Brickbat: It Takes a Thief

The Atlanta Police Department has fired officer Keisha Richburg after $500 in cash went missing from a homicide victim’s wallet. Bodycam footage shows an EMT putting the money back into the wallet before handing it to Richburg. A minute later, Richburg is seen in her patrol car with the wallet, but the cash is no longer visible. And when she handed the wallet over to a sergeant the cash was no longer in it. Richburg is appealing her firing and has the support of her union. “They haven’t proven that she had the money or took the money,” said Vincent Champion, regional director for the International Brotherhood of Police Officers. “We don’t feel the officer did that.”

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Brickbat: It Takes a Thief

The Atlanta Police Department has fired officer Keisha Richburg after $500 in cash went missing from a homicide victim’s wallet. Bodycam footage shows an EMT putting the money back into the wallet before handing it to Richburg. A minute later, Richburg is seen in her patrol car with the wallet, but the cash is no longer visible. And when she handed the wallet over to a sergeant the cash was no longer in it. Richburg is appealing her firing and has the support of her union. “They haven’t proven that she had the money or took the money,” said Vincent Champion, regional director for the International Brotherhood of Police Officers. “We don’t feel the officer did that.”

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Philadelphia D.A. Larry Krasner Argues PA Death Penalty Is Unconstitutional

A petition before the Pennsylvania Supreme Court by two death row inmates could upend Pennsylvania’s dysfunctional death penalty, and it has one extremely unusual supporter: the Philadelphia District Attorney’s Office.

In a legal brief filed Monday night in support of the petition, Philadelphia D.A. Larry Krasner, who ran for office promising to never pursue a death sentence, argues Pennsylvania’s death penalty is applied unreliably and arbitrarily, violating the state constitution’s ban on cruel punishment.

To reach its conclusions, the Philadelphia District Attorney’s Office reviewed every case where a Philadelphia defendant received a death sentence between 1978 and 2017. The study found that 72 percent of those 155 sentences were ultimately overturned—more than half of them for ineffective legal assistance.

“Where nearly three out of every four death sentences have been overturned—after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires,” the office wrote in its brief. “Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the ‘worst of the worst.'”

The brief was filed in the case of Jermont Cox and Kevin Marinelli, who were sentenced to death for three drug-related murders in 1992 and a fatal 1994 shooting, respectively. Their petition argues that the Pennsylvania Supreme Court should strike down the state’s capital punishment system because of its “pervasive unreliability” and “systemic dysfunction,” citing the scores of reversed death penalty sentences, as well as six death row exonerations.

Cox and Marinelli’s petition has attracted amici briefs from groups like the Pennsylvania chapter of the American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund.

Meanwhile, the Pennsylvania attorney general, the Philadelphia chapter of the Fraternal Order of Police, and several groups of Republican state lawmakers filed briefs opposing the petition. But it appears to be the first time, at least as far as several criminal justice experts can tell, that a district attorney has argued broadly in court against a state death penalty.

“There have been individual cases where a particular defendant challenges the death penalty and a prosecutor who reviews the case on appeal decides, you know, we can’t defend what happened here,” says David Rudovsky, a professor at the University of Pennsylvania Law School. “I don’t know of any case of a broad-scale attack like this on the whole system, where a prosecutor agreed that the death penalty, at least in application here in Pennsylvania, is unconstitutional.”

Krasner, a former civil rights attorney, was elected in 2017 and is one of the most high-profile members of a wave of progressive candidates who have run for prosecutor offices in major cities in recent years, promising to roll back policies they say contribute to mass incarceration.

Krasner pledged during his campaign to never seek the death penalty. That decision, along with others, has led to intense opposition from police unions and critical local news coverage.

Although Pennsylvania is one of 30 states where the death penalty is still on the books, there have only been three executions in the state since 1978. The last took place in 1999. Four years ago, Pennsylvania Democratic Gov. Tom Wolf announced a moratorium on the death penalty that still remains in place.

Nationwide, the use of capital punishment has steadily declined and become more geographically isolated over the past few decades. Only a handful of counties in the U.S. are responsible for the majority of new death penalty sentences. Last year, the Washington Supreme Court struck down the state’s death penalty “because it is imposed in an arbitrary and racially biased manner”—much the same argument that Cox and Marinelli, as well as Krasner, make.

However, the extraordinary cost of death penalty trials and near non-existence of executions have not stopped Pennsylvania prosecutors from pursuing capital punishment. A 2016 analysis by the Reading Eagle found that the state had spent $816 million on the death penalty since 1978.

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Philadelphia D.A. Larry Krasner Argues PA Death Penalty Is Unconstitutional

A petition before the Pennsylvania Supreme Court by two death row inmates could upend Pennsylvania’s dysfunctional death penalty, and it has one extremely unusual supporter: the Philadelphia District Attorney’s Office.

In a legal brief filed Monday night in support of the petition, Philadelphia D.A. Larry Krasner, who ran for office promising to never pursue a death sentence, argues Pennsylvania’s death penalty is applied unreliably and arbitrarily, violating the state constitution’s ban on cruel punishment.

To reach its conclusions, the Philadelphia District Attorney’s Office reviewed every case where a Philadelphia defendant received a death sentence between 1978 and 2017. The study found that 72 percent of those 155 sentences were ultimately overturned—more than half of them for ineffective legal assistance.

“Where nearly three out of every four death sentences have been overturned—after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires,” the office wrote in its brief. “Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the ‘worst of the worst.'”

The amicus brief was filed in the case of Jermont Cox and Kevin Marinelli, who were sentenced to death for three drug-related murders in 1992 and a fatal 1994 shooting, respectively. Their petition argues that the Pennsylvania Supreme Court should strike down the state’s capital punishment system because of its “pervasive unreliability” and “systemic dysfunction,” citing the scores of reversed death penalty sentences, as well as six death row exonerations.

Cox and Marinelli’s petition has attracted amici briefs from groups like the Pennsylvania chapter of the American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund.

Meanwhile, the Pennsylvania attorney general, the Philadelphia chapter of the Fraternal Order of Police, and several groups of Republican state lawmakers filed briefs opposing the petition. But it appears to be the first time, at least as far as several criminal justice experts can tell, that a district attorney has argued broadly in court against a state death penalty.

“There have been individual cases where a particular defendant challenges the death penalty and a prosecutor who reviews the case on appeal decides, you know, we can’t defend what happened here,” says David Rudovsky, a professor at the University of Pennsylvania Law School. “I don’t know of any case of a broad-scale attack like this on the whole system, where a prosecutor agreed that the death penalty, at least in application here in Pennsylvania, is unconstitutional.”

Krasner, a former civil rights attorney, was elected in 2017 and is one of the most high-profile members of a wave of progressive candidates who have run for prosecutor offices in major cities in recent years, promising to roll back policies they say contribute to mass incarceration.

Krasner pledged during his campaign to never seek the death penalty. That decision, along with others, has led to intense opposition from police unions and critical local news coverage.

Although Pennsylvania is one of 30 states where the death penalty is still on the books, there have only been three executions in the state since 1978. The last took place in 1999. Four years ago, Pennsylvania Democratic Gov. Tom Wolf announced a moratorium on the death penalty that still remains in place.

Nationwide, the use of capital punishment has steadily declined and become more geographically isolated over the past few decades. Only a handful of counties in the U.S. are responsible for the majority of new death penalty sentences. Last year, the Washington Supreme Court struck down the state’s death penalty “because it is imposed in an arbitrary and racially biased manner”—much the same argument that Cox and Marinelli, as well as Krasner, make.

