The Reporters Committee for Freedom of the Press – along with 19 news organizations including the Washington Post, Baltimore Sun and BuzzFeed – filed an amicus brief yesterday supporting a lawsuit challenging Baltimore’s practice of requiring claimants in police misconduct settlements to sign non-disclosure agreements.
In two separate “friend of the court” filings, five justice and civil rights groups and one individual added their support of the 2017 complaint filed by Baltimore Brew and Ashley Amaris Overbey.
“This case touches on matters of significant nationwide interest and importance. Police misconduct is a prominent issue of public concern,” the media groups said in a 21-page brief, citing the 2015 death of Freddie Gray in police custody.
“The American public has a powerful interest in the government response to complaints of police misconduct, including the details of agreements to settle such claims with victims of police malfeasance,” the groups said.
A U.S. District Court judge last fall dismissed the case, saying Overbey waived her rights when she signed a 2014 non-disclosure agreement and that The Brew lacked standing. The media organizations, filing their brief as part of a recent appeal, disagreed.
“The Baltimore Brew has suffered an injury in fact because the ‘non-disparagement’ clause effectively cuts it off from any access to important sources of information about claims of police brutality and settlement agreements,” the brief argues.
In addition to violating The Brew’s First Amendment right to report the news, the brief says, these so-called “gag orders” also violate Maryland’s “clear public policy in favor of stated policies on transparency.”
Transparency, they said, including “hearing from the victims themselves,” is necessary “to hold government officials, like the Baltimore City Police Department, accountable.”
Thwarting Media Inquiries
The three briefs are part of the appeal filed in the U.S. Court of Appeals for the Fourth Circuit by the American Civil Liberties Union of Maryland and pro bono counsel Crowell & Moring LLP on behalf of The Brew and Overbey.
The original complaint, filed in June 2017, alleges the city improperly denied Overbey half of her settlement award after responding to comments online about her experience of being brutalized by Baltimore police. Overbey, who had called police seeking help for a breaking and entering at her house, said officers “slapped, punched, beat and tased her,” arresting her on charges that were later dropped.
The so-called “gag orders” unconstitutionally hamper the reporting efforts of The Brew and other media organizations, the suit says.
Overbey, who had called police seeking help for a breaking and entering at her house, said the officers “slapped, punched, beat and tased her.”
They also violate lawyers’ rules of professional conduct, according to the argument of another brief filed as part of the appeal.
Not just clients but attorneys must abide by these agreements, notes the brief filed in the case by the Civil Rights Clinic at Howard University School of Law and the Oakland, Calif.-based group Public Justice.
“The broad scope of the provision guarantees that once an attorney and his client settle a case involving allegations of police misconduct, the attorney will have difficulty adequately representing another victim of police misconduct as a result of what he may not disclose,” the brief argues.
That issue is particularly acute in this case because “police misconduct in Baltimore is endemic,” the brief claims. It cites the scathing 2016 U.S. Justice Department report on the department’s racial profiling, use of force and other practices.
Violence Against Black Women
A third brief argues that the use of non-disclosure agreements “allows city residents to remain vulnerable to continuous and unrestrained brutality,” infringes on victims’ First Amendment rights and “permits officers to evade the accountability that is necessary for effective reform.”
This brief argues reporting on cases like Overbey’s is especially important in light of the history of police violence in America, disproportionate use of force on black residents and the history of police violence against black women.
“Educating the public about violence against Black women proves difficult because mainstream media rarely discusses it,” says the brief filed by the Baltimore-based Public Justice Center, the National Women’s Law Center and Tawanda Jones, whose brother Tyrone West died in police custody in 2013.
After West’s children settled the case, which required them to sign a non-disclosure agreement with the city, Jones removed herself from the lawsuit in order to be able to continue to speak out about her brother’s case.
The media brief argues that news reporting on police misconduct settlement claims is more accurate and fair when reporters can speak to complainants and learn the details of their agreements.
“Contrary to the district court’s assumption, it is not enough for news organizations to simply rely on civil complaints filed by victims in order to report these stories,” it argues.
“Without human sources to interpret and fill the gaps often left in documents, reporters cannot provide the public with the information it needs to decide how it wants its government to act.”
Other news organizations have been prevented from speaking to otherwise willing sources as a result of the gag order, the brief notes, mentioning a 2014 story by Mark Puente in the Baltimore Sun’s “Undue Force” series.
The court’s conclusion that reporters can contact complainants before they reach settlements is “meaningless,” the brief also argues.
It notes that The Brew’s Mark Reutter has relied upon the record of the city spending board, the Board of Estimates, to learn about payments to people alleging police misconduct.
“Journalists simply cannot know in advance which plaintiffs will settle and which plaintiffs they should be sure to interview.”
Signers of Media Brief
The following organizations signed on to the amicus brief:
• Reporters Committee for Freedom of The Press
• American Society of News Editors
• Associated Press Media Editors
• Association of Alternative Newsmedia
• Baltimore Sun
• Center for Investigative Reporting
• E.W. Scripps
• Gannett Co.
• International Documentary Association
• Investigative Reporting Program at UC Berkeley’s Graduate School of Journalism
• Investigative Reporting Workshop at American University’s School of Communication
• Maryland D.C. Delaware Broadcasters Association
• Association of Magazine Media
• National Press Photographers Association
• Maryland-Delaware-District of Columbia Press Association
• Online News Association
• Society for Professional Journalists
• Tully Center for Free Speech
• Washington Post