Piggybacking off court ruling, council members want to ban ‘gag orders’ in city lawsuit settlements

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Photo by Elvert Barnes, via Flickr

On the heels of a ruling by a panel of federal appellate judges last week that non-disclosure agreements for Baltimore police misconduct settlements violate plaintiffs’ First Amendment rights, two city lawmakers are looking to bar them outright under city law.

Proposed legislation, to be introduced by Council President Brandon Scott and Councilwoman Shannon Sneed (District 13) on Monday evening, would ban “gag orders,” as they’re known, for plaintiffs who settle police misconduct or unlawful discrimination claims against the city out of court.

The bill piggybacks off a federal ruling that sided with Ashley Overbey, who sued Baltimore City after it withheld half of her $63,000 settlement for speaking out about her case online in 2014, as well as the Baltimore Brew, which had joined Overbey’s case as a co-plaintiff. The outlet argued the city’s gag order for Overbey inhibited press’ ability to report fairly on her case and others involving allegations of police brutality.

Two of three judges (one dissented) ruled such agreements violate the First Amendment, with the majority opinion arguing that binding a plaintiff from speaking out about his or her case amounts to “hush money.”

The ACLU of Maryland, which helped represent both parties in their case, has worked with other advocates and Scott and Sneed on the bill text since last fall, according to a release.

“While the Baltimore Police Department is making steady progress at reforming itself into a force Baltimoreans can be proud of, the City and BPD take responsibility for past actions and allow for honest dialogue,” Scott said in a statement today. “Victims of police brutality have a constitutionally protected right to speak about their experiences. We have an obligation to own our mistakes and be accountable to Baltimore’s residents.”

Sneed, the bill’s lead sponsor, said the U.S. Court of Appeals for the 4th District’s recent ruling “opens the door for people to overtly speak their truth and begin to heal from past trauma. I have always been an advocate for transparency, fairness, and integrity between city government and the citizens it serves; this is a step in the right direction.”

Scott, Sneed and advocates will hold a press conference on the proposal outside the council chambers Monday afternoon before the body meets.

The proposed ordinance would also require the Law Department to post semi-annual reports online on police misconduct and unlawful discrimination lawsuits filed against the city, and make the department report quarterly to the council on “significant litigation.”

Reached for comment today, City Solicitor Andre Davis said he’ll be holding a press conference on the matter tomorrow morning.

The city had argued in the Overbey case that “she agreed to exercise her rights in a particular way in return for money; she then exercised her rights in a different way, leaving her entitled to less money.”

The city also told judges that eliminating non-disparagement clauses would likely lead to plaintiffs being offered less money in future settlements, since, as the judges summarized in a footnote, “claimants would be unable to sell their own silence as part of a settlement agreement, making their agreement to settle less valuable.”

The majority wrote they were “troubled by the underlying logic of this assertion: police misconduct claimants get money to keep quiet, the City gets silence and a speedy end to litigation, and everybody wins—except, presumably, members of the public who are interested in transparency surrounding police-misconduct suits.”

The federal appellate court’s ruling last week sent the case back to district court for procedural steps, but bound the lower court to abide its decision that non-disclosure agreements in such cases are unconstitutional.

Davis said he would petition the full U.S. Court of Appeals for the 4th District, on which he was a senior judge before he began working for the city in 2017, to review the case again.

The panel that issued last week’s ruling included three judges, but Davis is pushing for it to go back before all 15 judges who sit on the court, a step known as an en banc review. Such requests are rarely granted.

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Ethan McLeod

Senior Editor at Baltimore Fishbowl
Ethan has been editing and reporting for Baltimore Fishbowl since fall of 2016. His previous stops include Fox 45, CQ Researcher and Connection Newspapers in Virginia. His freelance writing has been featured in CityLab, Slate, Baltimore City Paper, DCist and elsewhere.
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