However, the extraordinary cost of death penalty trials and near non-existence of executions have not stopped Pennsylvania prosecutors from pursuing capital punishment. A 2016 analysis by the Reading Eagle found that the state had spent $816 million on the death penalty since 1978.

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City May Not Bargain for Certain Speech Restrictions When Settling Lawsuits Against Police Department

So the Fourth Circuit held (by a 2-to-1 vote) Thursday. The case involved a stock provision in settlements with Baltimore, under which settling plaintiffs “promise not to speak to the media about either their underlying allegations or the settlement process itself” on pain of losing half the settlement.

First, the underlying allegations, from Overbey v. Mayor & City Council of Baltimore (as usual in my posts, I note moved text with braces, { and }):

Ashley Overbey sued three officers of the Baltimore Police Department (BPD), alleging that the officers had beaten, tased, verbally abused, and needlessly arrested her in her own home after she called 911 to report a burglary…. Her case ground through the system for about two years, during which [Overbey alleges] she and her children became homeless—partly because Overbey’s arrest record made it difficult for her to find work.

Eventually, following her attorney’s advice, Overbey agreed to settle her suit for $63,000. The parties to the settlement agreement included both the officers named in Overbey’s complaint and the City itself. The City was a party to the agreement because, pursuant to Maryland law, it represents the BPD’s interests in settling claims against BPD officers.

As in 95% of settlement agreements between the City and persons alleging police misconduct, Overbey’s settlement agreement included what we will call a “non- disparagement clause.” This clause required Overbey to “limit [her] public comments” regarding her lawsuit “to the fact that a satisfactory settlement occurred involving the Parties.” It prohibited her from “discussing [with the news media] any opinions, facts or allegations in any way connected to” her case, her underlying allegations, or the settlement process. And it provided that if Overbey were to ever make a prohibited comment regarding her lawsuit, the City would be entitled to a refund of half of her settlement. The clause placed no restriction on the City’s freedom to speak about the case.

After Overbey signed the settlement agreement, the agreement went before the City’s Board of Estimates for approval. While approval was pending, a local newspaper, the Baltimore Sun, published Overbey’s name, her photograph, her address, and the amount of her proposed settlement in a report on payouts planned for police-misconduct claimants. The Sun‘s report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as “hostile” during her encounter with police—insinuating that Overbey, not the officers, had been at fault.

The Sun‘s story accumulated several anonymous, race-inflected comments implying that Overbey had initiated a confrontation with the police in hopes of getting a payout from the City. Overbey posted responses to several such comments, insisting that the police had been in the wrong and describing some of the injuries she had suffered.

The City determined that Overbey’s online comments on the Sun article violated the non-disparagement clause of the settlement agreement. Consequently, once Overbey’s settlement was approved, the City remitted only half of the agreed payment—$31,500— to Overbey’s attorney. It retained the other half as “liquidated damages.” …

Unconstitutional, the panel majority held, in an opinion by Judge Henry Franklin, joined by Judge Stephanie Thacker; here’s an excerpt:

It is well-settled that a person may choose to waive certain constitutional rights pursuant to a contract with the government. Yet … the waiver of a constitutional right—even one that appears in an otherwise valid contract with the government—is enforceable … [only if,] under the circumstances, the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement…. [Here,] the City’s asserted interests in enforcing Overbey’s waiver of her First Amendment rights are outweighed by strong policy interests that are rooted in the First Amendment and counsel against the waiver’s enforcement….

[E]nforcing the non-disparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she settled with the City, was contrary to the public’s well-established First Amendment interest in “uninhibited, robust, and wide-open” debate on “public issues.” …

Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious “mistrust of governmental power.” This mistrust is one of the “premise[s]” of the First Amendment, and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when 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….

[None of] the City’s asserted interests in enforcing the non-disparagement clause … are strong enough for the City to prevail. {We note that this is not a case in which the government seeks to hold a private speaker liable for the unauthorized disclosure of confidential or sensitive information that was held by the government and to which the speaker would not have had access but for a promise of confidentiality or other fiduciary obligation to the government. Cf. Snepp v. United States, 444 U.S. 507, 510 (1980).}

Initially, the City points out that it has an interest in using settlement agreements to reduce the time and money that it devotes to litigation, and that this interest favors enforcement of the non-disparagement clause. But as the Ninth Circuit has aptly explained, when a settlement agreement contains a waiver of a constitutional right, the government’s general interest in using settlement agreements to expedite litigation is not enough to make the waiver enforceable—otherwise, no balance-of-interests test would be required. The City cannot succeed merely by invoking its general interest in settling lawsuits. It must point to additional interests that, under the circumstances, justify enforcing Overbey’s waiver of her First Amendment rights.

To that end, the City … [argues] that one of the private interests protected by the First Amendment is the right not to speak. According to the City, the “individual autonomy” embodied by the right not to speak would be undermined if plaintiffs like Overbey could not use their right to silence as a bargaining chip during settlement negotiations. Thus, in the City’s view, enforcement of the non-disparagement clause is consonant with, and essential to, individual First Amendment interests. We think not…. [T]he right to refrain from speaking has generally been construed as preventing the government from requiring private persons to speak in support of policies, causes, or ideas that they find objectionable. It is simply not implicated here: a limitation on the government’s ability to purchase citizens’ silence does not meaningfully compromise the “individual freedom of mind” protected by the right not to speak.

The City goes on to invoke the interests of the three police officers who were named as defendants in Overbey’s first lawsuit, asserting that the officers have a personal interest “in clearing their names.” We are not unsympathetic to this interest, but it does little to help the City’s cause. The settlement agreement neither admits wrongdoing nor vindicates any of the parties involved. That is, neither the settlement agreement as a whole nor the non-disparagement clause in particular has the effect of proving that the officers did not act as Overbey alleges. Thus, to the extent that the officers have an interest in clearing their names, enforcing the non-disparagement clause will not help them. We conclude that the officers’ interest in clearing their names does not weigh in favor of enforcement.

Additionally, the City urges that both it and the officers involved have an interest in avoiding “harmful publicity.” It is well-established that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle….

 

{[T]he City asserts that if Overbey were to prevail in the instant case, the City would “almost certainly” offer less money to similar police-misconduct claimants in the future, since such claimants would have less value to offer in return for settlement; that is, claimants would be unable to sell their own silence as part of a settlement agreement, making their agreement to settle less valuable. This, according to the City, would “reduce the number and mutual value of settlements.” We are troubled by the underlying logic of this assertion: police- misconduct claimants get money to keep quiet, the City gets silence and a speedy end to litigation, and everybody wins—except, presumably, members of the public who are interested in transparency surrounding police-misconduct suits.

Aside from that concern, there are two factors that make the City’s assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants’ risk of exposure to high damages awards following a jury trial, the claimant’s financial resources, and each side’s appetite for litigation. Accordingly, we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey’s in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey’s settlement agreement has anything other than a conjectural and attenuated relationship to “the number and mutual value of [future, hypothetical] settlements.”}

Finally, the City appeals to “fairness.” As the City would have it, Overbey “sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again.” Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now….

Judge A. Marvin Quattlebaum Jr. dissented; here’s an excerpt:

One of the bedrock principles of our country is the freedom of parties, public and private, to enter into agreements without fear that courts will re-write them if one side has a change of heart. Under this principle, parties have a right to rely on the certainty of contracts entered into knowingly and voluntarily. In my view, the majority opinion undermines those important principles.

