Federal Court Says City Of Baltimore Must Pay Resident Abused By Cops The Other Half Of Her Settlement

from the shut-up,-they-lawyered dept

For years, the city of Baltimore has handed out settlements to victims of government abuse. And for years, the city has forced them to remain silent about these settlements. The city tied every settlement to an extensive non-disparagement clause that effectively bought people's silence. If you can't say anything nice, you can't have half your settlement, as the old saying goes.

Ashley Overbey chose not to remain silent. She sued the city after her call to report a burglary resulted in officers beating, tasing, verbally abusing, and then finally arresting her. She received a $63,000 settlement that came with strings attached. She yanked some strings in response to the city choosing to disparage her as "hostile" in its public statements about the lawsuit. After her public statements, the city decided she owed it $31,500 for opening her mouth.

Her case made its way to the Fourth Circuit Court of Appeals. The Court was not amused by the city's multiple arguments in favor of its extortion tactics.

[W]hen the government (1) makes a police-misconduct claimant’s silence about her claims a condition of settlement; (2) obtains the claimant’s promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant’s promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking.

It's a First Amendment violation. And an obvious one at that. The case has returned to the lower court and the district court is far less receptive of the government's arguments the second time around. (h/t Baltimore Sun)

On remand, the city argued it did not owe Overbey the other $31,500 it clawed back when she chose to speak up about the city's actions. Instead, it claimed the breach of contract claims were time-barred by the statute of limitations, leaving Overbey only the option of recovering nominal damages. And how nominal those damages are!

From the decision [PDF]:

Instead, it asserts the “better view” is that Ms. Overbey is only entitled to “nominal damages of one dollar” for an infringement of her First Amendment right to speak, “perhaps coupled with a formal declaration to that effect.”

Wrong, says the district court. The contract was violated by the city, thanks to its egregious First Amendment violations. Subtracting half the settlement caused damages to Overbey equal to the half the city withheld for her violation a contract that was unable to be enforced Constitutionally.

The City owes Ms. Overbey the other $31,500. By its conduct in unconstitutionally enforcing the now discredited clause, the City withheld half of the settlement proceeds. Thus, the civil rights violation caused $31,500 in economic harm.

Overbey will also be collecting interest accrued since October 8, 2014. The court has further comments on the city's inexcusable defense of its inexcusable settlement policy.

The City continues to defend its use of the non-disparagement clause and the “real and substantial questions presented” by facts that led to the settlement agreement in the first place. Therefore, it cites shock that “that the challenge would bear fruit” here and that the serendipity that allowed Ms. Overby’s claim to survive was akin to a “virtual lightning strike.” The seeming inference is that their illegal act should not be undone simply because no one thought, or even suspected, it was illegal at the time. Even if true, all this is beside the point. The City entered the settlement agreement it helped craft knowing that its severability provision contemplated this exact scenario: that a clause may be deemed “invalid, void and illegal,” and that it would subsequently be stricken from the agreement.

Almost six years after the city decided to punish Overbey for her refusal to remain silent, it will finally pay her what she's owed. Fortunately, future plaintiffs won't have to put up with this bullshit.

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Filed Under: 4th circuit, ashley overbey, baltimore, extortion, police, police brutality, police misconduct, settlement


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  • identicon
    Anonymous Coward, 6 Oct 2020 @ 4:18pm

    How can the city pay settlements but not better police?

    If the city invested even a small portion of what they pay out each year covering up abuses from their police to actually change the behavior that causes the settlements, they would find themselves with much more money after just one year. The change needs to come from the top and it needs to affect every aspect of the police culture. If you keep doing the same thing over and over and expecting a different result, that is insane. Yet that is exactly what has been happening.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 6 Oct 2020 @ 4:22pm

    And you wonder

    Why all the old folk are abit on the Upset side of this nation.
    only 2 things happen to a beaten dog. IT gets MAD and bites you or sits in the corner Cowering. Most dogs dont know about running away, but where to, if you think the rest of the world must be as bad?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Oct 2020 @ 4:48pm

    The city can also amuse itself with the fact that none of this would have been likely to happen if it could have kept its spiteful yap shut.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Oct 2020 @ 6:40pm

      Re:

      ... also would not have happened if the city had just rolled over and returned the $31,500 it had clawed back. The cost of the lawsuit probably far exceeded the claw back. And that's just the monetary cost. The annulment of the silencing claws will cost them a whole lot more...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Oct 2020 @ 6:19am

    Gag clauses like that should be outlawed even in private settlements. 99 percent of them are damaging to the public, because they prevent the spread of information that would be useful to that public. The public should not be providing resources to enforce them.

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 8 Oct 2020 @ 3:59am

    Almost six years after the city decided to punish Overbey for her refusal to remain silent, it will finally pay her what she's owed. Fortunately, future plaintiffs won't have to put up with this bullshit.

    It would be interesting to see any evidence that Baltimore is changing its settlement forms, or in fact ceasing to demand silence and portions of settlement proceeds. What, no evidence? Well, nice optimistic speculation then.

    reply to this | link to this | view in chronology ]


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