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Crime & Justiceby Fern Shen10:30 amDec 19, 20190

Solicitor says Baltimore is ending “gag orders,” but won’t put it in writing

Andre Davis promises to adopt, essentially, the provisions of the new City Council law, but says he still considers it an illegal infringement of his authority

Above: Demonstrators in November protest Baltimore’s policy of requiring police misconduct victims to sign non-disclosure agreements. (Fern Shen)

City Solicitor Andre Davis says that Baltimore will stop using NDAs – non-disparagement agreements, better known as “gag orders” – to settle claims against the city.

He declined to explain the decision in an interview, but stressed that it had nothing to do with the City Council’s ban on gag orders – a new law he still considers illegal and has said the city will not enforce.

Asked if he would put the policy change, which would end a practice he has defended for the past two years, in writing, Davis replied with a firm “no.”

“What I’ve been asked, I’ve answered. Just like I just answered you just now. We’re not using the non-disparagement clause,” he said in a phone interview with The Brew yesterday. “I couldn’t have been more clear.”

Attorneys at the ACLU of Maryland, which has opposed gag orders as an infringement on the rights of police abuse victims and journalists, said they were encouraged by the news.

“What is motivating them is not important if they are no longer seeking to impose restrictions at all,” said senior staff attorney David Rocah.

“We’re happy if they are going to be complying with the First Amendment and the new city legislation.”

ACLU: City has caused confusion

But Rocah said the city administration has been anything but clear on its policy regarding gag orders and should spell out its new stance in writing.

“They have sown a huge amount of public confusion about their policies, practices and plans,” Rocah said.

He cited Mayor Bernard C. “Jack” Young’s September executive order announcing the end of gag orders that “didn’t say what it seemed to say” because non-disparagement language was still being used.

“They made repeated false statements that they had stopped requiring people to sign these agreements when actually they hadn’t,” Rocah said.

“Even after the Council enacted legislation [banning the use of gag orders in police misconduct and discrimination settlements] the mayor’s spokesman said the administration refused to enforce it.”

“People may be justified in feeling mistrustful of the city’s current stance,” Rocah said.

Speaking with the Daily Record, David Jaros, a professor at the University of Baltimore School of Law, agreed that Davis’ latest statements “created more uncertainty and complicated the relationship between the attorneys and the people they represent.”

By continuing to refuse to enforce the Council’s law, Davis is leaving open the possibility that future administrations could resume using gag orders, Jaros told the Record, which first disclosed changes in city “gag order” policy yesterday.

Gag Language Blacked Out

One quiet indication of the shift came yesterday in the case of D’wan Whetsone, whose $45,000 settlement was up for approval by Board of Estimates. Whetstone said she was injured when Baltimore Police officers forcibly removed her from her car during a 2015 traffic stop.

Mayor Young had announced in September that police brutality cases would be placed on the board’s non-routine agenda and that victims would be invited to testify and “speak their truth.” None ever did.

For Whetstone’s case, the agenda item noted that “in light of City Council Bill 19-0409, the Law Department no longer asks that settlements in police misconduct cases be placed on the non-routine agenda.”

Davis said the invitation to speak is no longer necessary because there will be no more non-disparagement agreements.

Rocah said Whetstone’s settlement agreement, which he had reviewed, included non-disparagement language, but that it had been blacked out.

“I presume what they’re saying is, this language will not be included in future agreements,” Rocah said.

Reporting Requirements

In addition to being banned by city law, gag orders were struck down as unconstitutional by the 4th Circuit Court of Appeals in Richmond last July.

The ruling came as a result of the ACLU suing the city over the policy on behalf of plaintiff Ashley Overbey and this website, Baltimore Brew.

Rocah said he could not comment on how the city’s recent statements would affect the court case, which is now back in Baltimore under review by U.S. District Court Judge Deborah K. Chasanow.

“We only just now heard about what the solicitor is saying,” Rocah told The Brew.

Davis indicated that he plans to adopt one provision of the City Council’s new law – reporting requirements.

They call on the law department, twice a year, to publish on its website any civil action in state or federal court alleging police misconduct or illegal discrimination by a city agency, official or employee.

The legislation also requires quarterly disclosure of litigation to the City Council.

“We’re going to do all of that,” Davis said yesterday. “It’s going to be costly, but it’s going to be a real boon to plaintiffs’ lawyers.”

He said the first biannual report will be in May or April of 2020, and the first report to the Council will be at end of January 2020.

Infringement of his Powers

Why not acknowledge, Davis was asked, that he has decided to enforce the new law if he is, in effect, following all of its provisions?

His answer involves his continued objection to what he sees as the Council’s infringement of his authority as solicitor, which he says violates the city charter.

“The law department,” he said, “has not changed its view of the provisions concerning the ability of the Council  to control the management of litigation.”

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