While I join my colleagues in affirming the importance of the First Amendment and the public’s interest in exposing police misconduct, such affirmation does not require us to find unenforceable the non- disparagement provision in the settlement agreement between Overbey and the defendants. Overby entered into the settlement agreement knowingly and voluntarily, and the interests in enforcing it outweigh any countervailing interests. Accordingly, I respectfully dissent….

First, it is important to note the narrow scope of the waiver. Under the non- disparagement provision, Overbey agreed not to speak about the facts of her specific case. The waiver did not restrict her from speaking about the Baltimore Police Department or police misconduct generally. Nor did it restrict her from speaking on a myriad of other public issues. It simply limited her ability to speak publicly about her case.

Second, the limitations in the non-disparagement clause did not actually bar Overbey from speaking about her case. There were just financial consequences—to which she agreed—of her choosing to speak. Under the agreement, she had a choice. She could abide by her promise not to talk about the case. If she did that, she would receive the full $63,000. Or she could do what she did—talk about the case. The consequence was that, since Overbey made that latter choice, the City was entitled to keep $31,500 of the $63,000 settlement amount.

Third, even without her public comments, the detailed allegations in Overbey’s complaint and in the Department of Justice’s 2016 report on police misconduct in Baltimore contain extensive information on this important issue. Critically, all of that information remains public. Likewise, the terms of the settlement agreement were made and remain public. The non-disparagement provision does not remove any of that information about police misconduct in Baltimore from the review and scrutiny of the public. It remains in the public square for discourse and debate. Thus, even if Overbey decided not to speak because of the non-disparagement provision, the public’s interests would only have been minimally harmed.

Last, any impairment of the public’s interests must be considered in relation to Overbey’s other rights. Part and parcel with Overbey’s right to speak is her right not to speak. Plainly, even without the non-disparagement provision, Overbey had the right not  to speak. If she had done that, the public’s interest would have been equally impaired. The public’s interests cannot legitimately be harmed by Overbey doing by written agreement what was her right in the first place….

On the other hand, the defendants have significant and legitimate interests in the enforcement of the non-disparagement clause. First, they have an interest in the finality of the litigation. Litigation serves a vital role in our legal system, but, for those in the midst of it, it is often unpleasant, expensive and distracting. For those and many other reasons, litigants at times decide that the best course for them is to compromise on a settlement rather than forging forward to trial. The defendants did just that in this case. They agreed to put the dispute behind them by entering into an agreement with terms that furthered their interest in finality. The non-disparagement provision was one of the terms.

Second, by agreeing to the settlement, the defendants gave up their opportunity for vindication by a judge or jury. Of course, there is no guarantee how the case would have turned out had it continued. That uncertainty is one of the reasons parties often agree to a settlement. But having given up the opportunity to be exonerated, the defendants have an interest in Overbey’s accusations, which they denied, ending. The non-disparagement clause furthered this legitimate interest as well.

Third, the defendants have an interest in the certainty of their contract. As alluded to above, parties have a right to expect that plain and unambiguous terms of the contracts to which they enter, like the ones here, will be enforced. During the pendency of the case, when it was uncertain whether she would be awarded any money, Overbey decided it was a good idea to limit her public comments in return for additional settlement payments from the defendants. After the settlement, Overbey, with some money in hand, decided she no longer wanted to limit her comments. Despite that, she now seeks to not only keep the money she received, but also compel the City to pay the rest. Overbey seeks through the courts to re-write the agreement so that she will receive all the benefits of the agreement, but not all of the burdens. This is not the proper role for courts.

{Surprisingly, my good colleagues in the majority characterize this position as endorsing “hush money.” Harsh words for the principle that it is unfair for parties who enter agreements freely to later change their mind and seek to avoid the very terms to which they agreed. Perhaps a better description would be that Overbey cannot have her cake and eat it too.}

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City May Not Bargain for Certain Speech Restrictions When Settling Lawsuits Against Police Department

So the Fourth Circuit held (by a 2-to-1 vote) Thursday. The case involved a stock provision in settlements with Baltimore, under which settling plaintiffs “promise not to speak to the media about either their underlying allegations or the settlement process itself” on pain of losing half the settlement.

First, the underlying allegations, from Overbey v. Mayor & City Council of Baltimore (as usual in my posts, I note moved text with braces, { and }):

Ashley Overbey sued three officers of the Baltimore Police Department (BPD), alleging that the officers had beaten, tased, verbally abused, and needlessly arrested her in her own home after she called 911 to report a burglary…. Her case ground through the system for about two years, during which [Overbey alleges] she and her children became homeless—partly because Overbey’s arrest record made it difficult for her to find work.

Eventually, following her attorney’s advice, Overbey agreed to settle her suit for $63,000. The parties to the settlement agreement included both the officers named in Overbey’s complaint and the City itself. The City was a party to the agreement because, pursuant to Maryland law, it represents the BPD’s interests in settling claims against BPD officers.

As in 95% of settlement agreements between the City and persons alleging police misconduct, Overbey’s settlement agreement included what we will call a “non- disparagement clause.” This clause required Overbey to “limit [her] public comments” regarding her lawsuit “to the fact that a satisfactory settlement occurred involving the Parties.” It prohibited her from “discussing [with the news media] any opinions, facts or allegations in any way connected to” her case, her underlying allegations, or the settlement process. And it provided that if Overbey were to ever make a prohibited comment regarding her lawsuit, the City would be entitled to a refund of half of her settlement. The clause placed no restriction on the City’s freedom to speak about the case.

After Overbey signed the settlement agreement, the agreement went before the City’s Board of Estimates for approval. While approval was pending, a local newspaper, the Baltimore Sun, published Overbey’s name, her photograph, her address, and the amount of her proposed settlement in a report on payouts planned for police-misconduct claimants. The Sun‘s report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as “hostile” during her encounter with police—insinuating that Overbey, not the officers, had been at fault.

The Sun‘s story accumulated several anonymous, race-inflected comments implying that Overbey had initiated a confrontation with the police in hopes of getting a payout from the City. Overbey posted responses to several such comments, insisting that the police had been in the wrong and describing some of the injuries she had suffered.

The City determined that Overbey’s online comments on the Sun article violated the non-disparagement clause of the settlement agreement. Consequently, once Overbey’s settlement was approved, the City remitted only half of the agreed payment—$31,500— to Overbey’s attorney. It retained the other half as “liquidated damages.” …

Unconstitutional, the panel majority held, in an opinion by Judge Henry Franklin, joined by Judge Stephanie Thacker; here’s an excerpt:

It is well-settled that a person may choose to waive certain constitutional rights pursuant to a contract with the government. Yet … the waiver of a constitutional right—even one that appears in an otherwise valid contract with the government—is enforceable … [only if,] under the circumstances, the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement…. [Here,] the City’s asserted interests in enforcing Overbey’s waiver of her First Amendment rights are outweighed by strong policy interests that are rooted in the First Amendment and counsel against the waiver’s enforcement….

[E]nforcing the non-disparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she settled with the City, was contrary to the public’s well-established First Amendment interest in “uninhibited, robust, and wide-open” debate on “public issues.” …

Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious “mistrust of governmental power.” This mistrust is one of the “premise[s]” of the First Amendment, and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when 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….

