Case 1:17-cv-01793-JFM Document 1 Filed 06/29/17 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ASHLEY AMARIS OVERBEY, 913 26th Street Newport News, VA 23607
and
BALTIMORE BREW PO Box 5626 Baltimore, MD 21210

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¦ ¦ CIVIL ACTION NO.

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1:17-cv-1793

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Plaintiffs,
v.
THE MAYOR AND CITY COUNCIL OF BALTIMORE, Baltimore City Hall 100 Holliday St. Baltimore, MD 21202
and
BALTIMORE CITY POLICY DEPARTMENT 242 W. 29th St. Baltimore, MD 21211-2908

Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiffs Ashley Amaris Overbey and Baltimore Brew, through their undersigned attorneys, bring this action against Defendants for damages, and declaratory and injunctive relief, under the First Amendment to the United States Constitution, and for breach of contract and violation of the public policy of the State of Maryland. Plaintiffs demand a trial by jury, and allege as follows.

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NATURE OF THE CASE This is an action challenging as unconstitutional and otherwise unlawful the pattern and practice of the City of Baltimore and its Police Department of requiring plaintiffs resolving police misconduct complaints against City police to agree to a one-sided confidentiality agreement as a condition of settlement, and to forego recovery of half of settlement proceeds if the City unilaterally deems the confidentiality provision—or, more accurately, a gag order—to be breached. Plaintiffs Ashley Overbey (a police misconduct victim subjected to a City gag order) and Baltimore Brew (a media organization) contend that the gag order illegally restricts free speech, and in so doing contravenes the public’s interest in police accountability and community trust in law enforcement.
PARTIES 1. Plaintiff Ashley Overbey is a 30-year-old mother of three, who at times relevant to this action was a resident of the City of Baltimore. Ms. Overbey is a citizen of the United States and the State of Maryland within the meaning of the United States Constitution. As explained below, Ms. Overbey has been injured by the Defendants’ illegal policies, acts, and omissions. 2. Plaintiff Baltimore Brew is an independent daily news website specializing in accountability reporting, focusing on campaign cash, development deals, government spending, city services, and more. Baltimore Brew is sustained by reader-members, foundations, advertiser-sponsors, viewer donations, and earned revenue. Baltimore Brew does not accept government or corporate funding. As explained below, Baltimore Brew has been injured by the Defendants’ illegal policies, acts, and omissions.
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3. Defendant Mayor and City Council of the City of Baltimore (“City”), a municipal corporation, is a governmental entity and a “person” within the meaning of the United States Constitution. All of the City’s acts and omissions are conducted under color of state law.
4. Defendant Baltimore City Police Department (“Police Department” or “BPD”) is a government agency. The Mayor appoints the Commissioner of the Police Department with the advice and consent of the City Council. The City Council holds hearings on Police Department policy and reviews the Police Department budget.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction to hear this federal civil rights case pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. 6. Venue lies with this Court because the Defendants reside, carry on a regular business, habitually engage in a vocation, and maintain their principal offices in the District of Maryland, and a substantial part of the events giving rise to this cause of action occurred in the District of Maryland. See 28 U.S.C. § 1391.
BACKGROUND The Scourge of Police Brutality 7. With the advent of mobile smart devices and social media, the epidemic of police brutality, particularly as it relates to Black communities, is no longer concealed from the public. It is a subject that makes reasonable, decent people very uncomfortable. It can be painful to discuss because it causes society to confront the grim reality that race relations in the United States remain complex, fraught, frequently contentious, and at times explosive. The subject frequently stirs a sense of hopelessness, the feeling that the problem is simply too deeply ingrained in our national DNA, and that we are powerless to do anything about it.
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8. Last year (2016), the frequency and seeming ubiquity of close-up recorded images on televisions and mobile devices of Black people being brutalized by police was mind-numbing, and caused the United States to confront as a society the topic of race relations between police departments and Black people.
9. The videos from Summer 2016 in particular—in Baton Rouge; in a suburb of St. Paul; and in Dallas—were an important lesson in the power of information, knowledge, and transparency. Among other images, the country (indeed, the world) saw in horrid, real-time detail the final moments of the lives of Alton Sterling and Philando Castile, among others. The public—all of us—needed to see those images; needed to be aware of those events; needed to be informed of those pivotal moments in history as they unfolded. It is the public’s right to be aware of the actions of government, including police departments. As difficult as the images are, as complex as the topics of police brutality and race relations may be, it is only through the spread of information and knowledge that we, both as individuals and as a society, can confront, learn from, and hopefully even one day triumph over, these great stains on our civilization. The police are not immune from public scrutiny.
10. Of course those startling images that we saw—and continue to see—on the news or on our mobile devices were just the tip of the iceberg. The fact of the matter is that similar encounters occur daily across the country.
11. Sadly, the City of Baltimore epitomizes the lack of trust between Black communities and police departments. Although the memorable and highly publicized death of Freddie Gray while in police custody in 2015 is the highest-profile incident to place the BPD on the ignominious list of police departments whose conduct sparked calls for greater police accountability, training, and reform, it is by no means the only incident. Many other incidents
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occur routinely in the City—some resulting in fatalities, and many others in physical and emotional injury and trauma.
12. The magnitude of the BPD’s abuse and brutality was exposed in a recent investigation and report on the subject by the United States Department of Justice (“DOJ”). The DOJ investigation revealed a broken institution with “deficient supervision and oversight of officer activity leading directly to a broad spectrum of constitutional and statutory violations,” including the routine deployment of excessive force against individuals with mental health disabilities, juveniles, and residents who otherwise posed no threat.1 The 163-page Report provides example after example of the Police Department abuse, particularly against AfricanAmericans.2 It is unsurprising therefore that the DOJ concluded that the BPD “engages in a pattern or practice of excessive force.”3
13. The BPD’s unwillingness or inability to hold its officers accountable for police misconduct has exacerbated the Baltimore community’s crisis of confidence in the Department. DOJ investigators found that Baltimore personnel “discourage complaints from being filed, misclassify complaints to minimize their apparent severity, and conduct little or no investigation.”4 In fact, “[o]f the 2,818 force incidents that [the BPD] recorded in the nearly six-year period [DOJ] viewed, [the BPD] investigated only ten incidents based on concerns identified through its internal review. Of these ten cases, [the BPD] found only one use of force to be excessive.”5 In the rare instances when incidents of excessive force were investigated, Baltimore police officers stonewall and obfuscate to protect their own. According to DOJ, “the
1 U.S. Dep’t of Justice, Civil Rights Division, Investigation of the Baltimore City Police Dep’t 21 (2016), https://www.justice.gov/opa/file/883366/download. 2 See generally id. 3 Id. at 8. 4 Id. at 10. 5 Id. at 9.
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chain of command fails to thoroughly and objectively evaluate officers’ uses of force,” evidence of police misconduct is not collected, and the accounts of officers accused of misconduct are instinctively credited over victim’s accounts.6 A supervising officer told DOJ that it is not his responsibility during an investigation to “second-guess” his officer’s use of force.7
14. Nor does anyone in the Baltimore community, including the City’s civilian leadership, have access to records of police activity. DOJ concluded that the Police Department chooses not to “collect data on a range of law enforcement actions, and when it does collect data, [it] fails to store it in systems that are capable of effective tracking and analysis.”8 Despite oftvoiced concerns about the Department’s aggressive tactics, it did not require officers to report certain uses of force, such as punching, until 2016 and it does not even keep complete records of instances of officer activity involving deadly force.9 Without this basic information, neither the Police Department nor the City’s civilian officials can identify officers that need training or discipline. As a result, Baltimore residents are left hoping that officers who repeatedly engage in misconduct—including the 25 officers who have been sued four or more times during the last five years for excessive force or civil rights violations—do not show up at their doorstep.
15. The BPD has thrown sand in the gears at every step of the process intended to ensure supervision and accountability. The DOJ Report is a damning indictment of the current system, and it is clear that the BPD has proven incapable of policing itself.
16. The DOJ’s investigation resulted in a consent decree finding that the BPD “engages in a pattern and practice of conduct that violates the First, Fourth and 14th Amendments
6 U.S. Dep’t of Justice, Civil Rights Division, Investigation of the Baltimore City Police Dep’t 9, 45, 62, 104 (2016), https://www.justice.gov/opa/file/883366/download. 7 Id. at 106. 8 Id. at 134. 9 See id. at 98–100.
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of the Constitution as well as federal anti-discrimination laws.”10 The consent decree, filed in this Court on January 12, 2017, requires the BPD to make necessary reforms focused on “building community trust, creating a culture of community and problem-oriented policing, prohibiting unlawful stops and arrests, preventing discriminatory policing and excessive force, ensuring public and officer safety, enhancing officer accountability and making needed technological upgrades.”11
17. Historically, rather than opening itself up to public scrutiny and departmental reform, the BPD has adopted an unsettling policy of trying wherever possible to keep the lid on citizen allegations of police brutality. The BPD has even gone so far as to destroy a private citizen’s cell phone footage of police brutality.12 After he recorded Baltimore Police officers roughing up a female friend of his at the 2010 Preakness Stakes, Chris Sharp was detained and harangued by the police officers.13 When the police officers demanded that he surrender his cell phone as “evidence,” Mr. Sharp politely declined, but the police insisted that he hand over his phone.14 Fearing arrest, Mr. Sharp gave his cell phone to the Baltimore police officers, who proceeded to delete the beating videos and all other videos his cellphone contained.15 Mr. Sharp and the ACLU of Maryland filed a lawsuit against the BPD alleging First Amendment violations.16 Shockingly, the BPD took the position that all of its policies were confidential, and for a time even refused to allow the court to review them. Indeed, BPD’s discovery practices in
10 Press Release, U.S. Dep’t of Justice, Justice Department Reaches Agreement with City of Baltimore to Reform Police Department’s Unconstitutional Practices (Jan. 12, 2017), https://www.justice.gov/opa/pr/justice-departmentreaches-agreement-city-baltimore-reform-police-department-s. 11 Id. 12 Justin Fenton, ACLU To Sue Police Over Wrongful Detention Deletion of Arrest Video, Baltimore Sun, Aug. 4, 2011, http://www.baltimoresun.com/news/maryland/baltimore-city/. 13 Id. 14 Id. 15 Id. 16 Id.
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the Sharp case became so egregious that the department and its Chief Counsel were strongly sanctioned and fined $1,000 by this Court.17 The parties ultimately settled, but the case prompted an unprecedented legal statement from DOJ in 2012 affirming that citizens have a constitutional right to record police officers publicly performing their official duties.18
18. Since 2009, the City has paid more than $33.4 million to settle civil lawsuits filed against the BPD alleging police brutality.19
19. On information and belief, according to the longtime City Solicitor George Nilson,20 in about 95 percent of those settlements, the City has included what amounts to a gag order to prevent additional details about the Police Department’s conduct from being disclosed.21
20. The Police Department’s policy has not gone unnoticed or without criticism. Its critics, who include both media outlets and civil rights advocates interested in police accountability and greater governmental transparency, have advocated for change to its gag order policy in particular. Indeed, the BPD did take up reconsideration of its gag order policy amid widespread media coverage exposing the provision as corrosive and contrary to the public
17 Sharp v. Baltimore City Police Department et al., Civil No. CCB–11–2888, 2013 WL 937903, * 2–3 (D. Md. Mar. 1, 2013) (condemning “a veritable witch hunt” intended to scare Mr. Sharp into dropping his lawsuit and holding that “[d]efendants’ discovery abuse is particularly egregious given the enormous power that police defendants wield over citizens, [and] their enhanced ability to track information about citizens . . .”). 18 U.S. Dep’t of Justice, Statement of Interest, Sharp v. Baltimore City Police Department et al., No. 11–2888-BEL, 2012 WL 9512053, (D. Md. Jan. 10, 2012). 19 This includes the $6.4 million settlement for Freddie Gray. See Baltimore to pay Freddie Cray’s family $6.4 million to settle civil claims, The Baltimore Sun, 06/23/2017, http://www.baltimoresun.com/news/maryland/freddiegray/bs-md-ci-boe-20150908-story.html. 20 In late August 2016, Mr. Nilson was abruptly terminated from his position, but he held the job of the City’s chief counsel during most times pertinent to this case. 21 Scott Calvert & Zusha Elinson, Violating Baltimore’s Deal Restrictions Can Be Costly, Wall St. J., Oct. 19, 2015, https://www.wsj.com/articles/violating-baltimores-deal-restrictions-can-be-costly-1445299401.
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interest. Instead of reforming the policy, however, the BPD, on information and belief, doubled
down on it by broadening the gag orders’ coverage.22
21. This lawsuit stems from the City’s application of the gag order, which reflects a
formal policy of the City of seeking to bury the truth about potentially unlawful conduct by the
BPD and to penalize individuals who engage in free and lawful speech about that conduct. The
policy is offensive to basic notions of protected speech and sound public policy in a free and
democratic society.
22. The one-sided provision—incorporated into the standard agreement the City uses
to settle civil rights and related lawsuits filed against its Police Department or it—bars settling
plaintiffs from discussing the facts of their lawsuits, on pain of losing half of all settlement
proceeds. The City, on the other hand, is bound by no such restriction, and routinely provides its
distorted version of the facts of each case, with no risk or penalty. The following is a typical
articulation of the policy, as it appeared in the City’s settlement agreement with Ms. Overbey:
It is understood and agreed by the Settling Parties that in exchange for the payment of the Settlement Sum by the Released Parties, the Releasing Party, and that party’s agents, representatives and attorneys shall strictly refrain from and avoid any attempt at defaming and/or disparaging the Released Parties, including each of the Released Parties’ employees or agents regarding any matter related to, or arising from, the Litigation or the Occurrence. Further, in exchange for the payment of the Settlement Sum by the Released Parties and because the allegations of the Occurrence and Litigation are disputed, the Settling Parties agree that the Releasing Party and his or her agents, representatives and attorneys, shall limit their public comments regarding the Litigation and the Occurrence to the fact that a satisfactory settlement occurred involving the Parties. It is understood and agreed by the Settling Parties that this limitation on public statements shall include a prohibition against discussing any opinions, facts or allegations in
22 The BPD also covered up incidents of police brutality by classifying citizen complaints against officers as personnel files. Because state law prohibits the disclosure of personnel matters, the public view into these complaints was obstructed.
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any way connected to the Litigation or the Occurrence, or substance of any prior settlement offers or discussions with the news media, except that the Releasing Party’s counsel may indicate that the Litigation has been settled to avoid the cost, time, expense and uncertainties of protracted litigation.
The Settling Parties agree and understand that a breach of the obligations set forth in this Paragraph 9 is deemed by the Settling Parties to be a material breach of this Agreement for which the City is entitled to a refund of fifty percent (50%) of the Settlement Sum ($31,500.00) from the Releasing Party. The remainder of the Settlement Sum and all other obligations of this Agreement shall remain in force. If it is necessary for the City to pursue recovery in litigation of the refund it is entitled to under this paragraph, the City will be entitled to recover all reasonable attorneys fees, costs and expenses of such litigation from the Releasing Party.
23. On its face, this gag order stymies the ability of the press, including Baltimore
Brew, to exercise its First Amendment right to obtain newsworthy information from victims of
Police Department abuse by muzzling those victims on pain of losing half of their settlement
proceeds. The City is well aware that many victims of police brutality are the City’s very
poorest residents, who live under extreme economic stress and duress on a day-to-day basis and
would be hard-pressed to refuse to “shut up about it” where it would mean losing out on tens or
even hundreds of thousands of dollars. From the media’s perspective, this is highly damaging as
the settling individuals will almost always have insightful and potentially newsworthy
information to share about the conduct of the Police Department beyond the four corners of their
civil rights complaints which, although usually publicly available, are frequently scant on detail
and particularly ill-suited to video coverage. The gag order hinders the press’s ability to
discover, investigate, and report on that information fully and accurately.
24. As discussed below, Plaintiff Baltimore Brew is a media victim of this policy. It
has been thwarted in its efforts to report fully and accurately on various allegations of police
misconduct in the City of Baltimore because alleged victims who have settled civil actions
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against the Police Department have refused to speak to Baltimore Brew expressly on account of the gag order in their settlement agreements.
25. The press—through its investigative component—can only do its job of ferreting out the newsworthiness of a given incident if it has access to news sources. When there is no video or other recording, it makes having direct access to the participants all the more important.
26. In application, the policy offends in a second way where a settling plaintiff who does choose to speak up—no matter whether the speech in any way harms or disparages the BPD—is denied half of the agreed-upon settlement proceeds for commenting on the settled civil litigation, in effect penalizing the protected speech of the settling plaintiff. That is exactly what happened to Ms. Overbey.
