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Case Name Overbey v. Mayor & City Council of Baltimore PN-MD-0009
Docket / Court 1:17-cv-01793 ( D. Md. )
State/Territory Maryland
Case Type(s) Policing
Speech and Religious Freedom
Attorney Organization ACLU Chapters (any)
Case Summary
On June 29, 2017, the Baltimore Brew (a media organization) and an individual who had previously settled a suit against the Baltimore Police filed this lawsuit in the U.S. District Court for the District of Maryland. They sued the City of Baltimore and its police under 28 U.S.C. § 1983 and state ... read more >
On June 29, 2017, the Baltimore Brew (a media organization) and an individual who had previously settled a suit against the Baltimore Police filed this lawsuit in the U.S. District Court for the District of Maryland. They sued the City of Baltimore and its police under 28 U.S.C. § 1983 and state law. Represented by the ACLU of Maryland and private counsel, the plaintiffs sought an injunction, declaratory relief, and damages. They claimed that the City’s use of gag orders in police brutality settlement agreements violated the First Amendment. They also claimed that the gag order and liquidated damages provision in the individual plaintiff’s settlement were void as contrary to public policy. Finally, the individual plaintiff alleged that the City had breached the settlement agreement.

This case arose from a police brutality incident involving the individual plaintiff. In 2012, the plaintiff’s apartment was burglarized. She called the police, but a dispute developed between the plaintiff and responding officers. By the end of the night, the officers had “beaten, tased, tackled, choked, and handcuffed” her. So she sued the city for wrongful arrest and physical abuse. The City agreed to pay her $63,000 to settle the case. But there was a catch: the individual plaintiff had to “limit [her] public comments regarding the [case] and the [underlying incident] to the fact that a satisfactory settlement occurred” (the gag order). And if she talked about the case with anyone, “the City is entitled to a refund of fifty percent,” or $31,500.

The Baltimore Sun got wind of the settlement and published an article about it. Online commentators accused the individual plaintiff of provoking the police to get settlement money. In response, she posted her version of events. The City viewed her posts as a breach of the settlement agreement. So it paid her only $31,500. In this lawsuit, the individual plaintiff alleged that the gag order was unconstitutional and against public policy; the liquidated damages provision was unenforceable; and the City breached the settlement because it paid her only $31,500 rather than the full amount, and then demanded a refund. For its part, the Baltimore Brew (the Brew) claimed that the City’s widespread use of gag orders—which it included in about 95% of police brutality settlements—infringed on press freedoms.

District Judge J. Frederick Motz dismissed the case in a terse one-page opinion issued on October 4, 2017. Judge Motz reasoned that the settlement provided for a payment of $31,500 if the individual plaintiff discussed the case, which she did, so the plaintiffs had no case. But he neglected to address the Brew’s claims. So nine days later, Chief Judge James K. Bredar re-opened the case. And on October 18, the case was reassigned to Judge Marvin J. Garbis. The plaintiffs then moved for reconsideration of all issues.

After another round of briefing, Judge Garbis dismissed the case on November 29, 2017. First, he dismissed the Baltimore Police as a defendant because it was not involved with the settlement agreement at issue. Next, he found that the Brew did not have standing because it was unable to identify a “concrete and particularized” injury. Judge Garbis then dismissed the individual plaintiff’s First Amendment claims because “fostering confidence” in settlements and “reducing time and resources spent on litigation” outweighed any public interest in police “accountability and transparency” that might have been served by disclosing the terms of settlement agreements. Finally, he disposed of the individual plaintiff’s breach of contract claims on statute of limitations grounds. 2017 WL 5885657.

The plaintiffs appealed. The parties submitted briefing during the summer of 2018, and the Fourth Circuit heard oral arguments in January 2019. Circuit Judge Henry F. Floyd delivered an opinion on July 11, 2019, reversing the district court which Judge Stephanie D. Thacker joined. Judge Floyd held that the gag order “amounts to a waiver of [the individual plaintiff’s] First Amendment rights,” which “strong public interests rooted in the First Amendment make . . . unenforceable and void.” He rejected the City’s argument that “fairness” entitled it to “the full value of its hush money.” In addition, Judge Floyd found that the Brew’s allegations were sufficient to establish standing at the motion to dismiss stage because it had a “right to gather news” from “willing speakers” that the City silenced with gag orders. Judge A. Marvin Quattlebaum, Jr. dissented. He would have upheld the district court’s order because “parties have a right to rely on the certainty of contracts entered into knowingly and voluntarily.” — F.3d —, 2019 WL 3022327.

