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The Dripby Brew Editors4:00 pmNov 30, 20170

Judge dismisses suit challenging non-disclosure agreements in police misconduct cases

Lawyers for plaintiffs Ashley Overbey and Baltimore Brew say they will appeal

Above: A federal judge has rejected constitutional claims by The Brew and a settlement plaintiff. (Fern Shen)

A federal judge has dismissed a lawsuit challenging Baltimore’s practice of signing non-disclosure agreements with plaintiffs who sue over allegations of police misconduct.

U.S. District Judge Marvin J. Garbis ruled that plaintiff Baltimore Brew lacked standing and that plaintiff Ashley Overbey waived her First Amendment rights when she signed a non-disclosure agreement in 2014.

In a 22-page ruling filed yesterday, Garbis dismissed all claims against the defendants: the Mayor and City Council and the Baltimore Police Department.

Attorneys representing Overbey and Baltimore Brew, this website, had argued the case before Garbis two weeks ago.

Calling Garbis’ ruling “disappointing,” they said today that they plan to appeal.

“The gag provision challenged in this lawsuit is part of a broader and by now well-documented pattern by the City of Baltimore of trying to close down avenues for the public to learn about abuses of the city’s residents by the Baltimore Police Department,” said Deborah Jeon, legal director of the American Civil Liberties Union of Maryland.

“This strikes us as a blatant snubbing of our clients’ First Amendment rights, and we are optimistic that the Fourth Circuit will agree with us,” Jeon said.

Brew “not party to the contract”

The suit, filed in June, 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.

In his ruling, Garbis said that The Brew was not entitled to access to the information withheld as a result of the city’s agreement with Overbey because the news website was “neither a party to the contract nor a third-party beneficiary to the contract.”

The plaintiffs, Garbis wrote, had argued that waivers such as the one Overbey signed should not be enforced because they “undermine the the accountability and transparency that is necessary to the effective operation of the Police Department.”

But he went on to say that “other procedures exist to hold the BPD accountable for its actions.” He cited the federal consent decree signed by the city with the U.S. Justice Department earlier this year.

The Brew had access to Overbey’s version of the incident through her civil complaint, Garbis also said, arguing that it could have been viewed before the non-disclosure agreement was signed.

“First Amendment protections are not absolute and may be curtailed under some circumstances,” he wrote.

Contract not “unfairly negotiated”

Garbis noted the plaintiffs’ argument that the agreement Overbey had signed was flawed because it was the result of “unequal bargaining power.”

Her attorneys had said that, since non-disclosure agreements are included in 95% of police settlements, signing one is essentially non-negotiable. They also pointed out that Overbey was “homeless and destitute” at the time and had little choice but to sign.

Garbis did not agree.

“Overbey has not presented any evidence showing any indication that her own contract negotiation was entered into involuntarily or somehow unfairly negotiated,” he wrote. “This is fatal to her claim.”

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