27. The City of Baltimore’s pattern and practice of coercing silence from alleged victims of police brutality or penalizing them if they choose not to remain silent offends basic principles of free speech as protected by the First Amendment to the United States Constitution and the public policy of the State of Maryland.
Baltimore’s Recent History of Settling Police Brutality Civil Actions 28. Baltimore City is no stranger to civil rights lawsuits alleging unlawful brutality of the Police Department. As mentioned above, between 2009 and 2017, the City has paid more than $33.4 million in settlements and court judgments for lawsuits alleging brutality and other police misconduct by law-abiding Baltimore citizens, including elderly grandparents, innocent parents of minor children, and pregnant women. 29. The largest settlement was the result of an April 2015 arrest of 25-year-old Freddie Gray. Mr. Gray was stopped by BPD officers because he allegedly ran away from the police after noticing their presence. Once Mr. Gray stopped running, the police arrested him for
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possession of a knife, later determined to be one Gray was carrying lawfully. The arrest was recorded by a bystander, but what unfolded afterward, inside of the van transporting Mr. Gray to the police station, remains unclear even to this day. Details of what happened inside the van include the fact that Mr. Gray was handcuffed and not restrained by a seat belt. Although he informed the officers that he was having difficulty breathing and requested an inhaler, the officers made multiple stops before getting Mr. Gray the medical attention he required. Although the exact cause of Mr. Gray’s injury is unclear, it is undisputed that Mr. Gray’s spine, which was fully intact prior to entering the van, was almost completely severed by the time officers removed him from the van. After lying in a hospital bed comatose for a week, Mr. Gray died on April 19th, 2015. In September 2016, the city of Baltimore paid Mr. Gray’s estate $6.4 million to avoid a civil lawsuit by Gray’s family.
30. In addition to the Freddie Gray settlement, the cases settled by the City include the following accounts:
 In 2007, Ms. Venus Green, an 87-year-old African-American woman was assaulted and battered by officers who responded to her 9-1-1 call after her grandson was shot. As alleged in her complaint, Green had telephoned for an ambulance after she heard her grandson yell from down the street that he had been shot. When police arrived, they accused Green and her grandson of lying about the circumstances and location of the shooting, alleging that the shooting and taken place inside Green’s house. An officer demanded to enter Green’s house to prove that the shooting had taken place inside, and more specifically in the basement, where her grandson lived. After the officer unlatched the basement door—without Green’s permission or a warrant—Green informed the officer that
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she would need to close the door behind him because her grandson’s two dogs were in the basement. In response to her statement, the officer grabbed Green, threw her on the floor, and said “I’m going to lock you up. You don’t want us to go downstairs. Bitch, you are no better than any of the other old black bitches that I have locked up.” The officer then dragged Green along her living-room floor, pressed his knee into her back, twisted her arms, handcuffed her, and threw her face down onto her couch. Green sustained a broken shoulder from the assault. She filed suit against the City in November 2010 and settled in April 2012 for $95,000.  In 2008, Wesley Williams and Shaney Pendelton were punched, kicked, and choked by plainclothes officers in front of their minor children. On May 13, 2008, Williams and Pendelton planned to exchange possession of their children, Donte (then age 6) and Wesley (then age 2), at 9:00 p.m. outside of Williams’ house. As Williams exited his home, he was approached by plainclothes officers brandishing handguns. Although Williams stopped and put his hands in the air, assuming that he was being robbed, the officers began to punch and kick him without provocation or resistance. Pendelton arrived with her two children and witnessed the shocking assault by assailants she supposed were armed robbers. Pendelton exited her vehicle and attempted to call 9-1-1 to report the incident. However, the officers informed Pendelton that she was not allowed to contact the Police Department. When Pendelton tried to walk to the rear of her vehicle in order to complete the call, an officer brutally tackled her, face first, to the ground. As a result of the officers’ actions, both Williams and Pendelton suffered extreme
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physical injuries, emotional pain, and distress. Williams and Pendelton brought suit against the officers in 2011. The City reached a $155,000 settlement with Williams and Pendelton in 2012.  In September 2009, Starr Brown, a pregnant 26-year-old African-American woman, was entering her house with her 3-year-old daughter when she saw a group of girls attack two other girls walking down her block. The attackers fled before the police arrived. When the police showed up, they began chastising the victims. Brown attempted to explain to officers what she had witnessed, urging the officers to pursue the attackers rather than harass the victims. However, the officers responded by arresting her. Although Brown informed the officers that she was pregnant, one officer lunged at her, “tossed [her] like a rag doll,” and forcefully shoved his knee into her back and neck. Another officer joined the assault, also forcing her knee into Brown’s back while handcuffing her. The officers arrested Brown for obstruction, disorderly conduct, resisting arrest and assault. After a judge acquitted Brown of all criminal charges, she sued the City in April 2010. The City settled Brown’s case in March 2011 for $125,000, subject to the gag order.  In December 2009, police officers violently abused 77-year-old AfricanAmerican James “Lenny” Clay during a traffic stop. Officers began to pursue Clay after he hit a parked car, suspecting that Clay may have been intoxicated. Clay did not immediately hear the officers directing him to pull over, but eventually stopped his vehicle. During his traffic stop, the arresting officers slammed Clay to the ground, fracturing his arm, breaking his eyeglasses, and
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cracking his dentures. Clay filed a $26 million lawsuit against the officers, alleging battery, excessive force, and gross negligence. The City agreed to settle the case for $63,000 in 2013.  In September 2012, Anthony Anderson was walking to his East Baltimore home when three plain-clothed men approached him in a vacant lot. After a short confrontation, the men—later identified as police officers—grabbed him, pinned his arms to his side, and slammed him on his neck. They proceeded to smash his collar bone and throw him to the ground. Once he fell, they began kicking him in his ribs, stomach, back, and chest for several minutes. Anderson’s mother, daughter, son, and two-year-old granddaughter, and many onlookers, watched and witnessed the brutal attack from a short distance away. Anderson died moments later from internal bleeding. Although the officers tried to attribute his death to the alleged drugs they arrested him for, the medical examiner’s report ruled his death a homicide. According to the report, Mr. Anderson suffered eight fractured ribs and a ruptured spleen. In 2013 Mr. Anderson’s family filed a wrongful death suit. In 2017 the City approved a $300,000 settlement, which included the gag order.  In October 2013, a BDP officer tased 28 year-old Tavon Sherman after two other officers stopped Mr. Sherman because they had an open warrant for the vehicle in which Mr. Sherman was a passenger. The officers allege that Mr. Sherman initially refused to obey their orders to sit on the curb after he exited the vehicle. One officer warned Mr. Sherman that he would be tased should he not sit on the curb. Although Mr. Sherman ultimately complied, the officer claimed that he
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found it necessary to tase Mr. Sherman due to his “continued flailing,” and use of profanity. In response to the incident, Mr. Sherman brought suit against all three of the officers involved. In 2015 the City settled the case for $35,000, subject to the gag order.  In December 2013, a BPD officer punched 19-year-old high schooler Keondre Boykin in his mouth. Mr. Boykin had been walking along Litchfield Avenue that evening when two officers ordered Boykin to stop because an unlit streetlight was preventing them from seeing his face. Although Mr. Boykin initially refused to stop and sit down, he eventually did so. Shortly thereafter, a fight erupted between Boykin and the officer who eventually punched him on grounds that Mr. Boykin was “pulling away” and “flailing his arms.” Upon being punched in the mouth, Mr. Boykin was taken to Sinai Hospital to receive treatment. In 2015 Baltimore City paid Mr. Boykin a settlement of $75,000, subject to the gag order.  On October 21, 2014, a BPD officer working in an unmarked car confronted Albert Smith while Smith was walking. Mr. Smith was questioned about a transaction in which he allegedly participated. The officer got out of his car and demanded Mr. Smith spit out what he had in his mouth (which was gum). When Smith refused, the officer began to choke him until the gum Mr. Smith had in his mouth fell onto the ground. Even after realizing the substance was gum, the officer took Mr. Smith to the Southern District police station for booking. Mr. Smith was later diagnosed with a traumatic fracture to his neck bone and a sprain to a neck muscle. He also had back pain and bruising to his neck. Mr. Smith
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sued the City for assault, battery, false arrest, and false imprisonment. The City approved a $60,000 settlement in 2017, which included the gag order. 31. In all of these cases, in light of their economic circumstances, the settling plaintiffs had little practical choice but to agree to remain quiet about additional details underlying their claims of police brutality. Ms. Overbey’s Encounter with the BPD 32. The harm suffered by Ms. Overbey as a result of the City’s policy arises out of an incident that occurred on April 30, 2012, at her apartment in the Cedonia area of Baltimore. 33. That evening, at approximately 9:40 p.m., Ms. Overbey contacted the BPD to report that her apartment had been burglarized. Ms. Overbey was a victim; she called the police for help. What she received instead was even greater mistreatment and abuse from the very police who were responding to her call for assistance. 34. Three sets of police officers were dispatched to her apartment at various points in the evening in response to her report. The first officer who arrived on the scene remarked that Ms. Overbey should be accustomed to burglary, given the location of her residence. Officer Sheena Newman arrived second, briefly interviewed Ms. Overbey, and contacted the crime lab unit. The crime lab unit arrived while Newman was still in Ms. Overbey’s apartment. Newman, however, left the premises before the unit finished processing the scene. 35. While the crime lab unit was still at Ms. Overbey’s apartment, Officer Fred Hannah forcefully entered and began searching her apartment without her permission. Unbeknownst to Ms. Overbey, the crime lab unit had radioed for police officers to return to the apartment, and Officer Hannah had responded to that call.
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36. Ms. Overbey asked Officer Hannah to explain his presence in her apartment, but he neither identified himself nor explained the purpose of his being there.
37. Instead, Officer Hannah became aggressive and violent. Without any provocation by her, he grabbed Ms. Overbey by her hair, twisted her arm behind her back, and violently slapped and punched her. He then, without cause or justification, shouted at Ms. Overbey, telling her that she was under arrest. When Ms. Overbey asked why she was being arrested, Officer Hannah yelled, “[b]ecause you talk too much, bitch,” or words to that effect.
38. Officer Martin Richardson arrived shortly after the assault and began violently and maliciously beating Ms. Overbey with clenched fists, causing Ms. Overbey further bodily injury, including a black eye so severe that it persisted for a month and a half.
39. Ms. Overbey’s mother, Jenean Derrise Kelly, begged Officers Hannah and Richardson to stop. Officer Hannah responded by arresting Ms. Kelly and dragging her outside to a squad car. As he did so, he called Ms. Kelly a “stupid bitch,” or words to that effect.
40. While Officer Richardson continued to restrain and beat Ms. Overbey, a third officer, Grant Galing, arrived on the scene and yelled “Taser!” As Officer Richardson slightly loosened his grasp on Ms. Overbey, presumably to avoid being struck by the Taser, Officer Galing unjustifiably used his Taser on Ms. Overbey, inflicting further injury on her.
41. As Officer Galing prepared to use his Taser on Ms. Overbey a second time, Ms. Overbey was able to scurry away from Richardson’s grasp to avoid being tased a second time.
42. This appears to have infuriated Officer Galing, who responded by tackling Ms. Overbey. Using his full body weight, he restrained her and cut off her airway by placing his knee on her throat, choking her and making it hard for her to breathe.
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43. When Ms. Overbey tried to tell Officer Galing that she could not breathe, he replied, “Shut the fuck up, bitch,” or words to that effect, as he continued to choke her by holding her down with his knee on her throat. Officer Galing then stunned Ms. Overbey again with his Taser.
44. After being beaten, tased, tackled, choked, and handcuffed, Ms. Overbey was transported by ambulance to Johns Hopkins Bayview Hospital and then to the Baltimore Central Booking and Intake Center, where she was incarcerated. Ms. Overbey was jailed for 24 hours and charged with six counts of assault and one count of resisting arrest.
45. Officer Hannah instituted criminal proceedings against both Ms. Overbey and her mother; however, the Office of the State’s Attorney for Baltimore City declined to prosecute and dropped all charges against both Ms. Overbey and Ms. Kelly.
46. Subsequently, Ms. Overbey and Ms. Kelly filed a Complaint in the Circuit Court for Baltimore City against the City and Officers Hannah, Richardson, and Galing for wrongful arrest and unwarranted physical abuse on the night of April 30, 2012. In her Complaint, Ms. Overbey stated claims for false arrest and false imprisonment, battery, violation of the Maryland Declaration of Rights, and malicious prosecution.
47. Ms. Overbey’s mistreatment by the BPD and her ensuing litigation against the City were emotionally and financially draining on her. Ms. Overbey was only 25 years old when she was savagely beaten by the police; she was a single mother of two young children; and she was the primary source of income for her household. Although the City dropped the bogus criminal charges against her, the arrest adversely impacted her ability to find work and provide for her family. Employers refused to hire her because of her “criminal” record. Without a job, she was unable to afford rent.
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48. Ms. Overbey pursued her civil suit against the City for approximately two years
before she was presented with a settlement agreement (the “Settlement Agreement”). The
Agreement is attached hereto as “Exhibit A.”
49. Pursuant to the terms of the Agreement, the City agreed to pay Ms. Overbey
$63,000.00 to dispose of her civil action. The City also agreed to pay Ms. Kelly $13,000 to
settle her allegations against the City and the Officers.
50. The Agreement stated that funds would be disbursed as follows:
In consideration of the Settling Parties’ agreement to enter into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Settling Parties, within sixty (60) days of the approval of this Agreement by the Baltimore City Board of Estimates, the City shall make the sum total payment to the Releasing Party of Sixty-Three Thousand Dollars ($63,000.00) on behalf of the Released Parties, as full and final payment for making the Release set forth in this Agreement (“Settlement Sum”).
51. Section 9 of the Settlement Agreement stated the City’s gag policy:
It is understood and agreed by the Settling Parties that in exchange for the payment of the Settlement Sum by the Released Parties, the Releasing Party and that party’s agents, representatives and attorneys shall strictly refrain from and avoid any attempt at defaming and/or disparaging the Released Parties, including each of the Released Parties’ employees or agents regarding any matter related to, or arising from the Litigation or the Occurrence. Further, in exchange for the payment of the Settlement Sum by the Released Parties and because the allegations of the Occurrence and Litigation are disputed, the Settling Parties agree that the Releasing Party and his or her agents, representatives and attorneys, shall limit their public comments regarding the Litigation and the Occurrence to the fact that a satisfactory settlement occurred involving the Parties. It is understood and agreed by the Settling Parties that this limitation on public statements shall include a prohibition against discussing any opinions, facts or allegations in any way connected to the Litigation or the Occurrence, or substance of any prior settlement offers or discussions with the news media, except that the Releasing Party’s counsel may indicate that the Litigation has been settled to avoid the cost, time, expense and uncertainties of protracted litigation.
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The Settling Parties agree and understand that a breach of the obligations set forth in this Paragraph 9 is deemed by the Settling Parties to be a material breach of this Agreement for which the City is entitled to a refund of fifty percent (50%) of the Settlement Sum ($31,500.00) from the Releasing Party. The remainder of the Settlement Sum and all other obligations of this Agreement shall remain in force. If it is necessary for the City to pursue recovery in litigation of the refund it is entitled to under this paragraph, the City will be entitled to recover all reasonable attorneys fees, costs and expenses of such litigation from the Releasing Party. 52. Ms. Overbey’s attorney encouraged Ms. Overbey to sign the Agreement. 53. Ms. Overbey was apprehensive about signing the Agreement because she knew that the officers who maliciously beat her would be absolved of their illegal actions, probably receive no discipline, and remain at liberty on the police force to treat other residents of Baltimore City as they had treated her. Given her dire financial situation, however, Ms. Overbey felt she had little choice but to accept the gag order in order to collect the full cash settlement offer. Accordingly, she signed the Agreement with the City and the Officers in August 2014. 54. Ms. Overbey did not understand the gag order in the same manner as it was subsequently applied by the City in denying her half of the settlement proceeds. For one thing, her attorney told her that the Agreement prohibited both her and the City from talking to reporters about the allegations or facts of her case. For another, again relying on her attorney’s explanation of the Agreement and of the gag order in particular, Ms. Overbey understood that the gag order prohibited the parties from speaking with the media, i.e., reporters who worked directly for television, radio, newspaper and internet outlets; Ms. Overbey did not appreciate at the time that, at least according to how the City later interpreted it, the Agreement prohibited her from discussing her case in any public forum, and that the prohibition against speaking publicly only applied to her, and not the City.
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55. The only apparent purpose of the gag order was to keep Ms. Overbey from speaking any further about her abuse at the hands of the Police Department so that the City might keep the public ignorant of the misconduct of its police officers.
56. Plaintiff’s attorney informed her that she would receive her payment a few weeks after the date of signing the Agreement.
57. On September 10, 2014, City Solicitor Nilson sought approval of the Agreement from the Board of Estimates, which must review any settlement greater than $25,000. In explaining the settlement, Mr. Nilson misrepresented to the Board of Estimates that, on the night she was assaulted, Ms. Overbey had been “hostile” and that she got into a “verbal confrontation” with the police.
