Baltimore to continue limiting comments about police brutality settlements

Baltimore will not remove clause that requires to remain silent when settling lawsuits with police.

Baltimore officials have rejected policy changes that would provide the public and news media with more information about legal settlements, including those related to alleged police brutality.

The city Law Department proposed modifications Friday to a controversial clause in settlement agreements, one that lets the city reclaim part of the payout if plaintiffs talk about the allegations — even those contained in court documents. By breaking silence, plaintiffs could lose tens of thousands of dollars.

According to proposed revisions backed by Mayor Stephanie Rawlings-Blake, those who settle lawsuits would explicitly be allowed to discuss the cases with accountants, tax preparers and financial consultants — but not publicly or with the news media.

"We have concluded that the use of nondisparagement clauses is generally in the city's best interest as part of the process of resolving litigation without going to a court trial, but we will use our discretion on a case-by-case basis as part of our review of each individual settlement," City Solicitor George A. Nilson said in a statement.

In some cases, when the facts are widely known by the news media, the city might not use the clause in a settlement, Nilson added. He stressed that the clause is not intended to prevent people from cooperating with government investigations or court proceedings.

But critics say the clause has helped conceal police brutality — an issue that triggered protests and rioting in the wake of Freddie Gray's death — and runs counter to promises of government transparency.

Marvin L. "Doc" Cheatham, past president of the Baltimore branch of the NAACP, said the policy does not help remedy injustices that led to the lawsuits. "These situations will continue. There needs to be a compromise here. This doesn't bring real justice."

Senior staff attorney David Rocah of the ACLU of Maryland said it is "utterly indefensible" for the city to use the nondisparagement clauses while officials talk about the need for moreaccountability and transparency.

He said the city is exploiting a huge disparity in economic power to buy silence from those who allege police misconduct.

"They are simply trying to gag the person who can shed the most light on these incidents," Rocah said. "I'm flabbergasted."

Rawlings-Blake vowed last fall to make Baltimore's government more transparent after a Baltimore Sun investigation found that the city had paid nearly $6 million since 2011 for court judgments and settlements in lawsuits alleging police misconduct.

Less than a week after the first part of The Sun's investigation was published, the mayor and police commissioner asked the U.S. Justice Department to review police policies and programs. After Gray, 25, suffered a severe spinal injury and died in police custody, that review was expanded to a broad civil rights investigation at the urging of the mayor and other elected officials.

On Friday, Nilson said the city's nondisparagement clause is comparable to those in cities of similar size, including Atlanta, Boston, Minneapolis and Colorado Springs, Colo.

He recommended some changes, including one making clear that plaintiffs can comply with subpoenas and speak with local, state and federal investigators.

But a key section of the current agreement will remain: Lawyers for the city may try to recoup part of a settlement if plaintiffs talk about the allegations. The clause states that limitations on "public statements shall include a prohibition in discussing any facts or allegations ... with the news media," except to say the suit has been settled.

Some cities, including Washington, Philadelphia and Las Vegas, have rejected the use of such clauses in an effort to make government more transparent.

Attorney A. Dwight Pettit, who frequently represents plaintiffs in lawsuits against police, said about Baltimore leaders, "They preach one thing politically and do another thing in reality. It's business as usual."

Del. Curt Anderson, chairman of the city's State House delegation, said it is "bad public policy" to muzzle residents who settle lawsuits over police misconduct.

"If I'm the plaintiff, I'm going to take it to trial," he said. "I'm not going to be limited to who I can talk to."

Rocah noted that such clauses are commonly used in legal settlements when both parties have a reason to want the other to refrain from disparaging comments — for example, in an employment case, a worker who sues does not want the former employer to give a bad reference.

But he said the changes recommended by Nilson ring hollow. "Not only are the victims of police misconduct among the people least likely to have tax planners and financial consultants," Rocah said, "the prior clause would not have restricted their rights to consult with those folks in the first place, so this isn't any change at all."

Lawyers who represent the city have said that lawsuits against police are sometimes settled because the cost of litigation is high. In the recent $175,000 settlement for a man killed by police in 2012, they cited the unpredictability of jury verdicts and conflicting accounts of the incident.

In such settlements, the city and police officers do not acknowledge liability for injuries.

Since September, the city has paid $587,250 to settle claims against officers. The number of such lawsuits fell about 20 percent from 2011, but 156 were filed from 2013 through late 2014, records show.

The policy review by the city's lawyers was several months late; the Rawlings-Blake administration had said it would be completed in January. But city officials did start posting the outcome of lawsuits on the city's website.

In recent years, residents have settled more than 100 civil suits alleging police misconduct for significant amounts. For example, an 87-year-old woman who alleged that an officer threw her against a wall received $95,000. A pregnant accountant who alleged that an encounter with an officer left her facedown, bleeding and bruised on a sidewalk was awarded $125,000.

For another Baltimore woman, the risk of violating the terms of a settlement agreement became clear last year. Ashley Overbey accused three officers of beating her after she reported a burglary in her Northeast Baltimore home in April 2012, and the city agreed last fall to a settlement.

But not long after the city's spending board approved the payment, anonymous online commenters accused the woman of initiating her arrest to get a payout. Overbey, 27, replied that people should learn the facts before commenting and described the incident, mirroring statements in her lawsuit.

In October, city lawyers cut her settlement by $31,500 — about half the total.

mpuente@baltsun.com

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