[None of] the City’s asserted interests in enforcing the non-disparagement clause … are strong enough for the City to prevail. {We note that this is not a case in which the government seeks to hold a private speaker liable for the unauthorized disclosure of confidential or sensitive information that was held by the government and to which the speaker would not have had access but for a promise of confidentiality or other fiduciary obligation to the government. Cf. Snepp v. United States, 444 U.S. 507, 510 (1980).}

Initially, the City points out that it has an interest in using settlement agreements to reduce the time and money that it devotes to litigation, and that this interest favors enforcement of the non-disparagement clause. But as the Ninth Circuit has aptly explained, when a settlement agreement contains a waiver of a constitutional right, the government’s general interest in using settlement agreements to expedite litigation is not enough to make the waiver enforceable—otherwise, no balance-of-interests test would be required. The City cannot succeed merely by invoking its general interest in settling lawsuits. It must point to additional interests that, under the circumstances, justify enforcing Overbey’s waiver of her First Amendment rights.

To that end, the City … [argues] that one of the private interests protected by the First Amendment is the right not to speak. According to the City, the “individual autonomy” embodied by the right not to speak would be undermined if plaintiffs like Overbey could not use their right to silence as a bargaining chip during settlement negotiations. Thus, in the City’s view, enforcement of the non-disparagement clause is consonant with, and essential to, individual First Amendment interests. We think not…. [T]he right to refrain from speaking has generally been construed as preventing the government from requiring private persons to speak in support of policies, causes, or ideas that they find objectionable. It is simply not implicated here: a limitation on the government’s ability to purchase citizens’ silence does not meaningfully compromise the “individual freedom of mind” protected by the right not to speak.

The City goes on to invoke the interests of the three police officers who were named as defendants in Overbey’s first lawsuit, asserting that the officers have a personal interest “in clearing their names.” We are not unsympathetic to this interest, but it does little to help the City’s cause. The settlement agreement neither admits wrongdoing nor vindicates any of the parties involved. That is, neither the settlement agreement as a whole nor the non-disparagement clause in particular has the effect of proving that the officers did not act as Overbey alleges. Thus, to the extent that the officers have an interest in clearing their names, enforcing the non-disparagement clause will not help them. We conclude that the officers’ interest in clearing their names does not weigh in favor of enforcement.

Additionally, the City urges that both it and the officers involved have an interest in avoiding “harmful publicity.” It is well-established that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle….

 

{[T]he City asserts that if Overbey were to prevail in the instant case, the City would “almost certainly” offer less money to similar police-misconduct claimants in the future, since such claimants would have less value to offer in return for settlement; that is, claimants would be unable to sell their own silence as part of a settlement agreement, making their agreement to settle less valuable. This, according to the City, would “reduce the number and mutual value of settlements.” We are troubled by the underlying logic of this assertion: police- misconduct claimants get money to keep quiet, the City gets silence and a speedy end to litigation, and everybody wins—except, presumably, members of the public who are interested in transparency surrounding police-misconduct suits.

Aside from that concern, there are two factors that make the City’s assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants’ risk of exposure to high damages awards following a jury trial, the claimant’s financial resources, and each side’s appetite for litigation. Accordingly, we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey’s in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey’s settlement agreement has anything other than a conjectural and attenuated relationship to “the number and mutual value of [future, hypothetical] settlements.”}

Finally, the City appeals to “fairness.” As the City would have it, Overbey “sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again.” Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now….

Judge A. Marvin Quattlebaum Jr. dissented; here’s an excerpt:

One of the bedrock principles of our country is the freedom of parties, public and private, to enter into agreements without fear that courts will re-write them if one side has a change of heart. Under this principle, parties have a right to rely on the certainty of contracts entered into knowingly and voluntarily. In my view, the majority opinion undermines those important principles.

While I join my colleagues in affirming the importance of the First Amendment and the public’s interest in exposing police misconduct, such affirmation does not require us to find unenforceable the non- disparagement provision in the settlement agreement between Overbey and the defendants. Overby entered into the settlement agreement knowingly and voluntarily, and the interests in enforcing it outweigh any countervailing interests. Accordingly, I respectfully dissent….

First, it is important to note the narrow scope of the waiver. Under the non- disparagement provision, Overbey agreed not to speak about the facts of her specific case. The waiver did not restrict her from speaking about the Baltimore Police Department or police misconduct generally. Nor did it restrict her from speaking on a myriad of other public issues. It simply limited her ability to speak publicly about her case.

Second, the limitations in the non-disparagement clause did not actually bar Overbey from speaking about her case. There were just financial consequences—to which she agreed—of her choosing to speak. Under the agreement, she had a choice. She could abide by her promise not to talk about the case. If she did that, she would receive the full $63,000. Or she could do what she did—talk about the case. The consequence was that, since Overbey made that latter choice, the City was entitled to keep $31,500 of the $63,000 settlement amount.

Third, even without her public comments, the detailed allegations in Overbey’s complaint and in the Department of Justice’s 2016 report on police misconduct in Baltimore contain extensive information on this important issue. Critically, all of that information remains public. Likewise, the terms of the settlement agreement were made and remain public. The non-disparagement provision does not remove any of that information about police misconduct in Baltimore from the review and scrutiny of the public. It remains in the public square for discourse and debate. Thus, even if Overbey decided not to speak because of the non-disparagement provision, the public’s interests would only have been minimally harmed.

Last, any impairment of the public’s interests must be considered in relation to Overbey’s other rights. Part and parcel with Overbey’s right to speak is her right not to speak. Plainly, even without the non-disparagement provision, Overbey had the right not  to speak. If she had done that, the public’s interest would have been equally impaired. The public’s interests cannot legitimately be harmed by Overbey doing by written agreement what was her right in the first place….

On the other hand, the defendants have significant and legitimate interests in the enforcement of the non-disparagement clause. First, they have an interest in the finality of the litigation. Litigation serves a vital role in our legal system, but, for those in the midst of it, it is often unpleasant, expensive and distracting. For those and many other reasons, litigants at times decide that the best course for them is to compromise on a settlement rather than forging forward to trial. The defendants did just that in this case. They agreed to put the dispute behind them by entering into an agreement with terms that furthered their interest in finality. The non-disparagement provision was one of the terms.

Second, by agreeing to the settlement, the defendants gave up their opportunity for vindication by a judge or jury. Of course, there is no guarantee how the case would have turned out had it continued. That uncertainty is one of the reasons parties often agree to a settlement. But having given up the opportunity to be exonerated, the defendants have an interest in Overbey’s accusations, which they denied, ending. The non-disparagement clause furthered this legitimate interest as well.

Third, the defendants have an interest in the certainty of their contract. As alluded to above, parties have a right to expect that plain and unambiguous terms of the contracts to which they enter, like the ones here, will be enforced. During the pendency of the case, when it was uncertain whether she would be awarded any money, Overbey decided it was a good idea to limit her public comments in return for additional settlement payments from the defendants. After the settlement, Overbey, with some money in hand, decided she no longer wanted to limit her comments. Despite that, she now seeks to not only keep the money she received, but also compel the City to pay the rest. Overbey seeks through the courts to re-write the agreement so that she will receive all the benefits of the agreement, but not all of the burdens. This is not the proper role for courts.

{Surprisingly, my good colleagues in the majority characterize this position as endorsing “hush money.” Harsh words for the principle that it is unfair for parties who enter agreements freely to later change their mind and seek to avoid the very terms to which they agreed. Perhaps a better description would be that Overbey cannot have her cake and eat it too.}

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The Injustice of Demanding that Migrants Go Back and “Fix their Own Countries”


The Statue of Liberty.