58. Before Ms. Overbey received her funds, and to her great surprise, The Baltimore Sun, using Ms. Overbey’s mug-shot photo published an article on September 15, 2014 about the City’s decision to pay Ms. Overbey to settle her case (noting the amount of $63,000). The newspaper had learned of the settlement because the records the administration sends to the Board of Estimates requesting approval of the settlement amount are public.
59. Ms. Overbey was caught off guard seeing her name, mug-shot photo, and the settlement amount printed on the front page of The Baltimore Sun, especially since it had been her understanding that the details of the settlement were confidential. As a woman of modest means living in one of the City’s most poverty-stricken neighborhoods, Ms. Overbey was especially fearful that she and her family members would be targeted for further burglary since the Sun article identified her by name and photograph and could easily have given readers the impression that she was now sitting on a pile of cash in her apartment.
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60. Ms. Overbey was also angered by Mr. Nilson’s statements to the media, which
appeared to blame her for her mistreatment by the police.
61. Ms. Overbey’s anger was further stoked by comments made by readers of the Sun
article on the newspaper’s public blog site, accusing Ms. Overbey of initiating her arrest to
recover a large payout from the City. The ugly, racially tinged comments depicted her as a poor,
avaricious Black woman using her race and lies to leverage a big payday from the City’s
taxpayers.
62. Understandably upset, Ms. Overbey replied to the anonymous postings, stating
that people should learn facts before making disparaging comments. Additionally, to refute the
accusation that she had assaulted the officers from the BPD, Ms. Overbey responded by reciting
the facts of her assault as alleged in her publicly available complaint.
63. The entirety of the exchange between the commenters and Ms. Overbey on the
Sun’s blog site read as follows:
Co.Owner: “I'm sorry for your experience, but pushing a Police Officer does not work. No matter what your race is, you never touch a police officer; you do answer all questions; and assist when possible. I would rather be shot by a Taser, then a bullet. I can”t wait until you need their help in the future. Enjoy the money!!”
Ms. Overbey replied: “I am the woman who this article is talking about AND THE POLICE WERE WRONG!! This article doesn’t come close to WHAT REALLY HAPPENED or tell how three men over 200 lbs each beat me (115 lbs) bruises all over my body a black eye AND tased twice all in front my 2 yr old daughter so before you decide to put ur MEANINGLESS opinion in on something FIND OUT THE FACTS FIRST! IF I were wrong my charges wldntve ben thrown out and i wldntve received a dime. Its people like you who make this cite the ****it…”
MissDaisy: “So, OK, I can call the cops, assault one of them, get tased and get paid! Sounds like a plan!”
Ms. Overbey replied: “I am the woman who this article is talking about AND THE POLICE WERE WRONG!! This article doesnt
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come close to WHAT REALLY HAPPENED or tell how three men over 200 lbs each beat me (115 lbs) bruises all over my body a black eye AND tased twice all i nfront my 2 yr old daughter so before you decide to put ur MEANINGLESS opinion in on something FIND OUT THE FACTS FIRST! IF I were wrong my charges wldntve ben thrown out and i wldntve received a dime. Its people like you who make this cite the ****it…”
Ms. Overbey continued: “AND THIS WAS ALL AFTER I CALLED THEM FOR HELP AFTER MY HOME HAD BEEN BURGULARIZED WHILE I WAS AT WORK!! SO ANYONE WHO HAS ANYTHING TO SAY (NEGATIVITY) YOU CAN TAKE UR OPINION AND SHOVE IT!!”
Ms. Overbey added: “I pay my taxes and support myself like everyone else but unlike a lot of other people I KNOW MY RIGHTS and I refused to let them get away with this AGAIN!!”
64. On October 8, 2014, Ms. Overbey’s attorney received a letter from the City with a
check payable to Ms. Overbey and her attorney in the amount of $31,500. The letter indicated
that Ms. Overbey was receiving only half of the agreed-upon settlement payment on account of
her having responded on the Sun’s blog site regarding the case.
65. The City withheld half of the cash settlement unilaterally. The City provided
Ms. Overbey with neither notice nor a hearing prior to withholding half of the settlement
amount. In fact, no process was afforded Ms. Overbey at all.
66. Needless to say, Ms. Overbey was confused and distraught. As far as she
understood, she had done nothing wrong or inconsistent with the Agreement; nor did she think it
was consistent with the Agreement for the City to simply decide for itself, without any process
whatsoever, that she had violated the gag order and thus forfeited her right to half of the cash
settlement—an agreed-upon amount in exchange for which for which she had given the City
valuable consideration by dropping her lawsuit.
67. In short, as interpreted and applied by the City, the gag order was decidedly one-
sided: it prevented Ms. Overbey from saying anything about the case yet provided the City with
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free rein to disparage her. This was not consistent with Ms. Overbey’s understanding of the gag order at the time she signed the Agreement.
Background Allegations Specific to Baltimore Brew 68. Baltimore Brew began reporting on BPD lawsuits and settlements involving allegations of police brutality in the summer of 2011. 69. Baltimore Brew would frequently attend Board of Estimates meetings to obtain information on the City’s expenditures of public money. 70. The Board of Estimates published its agenda a few days before each meeting. For settled lawsuits above $25,000 the agenda included the names of the plaintiffs and defendants and the settlement amount. 71. Settlements resulting from lawsuits alleging brutality and excessive force by the BPD were regularly included in the agenda. In every case covered by Baltimore Brew, the Board has approved each settlement without discussion or comment as a part of its routine agenda. 72. After the Board of Estimates approved the expenditures, the City released a memorandum for each settled lawsuit, which briefly described the dispute and the amount approved by the Board. For disputes that involved allegations of police misconduct, the description was primarily based on the police officer’s narrative, as it was drafted by BPD’s legal department. 73. Then-City Solicitor George Nilson would willingly discuss the terms of the settlement and the incident that gave rise to the lawsuit, but explicitly informed Baltimore Brew that all police settlements prohibited the plaintiff and his or her attorney from discussing any
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aspect of their case and settlement with the news media—on pain of the city “clawing back” a portion of the settlement.
74. Frustrated by the incomplete account presented in the City’s summaries, Baltimore Brew attempted to speak directly with the officers involved in the lawsuits, but the Brew was informed that the City prohibits its police officers from speaking to the press; instead all media inquiries must be directed to the BPD’s public relations office. To make matters worse, Baltimore Brew later discovered that state law precluded the public relations office from revealing information about the settlement because the litigation was considered personnel and internal police matters.
75. On several occasions, Baltimore Brew attempted to contact plaintiffs directly to obtain more details about the lawsuit. Despite promises of confidentiality and anonymity, plaintiffs rarely agreed to comment on the incident or settlement, because of the gag order and the severe penalty that accompanied a breach of the gag order’s restrictions.
76. Thus, in most cases, Baltimore Brew was forced to rely on the City’s one-sided memorandum and subjective statements from Mr. Nilson when reporting on lawsuits involving police brutality without getting a firsthand account from interviews with the victim.23 The City’s policies have severely limited Baltimore Brew’s ability to fully and accurately report on the issue of police brutality and abuse of power in Baltimore.
23 Baltimore Brew occasionally relies on excerpts from complaints and pleadings in Baltimore Circuit Court, which are publicly available.
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COUNT I First Amendment – The City Unlawfully Penalized Protected Speech
(by Ms. Overbey) 77. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein. 78. Ms. Overbey engaged in protected activity under the First Amendment by responding to the comments of online readers of a Baltimore Sun article about her settlement with the Defendants, describing the brutality that she suffered at the hands of the BPD, and providing several key facts omitted from the article. 79. Ms. Overbey’s speech and expression were related to matters of public concern. 80. Ms. Overbey’s online comments concerned the behavior of public officials in their government capacity. 81. Defendants penalized Ms. Overbey for engaging in protected speech by denying her half of the cash settlement on account of the unlawful gag order. 82. Because the gag order violates both the spirit and letter of the First Amendment and public policy, it is unlawful and void ab initio. 83. Defendants’ retaliatory actions were motivated by Ms. Overbey’s exercise of her First Amendment right of free speech. 84. By penalizing Ms. Overbey by unlawfully denying her half of her settlement offer, Defendants have chilled the future speech and expression of other similarly situated plaintiffs who reach settlement agreements with the City of Baltimore. 85. Defendants engaged in this conduct intentionally, knowingly, willfully, wantonly, and in reckless disregard of Ms. Overbey’s constitutional rights.
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86. At all times relevant to this Complaint, Defendants were acting under the color of law.
87. Defendants’ actions caused, directly and proximately, Ms. Overbey to suffer damages.
COUNT II First Amendment – the Gag Order Unconstitutionally
Impinges on Freedom of the Press (by Baltimore Brew)
88. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein.
89. The City’s institutional inclusion of the gag order in its settlement agreements with civil plaintiffs seeking relief for alleged police brutality—used in approximately 95 percent of all such agreements—is tantamount to a pattern and practice of interference with the right of the press to fully and completely investigate and report on facts of public concern as guaranteed by the First Amendment.
90. The personal stories of the victims of police brutality that give rise to civil lawsuits against the Police Department are frequently a matter of public concern.
91. On multiple occasions, plaintiffs who have settled civil rights lawsuits against BPD have refused to talk to Baltimore Brew specifically because of the gag order in their respective settlement agreements.
92. The gag order that the City uses in 95 percent of all agreements settling such lawsuits restrains free and lawful speech about issues of public concern and in the process impedes the free exercise of the press as protected by the First Amendment.
93. Through its pattern and practice of interference with the press’s access to facts and information about police misconduct by silencing settling plaintiffs through the inclusion of
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the gag order in 95 percent of all settlement agreements, the City impedes the ability of the press generally, and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions.
94. Defendants’ actions caused, directly and proximately, Baltimore Brew to suffer damages, through loss of its First Amendment freedoms.
COUNT III Public Policy – The Agreement Violates Maryland Public Policy
(by both Plaintiffs) 95. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein. 96. Contracts are invalid to the extent they are patently offensive to the public good. 97. Maryland public policy promotes the disclosure of information related to the administration of state and local services, particularly as respecting issues of public concern and safety. See Bowen v. Davidson, 135 Md. App. 152, 157 (Md. Ct. App. 2000) (The Maryland Public Information Act “establishes a public policy that favors disclosure of government or public documents.”). In addition to legislation, Maryland courts look to society’s changing mores and the “common sense of the entire community,” in discerning whether contract provisions undermine public policy. See Stancil v. Erie Ins. Co., 128 Md. App. 686, 691 (Md. Ct. Sp. App. 1999) (quoting Estate of Woods, Weeks & Co., 52 Md. 520, 536 (1879)). It is the public policy of every state, including Maryland, to encourage the disclosure of criminal activity, and non-disclosure agreements are void if they require silence in the face of an unreported crime. 98. The gag order in the Settlement Agreement interferes with Maryland’s policy, as articulated in the Maryland Public Information Act, of promoting the disclosure of information pertaining to the efficacy of government bodies. This public policy interest is manifold in
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Baltimore, where allegations of police misconduct have aroused suspicion among local residents, and the systemic use of gag orders in settlement agreements with the City of Baltimore have further eroded the public trust. The continued use of gag orders, such as the one the City used to try to prevent Ms. Overbey from discussing her physical abuse at the hands of the police, hinders the citizenry’s ability to make informed choices about its public officials, undermines the public trust, and contravenes the well-established public policy that contracts should not be used to prevent the disclosure of criminal activity, regardless of whether the perpetrator is a police official or civilian.
99. The gag order also impairs the media from performing its vital role as government watchdog. Media outlets such as Baltimore Brew cannot report on essential public policy issues such as public safety and government accountability when they are walled off from the facts underlying incidents of police misconduct.
100. The gag order is also unfair in its one-sided restriction on speech, applying to the victims but not the City (at least as far as the City appeared to interpret it in Ms. Overbey’s case). Given the City’s right to publicize settlements in a manner that puts the City in a better light visà-vis the victims, it is outrageous that the victims are prohibited from even commenting on the City’s characterizations (or, even more so, mischaracterizations), let alone speaking out affirmatively.
101. The gag order also offends public policy because of how the City goes about extracting the agreement from the victim: by playing off the victim’s poverty. The gag order is not the result of fair bargaining between equally sophisticated parties. Even when represented by counsel, as Ms. Overbey was, the City will usually hold the cards. Much like the torture victim who signs a confession to stop the torture, victims like Ms. Overbey—who are responsible for
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the care of other people, including children, who depend on them for food and shelter—are typically in no position to say “no.” The City knows and exploits that imbalance of bargaining power.
102. The City not only used its unequal bargaining power to compel Ms. Overbey’s agreement, but the City also was the source of that unequal bargaining power. Prior to her unlawful arrest, Ms. Overbey was finishing a degree program for multi-skilled technicians at Baltimore City Community College and lived in an apartment, which she lost due to the incident with BPD. Although the State immediately dropped the charges and declined to prosecute Ms. Overbey, she could not have the arrest expunged from her criminal record if she wanted to proceed with a civil suit against the City and BPD. As a result, employers were unwilling to hire Ms. Overbey, and she remained homeless. At the time she relented and agreed to sign the Settlement Agreement, she had been unemployed and homeless for two years.
103. Because the gag order violates both the spirit and letter of the First Amendment and the public policy of Maryland, it is unlawful and void ab initio.
COUNT IV Declaratory Judgment – Unlawful Liquidated Damages
(by Ms. Overbey) 104. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein. 105. A liquidated damages provision will be held to violate public policy, and hence will not be enforced, when it is intended to punish, or has the effect of punishing, a party for breaching the contract, or when there is a large disparity between the amount payable under the provision and the actual damages likely to be caused by a breach, so that it in effect seeks to
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coerce performance of the underlying agreement by penalizing nonperformance and making a breach prohibitively and unreasonably costly.
106. The provision permitting the City to collect a “refund” of 50 percent of the Settlement Sum ($31,500.00) from the Releasing Party is an unenforceable liquidated damages provision.
107. The City never made any credible effort to estimate what, if any reasonable damages the City would incur as a result of Ms. Overbey’s breach of the Agreement. No reasonable method was employed in affixing the percentage amount that the City would claw back if a breach occurred. Rather, the mandate in Paragraph 9 serves as a penalty and is a punitive measure aimed at discouraging and preventing Ms. Overbey, and others in her position, from disclosing any details or facts about her case. Rather than compensate the City for any loss it could foreseeably incur from Ms. Overbey’s disclosure, recouping 50 percent of Ms. Overbey’s settlement proceeds merely punished Ms. Overbey for making public comments.
108. Furthermore, 50 percent of Ms. Overbey’s settlement amount is excessive and out of proportion to the damages that might reasonably have been expected to result from a breach of the Agreement.
109. As such, the provision of the Agreement on which the City based its withholding of half the settlement proceeds is an illegal penalty and is void and unenforceable.
COUNT V Breach of Contract
(by Ms. Overbey) 110. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein.
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111. Section 2 of the Agreement required the City to make “the sum total payment to Ms. Overbey of Sixty-Three Thousand Dollars ($63,000)” within sixty (60) days of the approval of the Agreement. The Agreement did not permit the City to unilaterally withhold from Ms. Overbey any portion of this award upon a breach of the Agreement. Instead it expressly provided that (1) the City would pay Ms. Overbey in total, and (2) the City could seek a “refund” of 50 percent of the settlement amount upon a violation of Section 9.
112. A refund means “to return (money) in restitution, payment, or balancing of accounts.”24 Thus, the Agreement expressly contemplated that the City would disburse the total settlement amount, and could seek to recoup that amount if a violation of the Agreement occurred.
113. The failure to follow this procedure was in breach of the Agreement and harmed Ms. Overbey in an amount to be proven at trial.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court:
a) Enter judgment in favor of Plaintiffs Overbey and Baltimore Brew against Defendants; b) Declare, pursuant to 28 U.S.C. §§ 2201–2202, that the City’s gag order is illegal,
unenforceable, and unconstitutional under the First Amendment of the United States Constitution and void as against public policy. c) Declare, pursuant to the Maryland Declaratory Judgment Act, or alternatively, the federal Declaratory Judgment Act, that the gag order includes an unenforceable liquidated damages provision;
24 See Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary /refund (last visited June 28, 2017).
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Case 1:17-cv-01793-JFM Document 1 Filed 06/29/17 Page 34 of 36 d) Order the City to remit the $31,500, plus interest, it is withholding from Ms. Overbey; e) Enjoin Defendants from further use of or reliance on the gag order; f) Award such other and further relief as may be just and equitable in the circumstances.
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JURY DEMAND Plaintiff hereby demands a trial by jury on all claims for which there is a right to jury trial.
Dated: June 29, 2017

