If Baltimore Mayor Bernard C. “Jack” Young is serious about stopping the city’s practice of demanding silence from police brutality victims in exchange for legal settlements against the city, he needs to do better than the executive order he signed on Friday. He needs to throw his support behind a permanent, binding comprehensive ban on such restrictions on free speech. Nothing less will do.
Civil liberties and police reform advocates have balked at the order, focusing on its promise to no longer include “unreasonable constraints on free speech rights” in future settlements, arguing that it leaves city officials with too much discretion in determining what is and isn’t “reasonable.” The mayor and solicitor insist they’re not looking to create a loophole that will allow these gag orders to continue, but the public has good reason to be skeptical of this offering by Mayor Young and City Solicitor Andre Davis. The order may say that “in the view of the Mayor and incumbent City Solicitor, such restraints on settling plaintiffs are inimical to transparency and the widespread efforts to restore the relationship of trust necessary to the City’s commitment to wholesale police reform.” Mr. Young may say he “always believed” that “anybody who sues the city and wins should be able to talk about it, and talk about it truthfully.” Indeed, he said something to that effect back in 2014 when The Sun first highlighted the issue. But that belief didn’t stop him from voting for settlements with gag clauses for years as a member of the Board of Estimates. Mr. Davis may say that allowing claimants to discuss their cases openly has been the effective policy since he took his post, but has defended the city’s right to including gag orders in settlements in the courts and in the press, and it was under the leadership of both Messrs. Young and Davis that the city unsuccessfully sought a hearing in front of the entire 4th Circuit Court of Appeals to reverse a panel’s ruling that the city’s practice was unconstitutional.
The order, announced on Monday, comes in the context of a bill sponsored by City Councilwoman Shannon Sneed and 11 other council members seeking to ban the practice. A spokesman says Mr. Young opposes the bill because of an analysis by the city’s Law Department concluding that it would violate the charter, which gives the city solicitor ultimate authority to manage the city’s legal affairs and the Board of Estimates the ability to approve what settlements it chooses.
Two problems with that. The Law Department’s memo includes a handy civics lesson explaining that the charter is the supreme law of the land in the city unless it conflicts with the state or federal constitution or other superseding state or federal law. Well, the 4th Circuit ruled in June that the city’s gag clauses are unconstitutional violations of the First Amendment. Effectively, the Law Department is arguing that the council would be violating the charter in attempting to force the city to follow the Constitution.
And second, the Law Department notes that the charter “places the solicitor ‘in sole charge’ of actions and proceedings of a legal nature that involve the city. It’s language gives no room for the mayor and City Council by ordinance to determine how actions and proceedings of a legal nature are handled by the city." If an ordinance can’t constrain the solicitor in a matter like this, how the heck could an executive order? Even if Mr. Davis and Mr. Young choose to respect it, what about the next city solicitor and mayor?
There can be no question about the public’s interest in ending this practice. A situation in which the city reserves the right to discuss the details of cases alleging misconduct but prohibits the victim from doing so prevents full and fair public oversight of the government’s power and is a clear violation of individuals’ rights to free speech. If simple legislation won’t suffice to guarantee the end to this practice, let’s put a charter amendment on the ballot and see if we can set a record for the margin by which such a provision is ratified. If the Baltimore Police Department’s status as a state agency presents legal barriers, let’s change that, too. But for now, let’s hear the mayor and city solicitor say unequivocally, with no room for “reasonable” or “unreasonable” confusion, that Baltimore will no longer seek any limits on a plaintiff’s speech in misconduct settlements and will no longer enforce those that already exist. That’s no substitute for enshrining that policy in law, but it’s a start.