Baltimore Mayor Bernard C. “Jack” Young has signed an executive order retroactively barring the use of “gag orders" in some city settlements.
Top officials in Baltimore were divided Monday over the inclusion of “gag orders” in city settlements of police abuse cases and other lawsuits, agreeing that people who sue the city should be allowed to discuss their experiences publicly, but disagreeing on how to ensure that right.
Democratic Mayor Bernard C. “Jack" Young opened the debate early Monday, announcing an executive order that he said freed individuals who have received city settlements to say what happened to them.
“Anybody who sues the city and wins should be able to talk about it, and talk about it truthfully," Young said.
Andre Davis, the city solicitor, said that has basically been the position of the city since he came to City Hall in 2017, though the executive order provided an added layer of certainty to affected individuals.
“People can say whatever the hell they want to say about their case,” Davis said, as long as it is not defamatory.
But the executive order faced immediate opposition on two fronts. Advocates said Young and Davis didn’t change practices that limit free speech in ways they may challenge in court. And Monday evening, the City Council’s public safety committee unanimously approved a bill by a 6-0 vote that would ban — rather than limit — nondisclosure agreements in lawsuit settlements.
David Rocah, a senior staff attorney with the ACLU of Maryland, called the executive order “disingenuous” and a “meaningless sham." And he said it made the pending legislation to do away with gag orders even more necessary.
The issue of gag orders has been contentious, particularly as it relates to settlements in cases involving alleged police brutality. The practice has been an impediment to the public’s understanding of police abuses in the city.
In 2014, The Baltimore Sun reported that from 2011 to 2014, the city paid about $5.7 million to settle lawsuits claiming misconduct on the part of police officers, exposing stories of officers brazenly beating up alleged suspects and the policies in place — including gag orders — that kept many of the details secret. The series spurred city lawmakers, including then-City Council President Young, to call for the Justice Department to come into the city to review the actions of police — which the federal agency did.
While the ACLU and others have challenged the gag orders in court, the City Council has sought to address concerns around the nondisclosure agreements with its legislation. A majority of members have signed on as sponsors of the bill.
The bill drew vocal support during the hearing at City Hall from opponents of restrictions on the speech of police victims and other payout recipients. State Sen. Jill Carter, a Baltimore Democrat, approached the dais to address the proposed bill with tape over her mouth, which she removed before making her remarks.
“Baltimore should send a message that this is no place for discrimination and that people who are aggrieved have the right to have their voices heard,” she said.
Bridal Pearson, chairman of the volunteer Citizen Review Board tasked with reviewing police misconduct cases, said his panel often hears disturbing details about police treatment of citizens, and that those citizens must be allowed to “speak their truth, to share their narratives.”
City Council President Brandon Scott said before the meeting that he intends to move forward with the bill.
“Let’s ensure future mayors of Baltimore do not have the power to arbitrarily reverse course when it comes to an individual’s right to free speech,” Scott said.
The public safety committee’s approval of the bill Monday forwards it to the full council for next Monday’s meeting. If every council member who sponsored the bill votes for it, it would be veto proof.
However, even if it does pass, its potential effect is unclear.
Davis said he has “told the City Council that the council does not have the authority to do two or three of the things that the bill seems to mandate, and that no city solicitor would ever try to enforce those mandates because the city charter won’t permit it.”
Davis said the charter grants the city solicitor control of legal decisions. Also, the city law department’s position is that the council cannot pass a law pertaining to settlements involving the Baltimore Police Department because the police department is officially a state, not a city, agency.
Lester Davis, a spokesman for Young, said the mayor opposes the council bill for those same reasons. “That’s why the executive order was a good bridge," he said.
Rocah disagreed with Young, saying the order is not explicitly applicable to past cases, and could be rescinded by Young or any of his successors.
He also disagreed with Davis’ interpretation that the council lacks the authority to enforce the provisions in the bill, saying during Monday’s hearing “that assertion is without any legal merit.”
“He seems to forget who his client is. His client is the mayor and city council, the elected representatives of Baltimore,” he said. “And it is the client who gets to decide and who has the power, under ethics rules, that apply every lawyer, including the city solicitor, what the client’s position will be. And that is precisely what the city council is doing here.”
He said the order was "stunning in its arrogance and contempt for the citizens of Baltimore” and argued that it only speaks to “unreasonable” gag orders, leaving the calculation as to what is reasonable and what isn’t in the hands of the city solicitor.
Davis disputed that. He said the language of the executive order is clear, as is the language he revised for the city to use in its nondisclosure agreements. That language allows individuals to discuss the claims made in pleadings and motions they have brought in court, he said.
Local civil rights activist Tawanda Jones, whose brother died in police custody in 2013, refused to sign a settlement accepted by other family members in the death of Tyrone West because she did not want to be subject to a gag order. And she does not believe Young’s executive order resolves her concerns.
“It does not do what we need it to do,” which is barring all forms of nondisclosure agreements that prohibit victims “from telling their own truth, their own stories," she said.
"The #Baltimore City Council has the power to end unconstitutional gag orders on survivors for police abuse — once and for all — and the ACLU and the coalition will continue to push hard to make those free speech protections a reality."
Jones said multiple victims of police abuse subject to nondisclosure agreements called her Monday to see whether she could explain what the mayor’s order meant for them — and she couldn’t assure them that they were now free to speak because the order is unclear.
“The first line [of the executive order] should have said gag orders are unconstitutional, and it doesn’t,” Jones said. “We need full accountability. We don’t need anything to be watered down or left for one to conclude it’s something when it’s really something else.”
The city’s finance department filed its own note in opposition to the bill, arguing that preventing the city from including nondisparagement provisions in settlements “could lead to more financial uncertainty and risk” and potentially even steeper costs pertaining to police misconduct in the future. It noted the city spent $24.5 million in the last five years on judgments, suits and legal fees pertaining to police misconduct.
The debate follows a July ruling from the 4th U.S. Circuit Court of Appeals that found the more restrictive nondisclosure agreements used by the city before Davis’ revision were unconstitutional because they undermined the right to free speech. Davis has said 95% of the city’s settlement agreements include nondisclosure clauses.
Davis said in July that city attorneys were disappointed by the ruling and that he would seek to make his case to the full appellate court. The court denied that motion in late August.
Ashley Overbey, the plaintiff in that case, spoke in support of the bill Monday. Overbey won a $63,000 settlement from the city after she sued the municipality, claiming Baltimore police officers tased, beat and verbally abused her and arrested her after she called 911 to report a burglary, but the city withheld half of the settlement money once she started commenting on the details of the case online after some criticized her online for settling.
She said that she had “no choice but to take [the settlement] to get any type of justice from this” and that, while her name was being tarnished online, “the officers remained unnamed and protected.”
Davis said his modified nondisclosure agreement is not in question, but Rocah said the ACLU will challenge that.
Rocah said the executive order is “an attempt to give political cover for Jack Young" and not an honest attempt to halt gag orders.
“This is not a hard thing to end, and there is something just repulsive about the fact that, despite all the fine language in the executive order about how bad these gag orders are, they are unwilling to actually end it,” Rocah said.