In July of this year the U.S. Circuit Court of Appeals, 4th Circuit, ruled that a Baltimore police civil settlement ‘gag order’ was a violation of the Plaintiff’s First Amendment Right.  Ms. Overbey called to report a burglary and ended up being arrested by the responding officers for assault, battery and resisting charges that were later dropped. The City settled with her for $63,000 that included a common ‘non-disparagement clause.’  When Ms. Overbey responded in the newspaper to negative reader comments, the City withheld half of her settlement.

In a 2-1 decision, the 4th Circuit ruled, “We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests mooted in the First Amendment make it unenforceable and void…It’s difficult to see what distinguishes it from hush money…We have never ratified the government’s purchase of a potential critic’s silence.”

Are these ‘gag orders’ unconstitutional, reasonable business practices, or unethical and contrary to police public policy?  The answer might be ‘yes’ to all of these!

This court ruled that this case represented an unconstitutional restraint of a citizen’s right to express opinions of a public concern and might have been somewhat coercive.  The case took on extra emphasis when several news media groups presented amicus briefs that the gag orders restricted the press ability to report on these public interest stories.

It is interesting that this issue is coming at a time when more and more states are legislating that police misconduct records become more open to disclosure.  Open disclosure has been the practice in Ohio, Florida, Arizona and Montana as well as other states for many years without undue burden on police departments.  Two bastions of secrecy, California and Colorado, have passed laws this year opening police complaints and discipline to public disclosure.

But, these agreements in settlements are a reasonable business practice.  Local jurisdictions contend that it reduces the frequency of frivolous lawsuits.  If persons believe that you can make a quick buck for suing your local police department and get a ‘nuisance settlement’ of a few thousand dollars, some might be stimulated to do just that.  Many risk managers use settlement agreements even when it is believed that the role of the police was proper, but that settlement amount is more realistic than the costs of defense and the uncertainty of the jury system.

Whether it’s unethical and contrary to police public policy is a more relevant issue.  Today, when law enforcement is trying everything possible to overcome negative public opinion, win back community capital, and foster an environment of open and transparency, the settlement gag order might be a thing of the past.

Minneapolis City Council approved the former Chief of Police Harteau’s settlement offer including striking its non-disparagement clause.  Councilmember Frey is quoted, “I feel strongly that transparency is essential in this contract and it’s essential in all areas of governance,,,’ referring to it as a matter of public trust.  In Green Bay, WI, a discrimination and bullying case brought by a former female officer was settled.  Local officials thought it might be the largest settlement ever paid to a current or former employee.  Chief Smith is quoted, “I want that (the $200,000 settlement) to come out of the police department’s budget, it’s not fair to punish another part of the city…We as a department have to have some skin in the game.”  Certainly, an unusual position in today’s environment, but one that should be applauded.

Lawsuits can be one of several significant triggers in a law enforcement early warning system.  However, they rarely are!  The Baltimore Sun published an investigative account after the Overbey settlement issue that reported $5.7 million in court judgments and settlements in 102 civil suits since 2011.  Nearly all of the plaintiffs had their criminal charges dropped and some officers were involved in multiple lawsuits.  This was similarly discovered and reported by journalists in Chicago.

So, in the end, what will your jurisdiction decide?

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