/s/ Deborah Jeon Of Counsel Deborah Jeon (USD MD No. 06905) Nicholas Steiner (USD MD No. 19670) ACLU of Maryland 3600 Clipper Mill Rd, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8555 Fax: (410) 366-7838 jeon@aclu-md.org steiner@aclu-md.org

/s/ Daniel W. Wolff Daniel W. Wolff (USDC MD No. 19940) Benjamin Wastler Nkechi Kanu Tyler O’Connor Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 624-2500 Fax: (202) 628-5116 dwolff@crowell.com bwastler@crowell.com nkanu@crowell.com toconnor@crowell.com
Attorneys for Plaintiffs Ashley Amaris Overbey and Baltimore Brew

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CERTIFICATE OF SERVICE
I hereby certify that on June 29, 2017, a copy of the Complaint, which was electronically
filed in this case on June 29, 2017, was mailed via first class mail, postage prepaid, to:
The Mayor and City Council of Baltimore, Baltimore City Hall 100 Holliday St. Baltimore, MD 21202
Baltimore City Police Department 242 W. 29th St. Baltimore, MD 21211-2908

/s/ Deborah Jeon Of Counsel Deborah Jeon (USD MD No. 06905) Nicholas Steiner (USD MD No. 19670) ACLU of Maryland 3600 Clipper Mill Rd, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8555 Fax: (410) 366-7838 jeon@aclu-md.org steiner@aclu-md.org

Respectfully submitted,
/s/ Daniel W. Wolff Daniel W. Wolff (USDC MD No. 19940) Benjamin Wastler Nkechi Kanu Tyler O’Connor Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 624-2500 Fax: (202) 628-5116 dwolff@crowell.com bwastler@crowell.com nkanu@crowell.com toconnor@crowell.com
Attorneys for Plaintiffs Ashley Amaris Overbey and Baltimore Brew

Dated: June 29, 2017

 
 Case 1:17-cv-01793-MJG Document 5 Filed 06/30/17 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ASHLEY AMARIS OVERBEY, 913 26th Street Newport News, VA 23607
and
BALTIMORE BREW PO Box 5626 Baltimore, MD 21210

¦

¦

¦

¦ ¦ CIVIL ACTION NO.

¦

¦

1:17-cv-1793

¦

¦

¦

Plaintiffs,
v.
THE MAYOR AND CITY COUNCIL OF BALTIMORE, Baltimore City Hall 100 Holliday St. Baltimore, MD 21202
and
BALTIMORE CITY POLICE DEPARTMENT 242 W. 29th St. Baltimore, MD 21211-2908

Defendants.

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiffs Ashley Amaris Overbey and Baltimore Brew, through their undersigned attorneys, bring this action against Defendants for damages, and declaratory and injunctive relief, under the First Amendment to the United States Constitution, and for breach of contract and violation of the public policy of the State of Maryland. Plaintiffs demand a trial by jury, and allege as follows.

