Public Accountability for Police Misconduct

The U.S. Court of Appeals for the Fourth Circuit issued its opinion today in Overbey v. Mayor & City Council of Baltimore, holding that, under the First Amendment, the City of Baltimore could not enforce the confidentiality provision of its settlement agreement with Ashley Overbey, a plaintiff in a police misconduct case.  In that underlying police misconduct suit, Ms. Overbey alleged that she had been beaten by Baltimore City police officers when they responded to her call to report a burglary at her home.  The City conditioned its settlement of Ms. Overbey’s suit on her willingness to waive her First Amendment right to discuss her claims.  The City then sought to enforce the confidentiality provision of the settlement and reduce its payment to Ms. Overbey after she responded to several “race-inflected comments,” as the Fourth Circuit described them, posted to the Baltimore Sun website under an article about the settlement that identified Ms. Overbey by name.  The article had reported on public criticism of Ms. Overbey by the thenserving City Solicitor.  Yet the City’s position was that, even under those circumstances, Ms. Overbeyhad no right to respond to defend herself.  The Fourth Circuit, in its opinion today, held that “enforcement of the non-disparagement clause at issue here was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.”

2017-2018 Murnaghan Fellow K’Shaani Smith filed an amicus curiae brief in the Fourth Circuit last year in support of Ms. Overbey.  Writing on behalf of the Public Justice Center, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, the National Women’s Law Center, and Baltimore civil rights advocate Tawanda Jones, K’Shaani argued that the City’s incorporation of “gag orders” into its settlement agreements with victims of excessive force suppresses public awareness and discussion of police misconduct and, in particular, had facilitated overly aggressive policing in Baltimore’s minority communities.

K’Shaani’s amicus brief is available here.