The Fourth Circuit remanded the case to the district court. The case is ongoing.

Timothy Leake - 07/20/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Defendant-type
Law-enforcement
General
Confidentiality
Excessive force
Pattern or Practice
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
State law
Defendant(s) Baltimore City Police Department
The Mayor and City Council of Baltimore
Plaintiff Description An individual subject to a gag order as part of an excessive force settlement with the Baltimore Police and a news organization.
Indexed Lawyer Organizations ACLU Chapters (any)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2017
Case Ongoing Yes
Additional Resources
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  Ashley Overbey and Baltimore Brew v. BPD
https://www.aclu-md.org/en/cases/ashley-overbey-and-baltimore-brew-v-bpd
Date: July 2019
(ACLU of Maryland)
[ Detail ] [ External Link ]

Docket(s)
1:17-cv-01793-MJG (D. Md.)
PN-MD-0009-9000.pdf | Detail
Date: 07/11/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint and Demand for Jury Trial [ECF# 1]
PN-MD-0009-0001.pdf | Detail
Date: 06/29/2017
Source: PACER [Public Access to Court Electronic Records]
Amended Complaint and Demand for Jury Trial [ECF# 5]
PN-MD-0009-0002.pdf | Detail
Date: 06/30/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum [ECF# 24] (2017 U.S.Dist.LEXIS 165822) (D. Md.)
PN-MD-0009-0003.pdf | LEXIS | Detail
Date: 10/04/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 32] (2017 WL 5885657) (D. Md.)
PN-MD-0009-0004.pdf | WESTLAW | Detail
Date: 11/29/2017
Source: PACER [Public Access to Court Electronic Records]
Untitled (2019 WL 3022327)
PN-MD-0009-0005.pdf | WESTLAW | Detail
Date: 07/11/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Floyd, Henry Franklin (D.S.C., Fourth Circuit) show/hide docs
PN-MD-0009-0005
Garbis, Marvin J. (D. Md.) show/hide docs
PN-MD-0009-0004 | PN-MD-0009-9000
Motz, J. Frederick (D. Md.) show/hide docs
PN-MD-0009-0003
Quattlebaum, A. Marvin Jr. (D.S.C., Fourth Circuit) show/hide docs
PN-MD-0009-0005
Thacker, Stephanie Dawn (Fourth Circuit) show/hide docs
PN-MD-0009-0005
Plaintiff's Lawyers Jeon, Deborah A. (Maryland) show/hide docs
PN-MD-0009-0001 | PN-MD-0009-0002 | PN-MD-0009-9000
Kanu, Nkechi (District of Columbia) show/hide docs
PN-MD-0009-0001 | PN-MD-0009-0002
O'Connor, Tyler (District of Columbia) show/hide docs
PN-MD-0009-0001 | PN-MD-0009-0002
Steiner, Nicholas Taichi (Maryland) show/hide docs
PN-MD-0009-0001 | PN-MD-0009-0002 | PN-MD-0009-9000
Wastler, Benjamin (District of Columbia) show/hide docs
PN-MD-0009-0001 | PN-MD-0009-0002
Wolff, Daniel W (District of Columbia) show/hide docs
PN-MD-0009-0001 | PN-MD-0009-0002 | PN-MD-0009-9000
Defendant's Lawyers Comeau, Michael G (Maryland) show/hide docs
PN-MD-0009-9000
Foltin, Jason Robert (Maryland) show/hide docs
PN-MD-0009-9000
Glynn, Colin Patrick (Maryland) show/hide docs
PN-MD-0009-9000
Glynn, Lydie Essama (Maryland) show/hide docs
PN-MD-0009-9000
Smalkin, Frederic N. (Maryland) show/hide docs
PN-MD-0009-9000

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