Case 1:17-cv-01793-MJG Document 5 Filed 06/30/17 Page 2 of 36
NATURE OF THE CASE This is an action challenging as unconstitutional and otherwise unlawful the pattern and practice of the City of Baltimore and its Police Department of requiring plaintiffs resolving police misconduct complaints against City police to agree to a one-sided confidentiality agreement as a condition of settlement, and to forego recovery of half of settlement proceeds if the City unilaterally deems the confidentiality provision—or, more accurately, a gag order—to be breached. Plaintiffs Ashley Overbey (a police misconduct victim subjected to a City gag order) and Baltimore Brew (a media organization) contend that the gag order illegally restricts free speech, and in so doing contravenes the public’s interest in police accountability and community trust in law enforcement.
PARTIES 1. Plaintiff Ashley Overbey is a 30-year-old mother of three, who at times relevant to this action was a resident of the City of Baltimore. Ms. Overbey is a citizen of the United States and the State of Maryland within the meaning of the United States Constitution. As explained below, Ms. Overbey has been injured by the Defendants’ illegal policies, acts, and omissions. 2. Plaintiff Baltimore Brew is an independent daily news website specializing in accountability reporting, focusing on campaign cash, development deals, government spending, city services, and more. Baltimore Brew is sustained by reader-members, foundations, advertiser-sponsors, viewer donations, and earned revenue. Baltimore Brew does not accept government or corporate funding. As explained below, Baltimore Brew has been injured by the Defendants’ illegal policies, acts, and omissions.
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3. Defendant Mayor and City Council of the City of Baltimore (“City”), a municipal corporation, is a governmental entity and a “person” within the meaning of the United States Constitution. All of the City’s acts and omissions are conducted under color of state law.
4. Defendant Baltimore City Police Department (“Police Department” or “BPD”) is a government agency. The Mayor appoints the Commissioner of the Police Department with the advice and consent of the City Council. The City Council holds hearings on Police Department policy and reviews the Police Department budget.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction to hear this federal civil rights case pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. 6. Venue lies with this Court because the Defendants reside, carry on a regular business, habitually engage in a vocation, and maintain their principal offices in the District of Maryland, and a substantial part of the events giving rise to this cause of action occurred in the District of Maryland. See 28 U.S.C. § 1391.
BACKGROUND The Scourge of Police Brutality 7. With the advent of mobile smart devices and social media, the epidemic of police brutality, particularly as it relates to Black communities, is no longer concealed from the public. It is a subject that makes reasonable, decent people very uncomfortable. It can be painful to discuss because it causes society to confront the grim reality that race relations in the United States remain complex, fraught, frequently contentious, and at times explosive. The subject frequently stirs a sense of hopelessness, the feeling that the problem is simply too deeply ingrained in our national DNA, and that we are powerless to do anything about it.
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8. Last year (2016), the frequency and seeming ubiquity of close-up recorded images on televisions and mobile devices of Black people being brutalized by police was mind-numbing, and caused the United States to confront as a society the topic of race relations between police departments and Black people.
9. The videos from Summer 2016 in particular—in Baton Rouge; in a suburb of St. Paul; and in Dallas—were an important lesson in the power of information, knowledge, and transparency. Among other images, the country (indeed, the world) saw in horrid, real-time detail the final moments of the lives of Alton Sterling and Philando Castile, among others. The public—all of us—needed to see those images; needed to be aware of those events; needed to be informed of those pivotal moments in history as they unfolded. It is the public’s right to be aware of the actions of government, including police departments. As difficult as the images are, as complex as the topics of police brutality and race relations may be, it is only through the spread of information and knowledge that we, both as individuals and as a society, can confront, learn from, and hopefully even one day triumph over, these great stains on our civilization. The police are not immune from public scrutiny.
10. Of course those startling images that we saw—and continue to see—on the news or on our mobile devices were just the tip of the iceberg. The fact of the matter is that similar encounters occur daily across the country.
11. Sadly, the City of Baltimore epitomizes the lack of trust between Black communities and police departments. Although the memorable and highly publicized death of Freddie Gray while in police custody in 2015 is the highest-profile incident to place the BPD on the ignominious list of police departments whose conduct sparked calls for greater police accountability, training, and reform, it is by no means the only incident. Many other incidents
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occur routinely in the City—some resulting in fatalities, and many others in physical and emotional injury and trauma.
12. The magnitude of the BPD’s abuse and brutality was exposed in a recent investigation and report on the subject by the United States Department of Justice (“DOJ”). The DOJ investigation revealed a broken institution with “deficient supervision and oversight of officer activity leading directly to a broad spectrum of constitutional and statutory violations,” including the routine deployment of excessive force against individuals with mental health disabilities, juveniles, and residents who otherwise posed no threat.1 The 163-page Report provides example after example of the Police Department abuse, particularly against AfricanAmericans.2 It is unsurprising therefore that the DOJ concluded that the BPD “engages in a pattern or practice of excessive force.”3
13. The BPD’s unwillingness or inability to hold its officers accountable for police misconduct has exacerbated the Baltimore community’s crisis of confidence in the Department. DOJ investigators found that Baltimore personnel “discourage complaints from being filed, misclassify complaints to minimize their apparent severity, and conduct little or no investigation.”4 In fact, “[o]f the 2,818 force incidents that [the BPD] recorded in the nearly six-year period [DOJ] viewed, [the BPD] investigated only ten incidents based on concerns identified through its internal review. Of these ten cases, [the BPD] found only one use of force to be excessive.”5 In the rare instances when incidents of excessive force were investigated, Baltimore police officers stonewall and obfuscate to protect their own. According to DOJ, “the
1 U.S. Dep’t of Justice, Civil Rights Division, Investigation of the Baltimore City Police Dep’t 21 (2016), https://www.justice.gov/opa/file/883366/download. 2 See generally id. 3 Id. at 8. 4 Id. at 10. 5 Id. at 9.
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chain of command fails to thoroughly and objectively evaluate officers’ uses of force,” evidence of police misconduct is not collected, and the accounts of officers accused of misconduct are instinctively credited over victim’s accounts.6 A supervising officer told DOJ that it is not his responsibility during an investigation to “second-guess” his officer’s use of force.7
14. Nor does anyone in the Baltimore community, including the City’s civilian leadership, have access to records of police activity. DOJ concluded that the Police Department chooses not to “collect data on a range of law enforcement actions, and when it does collect data, [it] fails to store it in systems that are capable of effective tracking and analysis.”8 Despite oftvoiced concerns about the Department’s aggressive tactics, it did not require officers to report certain uses of force, such as punching, until 2016 and it does not even keep complete records of instances of officer activity involving deadly force.9 Without this basic information, neither the Police Department nor the City’s civilian officials can identify officers that need training or discipline. As a result, Baltimore residents are left hoping that officers who repeatedly engage in misconduct—including the 25 officers who have been sued four or more times during the last five years for excessive force or civil rights violations—do not show up at their doorstep.
15. The BPD has thrown sand in the gears at every step of the process intended to ensure supervision and accountability. The DOJ Report is a damning indictment of the current system, and it is clear that the BPD has proven incapable of policing itself.
16. The DOJ’s investigation resulted in a consent decree finding that the BPD “engages in a pattern and practice of conduct that violates the First, Fourth and 14th Amendments
6 U.S. Dep’t of Justice, Civil Rights Division, Investigation of the Baltimore City Police Dep’t 9, 45, 62, 104 (2016), https://www.justice.gov/opa/file/883366/download. 7 Id. at 106. 8 Id. at 134. 9 See id. at 98–100.
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of the Constitution as well as federal anti-discrimination laws.”10 The consent decree, filed in this Court on January 12, 2017, requires the BPD to make necessary reforms focused on “building community trust, creating a culture of community and problem-oriented policing, prohibiting unlawful stops and arrests, preventing discriminatory policing and excessive force, ensuring public and officer safety, enhancing officer accountability and making needed technological upgrades.”11
17. Historically, rather than opening itself up to public scrutiny and departmental reform, the BPD has adopted an unsettling policy of trying wherever possible to keep the lid on citizen allegations of police brutality. The BPD has even gone so far as to destroy a private citizen’s cell phone footage of police brutality.12 After he recorded Baltimore Police officers roughing up a female friend of his at the 2010 Preakness Stakes, Chris Sharp was detained and harangued by the police officers.13 When the police officers demanded that he surrender his cell phone as “evidence,” Mr. Sharp politely declined, but the police insisted that he hand over his phone.14 Fearing arrest, Mr. Sharp gave his cell phone to the Baltimore police officers, who proceeded to delete the beating videos and all other videos his cellphone contained.15 Mr. Sharp and the ACLU of Maryland filed a lawsuit against the BPD alleging First Amendment violations.16 Shockingly, the BPD took the position that all of its policies were confidential, and for a time even refused to allow the court to review them. Indeed, BPD’s discovery practices in
10 Press Release, U.S. Dep’t of Justice, Justice Department Reaches Agreement with City of Baltimore to Reform Police Department’s Unconstitutional Practices (Jan. 12, 2017), https://www.justice.gov/opa/pr/justice-departmentreaches-agreement-city-baltimore-reform-police-department-s. 11 Id. 12 Justin Fenton, ACLU To Sue Police Over Wrongful Detention Deletion of Arrest Video, Baltimore Sun, Aug. 4, 2011, http://www.baltimoresun.com/news/maryland/baltimore-city/. 13 Id. 14 Id. 15 Id. 16 Id.
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the Sharp case became so egregious that the department and its Chief Counsel were strongly sanctioned and fined $1,000 by this Court.17 The parties ultimately settled, but the case prompted an unprecedented legal statement from DOJ in 2012 affirming that citizens have a constitutional right to record police officers publicly performing their official duties.18
18. Since 2009, the City has paid more than $33.4 million to settle civil lawsuits filed against the BPD alleging police brutality.19
19. On information and belief, according to the longtime City Solicitor George Nilson,20 in about 95 percent of those settlements, the City has included what amounts to a gag order to prevent additional details about the Police Department’s conduct from being disclosed.21
20. The Police Department’s policy has not gone unnoticed or without criticism. Its critics, who include both media outlets and civil rights advocates interested in police accountability and greater governmental transparency, have advocated for change to its gag order policy in particular. Indeed, the BPD did take up reconsideration of its gag order policy amid widespread media coverage exposing the provision as corrosive and contrary to the public
17 Sharp v. Baltimore City Police Department et al., Civil No. CCB–11–2888, 2013 WL 937903, * 2–3 (D. Md. Mar. 1, 2013) (condemning “a veritable witch hunt” intended to scare Mr. Sharp into dropping his lawsuit and holding that “[d]efendants’ discovery abuse is particularly egregious given the enormous power that police defendants wield over citizens, [and] their enhanced ability to track information about citizens . . .”). 18 U.S. Dep’t of Justice, Statement of Interest, Sharp v. Baltimore City Police Department et al., No. 11–2888-BEL, 2012 WL 9512053, (D. Md. Jan. 10, 2012). 19 This includes the $6.4 million settlement for Freddie Gray. See Baltimore to pay Freddie Cray’s family $6.4 million to settle civil claims, The Baltimore Sun, 06/23/2017, http://www.baltimoresun.com/news/maryland/freddiegray/bs-md-ci-boe-20150908-story.html. 20 In late August 2016, Mr. Nilson was abruptly terminated from his position, but he held the job of the City’s chief counsel during most times pertinent to this case. 21 Scott Calvert & Zusha Elinson, Violating Baltimore’s Deal Restrictions Can Be Costly, Wall St. J., Oct. 19, 2015, https://www.wsj.com/articles/violating-baltimores-deal-restrictions-can-be-costly-1445299401.
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interest. Instead of reforming the policy, however, the BPD, on information and belief, doubled
down on it by broadening the gag orders’ coverage.22
21. This lawsuit stems from the City’s application of the gag order, which reflects a
formal policy of the City of seeking to bury the truth about potentially unlawful conduct by the
BPD and to penalize individuals who engage in free and lawful speech about that conduct. The
policy is offensive to basic notions of protected speech and sound public policy in a free and
democratic society.
22. The one-sided provision—incorporated into the standard agreement the City uses
to settle civil rights and related lawsuits filed against its Police Department or it—bars settling
plaintiffs from discussing the facts of their lawsuits, on pain of losing half of all settlement
proceeds. The City, on the other hand, is bound by no such restriction, and routinely provides its
distorted version of the facts of each case, with no risk or penalty. The following is a typical
articulation of the policy, as it appeared in the City’s settlement agreement with Ms. Overbey:
It is understood and agreed by the Settling Parties that in exchange for the payment of the Settlement Sum by the Released Parties, the Releasing Party, and that party’s agents, representatives and attorneys shall strictly refrain from and avoid any attempt at defaming and/or disparaging the Released Parties, including each of the Released Parties’ employees or agents regarding any matter related to, or arising from, the Litigation or the Occurrence. Further, in exchange for the payment of the Settlement Sum by the Released Parties and because the allegations of the Occurrence and Litigation are disputed, the Settling Parties agree that the Releasing Party and his or her agents, representatives and attorneys, shall limit their public comments regarding the Litigation and the Occurrence to the fact that a satisfactory settlement occurred involving the Parties. It is understood and agreed by the Settling Parties that this limitation on public statements shall include a prohibition against discussing any opinions, facts or allegations in
22 The BPD also covered up incidents of police brutality by classifying citizen complaints against officers as personnel files. Because state law prohibits the disclosure of personnel matters, the public view into these complaints was obstructed.
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any way connected to the Litigation or the Occurrence, or substance of any prior settlement offers or discussions with the news media, except that the Releasing Party’s counsel may indicate that the Litigation has been settled to avoid the cost, time, expense and uncertainties of protracted litigation.
The Settling Parties agree and understand that a breach of the obligations set forth in this Paragraph 9 is deemed by the Settling Parties to be a material breach of this Agreement for which the City is entitled to a refund of fifty percent (50%) of the Settlement Sum ($31,500.00) from the Releasing Party. The remainder of the Settlement Sum and all other obligations of this Agreement shall remain in force. If it is necessary for the City to pursue recovery in litigation of the refund it is entitled to under this paragraph, the City will be entitled to recover all reasonable attorneys fees, costs and expenses of such litigation from the Releasing Party.
23. On its face, this gag order stymies the ability of the press, including Baltimore
Brew, to exercise its First Amendment right to obtain newsworthy information from victims of
Police Department abuse by muzzling those victims on pain of losing half of their settlement
proceeds. The City is well aware that many victims of police brutality are the City’s very
poorest residents, who live under extreme economic stress and duress on a day-to-day basis and
would be hard-pressed to refuse to “shut up about it” where it would mean losing out on tens or
even hundreds of thousands of dollars. From the media’s perspective, this is highly damaging as
the settling individuals will almost always have insightful and potentially newsworthy
information to share about the conduct of the Police Department beyond the four corners of their
civil rights complaints which, although usually publicly available, are frequently scant on detail
and particularly ill-suited to video coverage. The gag order hinders the press’s ability to
discover, investigate, and report on that information fully and accurately.
24. As discussed below, Plaintiff Baltimore Brew is a media victim of this policy. It
has been thwarted in its efforts to report fully and accurately on various allegations of police
misconduct in the City of Baltimore because alleged victims who have settled civil actions
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against the Police Department have refused to speak to Baltimore Brew expressly on account of the gag order in their settlement agreements.
25. The press—through its investigative component—can only do its job of ferreting out the newsworthiness of a given incident if it has access to news sources. When there is no video or other recording, it makes having direct access to the participants all the more important.
26. In application, the policy offends in a second way where a settling plaintiff who does choose to speak up—no matter whether the speech in any way harms or disparages the BPD—is denied half of the agreed-upon settlement proceeds for commenting on the settled civil litigation, in effect penalizing the protected speech of the settling plaintiff. That is exactly what happened to Ms. Overbey.
27. The City of Baltimore’s pattern and practice of coercing silence from alleged victims of police brutality or penalizing them if they choose not to remain silent offends basic principles of free speech as protected by the First Amendment to the United States Constitution and the public policy of the State of Maryland.
Baltimore’s Recent History of Settling Police Brutality Civil Actions 28. Baltimore City is no stranger to civil rights lawsuits alleging unlawful brutality of the Police Department. As mentioned above, between 2009 and 2017, the City has paid more than $33.4 million in settlements and court judgments for lawsuits alleging brutality and other police misconduct by law-abiding Baltimore citizens, including elderly grandparents, innocent parents of minor children, and pregnant women. 29. The largest settlement was the result of an April 2015 arrest of 25-year-old Freddie Gray. Mr. Gray was stopped by BPD officers because he allegedly ran away from the police after noticing their presence. Once Mr. Gray stopped running, the police arrested him for
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possession of a knife, later determined to be one Gray was carrying lawfully. The arrest was recorded by a bystander, but what unfolded afterward, inside of the van transporting Mr. Gray to the police station, remains unclear even to this day. Details of what happened inside the van include the fact that Mr. Gray was handcuffed and not restrained by a seat belt. Although he informed the officers that he was having difficulty breathing and requested an inhaler, the officers made multiple stops before getting Mr. Gray the medical attention he required. Although the exact cause of Mr. Gray’s injury is unclear, it is undisputed that Mr. Gray’s spine, which was fully intact prior to entering the van, was almost completely severed by the time officers removed him from the van. After lying in a hospital bed comatose for a week, Mr. Gray died on April 19th, 2015. In September 2016, the city of Baltimore paid Mr. Gray’s estate $6.4 million to avoid a civil lawsuit by Gray’s family.
30. In addition to the Freddie Gray settlement, the cases settled by the City include the following accounts:
 In 2007, Ms. Venus Green, an 87-year-old African-American woman was assaulted and battered by officers who responded to her 9-1-1 call after her grandson was shot. As alleged in her complaint, Green had telephoned for an ambulance after she heard her grandson yell from down the street that he had been shot. When police arrived, they accused Green and her grandson of lying about the circumstances and location of the shooting, alleging that the shooting and taken place inside Green’s house. An officer demanded to enter Green’s house to prove that the shooting had taken place inside, and more specifically in the basement, where her grandson lived. After the officer unlatched the basement door—without Green’s permission or a warrant—Green informed the officer that
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she would need to close the door behind him because her grandson’s two dogs were in the basement. In response to her statement, the officer grabbed Green, threw her on the floor, and said “I’m going to lock you up. You don’t want us to go downstairs. Bitch, you are no better than any of the other old black bitches that I have locked up.” The officer then dragged Green along her living-room floor, pressed his knee into her back, twisted her arms, handcuffed her, and threw her face down onto her couch. Green sustained a broken shoulder from the assault. She filed suit against the City in November 2010 and settled in April 2012 for $95,000.  In 2008, Wesley Williams and Shaney Pendelton were punched, kicked, and choked by plainclothes officers in front of their minor children. On May 13, 2008, Williams and Pendelton planned to exchange possession of their children, Donte (then age 6) and Wesley (then age 2), at 9:00 p.m. outside of Williams’ house. As Williams exited his home, he was approached by plainclothes officers brandishing handguns. Although Williams stopped and put his hands in the air, assuming that he was being robbed, the officers began to punch and kick him without provocation or resistance. Pendelton arrived with her two children and witnessed the shocking assault by assailants she supposed were armed robbers. Pendelton exited her vehicle and attempted to call 9-1-1 to report the incident. However, the officers informed Pendelton that she was not allowed to contact the Police Department. When Pendelton tried to walk to the rear of her vehicle in order to complete the call, an officer brutally tackled her, face first, to the ground. As a result of the officers’ actions, both Williams and Pendelton suffered extreme
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physical injuries, emotional pain, and distress. Williams and Pendelton brought suit against the officers in 2011. The City reached a $155,000 settlement with Williams and Pendelton in 2012.  In September 2009, Starr Brown, a pregnant 26-year-old African-American woman, was entering her house with her 3-year-old daughter when she saw a group of girls attack two other girls walking down her block. The attackers fled before the police arrived. When the police showed up, they began chastising the victims. Brown attempted to explain to officers what she had witnessed, urging the officers to pursue the attackers rather than harass the victims. However, the officers responded by arresting her. Although Brown informed the officers that she was pregnant, one officer lunged at her, “tossed [her] like a rag doll,” and forcefully shoved his knee into her back and neck. Another officer joined the assault, also forcing her knee into Brown’s back while handcuffing her. The officers arrested Brown for obstruction, disorderly conduct, resisting arrest and assault. After a judge acquitted Brown of all criminal charges, she sued the City in April 2010. The City settled Brown’s case in March 2011 for $125,000, subject to the gag order.  In December 2009, police officers violently abused 77-year-old AfricanAmerican James “Lenny” Clay during a traffic stop. Officers began to pursue Clay after he hit a parked car, suspecting that Clay may have been intoxicated. Clay did not immediately hear the officers directing him to pull over, but eventually stopped his vehicle. During his traffic stop, the arresting officers slammed Clay to the ground, fracturing his arm, breaking his eyeglasses, and
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cracking his dentures. Clay filed a $26 million lawsuit against the officers, alleging battery, excessive force, and gross negligence. The City agreed to settle the case for $63,000 in 2013.  In September 2012, Anthony Anderson was walking to his East Baltimore home when three plain-clothed men approached him in a vacant lot. After a short confrontation, the men—later identified as police officers—grabbed him, pinned his arms to his side, and slammed him on his neck. They proceeded to smash his collar bone and throw him to the ground. Once he fell, they began kicking him in his ribs, stomach, back, and chest for several minutes. Anderson’s mother, daughter, son, and two-year-old granddaughter, and many onlookers, watched and witnessed the brutal attack from a short distance away. Anderson died moments later from internal bleeding. Although the officers tried to attribute his death to the alleged drugs they arrested him for, the medical examiner’s report ruled his death a homicide. According to the report, Mr. Anderson suffered eight fractured ribs and a ruptured spleen. In 2013 Mr. Anderson’s family filed a wrongful death suit. In 2017 the City approved a $300,000 settlement, which included the gag order.  In October 2013, a BPD officer tased 28 year-old Tavon Sherman after two other officers stopped Mr. Sherman because they had an open warrant for the vehicle in which Mr. Sherman was a passenger. The officers allege that Mr. Sherman initially refused to obey their orders to sit on the curb after he exited the vehicle. One officer warned Mr. Sherman that he would be tased should he not sit on the curb. Although Mr. Sherman ultimately complied, the officer claimed that he
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found it necessary to tase Mr. Sherman due to his “continued flailing,” and use of profanity. In response to the incident, Mr. Sherman brought suit against all three of the officers involved. In 2015 the City settled the case for $35,000, subject to the gag order.  In December 2013, a BPD officer punched 19-year-old high schooler Keondre Boykin in his mouth. Mr. Boykin had been walking along Litchfield Avenue that evening when two officers ordered Boykin to stop because an unlit streetlight was preventing them from seeing his face. Although Mr. Boykin initially refused to stop and sit down, he eventually did so. Shortly thereafter, a fight erupted between Boykin and the officer who eventually punched him on grounds that Mr. Boykin was “pulling away” and “flailing his arms.” Upon being punched in the mouth, Mr. Boykin was taken to Sinai Hospital to receive treatment. In 2015 Baltimore City paid Mr. Boykin a settlement of $75,000, subject to the gag order.  On October 21, 2014, a BPD officer working in an unmarked car confronted Albert Smith while Smith was walking. Mr. Smith was questioned about a transaction in which he allegedly participated. The officer got out of his car and demanded Mr. Smith spit out what he had in his mouth (which was gum). When Smith refused, the officer began to choke him until the gum Mr. Smith had in his mouth fell onto the ground. Even after realizing the substance was gum, the officer took Mr. Smith to the Southern District police station for booking. Mr. Smith was later diagnosed with a traumatic fracture to his neck bone and a sprain to a neck muscle. He also had back pain and bruising to his neck. Mr. Smith
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sued the City for assault, battery, false arrest, and false imprisonment. The City approved a $60,000 settlement in 2017, which included the gag order. 31. In all of these cases, in light of their economic circumstances, the settling plaintiffs had little practical choice but to agree to remain quiet about additional details underlying their claims of police brutality. Ms. Overbey’s Encounter with the BPD 32. The harm suffered by Ms. Overbey as a result of the City’s policy arises out of an incident that occurred on April 30, 2012, at her apartment in the Cedonia area of Baltimore. 33. That evening, at approximately 9:40 p.m., Ms. Overbey contacted the BPD to report that her apartment had been burglarized. Ms. Overbey was a victim; she called the police for help. What she received instead was even greater mistreatment and abuse from the very police who were responding to her call for assistance. 34. Three sets of police officers were dispatched to her apartment at various points in the evening in response to her report. The first officer who arrived on the scene remarked that Ms. Overbey should be accustomed to burglary, given the location of her residence. Officer Sheena Newman arrived second, briefly interviewed Ms. Overbey, and contacted the crime lab unit. The crime lab unit arrived while Newman was still in Ms. Overbey’s apartment. Newman, however, left the premises before the unit finished processing the scene. 35. While the crime lab unit was still at Ms. Overbey’s apartment, Officer Fred Hannah forcefully entered and began searching her apartment without her permission. Unbeknownst to Ms. Overbey, the crime lab unit had radioed for police officers to return to the apartment, and Officer Hannah had responded to that call.
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36. Ms. Overbey asked Officer Hannah to explain his presence in her apartment, but he neither identified himself nor explained the purpose of his being there.
37. Instead, Officer Hannah became aggressive and violent. Without any provocation by her, he grabbed Ms. Overbey by her hair, twisted her arm behind her back, and violently slapped and punched her. He then, without cause or justification, shouted at Ms. Overbey, telling her that she was under arrest. When Ms. Overbey asked why she was being arrested, Officer Hannah yelled, “[b]ecause you talk too much, bitch,” or words to that effect.
38. Officer Martin Richardson arrived shortly after the assault and began violently and maliciously beating Ms. Overbey with clenched fists, causing Ms. Overbey further bodily injury, including a black eye so severe that it persisted for a month and a half.
39. Ms. Overbey’s mother, Jenean Derrise Kelly, begged Officers Hannah and Richardson to stop. Officer Hannah responded by arresting Ms. Kelly and dragging her outside to a squad car. As he did so, he called Ms. Kelly a “stupid bitch,” or words to that effect.
40. While Officer Richardson continued to restrain and beat Ms. Overbey, a third officer, Grant Galing, arrived on the scene and yelled “Taser!” As Officer Richardson slightly loosened his grasp on Ms. Overbey, presumably to avoid being struck by the Taser, Officer Galing unjustifiably used his Taser on Ms. Overbey, inflicting further injury on her.
41. As Officer Galing prepared to use his Taser on Ms. Overbey a second time, Ms. Overbey was able to scurry away from Richardson’s grasp to avoid being tased a second time.
42. This appears to have infuriated Officer Galing, who responded by tackling Ms. Overbey. Using his full body weight, he restrained her and cut off her airway by placing his knee on her throat, choking her and making it hard for her to breathe.
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43. When Ms. Overbey tried to tell Officer Galing that she could not breathe, he replied, “Shut the fuck up, bitch,” or words to that effect, as he continued to choke her by holding her down with his knee on her throat. Officer Galing then stunned Ms. Overbey again with his Taser.
44. After being beaten, tased, tackled, choked, and handcuffed, Ms. Overbey was transported by ambulance to Johns Hopkins Bayview Hospital and then to the Baltimore Central Booking and Intake Center, where she was incarcerated. Ms. Overbey was jailed for 24 hours and charged with six counts of assault and one count of resisting arrest.
45. Officer Hannah instituted criminal proceedings against both Ms. Overbey and her mother; however, the Office of the State’s Attorney for Baltimore City declined to prosecute and dropped all charges against both Ms. Overbey and Ms. Kelly.
46. Subsequently, Ms. Overbey and Ms. Kelly filed a Complaint in the Circuit Court for Baltimore City against the City and Officers Hannah, Richardson, and Galing for wrongful arrest and unwarranted physical abuse on the night of April 30, 2012. In her Complaint, Ms. Overbey stated claims for false arrest and false imprisonment, battery, violation of the Maryland Declaration of Rights, and malicious prosecution.
47. Ms. Overbey’s mistreatment by the BPD and her ensuing litigation against the City were emotionally and financially draining on her. Ms. Overbey was only 25 years old when she was savagely beaten by the police; she was a single mother of two young children; and she was the primary source of income for her household. Although the City dropped the bogus criminal charges against her, the arrest adversely impacted her ability to find work and provide for her family. Employers refused to hire her because of her “criminal” record. Without a job, she was unable to afford rent.
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48. Ms. Overbey pursued her civil suit against the City for approximately two years
before she was presented with a settlement agreement (the “Settlement Agreement”). The
Agreement is attached hereto as “Exhibit A.”
49. Pursuant to the terms of the Agreement, the City agreed to pay Ms. Overbey
$63,000.00 to dispose of her civil action. The City also agreed to pay Ms. Kelly $13,000 to
settle her allegations against the City and the Officers.
50. The Agreement stated that funds would be disbursed as follows:
In consideration of the Settling Parties’ agreement to enter into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Settling Parties, within sixty (60) days of the approval of this Agreement by the Baltimore City Board of Estimates, the City shall make the sum total payment to the Releasing Party of Sixty-Three Thousand Dollars ($63,000.00) on behalf of the Released Parties, as full and final payment for making the Release set forth in this Agreement (“Settlement Sum”).
51. Section 9 of the Settlement Agreement stated the City’s gag policy:
It is understood and agreed by the Settling Parties that in exchange for the payment of the Settlement Sum by the Released Parties, the Releasing Party and that party’s agents, representatives and attorneys shall strictly refrain from and avoid any attempt at defaming and/or disparaging the Released Parties, including each of the Released Parties’ employees or agents regarding any matter related to, or arising from the Litigation or the Occurrence. Further, in exchange for the payment of the Settlement Sum by the Released Parties and because the allegations of the Occurrence and Litigation are disputed, the Settling Parties agree that the Releasing Party and his or her agents, representatives and attorneys, shall limit their public comments regarding the Litigation and the Occurrence to the fact that a satisfactory settlement occurred involving the Parties. It is understood and agreed by the Settling Parties that this limitation on public statements shall include a prohibition against discussing any opinions, facts or allegations in any way connected to the Litigation or the Occurrence, or substance of any prior settlement offers or discussions with the news media, except that the Releasing Party’s counsel may indicate that the Litigation has been settled to avoid the cost, time, expense and uncertainties of protracted litigation.
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The Settling Parties agree and understand that a breach of the obligations set forth in this Paragraph 9 is deemed by the Settling Parties to be a material breach of this Agreement for which the City is entitled to a refund of fifty percent (50%) of the Settlement Sum ($31,500.00) from the Releasing Party. The remainder of the Settlement Sum and all other obligations of this Agreement shall remain in force. If it is necessary for the City to pursue recovery in litigation of the refund it is entitled to under this paragraph, the City will be entitled to recover all reasonable attorneys fees, costs and expenses of such litigation from the Releasing Party. 52. Ms. Overbey’s attorney encouraged Ms. Overbey to sign the Agreement. 53. Ms. Overbey was apprehensive about signing the Agreement because she knew that the officers who maliciously beat her would be absolved of their illegal actions, probably receive no discipline, and remain at liberty on the police force to treat other residents of Baltimore City as they had treated her. Given her dire financial situation, however, Ms. Overbey felt she had little choice but to accept the gag order in order to collect the full cash settlement offer. Accordingly, she signed the Agreement with the City and the Officers in August 2014. 54. Ms. Overbey did not understand the gag order in the same manner as it was subsequently applied by the City in denying her half of the settlement proceeds. For one thing, her attorney told her that the Agreement prohibited both her and the City from talking to reporters about the allegations or facts of her case. For another, again relying on her attorney’s explanation of the Agreement and of the gag order in particular, Ms. Overbey understood that the gag order prohibited the parties from speaking with the media, i.e., reporters who worked directly for television, radio, newspaper and internet outlets; Ms. Overbey did not appreciate at the time that, at least according to how the City later interpreted it, the Agreement prohibited her from discussing her case in any public forum, and that the prohibition against speaking publicly only applied to her, and not the City.
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55. The only apparent purpose of the gag order was to keep Ms. Overbey from speaking any further about her abuse at the hands of the Police Department so that the City might keep the public ignorant of the misconduct of its police officers.
56. Plaintiff’s attorney informed her that she would receive her payment a few weeks after the date of signing the Agreement.
57. On September 10, 2014, City Solicitor Nilson sought approval of the Agreement from the Board of Estimates, which must review any settlement greater than $25,000. In explaining the settlement, Mr. Nilson misrepresented to the Board of Estimates that, on the night she was assaulted, Ms. Overbey had been “hostile” and that she got into a “verbal confrontation” with the police.
58. Before Ms. Overbey received her funds, and to her great surprise, The Baltimore Sun, using Ms. Overbey’s mug-shot photo published an article on September 15, 2014 about the City’s decision to pay Ms. Overbey to settle her case (noting the amount of $63,000). The newspaper had learned of the settlement because the records the administration sends to the Board of Estimates requesting approval of the settlement amount are public.
59. Ms. Overbey was caught off guard seeing her name, mug-shot photo, and the settlement amount printed on the front page of The Baltimore Sun, especially since it had been her understanding that the details of the settlement were confidential. As a woman of modest means living in one of the City’s most poverty-stricken neighborhoods, Ms. Overbey was especially fearful that she and her family members would be targeted for further burglary since the Sun article identified her by name and photograph and could easily have given readers the impression that she was now sitting on a pile of cash in her apartment.
22

