A federal judge today heard arguments in a challenge to Baltimore’s use of non-disclosure agreements in police misconduct cases, a constitutional complaint brought by this website and Ashley Overbey, who settled a police brutality claim in 2014.

U.S. District Judge Marvin J. Garbis was assigned to handle the case after Chief Judge James K. Bredar said an earlier dismissal of the action by U.S. District Judge J. Frederick Motz was flawed.

Attorneys for The Brew and Overbey were before Garbis to ask him to permit reconsideration of the two-pronged legal action initiated by the American Civil Liberties Union of Maryland.

The suit argues that the city’s practice of requiring silence from alleged victims of police abuse in exchange for cash settlements violates the First Amendment and prevents news organizations, such as The Brew, from reporting on police practices and misconduct.

The suit further alleges that city officials illegally withheld half of Overbey’s $63,000 settlement because she described her case on a newspaper blog.

Close Questioning

Representing the Mayor and City Council, defendants in the case, assistant city solicitor Frederic Nelson Smalkin Jr. said the cash settlements were voluntary and that the complaint failed to cite specific cases where the agreements were improper.

He argued that The Brew had many other ways to report on such cases, including Public Information Act requests and the narrative in the settlement agreement approved by the Board of Estimates.

“They had the time . . . from the time of the alleged incident up to and through settlement of the case [to consult] litigation, discovery, public commentary, public files in court, investigations that are available to them,” Smalkin said.

With one exception, Garbis said.

“The only thing sealed off is the person now being able to talk about the case. That’s something, that’s something that a responsible media entity would want to be able to explore,” he said.

Garbis questioned the attorney representing Overbey and The Brew, Daniel W. Wolff, of Crowell & Moring, LLP.

“There are ample precedents where non-disclosure agreements have been deemed valid,” Garbis said, asking how a non-disclosure agreement, signed voluntarily by a plaintiff under the advice of counsel, could be deemed improper.

Wolff answered by arguing that Overbey – who was beaten, tased and locked up in an encounter with the police at her home – may have felt she had no other alternative but to sign the agreement.

As a matter of public policy, he said, a distinction should be made between private parties asking for non-disclosure agreements and public entities seeking them.

“The greatest source, at least frequently, of information on what the underlying issue was with the police department, or whatever issue we’re talking about, is the victim,” Wolff said. “And that’s what’s being squelched here. That’s what’s being shut up.”