United States District Judge J. Frederick Motz ruled last week that the non-disclosure clauses to which alleged victims of police brutality or other police misconduct must agree before receiving financial settlements of civil suits against the City of Baltimore and its police officers are lawful and enforceable.
With the legality of the clauses resolved for the time being, let’s focus on the underlying reason why the city should stop using the clauses to silence plaintiffs in cases involving alleged police misconduct: The non-disclosure clauses are bad public policy and add to the pervasive mistrust of the criminal justice system in Baltimore.
The clauses, technically called non-disparagement clauses and often referred to by a more descriptive name — gag orders — prohibit plaintiffs from discussing the incidents that led to the settlements of their claims against the city. The benefit to the city of the gag orders is speculative. The harm done to the city’s credibility is not.
City Solicitor Andre Davis defends the clauses. “It doesn’t prevent someone from doing anything except, the way we read it, disparaging the defendants in the case.” So the city is worried about someone speaking negatively about its police officers? Mr. Davis, you’re new to the job but you’re not new to Baltimore, and you should know that criticism is the least of the city’s problems.
Any desire by the city to preserve the reputation of its police department went by the boards last year when the United States Department of Justice (DOJ) issued a scathing report on the Baltimore Police Department (BPD). The DOJ found that officers routinely violated the constitutional rights of citizens, and it attributed the unconstitutional practices to “systemic deficiencies” in the department that had persisted for decades. Nothing any plaintiff says about policing in Baltimore is going to catch anyone by surprise.
Nor have the non-disparagement clauses done anything to stem the tide of lawsuits against the city and its police department. In October 2015, The Sun reported that since 2011 the city had paid nearly $13 million in settlements and court judgments arising from alleged police misconduct. The payments have continued unabated. Last month, the city paid $110,000 to settle a lawsuit alleging that two plaintiffs were falsely arrested by city officers. Heaven help the city treasury when the lawsuits from the actions of the Gun Trace Task Force begin to trickle in.
What, then, is the public good served by the gag orders? There is none.
The non-disparagement clauses are all about sparing the city and its police officers from public embarrassment. There is something particularly galling about the city trying to suppress unflattering information when the city and state are on track to spend tens of millions of dollars on a consent decree that was necessary because of a pattern of misconduct by officers that should have been brought to light and fixed many years ago.
Here’s a thought: What if the plaintiffs in the cases that have been settled over the past decade had been allowed to tell their stories to reporters? Maybe someone in authority in the city or state would have been forced to take notice and do something about the problems in the BPD before they became unmanageable. Instead, the city paid off the plaintiffs, and important stories were never told.
Mayor Catherine Pugh: You have the power to stop the use of the non-disparagement clauses, and you should do so. I know some other cities use them, but Baltimore isn’t other cities. As to the relationship between its police department and its citizens, Baltimore is trying to climb out of a very deep hole. Ending a practice that makes it appear that city officials want information hidden from the public would be one step upward.
Would some plaintiffs make false statements about their treatment at the hands of police if the non-disparagement clauses are eliminated? Of course, but city officials must trust citizens to be able to separate the wheat from the chaff. Stop insulting their intelligence by suggesting that they can’t do so. Right now, members of the public assume that the information being withheld from them is worse than it probably is — and who can blame them?
Lift the gag orders on the plaintiffs, let the media do its job, and allow the public to make its own judgments on the facts as they come out. That would work out a lot better than creating the appearance that the city is afraid of what the plaintiffs might say.
[Published as an op ed by The Baltimore Sun on October 9, 2017 but not posted to my blog until January 8, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]