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60. Ms. Overbey was also angered by Mr. Nilson’s statements to the media, which
appeared to blame her for her mistreatment by the police.
61. Ms. Overbey’s anger was further stoked by comments made by readers of the Sun
article on the newspaper’s public blog site, accusing Ms. Overbey of initiating her arrest to
recover a large payout from the City. The ugly, racially tinged comments depicted her as a poor,
avaricious Black woman using her race and lies to leverage a big payday from the City’s
taxpayers.
62. Understandably upset, Ms. Overbey replied to the anonymous postings, stating
that people should learn facts before making disparaging comments. Additionally, to refute the
accusation that she had assaulted the officers from the BPD, Ms. Overbey responded by reciting
the facts of her assault as alleged in her publicly available complaint.
63. The entirety of the exchange between the commenters and Ms. Overbey on the
Sun’s blog site read as follows:
Co.Owner: “I'm sorry for your experience, but pushing a Police Officer does not work. No matter what your race is, you never touch a police officer; you do answer all questions; and assist when possible. I would rather be shot by a Taser, then a bullet. I can”t wait until you need their help in the future. Enjoy the money!!”
Ms. Overbey replied: “I am the woman who this article is talking about AND THE POLICE WERE WRONG!! This article doesn’t come close to WHAT REALLY HAPPENED or tell how three men over 200 lbs each beat me (115 lbs) bruises all over my body a black eye AND tased twice all in front my 2 yr old daughter so before you decide to put ur MEANINGLESS opinion in on something FIND OUT THE FACTS FIRST! IF I were wrong my charges wldntve ben thrown out and i wldntve received a dime. Its people like you who make this cite the ****it…”
MissDaisy: “So, OK, I can call the cops, assault one of them, get tased and get paid! Sounds like a plan!”
Ms. Overbey replied: “I am the woman who this article is talking about AND THE POLICE WERE WRONG!! This article doesnt
23

