement after she violated the nondisparagement clause of the agreement. (The Daily Record/File Photo)

A federal judge Monday ordered Baltimore to pay a woman more than $44,000 for having withheld half the money she was owed in settlement of her police brutality claim because she had publicly criticized officers in violation of the agreement’s nondisparagement clause, which a U.S. appeals court later deemed an unenforceable restriction on free speech.

Ashley Overbey’s successful First Amendment challenge spurred city leaders to enact an ordinance last year banning the controversial provision from police settlements, which critics had assailed as payoffs to vulnerable victims to cover up officer misdeeds.

In finding the clause unenforceable, the 4th U.S. Circuit Court of Appeals last year overturned a judge’s ruling that the nondisparagement provision did not affect the free speech rights of alleged victims so long as they knowingly and voluntarily signed the settlement agreement. The 4th Circuit said the clause “amounts to a waiver” of one’s right to speak freely and “strong public interests rooted in the First Amendment make it unenforceable and void.”

Citing the 4th Circuit’s published 2-1 decision, U.S. District Judge Deborah K. Chasanow said Overbey is owed the $31,500 the city withheld from the $63,000 settlement plus 6% interest, compounded annually, dating to the signing of the agreement in October 2014, for a total of approximately $44,680.

The ACLU of Maryland, which represented Overbey, hailed Chasanow’s decision Tuesday.

“This order finally brings well deserved resolution for Ms. (Overbey), who, throughout this long ordeal, never wavered in her commitment to fundamental free speech rights, notwithstanding the city’s bullying and thievery,” stated Deborah Jeon, legal director of the American Civil Liberties Union’s Maryland chapter.

“For free speech to truly have meaning it must protect the rights of all people, and for too long Black people have had their free speech rights denied when they challenge abuse at the hands of police,” Jeon added in her statement. “This victory helps create a precedent that advances the First Amendment, so that hopefully one day it will truly protect everyone in the United States.”

Acting Baltimore Solicitor Dana P. Moore said Tuesday the city is “pleased” with Chasanow’s payment order, calling it in line with the settlement officer Baltimore recently made to Overbey before talks broke down over her attorneys’ “outsized” request for $800,000 in fees.

“Judge Chasanow’s order makes clear that this payment has to be made,” Moore said.

“We will process it expeditiously,” Moore added. “We will work to resolve the attorneys’ fee claim in due course.”

The ACLU of Maryland stated via email that “we can’t discuss the settlement negotiations, since they are confidential.”

In ordering the paying of interest, Chasanow rejected Baltimore’s argument that Overbey be paid the $31,500 that the city shortchanged her on the agreement plus one dollar in nominal damages for infringing on her right to speak and perhaps a formal statement acknowledging the infringement.

The city cited the 11th U.S. Circuit Court of Appeals’ 2006 decision KH Outdoor LLC v. Trussville, Ala., that struck down the Alabama city’s billboard ordinance as unconstitutionally favoring commercial over non-commercial messages.

But Chasanow noted the 11th Circuit case – unlike Overbey’s case —  involved no actual financial injury to the plaintiff billboard company.

“By its conduct in unconstitutionally enforcing the now discredited clause, the city withheld half of the settlement proceeds” due Overbey, Chasanow wrote. “Thus, the civil rights violation caused $31,500 in economic harm.”

Chasanow also noted the settlement agreement provided that clauses found to be “invalid, void and illegal” would be stricken from the accord while leaving the $63,000 financial recovery provision intact.

“The city entered the settlement agreement it helped craft knowing that its severability provision contemplated this exact scenario,” Chasanow wrote. “Just as ‘strong public interests’ render the clause unenforceable, those interests counsel against allowing the city to keep the fruits of such improper enforcement. The purpose of prejudgment interest is to complete the compensatory damages award and will accrue from the date the full payment should have been made.”

Overbey’s agreement stipulated she would forfeit half of her $63,000 settlement with the 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.

U.S. District Judge Marvin J. Garbis ruled for Baltimore in November 2017.

“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.’”

Overbey then appealed to the 4th Circuit.

In addition to Jeon, Overbey was represented by Daniel Wolff and Tyler O’Connor of Crowell & Moring LLP in Washington.

Chasanow issued her decision in Ashley Overbey v. Mayor and City Council of Baltimore et al., No. DKC 17-1793.

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