In a widely condemned recent tweet, Donald Trump demanded that four racial-minority Democratic members of Congress “who originally came from countries whose governments are a complete and total catastrophe…” stop “loudly and viciously telling the people of the United States… how our government is to be run” and instead  “go back and help fix the totally broken and crime infested places from which they came.” Most of the condemnations of the tweet understandably focus on the fact that the four representatives are all citizens of the United States, and three were not even born abroad. Trump is attempting to stigmatize them as somehow un-American merely because they are all non-white and had the temerity to attack his policies.

I have many concerns about these Democrats’ positions, particularly their  advocacy of “democratic socialism.” One of them has  even made bigoted statements of her own.  But attacking them—or anyone—based on ethnicity or supposed country of origin is rank bigotry at odds with the universal principles for which the United States is supposed to stand. Trump’s tweet would be indefensible even if the four congresswomen really were all immigrants from “totally broken… places.”

In addition to ethnic and racial prejudice, Trump’s statement also channels the common trope that immigrants fleeing poverty and injustice have a duty to instead stay home and “fix their own countries.” On this view, instead of coming to America, the “huddled masses yearning to breathe free”  should instead keep right on huddling in their homelands in order to improve conditions there.

Such sentiments are periodically advanced even by people who would never dream of expressing the sort of crude bigotry Trump often indulges in. I addressed the flaws in the “fix their own countries” argument in a November 2018 post, which I think remains relevant now. Here is an excerpt:

[T]he “fix your own country” argument implies that the ancestors of most Americans (and also many Canadians, Australians, and others) were wrong to emigrate. The Russians should have tried to fix the czar and (later) the communists; the Irish should have stayed home and worked to fix the British Empire. Donald Trump’s grandfather should have stayed in Bavaria and worked to fix imperial Germany. And so on.

The fact that the “fix your own country” argument implies that the ancestors of most Americans were wrong to come here does not by itself disprove it. We should not automatically assume that every longstanding American practice was necessarily right….

The claim that immigrants fleeing poverty or oppression have a duty to stay home and “fix” their countries is wrong for several reasons. In most cases, these people have little or no responsibility for the injustice and poverty they are fleeing. Russian Jews… were not responsible for the Pale of Settlement and pogroms. Likewise, today’s refuges from Venezuela, Syria, and other unjust and corrupt governments generally had no meaningful role in creating the awful conditions there. It is therefore wrong to claim they must risk lifelong privation in order to “fix” the unjust regimes in their home countries. That point applies with extra force in cases where efforts to “fix” the regime are likely to result in imprisonment or death at the hands of the state. We rightly honor brave dissidents who risk life and limb to oppose injustice. But such sacrifices are not morally obligatory, and no blame attaches to those who forego them—especially if they have family members to protect, as well as themselves.

In addition, most migrants have little if any chance of succeeding in “fixing” their home governments, even if they did stay to try to do so. In most such societies, the injustice and oppression is deeply embedded in the political system, and most would-be migrants lack the clout to fix it….

This point is especially strong when it comes to authoritarian states, where ordinary people have little or no influence on government policy. But constraint also applies, though with lesser force, to many dysfunctional countries that are democratic. Even in advanced democracies such as the US and Western Europe, many harmful and unjust government policies persist because of widespread voter ignorance and bias. The same is true (often to a much greater extent) in the corrupt and dysfunctional democratic governments migrants flee from….

The vast majority of potential migrants, however, are neither morally responsible for the injustices in their homelands nor in a position to do much about them. In many cases, they can actually do more to help their compatriots by leaving, earning higher wages abroad, and sending remittances to relatives who remain at home (a major source of income for some poor nations). It is therefore wrong to claim they have a duty to stay.

Perhaps Trump’s remark can be construed to mean only that migrants have a duty go home and fix their own countries if they dare to criticize the policies of their new home. But that version of the argument is no better. It implies that your right to criticize the government is  contingent on your ethnicity or place of birth—or, in this case, that of your ancestors.

 

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The Injustice of Demanding that Migrants Go Back and “Fix their Own Countries”


The Statue of Liberty.

In a widely condemned recent tweet, Donald Trump demanded that four racial-minority Democratic members of Congress “who originally came from countries whose governments are a complete and total catastrophe…” stop “loudly and viciously telling the people of the United States… how our government is to be run” and instead  “go back and help fix the totally broken and crime infested places from which they came.” Most of the condemnations of the tweet understandably focus on the fact that the four representatives are all citizens of the United States, and three were not even born abroad. Trump is attempting to stigmatize them as somehow un-American merely because they are all non-white and had the temerity to attack his policies.

I have many concerns about these Democrats’ positions, particularly their  advocacy of “democratic socialism.” One of them has  even made bigoted statements of her own.  But attacking them—or anyone—based on ethnicity or supposed country of origin is rank bigotry at odds with the universal principles for which the United States is supposed to stand.

In addition to ethnic and racial prejudice, Trump’s statement also channels the common trope that immigrants fleeing poverty and injustice have a duty to instead stay home and “fix their own countries.” On this view, instead of coming to America, the “huddled masses yearning to breathe free”  should instead keep right on huddling in their homelands in order to improve conditions there.

Such sentiments are periodically advanced even by people who would never dream of expressing the sort of crude bigotry Trump often indulges in. I addressed the flaws in the “fix their own countries” argument in a November 2018 post, which I think remains relevant now. Here is an excerpt:

[T]he “fix your own country” argument implies that the ancestors of most Americans (and also many Canadians, Australians, and others) were wrong to emigrate. The Russians should have tried to fix the czar and (later) the communists; the Irish should have stayed home and worked to fix the British Empire. Donald Trump’s grandfather should have stayed in Bavaria and worked to fix imperial Germany. And so on.

The fact that the “fix your own country” argument implies that the ancestors of most Americans were wrong to come here does not by itself disprove it. We should not automatically assume that every longstanding American practice was necessarily right….

The claim that immigrants fleeing poverty or oppression have a duty to stay home and “fix” their countries is wrong for several reasons. In most cases, these people have little or no responsibility for the injustice and poverty they are fleeing. Russian Jews… were not responsible for the Pale of Settlement and pogroms. Likewise, today’s refuges from Venezuela, Syria, and other unjust and corrupt governments generally had no meaningful role in creating the awful conditions there. It is therefore wrong to claim they must risk lifelong privation in order to “fix” the unjust regimes in their home countries. That point applies with extra force in cases where efforts to “fix” the regime are likely to result in imprisonment or death at the hands of the state. We rightly honor brave dissidents who risk life and limb to oppose injustice. But such sacrifices are not morally obligatory, and no blame attaches to those who forego them—especially if they have family members to protect, as well as themselves.

In addition, most migrants have little if any chance of succeeding in “fixing” their home governments, even if they did stay to try to do so. In most such societies, the injustice and oppression is deeply embedded in the political system, and most would-be migrants lack the clout to fix it….

This point is especially strong when it comes to authoritarian states, where ordinary people have little or no influence on government policy. But constraint also applies, though with lesser force, to many dysfunctional countries that are democratic. Even in advanced democracies such as the US and Western Europe, many harmful and unjust government policies persist because of widespread voter ignorance and bias. The same is true (often to a much greater extent) in the corrupt and dysfunctional democratic governments migrants flee from….

The vast majority of potential migrants, however, are neither morally responsible for the injustices in their homelands nor in a position to do much about them. In many cases, they can actually do more to help their compatriots by leaving, earning higher wages abroad, and sending remittances to relatives who remain at home (a major source of income for some poor nations). It is therefore wrong to claim they have a duty to stay.