Case 1:17-cv-01793-MJG Document 5 Filed 06/30/17 Page 24 of 36
come close to WHAT REALLY HAPPENED or tell how three men over 200 lbs each beat me (115 lbs) bruises all over my body a black eye AND tased twice all i nfront my 2 yr old daughter so before you decide to put ur MEANINGLESS opinion in on something FIND OUT THE FACTS FIRST! IF I were wrong my charges wldntve ben thrown out and i wldntve received a dime. Its people like you who make this cite the ****it…”
Ms. Overbey continued: “AND THIS WAS ALL AFTER I CALLED THEM FOR HELP AFTER MY HOME HAD BEEN BURGULARIZED WHILE I WAS AT WORK!! SO ANYONE WHO HAS ANYTHING TO SAY (NEGATIVITY) YOU CAN TAKE UR OPINION AND SHOVE IT!!”
Ms. Overbey added: “I pay my taxes and support myself like everyone else but unlike a lot of other people I KNOW MY RIGHTS and I refused to let them get away with this AGAIN!!”
64. On October 8, 2014, Ms. Overbey’s attorney received a letter from the City with a
check payable to Ms. Overbey and her attorney in the amount of $31,500. The letter indicated
that Ms. Overbey was receiving only half of the agreed-upon settlement payment on account of
her having responded on the Sun’s blog site regarding the case.
65. The City withheld half of the cash settlement unilaterally. The City provided
Ms. Overbey with neither notice nor a hearing prior to withholding half of the settlement
amount. In fact, no process was afforded Ms. Overbey at all.
66. Needless to say, Ms. Overbey was confused and distraught. As far as she
understood, she had done nothing wrong or inconsistent with the Agreement; nor did she think it
was consistent with the Agreement for the City to simply decide for itself, without any process
whatsoever, that she had violated the gag order and thus forfeited her right to half of the cash
settlement—an agreed-upon amount in exchange for which for which she had given the City
valuable consideration by dropping her lawsuit.
67. In short, as interpreted and applied by the City, the gag order was decidedly one-
sided: it prevented Ms. Overbey from saying anything about the case yet provided the City with
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free rein to disparage her. This was not consistent with Ms. Overbey’s understanding of the gag order at the time she signed the Agreement.
Background Allegations Specific to Baltimore Brew 68. Baltimore Brew began reporting on BPD lawsuits and settlements involving allegations of police brutality in the summer of 2011. 69. Baltimore Brew would frequently attend Board of Estimates meetings to obtain information on the City’s expenditures of public money. 70. The Board of Estimates published its agenda a few days before each meeting. For settled lawsuits above $25,000 the agenda included the names of the plaintiffs and defendants and the settlement amount. 71. Settlements resulting from lawsuits alleging brutality and excessive force by the BPD were regularly included in the agenda. In every case covered by Baltimore Brew, the Board has approved each settlement without discussion or comment as a part of its routine agenda. 72. After the Board of Estimates approved the expenditures, the City released a memorandum for each settled lawsuit, which briefly described the dispute and the amount approved by the Board. For disputes that involved allegations of police misconduct, the description was primarily based on the police officer’s narrative, as it was drafted by BPD’s legal department. 73. Then-City Solicitor George Nilson would willingly discuss the terms of the settlement and the incident that gave rise to the lawsuit, but explicitly informed Baltimore Brew that all police settlements prohibited the plaintiff and his or her attorney from discussing any
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aspect of their case and settlement with the news media—on pain of the city “clawing back” a portion of the settlement.
74. Frustrated by the incomplete account presented in the City’s summaries, Baltimore Brew attempted to speak directly with the officers involved in the lawsuits, but the Brew was informed that the City prohibits its police officers from speaking to the press; instead all media inquiries must be directed to the BPD’s public relations office. To make matters worse, Baltimore Brew later discovered that state law precluded the public relations office from revealing information about the settlement because the litigation was considered personnel and internal police matters.
75. On several occasions, Baltimore Brew attempted to contact plaintiffs directly to obtain more details about the lawsuit. Despite promises of confidentiality and anonymity, plaintiffs rarely agreed to comment on the incident or settlement, because of the gag order and the severe penalty that accompanied a breach of the gag order’s restrictions.
76. Thus, in most cases, Baltimore Brew was forced to rely on the City’s one-sided memorandum and subjective statements from Mr. Nilson when reporting on lawsuits involving police brutality without getting a firsthand account from interviews with the victim.23 The City’s policies have severely limited Baltimore Brew’s ability to fully and accurately report on the issue of police brutality and abuse of power in Baltimore.
23 Baltimore Brew occasionally relies on excerpts from complaints and pleadings in Baltimore Circuit Court, which are publicly available.
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COUNT I First Amendment – The City Unlawfully Penalized Protected Speech
(by Ms. Overbey) 77. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein. 78. Ms. Overbey engaged in protected activity under the First Amendment by responding to the comments of online readers of a Baltimore Sun article about her settlement with the Defendants, describing the brutality that she suffered at the hands of the BPD, and providing several key facts omitted from the article. 79. Ms. Overbey’s speech and expression were related to matters of public concern. 80. Ms. Overbey’s online comments concerned the behavior of public officials in their government capacity. 81. Defendants penalized Ms. Overbey for engaging in protected speech by denying her half of the cash settlement on account of the unlawful gag order. 82. Because the gag order violates both the spirit and letter of the First Amendment and public policy, it is unlawful and void ab initio. 83. Defendants’ retaliatory actions were motivated by Ms. Overbey’s exercise of her First Amendment right of free speech. 84. By penalizing Ms. Overbey by unlawfully denying her half of her settlement offer, Defendants have chilled the future speech and expression of other similarly situated plaintiffs who reach settlement agreements with the City of Baltimore. 85. Defendants engaged in this conduct intentionally, knowingly, willfully, wantonly, and in reckless disregard of Ms. Overbey’s constitutional rights.
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86. At all times relevant to this Amended Complaint, Defendants were acting under the color of law.
87. Defendants’ actions caused, directly and proximately, Ms. Overbey to suffer damages.
COUNT II First Amendment – the Gag Order Unconstitutionally
Impinges on Freedom of the Press (by Baltimore Brew)
88. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein.
89. The City’s institutional inclusion of the gag order in its settlement agreements with civil plaintiffs seeking relief for alleged police brutality—used in approximately 95 percent of all such agreements—is tantamount to a pattern and practice of interference with the right of the press to fully and completely investigate and report on facts of public concern as guaranteed by the First Amendment.
90. The personal stories of the victims of police brutality that give rise to civil lawsuits against the Police Department are frequently a matter of public concern.
91. On multiple occasions, plaintiffs who have settled civil rights lawsuits against BPD have refused to talk to Baltimore Brew specifically because of the gag order in their respective settlement agreements.
92. The gag order that the City uses in 95 percent of all agreements settling such lawsuits restrains free and lawful speech about issues of public concern and in the process impedes the free exercise of the press as protected by the First Amendment.
93. Through its pattern and practice of interference with the press’s access to facts and information about police misconduct by silencing settling plaintiffs through the inclusion of
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the gag order in 95 percent of all settlement agreements, the City impedes the ability of the press generally, and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions.
94. Defendants’ actions caused, directly and proximately, Baltimore Brew to suffer damages, through loss of its First Amendment freedoms.
COUNT III Public Policy – The Agreement Violates Maryland Public Policy
(by both Plaintiffs) 95. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein. 96. Contracts are invalid to the extent they are patently offensive to the public good. 97. Maryland public policy promotes the disclosure of information related to the administration of state and local services, particularly as respecting issues of public concern and safety. See Bowen v. Davidson, 135 Md. App. 152, 157 (Md. Ct. App. 2000) (The Maryland Public Information Act “establishes a public policy that favors disclosure of government or public documents.”). In addition to legislation, Maryland courts look to society’s changing mores and the “common sense of the entire community,” in discerning whether contract provisions undermine public policy. See Stancil v. Erie Ins. Co., 128 Md. App. 686, 691 (Md. Ct. Sp. App. 1999) (quoting Estate of Woods, Weeks & Co., 52 Md. 520, 536 (1879)). It is the public policy of every state, including Maryland, to encourage the disclosure of criminal activity, and non-disclosure agreements are void if they require silence in the face of an unreported crime. 98. The gag order in the Settlement Agreement interferes with Maryland’s policy, as articulated in the Maryland Public Information Act, of promoting the disclosure of information pertaining to the efficacy of government bodies. This public policy interest is manifold in
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Baltimore, where allegations of police misconduct have aroused suspicion among local residents, and the systemic use of gag orders in settlement agreements with the City of Baltimore have further eroded the public trust. The continued use of gag orders, such as the one the City used to try to prevent Ms. Overbey from discussing her physical abuse at the hands of the police, hinders the citizenry’s ability to make informed choices about its public officials, undermines the public trust, and contravenes the well-established public policy that contracts should not be used to prevent the disclosure of criminal activity, regardless of whether the perpetrator is a police official or civilian.
99. The gag order also impairs the media from performing its vital role as government watchdog. Media outlets such as Baltimore Brew cannot report on essential public policy issues such as public safety and government accountability when they are walled off from the facts underlying incidents of police misconduct.
100. The gag order is also unfair in its one-sided restriction on speech, applying to the victims but not the City (at least as far as the City appeared to interpret it in Ms. Overbey’s case). Given the City’s right to publicize settlements in a manner that puts the City in a better light visà-vis the victims, it is outrageous that the victims are prohibited from even commenting on the City’s characterizations (or, even more so, mischaracterizations), let alone speaking out affirmatively.
101. The gag order also offends public policy because of how the City goes about extracting the agreement from the victim: by playing off the victim’s poverty. The gag order is not the result of fair bargaining between equally sophisticated parties. Even when represented by counsel, as Ms. Overbey was, the City will usually hold the cards. Much like the torture victim who signs a confession to stop the torture, victims like Ms. Overbey—who are responsible for
30

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the care of other people, including children, who depend on them for food and shelter—are typically in no position to say “no.” The City knows and exploits that imbalance of bargaining power.
102. The City not only used its unequal bargaining power to compel Ms. Overbey’s agreement, but the City also was the source of that unequal bargaining power. Prior to her unlawful arrest, Ms. Overbey was finishing a degree program for multi-skilled technicians at Baltimore City Community College and lived in an apartment, which she lost due to the incident with BPD. Although the State immediately dropped the charges and declined to prosecute Ms. Overbey, she could not have the arrest expunged from her criminal record if she wanted to proceed with a civil suit against the City and BPD. As a result, employers were unwilling to hire Ms. Overbey, and she remained homeless. At the time she relented and agreed to sign the Settlement Agreement, she had been unemployed and homeless for two years.
103. Because the gag order violates both the spirit and letter of the First Amendment and the public policy of Maryland, it is unlawful and void ab initio.
COUNT IV Declaratory Judgment – Unlawful Liquidated Damages
(by Ms. Overbey) 104. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein. 105. A liquidated damages provision will be held to violate public policy, and hence will not be enforced, when it is intended to punish, or has the effect of punishing, a party for breaching the contract, or when there is a large disparity between the amount payable under the provision and the actual damages likely to be caused by a breach, so that it in effect seeks to
31

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coerce performance of the underlying agreement by penalizing nonperformance and making a breach prohibitively and unreasonably costly.
106. The provision permitting the City to collect a “refund” of 50 percent of the Settlement Sum ($31,500.00) from the Releasing Party is an unenforceable liquidated damages provision.
107. The City never made any credible effort to estimate what, if any reasonable damages the City would incur as a result of Ms. Overbey’s breach of the Agreement. No reasonable method was employed in affixing the percentage amount that the City would claw back if a breach occurred. Rather, the mandate in Paragraph 9 serves as a penalty and is a punitive measure aimed at discouraging and preventing Ms. Overbey, and others in her position, from disclosing any details or facts about her case. Rather than compensate the City for any loss it could foreseeably incur from Ms. Overbey’s disclosure, recouping 50 percent of Ms. Overbey’s settlement proceeds merely punished Ms. Overbey for making public comments.
108. Furthermore, 50 percent of Ms. Overbey’s settlement amount is excessive and out of proportion to the damages that might reasonably have been expected to result from a breach of the Agreement.
109. As such, the provision of the Agreement on which the City based its withholding of half the settlement proceeds is an illegal penalty and is void and unenforceable.
COUNT V Breach of Contract
(by Ms. Overbey) 110. Plaintiffs incorporate by reference the preceding paragraphs as if fully set forth herein.
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111. Section 2 of the Agreement required the City to make “the sum total payment to Ms. Overbey of Sixty-Three Thousand Dollars ($63,000)” within sixty (60) days of the approval of the Agreement. The Agreement did not permit the City to unilaterally withhold from Ms. Overbey any portion of this award upon a breach of the Agreement. Instead it expressly provided that (1) the City would pay Ms. Overbey in total, and (2) the City could seek a “refund” of 50 percent of the settlement amount upon a violation of Section 9.
112. A refund means “to return (money) in restitution, payment, or balancing of accounts.”24 Thus, the Agreement expressly contemplated that the City would disburse the total settlement amount, and could seek to recoup that amount if a violation of the Agreement occurred.
113. The failure to follow this procedure was in breach of the Agreement and harmed Ms. Overbey in an amount to be proven at trial.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court:
a) Enter judgment in favor of Plaintiffs Overbey and Baltimore Brew against Defendants; b) Declare, pursuant to 28 U.S.C. §§ 2201–2202, that the City’s gag order is illegal,
unenforceable, and unconstitutional under the First Amendment of the United States Constitution and void as against public policy. c) Declare, pursuant to the Maryland Declaratory Judgment Act, or alternatively, the federal Declaratory Judgment Act, that the gag order includes an unenforceable liquidated damages provision;
24 See Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary /refund (last visited June 28, 2017).
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Case 1:17-cv-01793-MJG Document 5 Filed 06/30/17 Page 34 of 36 d) Order the City to remit the $31,500, plus interest, it is withholding from Ms. Overbey; e) Enjoin Defendants from further use of or reliance on the gag order; f) Award such other and further relief as may be just and equitable in the circumstances.
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JURY DEMAND Plaintiff hereby demands a trial by jury on all claims for which there is a right to jury trial.
Dated: June 30, 2017

/s/ Deborah Jeon Of Counsel Deborah Jeon (USD MD No. 06905) Nicholas Steiner (USD MD No. 19670) ACLU of Maryland 3600 Clipper Mill Rd, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8555 Fax: (410) 366-7838 jeon@aclu-md.org steiner@aclu-md.org

/s/ Daniel W. Wolff Daniel W. Wolff (USDC MD No. 19940) Benjamin Wastler Nkechi Kanu Tyler O’Connor Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 624-2500 Fax: (202) 628-5116 dwolff@crowell.com bwastler@crowell.com nkanu@crowell.com toconnor@crowell.com
Attorneys for Plaintiffs Ashley Amaris Overbey and Baltimore Brew

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Case 1:17-cv-01793-MJG Document 5 Filed 06/30/17 Page 36 of 36

CERTIFICATE OF SERVICE
I hereby certify that on June 30, 2017, a copy of the Amended Complaint, which was
electronically filed in this case on June 30, 2017, was mailed via first class mail, postage prepaid,
to:
The Mayor and City Council of Baltimore, Baltimore City Hall 100 Holliday St. Baltimore, MD 21202
Baltimore City Police Department 242 W. 29th St. Baltimore, MD 21211-2908

/s/ Deborah Jeon Of Counsel Deborah Jeon (USD MD No. 06905) Nicholas Steiner (USD MD No. 19670) ACLU of Maryland 3600 Clipper Mill Rd, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8555 Fax: (410) 366-7838 jeon@aclu-md.org steiner@aclu-md.org

Respectfully submitted,
/s/ Daniel W. Wolff Daniel W. Wolff (USDC MD No. 19940) Benjamin Wastler Nkechi Kanu Tyler O’Connor Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 624-2500 Fax: (202) 628-5116 dwolff@crowell.com bwastler@crowell.com nkanu@crowell.com toconnor@crowell.com
Attorneys for Plaintiffs Ashley Amaris Overbey and Baltimore Brew

Dated: June 30, 2017

 
 .-· Case 1:17-cv-01793-MJG Document 24 Filed 10/04/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ASHLEY AMARIS OVERBEY, ET AL.

