Judge dismisses ACLU lawsuit challenging Baltimore's use of non-disparagement clauses in police settlements

Judge dismisses ACLU lawsuit challenging Baltimore's use of non-disparagement clauses in police settlements
A federal judge has dismissed Ashley Overbey's lawsuit challenging the city's use of a non-disparagement clause in her settlement with them. (Karl Merton Ferron / Baltimore Sun)

A federal judge has dismissed a lawsuit challenging Baltimore's practice of requiring silence from alleged police abuse victims in exchange for cash settlements.

U.S. District Judge J. Frederick Motz granted motions by the city and the Police Department to dismiss plaintiff Ashley Overbey's lawsuit against them in a one-page order Wednesday. In a separate, one-page memorandum, he wrote that the non-disparagement clause the city used in its settlement with her is "valid" and "did not violate the First Amendment" as she contended.


Andre Davis, the city solicitor, praised the decision, saying such clauses are standard in civil settlements.

"It doesn't prevent someone from doing anything except, the way we read it, disparaging the defendants in the case," he said. "We don't say anything bad about you, you don't say anything bad about us."

Deborah Jeon, legal director at the ACLU of Maryland, which represented Overbey, said her group plans to appeal the decision.

"This case is an issue of civil rights, and we are hopeful that the appeals court will be more receptive to viewing Ashley Overbey's rights within the context of the larger, ongoing struggle to confront and eradicate systemic police misconduct in black communities across the country," Jeon said.

Baltimore has paid millions of dollars in such settlements in recent years. Other cities use similar language in civil settlements. Critics say such clauses help to cover up police misconduct, and make it more difficult for the public and the news media to accurately assess police actions.

Cash payouts by the city in such cases must be approved by the Board of Estimates. That makes the settlement amounts public, but not many details.

Baltimore is under a consent decree with the U.S. Department of Justice mandating sweeping police reforms. The two parties agreed to the deal after the Justice Department investigated the city Police Department and found widespread unconstitutional and discriminatory policing, particularly in poor, predominantly black neighborhoods.

That investigation followed the death of 25-year-old Freddie Gray from injuries suffered in police custody in 2015 and subsequent rioting in the city. However, the Justice Department had already been conducting a collaborative review of policing in the city at the time. That review was requested by city officials days after an investigation by The Baltimore Sun that found the city was paying out millions of dollars in settlements in police abuse cases.

In a written statement, Jeon called the disparagement clause a "gag order" on victims, and "part of the City's larger historical pattern and practice of trying to stifle public awareness and discussion of police brutality, especially in the City's Black communities."

She said Motz's one-page decision made it "apparent" he hadn't given the case "sufficient consideration."

Davis said he does not believe the non-disparagement clause means less police transparency, and that the city and the Police Department are committed to "excellence, integrity and transparency."

Still, he said, he is reviewing the provision to see if it should be tweaked.

Overbey said she was assaulted by officers in 2012 after she realized her home had been burglarized and called police for help. Overbey, then 25, was arrested in the incident and charged with assault and resisting arrest, charges that were later dropped.

She subsequently reached a settlement with the city under which she was to be paid $63,000, or $31,500 "if she discussed any opinions, facts or allegations with the news media regarding the incident in question," Motz wrote.


When Overbey's settlement was reported in The Baltimore Sun two years later, she responded to online comments on the story that accused her of initiating her arrest to get a big payout. In her response, she recounted details of the incident.

City officials said her comments breached the non-disparagement clause in her agreement and withheld half of her payout.

The ACLU of Maryland filed the lawsuit in Overbey's case in June.

On the same day, the organization sued the city of Salisbury and its Police Department on behalf of The Real News Network, arguing that a similar non-disparagement clause in a police settlement there violated the news organization's rights to obtain information on newsworthy cases.

That case remains open in Baltimore Circuit Court.