Perhaps Trump’s remark can be construed to mean only that migrants have a duty go home and fix their own countries if they dare to criticize the policies of their new home. But that version of the argument is no better. It implies that your right to criticize the government is  contingent on your ethnicity or place of birth—or, in this case, that of your ancestors.

 

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City May Not Bargain for Certain Speech Restrictions When Settling Lawsuits Against Police Department

The First Amendment makes such waivers of plaintiff’s free speech rights unenforceable, the 2-to-1 decision held.

So the Fourth Circuit held Thursday, as to a Baltimore provision under which settling plaintiffs “promise not to speak to the media about either their underlying allegations or the settlement process itself,” on pain of losing half the settlement.

First, the underlying allegations, from Overbey v. Mayor & City Council of Baltimore (as usual in my posts, I note moved text with braces, { and }):

Ashley Overbey sued three officers of the Baltimore Police Department (BPD), alleging that the officers had beaten, tased, verbally abused, and needlessly arrested her in her own home after she called 911 to report a burglary…. Her case ground through the system for about two years, during which [Overbey alleges] she and her children became homeless—partly because Overbey’s arrest record made it difficult for her to find work.

Eventually, following her attorney’s advice, Overbey agreed to settle her suit for $63,000. The parties to the settlement agreement included both the officers named in Overbey’s complaint and the City itself. The City was a party to the agreement because, pursuant to Maryland law, it represents the BPD’s interests in settling claims against BPD officers.

As in 95% of settlement agreements between the City and persons alleging police misconduct, Overbey’s settlement agreement included what we will call a “non- disparagement clause.” This clause required Overbey to “limit [her] public comments” regarding her lawsuit “to the fact that a satisfactory settlement occurred involving the Parties.” It prohibited her from “discussing [with the news media] any opinions, facts or allegations in any way connected to” her case, her underlying allegations, or the settlement process. And it provided that if Overbey were to ever make a prohibited comment regarding her lawsuit, the City would be entitled to a refund of half of her settlement. The clause placed no restriction on the City’s freedom to speak about the case.

After Overbey signed the settlement agreement, the agreement went before the City’s Board of Estimates for approval. While approval was pending, a local newspaper, the Baltimore Sun, published Overbey’s name, her photograph, her address, and the amount of her proposed settlement in a report on payouts planned for police-misconduct claimants. The Sun‘s report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as “hostile” during her encounter with police—insinuating that Overbey, not the officers, had been at fault.

The Sun‘s story accumulated several anonymous, race-inflected comments implying that Overbey had initiated a confrontation with the police in hopes of getting a payout from the City. Overbey posted responses to several such comments, insisting that the police had been in the wrong and describing some of the injuries she had suffered.

The City determined that Overbey’s online comments on the Sun article violated the non-disparagement clause of the settlement agreement. Consequently, once Overbey’s settlement was approved, the City remitted only half of the agreed payment—$31,500— to Overbey’s attorney. It retained the other half as “liquidated damages.” …

Unconstitutional, the panel majority held, in an opinion by Judge Henry Franklin, joined by Judge Stephanie Thacker; here’s an excerpt:

It is well-settled that a person may choose to waive certain constitutional rights pursuant to a contract with the government. Yet … the waiver of a constitutional right—even one that appears in an otherwise valid contract with the government—is enforceable … [only if,] under the circumstances, the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement…. [Here,] the City’s asserted interests in enforcing Overbey’s waiver of her First Amendment rights are outweighed by strong policy interests that are rooted in the First Amendment and counsel against the waiver’s enforcement….

[E]nforcing the non-disparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she settled with the City, was contrary to the public’s well-established First Amendment interest in “uninhibited, robust, and wide-open” debate on “public issues.” …

Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious “mistrust of governmental power.” This mistrust is one of the “premise[s]” of the First Amendment, and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when 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….

[None of] the City’s asserted interests in enforcing the non-disparagement clause … are strong enough for the City to prevail. {We note that this is not a case in which the government seeks to hold a private speaker liable for the unauthorized disclosure of confidential or sensitive information that was held by the government and to which the speaker would not have had access but for a promise of confidentiality or other fiduciary obligation to the government. Cf. Snepp v. United States, 444 U.S. 507, 510 (1980).}

Initially, the City points out that it has an interest in using settlement agreements to reduce the time and money that it devotes to litigation, and that this interest favors enforcement of the non-disparagement clause. But as the Ninth Circuit has aptly explained, when a settlement agreement contains a waiver of a constitutional right, the government’s general interest in using settlement agreements to expedite litigation is not enough to make the waiver enforceable—otherwise, no balance-of-interests test would be required. The City cannot succeed merely by invoking its general interest in settling lawsuits. It must point to additional interests that, under the circumstances, justify enforcing Overbey’s waiver of her First Amendment rights.

To that end, the City … [argues] that one of the private interests protected by the First Amendment is the right not to speak. According to the City, the “individual autonomy” embodied by the right not to speak would be undermined if plaintiffs like Overbey could not use their right to silence as a bargaining chip during settlement negotiations. Thus, in the City’s view, enforcement of the non-disparagement clause is consonant with, and essential to, individual First Amendment interests. We think not…. [T]he right to refrain from speaking has generally been construed as preventing the government from requiring private persons to speak in support of policies, causes, or ideas that they find objectionable. It is simply not implicated here: a limitation on the government’s ability to purchase citizens’ silence does not meaningfully compromise the “individual freedom of mind” protected by the right not to speak.

The City goes on to invoke the interests of the three police officers who were named as defendants in Overbey’s first lawsuit, asserting that the officers have a personal interest “in clearing their names.” We are not unsympathetic to this interest, but it does little to help the City’s cause. The settlement agreement neither admits wrongdoing nor vindicates any of the parties involved. That is, neither the settlement agreement as a whole nor the non-disparagement clause in particular has the effect of proving that the officers did not act as Overbey alleges. Thus, to the extent that the officers have an interest in clearing their names, enforcing the non-disparagement clause will not help them. We conclude that the officers’ interest in clearing their names does not weigh in favor of enforcement.

Additionally, the City urges that both it and the officers involved have an interest in avoiding “harmful publicity.” It is well-established that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle….

 

{[T]he City asserts that if Overbey were to prevail in the instant case, the City would “almost certainly” offer less money to similar police-misconduct claimants in the future, since such claimants would have less value to offer in return for settlement; that is, claimants would be unable to sell their own silence as part of a settlement agreement, making their agreement to settle less valuable. This, according to the City, would “reduce the number and mutual value of settlements.” We are troubled by the underlying logic of this assertion: police- misconduct claimants get money to keep quiet, the City gets silence and a speedy end to litigation, and everybody wins—except, presumably, members of the public who are interested in transparency surrounding police-misconduct suits.

Aside from that concern, there are two factors that make the City’s assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants’ risk of exposure to high damages awards following a jury trial, the claimant’s financial resources, and each side’s appetite for litigation. Accordingly, we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey’s in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey’s settlement agreement has anything other than a conjectural and attenuated relationship to “the number and mutual value of [future, hypothetical] settlements.”}

Finally, the City appeals to “fairness.” As the City would have it, Overbey “sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again.” Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now….

Judge A. Marvin Quattlebaum Jr. dissented; here’s an excerpt:

One of the bedrock principles of our country is the freedom of parties, public and private, to enter into agreements without fear that courts will re-write them if one side has a change of heart. Under this principle, parties have a right to rely on the certainty of contracts entered into knowingly and voluntarily. In my view, the majority opinion undermines those important principles.

