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Crime & Justiceby Fern Shen9:09 amJul 18, 20190

Scott backs bill ending Baltimore’s use of “gag orders” to settle police misconduct, discrimination suits

Legislation follows last week’s ruling by the 4th Circuit Court of Appeals that non-disparagement clauses violate the First Amendment

Above: Demonstrators in November protest Baltimore’s policy of requiring police misconduct victims to sign non-disclosure agreements. (Fern Shen)

One week after the 4th Circuit Court of Appeals struck down the confidentiality agreements that Baltimore requires police misconduct claimants to sign – calling them “hush money” – City Council President Brandon M. Scott and Councilwoman Shannon Sneed have announced plans to introduce an ordinance Monday outlawing their use by the city.

“I commend the Court of Appeals decision in the Overbey case. While the Baltimore Police Department is making steady progress at reforming itself into a force Baltimoreans can be proud of, the city and BPD [should] take responsibility for past actions and allow for honest dialogue,” said Scott said in a statement released today.

“Victims of police brutality have a constitutionally protected right to speak about their experiences,” he said. “We have an obligation to own our mistakes and be accountable to Baltimore’s residents. Transparency at all levels is critical to that mission.”

“For years, survivors of police misconduct have been required to not speak as a condition of their settlements,” said Sneed, lead sponsor of the bill. “This decision opens the door for people to overtly speak their truth and begin to heal from past trauma.”

Mayor Bernard C. “Jack” Young has not responded to a request from The Brew for comment on the court ruling or City Council bill.

An open letter to Jack Young: Open up police brutality settlements to scrutiny (7/14/19)

Appeals Court Ruling

The appeals court decision – stemming from a 2017 lawsuit filed against the city by police misconduct claimant Ashley Overbey Underwood and this website, Baltimore Brew – found that the non-disclosure agreements violate the First Amendment and are unenforceable.

The ACLU of Maryland, which brought the case, and a coalition of justice groups and activists have been pressing the Council to end the gag orders since last fall.

That effort was moving slowly, but accelerated rapidly after the Appeals Court made its ruling, sources said.

“Victims of police brutality have a constitutionally protected right to speak about their experiences. . . We have an obligation to own our mistakes.”  – Brandon Scott.

Today’s announcement included a statement from one of those activists, Tawanda Jones, whose brother Tyrone West was killed by Baltimore and Morgan State police six years ago today.

Jones declined to be part of the settlement other family members reached with the city after his death because it would have meant signing a confidentiality agreement.

“It would kill me not to speak about what happened to my brother. Tyrone’s killing changed our whole family’s life forever, in a blink of an eye. It devastated us,” Jones said.

“Maybe by passing this bill we can change people’s lives in a positive way, so at least they won’t be forced into silence anymore.”

Discrimination Victims Covered

The City Council measure goes beyond police misconduct claims, prohibiting the use of these so-called “gag orders” in illegal discrimination cases, as well.

That means Baltimore also could not silence people suing the city over discrimination based on age, race, sex, sexual preference, gender identification, etc.  This category includes allegations of sexual misconduct or “Me Too” cases.

Under the bill, settlement agreements could not be approved by the law department of the Board of Estimates if they include non-disparagement clauses.

Reporting Requirement

The Transparency and Oversight in Claims and Litigation Act, as sponsors are calling the bill, also spells out several new reporting requirements, including:

• The law department would be required, twice a year, to publish on its website a report on any civil action in state or federal court alleging police misconduct or illegal discrimination by any city agency, official or employee.

• “Significant lawsuits” seeking $100,000 or more for police misconduct or illegal discrimination and in which the city retains or directs outside counsel would have to be reported on a quarterly basis to the City Council.

Following last week’s ruling by a three-judge panel, City Solicitor Andre M. Davis has said he would ask all of the 4th Circuit’s 15 members to rehear the appeal, a rare en banc review.

Sneed, Scott and advocates plan a press conference on the ordinance at 4:15 pm Monday outside Council Chambers, prior to the meeting where the bill will be introduced.

“Blue Wall of Secrecy”

The legislation follows a years-long effort in Baltimore to end the use of gag orders, which critics have said infringe on victim’s rights to speak and keep the details of police misconduct secret.

Underwood (who then went by Overbey) reached a settlement with the city after she said officers responding in 2012 to her report of a burglary in her home went on to beat, punch and kick her.

In 2014, after she responded to comments about her settlement on a newspaper blog site, the city withheld $31,500 – half of the amount they had agreed to pay.

Underwood and Baltimore Brew jointly filed suit, charging that the non-disparagement clauses not only violate the victim’s constitutional rights, but also the media’s ability to report on an issue of public concern.

While lawyers (from the ACLU of Maryland and pro bono counsel, Crowell & Moring LLP) challenged the gag orders in court, activists were battling them on the street and in social media.

Jones’ West Coalition (that has been pushing for justice for her brother, Tyrone West) and the groups Runners4Justice and Not Without Black Women have been making signs, marching in the street and waging a social media campaign – all to make the case that the non-disparagement clauses hurt victims and and hold back much-needed police reform in Baltimore.

The motto they came up with for tee-shirts and protest placards:

“Forced Silence Condones Police Violence.”

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