Silencing the victim

Why is SRB sticking with her law department's policy of non-disparagement clauses in police misconduct cases?

Here is the actual state of affairs when it comes to police-community relations in Baltimore: The death of Freddie Gray brought to the surface years of pent-up frustrations by many city residents about how they are treated by Baltimore police officers, resulting in weeks of protests and two nights of rioting. Relations have broken down to the point that the police commissioner says his officers can't do even routine investigative work without being surrounded by camera-wielding residents, and the mayor requested the federal Department of Justice to conduct a full-scale investigation into whether the Baltimore police engage in a pattern or practice of unconstitutional use of force.

But things look quite different in a memo the city solicitor's office released last week defending its standard use of non-disparagement clauses in settlement agreements stemming from civil litigation over alleged police misconduct. The six-page justification for maintaining the status quo suggests that the chief problem when it comes to police-community relations is the media — and if one reads between the lines, specifically The Sun's Mark Puente, whose reporting on the $6 million the city has paid in judgments and settlements related to police brutality allegations in recent years brought the issue of non-disparagement clauses to light.

In city solicitor-land, these civil cases are generally the product of false allegations. Police who are the subject of multiple complaints are diligent officers who are being targeted by career criminals intent on doing their nefarious deeds without interference. And the city's settlements, even those for tens of thousands of dollars, are mainly a tactic to avoid the time and expense of going to court, not any indication that the plaintiffs might have succeeded on the merits. As the city's lawyers see it, preventing plaintiffs from discussing their cases in public "is not an act of secrecy or concealment but of resolution, satisfaction and peacemaking," with the only alternative the likelihood that the media would spread distorted, unsubstantiated allegations "even more exaggerated than [those] in [the plaintiffs'] original complaint."

Because settlements involve the expenditure of public funds, their basic terms are already made public, often through votes of the Board of Estimates, and the city solicitor's office recently began posting minimal basic details about settlements on its website. The memo gives the impression that the office considers that pretty generous where public disclosure is concerned.

In a statement, City Solicitor George Nilson said the law department "will use our discretion on a case-by-case basis as part of our review of each individual settlement." But we don't have much faith in their discretion, given the ardor with which the department has enforced the non-disparagement clause in the past — such as the case of Ashley Overbey, who saw the settlement in her lawsuit alleging police brutality cut in half after defending herself from anonymous, on-line comments accusing her of manufacturing the incident to get a payout.

We will grant that not all lawsuits brought against the police have merit and that allegations aren't the same thing as facts established in a court of law. We are also willing to accept that the city sometimes settles cases it could and should win to avoid the expense of litigation. We're not even altogether surprised that the city's law department would make a recommendation like this. It is hardly unusual for lawyers to advise their clients that silence is the best policy.

But the city government is not your typical client. It has an interest in preserving taxpayer funds and thus fighting frivolous litigation, true, but it also has a responsibility for the alleged victims of police brutality that is altogether different from the sort of liability a private party to a lawsuit might have. The city, specifically Mayor Stephanie Rawlings-Blake, needs to consider the merits of maintaining and defending a policy of non-disparagement clauses in light of the current situation in Baltimore. Which is worse — the possibility that some plaintiffs will exaggerate their allegations after receiving a settlement or the certainty that this policy will set back any progress she and the police department have made in convincing city residents that they will be open and transparent in safeguarding the public from bad cops?

That non-disparagement clauses are legal and are employed by a number of other cities, as the law department found, is irrelevant. The question is whether their use is right for Baltimore. Mayor Rawlings-Blake is in desperate need of convincing the public that she is taking seriously their complaints about police misconduct, and sticking with this policy is a step in the wrong direction. We don't blame the law department for giving this advice. We do blame the mayor for taking it.

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