While I join my colleagues in affirming the importance of the First Amendment and the public’s interest in exposing police misconduct, such affirmation does not require us to find unenforceable the non- disparagement provision in the settlement agreement between Overbey and the defendants. Overby entered into the settlement agreement knowingly and voluntarily, and the interests in enforcing it outweigh any countervailing interests. Accordingly, I respectfully dissent….

First, it is important to note the narrow scope of the waiver. Under the non- disparagement provision, Overbey agreed not to speak about the facts of her specific case. The waiver did not restrict her from speaking about the Baltimore Police Department or police misconduct generally. Nor did it restrict her from speaking on a myriad of other public issues. It simply limited her ability to speak publicly about her case.

Second, the limitations in the non-disparagement clause did not actually bar Overbey from speaking about her case. There were just financial consequences—to which she agreed—of her choosing to speak. Under the agreement, she had a choice. She could abide by her promise not to talk about the case. If she did that, she would receive the full $63,000. Or she could do what she did—talk about the case. The consequence was that, since Overbey made that latter choice, the City was entitled to keep $31,500 of the $63,000 settlement amount.

Third, even without her public comments, the detailed allegations in Overbey’s complaint and in the Department of Justice’s 2016 report on police misconduct in Baltimore contain extensive information on this important issue. Critically, all of that information remains public. Likewise, the terms of the settlement agreement were made and remain public. The non-disparagement provision does not remove any of that information about police misconduct in Baltimore from the review and scrutiny of the public. It remains in the public square for discourse and debate. Thus, even if Overbey decided not to speak because of the non-disparagement provision, the public’s interests would only have been minimally harmed.

Last, any impairment of the public’s interests must be considered in relation to Overbey’s other rights. Part and parcel with Overbey’s right to speak is her right not to speak. Plainly, even without the non-disparagement provision, Overbey had the right not  to speak. If she had done that, the public’s interest would have been equally impaired. The public’s interests cannot legitimately be harmed by Overbey doing by written agreement what was her right in the first place….

On the other hand, the defendants have significant and legitimate interests in the enforcement of the non-disparagement clause. First, they have an interest in the finality of the litigation. Litigation serves a vital role in our legal system, but, for those in the midst of it, it is often unpleasant, expensive and distracting. For those and many other reasons, litigants at times decide that the best course for them is to compromise on a settlement rather than forging forward to trial. The defendants did just that in this case. They agreed to put the dispute behind them by entering into an agreement with terms that furthered their interest in finality. The non-disparagement provision was one of the terms.

Second, by agreeing to the settlement, the defendants gave up their opportunity for vindication by a judge or jury. Of course, there is no guarantee how the case would have turned out had it continued. That uncertainty is one of the reasons parties often agree to a settlement. But having given up the opportunity to be exonerated, the defendants have an interest in Overbey’s accusations, which they denied, ending. The non-disparagement clause furthered this legitimate interest as well.

Third, the defendants have an interest in the certainty of their contract. As alluded to above, parties have a right to expect that plain and unambiguous terms of the contracts to which they enter, like the ones here, will be enforced. During the pendency of the case, when it was uncertain whether she would be awarded any money, Overbey decided it was a good idea to limit her public comments in return for additional settlement payments from the defendants. After the settlement, Overbey, with some money in hand, decided she no longer wanted to limit her comments. Despite that, she now seeks to not only keep the money she received, but also compel the City to pay the rest. Overbey seeks through the courts to re-write the agreement so that she will receive all the benefits of the agreement, but not all of the burdens. This is not the proper role for courts.

{Surprisingly, my good colleagues in the majority characterize this position as endorsing “hush money.” Harsh words for the principle that it is unfair for parties who enter agreements freely to later change their mind and seek to avoid the very terms to which they agreed. Perhaps a better description would be that Overbey cannot have her cake and eat it too.}

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City May Not Bargain for Certain Speech Restrictions When Settling Lawsuits Against Police Department

The First Amendment makes such waivers of plaintiff’s free speech rights unenforceable, the 2-to-1 decision held.

So the Fourth Circuit held Thursday, as to a Baltimore provision under which settling plaintiffs “promise not to speak to the media about either their underlying allegations or the settlement process itself,” on pain of losing half the settlement.

First, the underlying allegations, from Overbey v. Mayor & City Council of Baltimore (as usual in my posts, I note moved text with braces, { and }):

Ashley Overbey sued three officers of the Baltimore Police Department (BPD), alleging that the officers had beaten, tased, verbally abused, and needlessly arrested her in her own home after she called 911 to report a burglary…. Her case ground through the system for about two years, during which [Overbey alleges] she and her children became homeless—partly because Overbey’s arrest record made it difficult for her to find work.

Eventually, following her attorney’s advice, Overbey agreed to settle her suit for $63,000. The parties to the settlement agreement included both the officers named in Overbey’s complaint and the City itself. The City was a party to the agreement because, pursuant to Maryland law, it represents the BPD’s interests in settling claims against BPD officers.

As in 95% of settlement agreements between the City and persons alleging police misconduct, Overbey’s settlement agreement included what we will call a “non- disparagement clause.” This clause required Overbey to “limit [her] public comments” regarding her lawsuit “to the fact that a satisfactory settlement occurred involving the Parties.” It prohibited her from “discussing [with the news media] any opinions, facts or allegations in any way connected to” her case, her underlying allegations, or the settlement process. And it provided that if Overbey were to ever make a prohibited comment regarding her lawsuit, the City would be entitled to a refund of half of her settlement. The clause placed no restriction on the City’s freedom to speak about the case.

After Overbey signed the settlement agreement, the agreement went before the City’s Board of Estimates for approval. While approval was pending, a local newspaper, the Baltimore Sun, published Overbey’s name, her photograph, her address, and the amount of her proposed settlement in a report on payouts planned for police-misconduct claimants. The Sun‘s report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as “hostile” during her encounter with police—insinuating that Overbey, not the officers, had been at fault.

The Sun‘s story accumulated several anonymous, race-inflected comments implying that Overbey had initiated a confrontation with the police in hopes of getting a payout from the City. Overbey posted responses to several such comments, insisting that the police had been in the wrong and describing some of the injuries she had suffered.

The City determined that Overbey’s online comments on the Sun article violated the non-disparagement clause of the settlement agreement. Consequently, once Overbey’s settlement was approved, the City remitted only half of the agreed payment—$31,500— to Overbey’s attorney. It retained the other half as “liquidated damages.” …

Unconstitutional, the panel majority held, in an opinion by Judge Henry Franklin, joined by Judge Stephanie Thacker; here’s an excerpt:

It is well-settled that a person may choose to waive certain constitutional rights pursuant to a contract with the government. Yet … the waiver of a constitutional right—even one that appears in an otherwise valid contract with the government—is enforceable … [only if,] under the circumstances, the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement…. [Here,] the City’s asserted interests in enforcing Overbey’s waiver of her First Amendment rights are outweighed by strong policy interests that are rooted in the First Amendment and counsel against the waiver’s enforcement….

[E]nforcing the non-disparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she settled with the City, was contrary to the public’s well-established First Amendment interest in “uninhibited, robust, and wide-open” debate on “public issues.” …

Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious “mistrust of governmental power.” This mistrust is one of the “premise[s]” of the First Amendment, and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when 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….

