The ACLU's lawsuit seeking to end Baltimore's policy of including one-sided gag orders in its settlements of police brutality cases may or may not succeed in court. Though it presents some novel arguments — particularly in its inclusion of a news website as one of the plaintiffs — it faces a high hurdle in that the brutality victims agreed to the settlements' terms. But regardless of the outcome, the group's complaint underscores what a terrible idea those gag orders are. Not only are the unfair to the victims but they run completely counter to Baltimore's goals of ending civil rights violations by some officers and increasing trust between the police and the community.
The plaintiff in the ACLU suit is familiar to readers of The Sun. Ashley Overbey was verbally abused, beaten and struck with a Taser by three Baltimore officers in April of 2012 after she called police to report a burglary at her apartment — all while her mother and 2-year-old daughter looked on. She was transported to the hospital for treatment of her injuries and was taken from there to Central Booking where she was charged with six counts of assault and one of resisting arrest. Prosecutors dropped all charges.
A year and a half later, Ms. Overbey agreed to a $63,000 settlement with the city, and the matter went to the Board of Estimates for approval. The case was included in The Sun's "Undue Force" investigation into the millions of dollars Baltimore paid in settlements of police brutality cases, and Ms. Overbey's photo appeared on the front page. Some readers made disparaging comments about Ms. Overbey in the talk forums on baltimoresun.com — suggesting, for example, that she had somehow orchestrated her encounter with the police in hopes of collecting a settlement — and Ms. Overbey responded, writing that the account provided by city officials in explaining the settlement was inaccurate and briefly reiterating some details of her complaint. A few weeks later, she got a check from the city for $31,500 with a letter explaining that the amount had been cut in half because of her public comments about the case.
The ACLU contends that the non-disparagement clause in the settlement violates Ms. Overbey's First Amendment rights and enjoins her co-plaintiff, Baltimore Brew, from the full exercise of the freedom of the press. It further argues that the clause contravenes Maryland public policy related to disclosure of government actions and that the city's unilateral decision to withhold half of the settlement didn't even comport with the agreement's terms for how a breach of the gag order would be handled.
But the legal questions aside, Ms. Overbey's case illustrates how profoundly unfair the clause is. It precludes her (and approximately 95 percent of those who settle such cases with the city) from "defaming and/or disparaging the [city]" and says that "because the allegations of the occurrence and litigation are disputed, the settling parties agree that the [plaintiff] and his or her agents, representatives and attorneys, shall limit their public comments regarding the litigation and the occurrence to the fact that a satisfactory settlement occurred." It does not, however, preclude the city from making any statements about the incident it so chooses, including disputed assertions. Then-City Solicitor George Nilson was not at all enjoined from publicly accusing Ms. Overbey of becoming "hostile," engaging in a "verbal confrontation" with one of the officers and shoving him. The city's description of her allegations was notably sanitized.
The policy is exploitative. The city may desire to avoid litigation in cases like Ms. Overbey's, but the stakes for the government officials making that decision are far different from those of victims like her, who are often poor and unable to move on with their lives. (Ms. Overbey, for example, had trouble finding work because of the criminal charges on her record from that night.) The clause allows the city to present itself in the best possible light and to conceal from the public the true nature and extent of police brutality. And it hinders Baltimore's overriding public policy priority to make meaningful reforms in response to a Department of Justice investigation into the city's historic pattern of unconstitutional policing. Rebuilding trust between the city and police will be impossible if Baltimore continues to conceal the truth about cases in which officers abuse residents.
Former Mayor Stephanie Rawlings-Blake ordered a review of the policy, but it resulted in no meaningful changes. She has been replaced, and so has Mr. Nilson, who defended the use of the clause, yet the Pugh administration says it plans to continue including the language in its settlement agreements.
Mayor Catherine Pugh — who has otherwise supported efforts to make police discipline more transparent — needs to reconsider. The costs of this policy are great, and its benefits to the public are non-existent.