With a rebuke to Baltimore officials for doling out “hush money,” a federal appeals court ruled Thursday that gag orders common in police misconduct settlements undermine the right to free speech.
The 4th U.S. Circuit Court of Appeals found non-disclosure agreements to be unconstitutional. Advocates of police accountability trumpeted the judges’ 2-1 ruling.
“Each case gets hushed up, and that’s just wrong,” said Deborah Jeon, an attorney on the case from the ACLU of Maryland. “We’re really optimistic that by doing away with these clauses, we’ll be able to hold police accountable in a much more vigorous way.”
City Solicitor Andre Davis said he will ask to make his case to all 15 judges on the appellate court.
When Baltimore police settle misconduct lawsuits, they routinely require claimants to sign non-disclosure agreements. The claimants must promise not to discuss their case or settlement with the news media. If they talk, city attorneys may take back half of the money. That’s what happened to Ashley Overbey.
According to the judges’ written opinion, the Baltimore woman sued three police officers, alleging they beat, tased, verbally abused and arrested her in her home after she called 911 to report a burglary. She sued and settled for $63,000, the judges wrote.
They noted that Davis has said 95 percent of settlement agreements include non-disclosure clauses.
In Overbey’s case, the clause barred her from discussing publicly her opinions, allegations or the facts of the case, the judges wrote. They said she was banned from discussing details of the settlement or saying anything beyond that a satisfactory agreement had been reached.
“If Overbey were to ever make a prohibited comment regarding her lawsuit, the city would be entitled to a refund of half of her settlement,” the judges wrote.
City officials, however, could discuss the matter freely ― if they chose.
When Overbey’s settlement was reported in The Baltimore Sun, she responded to readers’ online comments accusing her of initiating the arrest to get a big payout. She fired back, recounting details of the incident online. City attorneys said her comments violated the non-disparagement clause in her agreement. They paid her half the money: $31,500.
The judges noted her own attorney took $20,500 of it; she was left with $11,000.
In June 2017, Overbey teamed up with the local news website, the Baltimore Brew, to sue the city in federal court. The ACLU took the case, and they sought to recover her money and challenge the constitutionality of the gag orders. Last November, a federal judge dismissed the lawsuit, but Overbey and the Brew appealed. More than two dozen other news media organizations joined in support, including The Baltimore Sun.*
The appeals court overturned the dismissal. The ruling sends Overbey back to trial to try to recoup her money.
“Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent,” the judges wrote. “It is difficult to see what distinguishes it from hush money. … We have never ratified the government’s purchase of a potential critic’s silence.”
In a brief email statement, Davis, the solicitor, said city attorneys were disappointed by the ruling. He has said the clause prohibits only disparaging remarks about the city and remains common in settlements. Other cities use similar language in civil settlements.
Baltimore officials have paid millions of dollars in misconduct settlements in recent years. Critics have long decried the non-disclosure clause, saying it allows bad cops to carry on in the shadows.