[None of] the City’s asserted interests in enforcing the non-disparagement clause … are strong enough for the City to prevail. {We note that this is not a case in which the government seeks to hold a private speaker liable for the unauthorized disclosure of confidential or sensitive information that was held by the government and to which the speaker would not have had access but for a promise of confidentiality or other fiduciary obligation to the government. Cf. Snepp v. United States, 444 U.S. 507, 510 (1980).}

Initially, the City points out that it has an interest in using settlement agreements to reduce the time and money that it devotes to litigation, and that this interest favors enforcement of the non-disparagement clause. But as the Ninth Circuit has aptly explained, when a settlement agreement contains a waiver of a constitutional right, the government’s general interest in using settlement agreements to expedite litigation is not enough to make the waiver enforceable—otherwise, no balance-of-interests test would be required. The City cannot succeed merely by invoking its general interest in settling lawsuits. It must point to additional interests that, under the circumstances, justify enforcing Overbey’s waiver of her First Amendment rights.

To that end, the City … [argues] that one of the private interests protected by the First Amendment is the right not to speak. According to the City, the “individual autonomy” embodied by the right not to speak would be undermined if plaintiffs like Overbey could not use their right to silence as a bargaining chip during settlement negotiations. Thus, in the City’s view, enforcement of the non-disparagement clause is consonant with, and essential to, individual First Amendment interests. We think not…. [T]he right to refrain from speaking has generally been construed as preventing the government from requiring private persons to speak in support of policies, causes, or ideas that they find objectionable. It is simply not implicated here: a limitation on the government’s ability to purchase citizens’ silence does not meaningfully compromise the “individual freedom of mind” protected by the right not to speak.

The City goes on to invoke the interests of the three police officers who were named as defendants in Overbey’s first lawsuit, asserting that the officers have a personal interest “in clearing their names.” We are not unsympathetic to this interest, but it does little to help the City’s cause. The settlement agreement neither admits wrongdoing nor vindicates any of the parties involved. That is, neither the settlement agreement as a whole nor the non-disparagement clause in particular has the effect of proving that the officers did not act as Overbey alleges. Thus, to the extent that the officers have an interest in clearing their names, enforcing the non-disparagement clause will not help them. We conclude that the officers’ interest in clearing their names does not weigh in favor of enforcement.

Additionally, the City urges that both it and the officers involved have an interest in avoiding “harmful publicity.” It is well-established that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle….

 

{[T]he City asserts that if Overbey were to prevail in the instant case, the City would “almost certainly” offer less money to similar police-misconduct claimants in the future, since such claimants would have less value to offer in return for settlement; that is, claimants would be unable to sell their own silence as part of a settlement agreement, making their agreement to settle less valuable. This, according to the City, would “reduce the number and mutual value of settlements.” We are troubled by the underlying logic of this assertion: police- misconduct claimants get money to keep quiet, the City gets silence and a speedy end to litigation, and everybody wins—except, presumably, members of the public who are interested in transparency surrounding police-misconduct suits.

Aside from that concern, there are two factors that make the City’s assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants’ risk of exposure to high damages awards following a jury trial, the claimant’s financial resources, and each side’s appetite for litigation. Accordingly, we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey’s in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey’s settlement agreement has anything other than a conjectural and attenuated relationship to “the number and mutual value of [future, hypothetical] settlements.”}

Finally, the City appeals to “fairness.” As the City would have it, Overbey “sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again.” Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now….

Judge A. Marvin Quattlebaum Jr. dissented; here’s an excerpt:

One of the bedrock principles of our country is the freedom of parties, public and private, to enter into agreements without fear that courts will re-write them if one side has a change of heart. Under this principle, parties have a right to rely on the certainty of contracts entered into knowingly and voluntarily. In my view, the majority opinion undermines those important principles.

While I join my colleagues in affirming the importance of the First Amendment and the public’s interest in exposing police misconduct, such affirmation does not require us to find unenforceable the non- disparagement provision in the settlement agreement between Overbey and the defendants. Overby entered into the settlement agreement knowingly and voluntarily, and the interests in enforcing it outweigh any countervailing interests. Accordingly, I respectfully dissent….

First, it is important to note the narrow scope of the waiver. Under the non- disparagement provision, Overbey agreed not to speak about the facts of her specific case. The waiver did not restrict her from speaking about the Baltimore Police Department or police misconduct generally. Nor did it restrict her from speaking on a myriad of other public issues. It simply limited her ability to speak publicly about her case.

Second, the limitations in the non-disparagement clause did not actually bar Overbey from speaking about her case. There were just financial consequences—to which she agreed—of her choosing to speak. Under the agreement, she had a choice. She could abide by her promise not to talk about the case. If she did that, she would receive the full $63,000. Or she could do what she did—talk about the case. The consequence was that, since Overbey made that latter choice, the City was entitled to keep $31,500 of the $63,000 settlement amount.

Third, even without her public comments, the detailed allegations in Overbey’s complaint and in the Department of Justice’s 2016 report on police misconduct in Baltimore contain extensive information on this important issue. Critically, all of that information remains public. Likewise, the terms of the settlement agreement were made and remain public. The non-disparagement provision does not remove any of that information about police misconduct in Baltimore from the review and scrutiny of the public. It remains in the public square for discourse and debate. Thus, even if Overbey decided not to speak because of the non-disparagement provision, the public’s interests would only have been minimally harmed.

Last, any impairment of the public’s interests must be considered in relation to Overbey’s other rights. Part and parcel with Overbey’s right to speak is her right not to speak. Plainly, even without the non-disparagement provision, Overbey had the right not  to speak. If she had done that, the public’s interest would have been equally impaired. The public’s interests cannot legitimately be harmed by Overbey doing by written agreement what was her right in the first place….

On the other hand, the defendants have significant and legitimate interests in the enforcement of the non-disparagement clause. First, they have an interest in the finality of the litigation. Litigation serves a vital role in our legal system, but, for those in the midst of it, it is often unpleasant, expensive and distracting. For those and many other reasons, litigants at times decide that the best course for them is to compromise on a settlement rather than forging forward to trial. The defendants did just that in this case. They agreed to put the dispute behind them by entering into an agreement with terms that furthered their interest in finality. The non-disparagement provision was one of the terms.

Second, by agreeing to the settlement, the defendants gave up their opportunity for vindication by a judge or jury. Of course, there is no guarantee how the case would have turned out had it continued. That uncertainty is one of the reasons parties often agree to a settlement. But having given up the opportunity to be exonerated, the defendants have an interest in Overbey’s accusations, which they denied, ending. The non-disparagement clause furthered this legitimate interest as well.

Third, the defendants have an interest in the certainty of their contract. As alluded to above, parties have a right to expect that plain and unambiguous terms of the contracts to which they enter, like the ones here, will be enforced. During the pendency of the case, when it was uncertain whether she would be awarded any money, Overbey decided it was a good idea to limit her public comments in return for additional settlement payments from the defendants. After the settlement, Overbey, with some money in hand, decided she no longer wanted to limit her comments. Despite that, she now seeks to not only keep the money she received, but also compel the City to pay the rest. Overbey seeks through the courts to re-write the agreement so that she will receive all the benefits of the agreement, but not all of the burdens. This is not the proper role for courts.

{Surprisingly, my good colleagues in the majority characterize this position as endorsing “hush money.” Harsh words for the principle that it is unfair for parties who enter agreements freely to later change their mind and seek to avoid the very terms to which they agreed. Perhaps a better description would be that Overbey cannot have her cake and eat it too.}

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