•

•

V.

•

Civil No.- JFM-17-1793

•

• THE MAYOR AND CITY COUNCIL OF

BALTIMORE, ET AL.

•

******

MEMORANDUM

!"'~

-- -<

I

n

-~.,

\
I

c .•
:-r---·-,:

co
G-·
1 :;.-

r' 1

c -

, ..
J···

.-. Ashley Amaris Overbey has filed this action against the Mayor and CitycG:ouhcil.ofC!.'

:i

N

Baltimore and the Baltimore City Police Department on the ground that a non-d~aragement -'

clause in a settlement agreement entered into between Overbey and the Mayor and City Council

of Baltimore violates her right under the First Amendment of the US Constitution. Defendants

have filed motions to dismiss. The motions will be granted.

Overbey was represented by counsel in negotiating her settlement agreement. The

agreement provided for the payment to her of $63,000.00 or $31,500.00 if she discussed any

opinions, facts or allegations with the news media regarding the incident in question. This

provision did not violate the First Amendment. See, e.g., Lake James Community Volunteer Fire

Department, Inc. v. Burke County, North Carolina, 149 F.3d 277,288 (4th Cir. 1998). Erie

Telecommunications v. City ofErie, Pa., 853 F.2d 1084, 1099 (3rd Cir. 1988).

The non-disparagement clause is valid. Therefore, plaintiffs are not entitled to the relief

they request.

A separate order to that effect is being entered herewith.

J. f.rederickotz United States District Judge

 
 Case 1:17-cv-01793-MJG Document 32 Filed 11/29/17 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ASHLEY AMARIS OVERBEY, et al. *

Plaintiffs vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE, et al.
Defendants

* *
CIVIL ACTION NO. MJG-17-1793 *
*

*

*

*

*

*

*

*

*

*

MEMORANDUM AND ORDER

The Court has before it the Motion to Dismiss of Baltimore

Police Department [ECF No. 10], Defendant Mayor and City Council

of Baltimore’s Motion to Dismiss or for Summary Judgment and to

Strike Jury Demand [ECF No. 11], and the materials submitted

relating thereto. The Court has held a hearing and has had the

benefit of arguments of counsel.

I. Background A. Procedural History
The instant case, filed June 30, 2017 [ECF No. 5] pertains to the settlement of a police brutality claim that Plaintiff Ashley Overbey (“Overbey”) asserted against the Mayor and City Council Of Baltimore (“the City”). The underlying case was settled when Overbey and the City entered into a settlement

Case 1:17-cv-01793-MJG Document 32 Filed 11/29/17 Page 2 of 22
agreement that was approved by the City’s Board of Estimates on September 10, 2014. See Settlement Agreement and Release (“Agreement”), Def.’s Mot. Ex. 3, ECF No. 11-4.
Overbey now alleges that, in regard to the Agreement, the City of Baltimore unlawfully penalized her protected speech rights and breached the Agreement. She seeks to challenge the validity of the non-disparagement clause in the Agreement as violative of Maryland public policy. Plaintiff Baltimore Brew, an independent daily news website, challenges the nondisparagement clause as a violation of Maryland public policy and alleges that the non-disparagement clause in the Agreement impinges on its right to a free press.
Defendants Baltimore City Police Department (“BPD”) and the Mayor and City Council of Baltimore (“the City”) filed motions to dismiss on July 27, 2017 [ECF Nos. 10 and 11, respectively]. By Order of October 4, 2017 [ECF No. 25], Judge Motz granted the dismissal motions and entered judgment in favor of Defendants. On October 13, 2017, Chief Judge Bredar reopened the case as to Plaintiff Baltimore Brew by Order [ECF No. 26].
On October 31, 2017 the undersigned Judge held a teleconference with the parties and requested that the Plaintiffs file a motion to reconsider so that all pending issues may be adjudicated. Following the teleconference, the Court issued a Procedural Order [ECF No. 28] stating that
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Case 1:17-cv-01793-MJG Document 32 Filed 11/29/17 Page 3 of 22
“[u]pon the filing of Plaintiffs’ motion to reconsider, the Court will consider all issues presented by the aforesaid dismissal motions.” On November 2, 2017, Plaintiffs filed the requested motion [ECF No. 29].
A hearing in this case regarding all issues presented by Defendants’ motions was held on November 16, 2017.
B. Alleged Facts Plaintiffs alleged in the Amended Complaint (“AC”) that between 2009 and 2017, the City of Baltimore paid more than 33.4 million dollars “in settlements and court judgments for lawsuits alleging brutality and other police misconduct.” AC ¶ 28. About 95% of these settlements contain a non-disparagement clause. AC ¶ 19. Plaintiff Overbey, a police brutality claimant, was a party to one of these settlement agreements. AC ¶ 53. Plaintiff Baltimore Brew alleges that these settlements agreements have “severely limited [its] ability to fully and accurately report on the issue of police brutality and abuse of power in Baltimore.” AC ¶ 76. The AC contains allegations regarding the substance of Plaintiff Overbey’s police brutality claim, set against the backdrop of many recent police brutality cases in Baltimore City. On April 30, 2012, around 9:40 PM, Overbey contacted the BPD to report a burglary. AC ¶ 33. Allegedly, police arrived
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Case 1:17-cv-01793-MJG Document 32 Filed 11/29/17 Page 4 of 22
in response to her call and, without provocation, several of the officers became violent towards her: they “grabbed [her] by her hair, twisted her arm behind her back, and violently slapped and punched her,” “violently and maliciously beat[] [her] with clenched fists” causing eye injury, struck her with a Taser, “restrained her and cut off her airway by placing [a] knee on her throat,” and finally arrested her. AC ¶¶ 37-44.
Overbey, through an attorney, filed a Complaint in the Circuit Court for Baltimore City against the City and the officers, alleging false arrest and false imprisonment, battery, violation of the Maryland Declaration of Rights, and malicious prosecution. She pursued pretrial proceedings for approximately two years before she was presented with the Agreement. AC ¶¶ 46-48.
Pursuant to the Agreement, the City agreed to pay Overbey $63,000 “within sixty (60) days of the approval of this Agreement by the Baltimore City Board of Estimates.” Agreement § 2, ECF No. 11-4. The Agreement included Section 9, entitled “Non-Disparagement/Limitation on Public Statements,” which states:
It is understood and agreed by the Settling Parties that in exchange for the payment of the Settlement Sum by the Released Parties, the Releasing Party and that party’s agents, representatives and attorneys shall strictly refrain from and avoid any attempt at defaming and/or disparaging the Released
4

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Parties, including each of the Released Parties’ employees or agents regarding any matter related to, or arising from the Litigation or the Occurrence. Further, in exchange for the payment of the Settlement Sum by the Released Parties and because the allegations of the Occurrence and Litigation are disputed, the Settling Parties agree that the Releasing Party and his or her agents, representatives and attorneys, shall limit their public comments regarding the Litigation and the Occurrence to the fact that a satisfactory settlement occurred involving the Parties. It is understood and agreed by the Settling Parties that this limitation on public statements shall include a prohibition against discussing any opinions, facts or allegations in any way connected to the Litigation or the Occurrence, or substance of any prior settlement offers or discussions with the news media, except that the Releasing Party’s counsel may indicate that the Litigation has been settled to avoid the cost, time, expense and uncertainties of protracted litigation.
The Settling Parties agree and understand that a breach of the obligations set forth in this Paragraph 9 is deemed by the Settling Parties to be a material breach of this Agreement for which the City is entitled to a refund of fifty percent (50%) of the Settlement Sum ($31,500.00) from the Releasing Party. The remainder of the Settlement Sum and all other obligations of this Agreement shall remain in force. If it is necessary for the City to pursue recovery in litigation of the refund it is entitled to under this paragraph, the City will be entitled to recover all reasonable attorney’s fees, costs and expenses of such litigation from the Releasing Party.
Agreement § 9, ECF No. 11-4.
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Overbey had been represented by counsel during the
negotiation of the Agreement, and signed the Agreement upon
advice of counsel in August 2014. AC ¶¶ 52-53. She alleges
that she misunderstood Section 9 to bind both her and the City,
and to only prohibit her from speaking to the media (and not to
the public at large). AC ¶ 54.
Overbey received her settlement funds on October 8, 2014.
AC ¶ 64. However, before that date, The Baltimore Sun published
a story about her case, including her mug-shot photo and her
settlement amount. AC ¶ 59. Overbey became upset after reading
the Sun story and corresponding reader comments, and responded
to them:
“I am the woman who this article is talking about AND THE POLICE WERE WRONG!! This article doesn’t come close to WHAT REALLY HAPPENED or tell how three men over 200 lbs. each beat me (115 lbs) bruises all over my body a black eye AND tased twice all in front my 2 yr old daughter so before you decide to put ur MEANINGLESS opinion in on something FIND OUT THE FACTS FIRST! IF I were wrong my charges wldntve ben thrown out and i wldntve received a dime. Its people like you who make this cite the ****it…”
“AND THIS WAS ALL AFTER I CALLED THEM FOR HELP AFTER MY HOME HAD BEEN BURGULARIZED WHILE I WAS AT WORK!! SO ANYONE WHO HAS ANYTHING TO SAY (NEGATIVITY) YOU CAN TAKE UR OPINION AND SHOVE IT!!”
“I pay my taxes and support myself like everyone else but unlike a lot of other people I KNOW MY RIGHTS and I refused to let them get away with this AGAIN!!”
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AC ¶ 63. The City determined that these comments violated the Agreement’s Section 9 Non-Disparagement/Limitation on Public Statements and withheld payment of one-half of the $63,000 settlement. AC ¶ 64. Thus, on October 8, 2014, Overbey received a check from the City in the amount of $31,500, which is half of the $63,000 agreed settlement amount. Id. The accompanying letter stated that she was only receiving half of the agreed-upon amount because of her above public comments regarding The Baltimore Sun article. Id.
II. The Motions and Standards of Review A. The City’s Motion for Summary Judgment The City has filed a motion to dismiss, or in the
alternative a motion for summary judgment, and has submitted materials in addition to the Complaint regarding these motions. [ECF No. 11]. The Court has not excluded these materials from consideration.
When “matters outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion shall be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260– 61 (4th Cir. 1998). Because the Court has relied upon supplemental affidavits and documents filed outside of the
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pleadings, it will treat the pending motion as a motion for summary judgment.
A motion for summary judgment shall be granted if the pleadings and supporting documents “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The well-established principles pertinent to summary judgment motions can be distilled to a simple statement: the Court may look at the evidence presented in regard to a motion for summary judgment through the non-movant’s rose-colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). Thus, in order to defeat a motion for summary judgment, “the party opposing the motion must present evidence of specific facts from which the finder of fact could reasonably find for him or her.” Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md. 1999) (emphasis added).
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When evaluating a motion for summary judgment, the Court must bear in mind that the “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
B. The BPD’s Motion to Dismiss The BPD’s Motion is styled as a motion to dismiss the Complaint, on the basis that it is not a proper defendant in the action. A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. A complaint need only contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff’s well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or “a formulaic recitation of the elements of a cause of action will not
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[suffice].” Id. A complaint must allege sufficient facts “to cross ‘the line between possibility and plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Twombly, 550 U.S. at 557). Thus, if “the well-pleaded facts [contained within a complaint] do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)).
III. DISCUSSION A. Dismissal of Claims Against the BPD The BPD argues that the entire case should be dismissed
against it because it is not the proper party to the lawsuit. Def.’s Mot. Dismiss at 2, ECF No. 10-1. The BPD “was not named as a defendant” in Overbey’s underlying civil lawsuit, “did not appear in that case, and is not a party to the Settlement Agreement.” Id. Nor is the BPD a third-party beneficiary to the contract. Id. at 5. Rather, the BPD argues, Plaintiff’s in the instant case, “alleged causes of action are based entirely
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on the conduct and practices of Baltimore City,” and the only reference to the BPD in the Amended Complaint is in the background discussion regarding the history of police brutality in Baltimore. Id. at 3.
In response, Plaintiffs argue that it is too early for the Court to make a decision as to whether the BPD is properly in the lawsuit, and that they need more discovery to make that determination. Pl.’s Opp. at 35, ECF No. 18. Plaintiffs seek to have the Court defer decision on the BPD’s motion.
The Court finds that there is no showing that additional discovery would potentially support Plaintiff’s position that the BPD is properly named as a defendant in the lawsuit. The BPD is not a party to the Agreement and is not alleged to be a third-party beneficiary of the Agreement. Parties may not be held to a contract to which they are not a party or a thirdparty beneficiary. See Cecilia Schwaber Tr. Two v. Hartford Acc. & Indem. Co., 437 F. Supp. 2d 485, 489 (D. Md. 2006) (Under Maryland law, “[a]s a general rule, ‘a contract cannot be enforced by or against a person who is not a party to it.’”).
Moreover, Plaintiffs have not alleged any facts connecting the BPD to the Agreement or to the City’s policy of entering into these types of settlement agreements. They simply state in a conclusory matter that the BPD, along with the City, has “some responsibility for the unlawful policy.” Pl.’s Opp. at 35, ECF
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No. 18. This does not provide allegations stating a plausible claim upon which relief from the BPD could be granted.
Accordingly, the BPD’s Motion to Dismiss [ECF No. 10] the claims against it shall be GRANTED.
B. Baltimore Brew’s Standing to Sue Defendants contend that Baltimore Brew does not have standing to bring this lawsuit because it has not alleged an injury-in-fact and because it “does not have a First Amendment right to access information that the parties to the Settlement agreement promised by contract to keep from the general public.” Def.’s Mot. at 25, ECF No. 11-1. To show standing, Baltimore Brew “must demonstrate (1) an ‘injury in fact’; (2) a ‘causal connection between the injury and the conduct complained of,’ such that the injury is ‘fairly traceable’ to the defendant’s actions; and (3) a likelihood that the injury ‘will be redressed by a favorable decision.’” Benham v. City of Charlotte, N.C., 635 F.3d 129, 134 (4th Cir. 2011). To show an “injury in fact,” the Plaintiff must have “‘adduce[d] facts demonstrating that [it has] suffered an invasion of a legally protected interest,’” that is ‘concrete and particularized’ and ‘actual or imminent,’ rather than ‘conjectural or hypothetical.’”). Id. at 135.
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The press’s access to information has been limited under the Supreme Court’s First Amendment jurisprudence. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991) (The “First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law.”); Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (the “First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”); Associated Press v. Nat’l Labor Relations Bd., 301 U.S. 103, 132 (1937) (“The publisher of a newspaper has no special immunity from the application of general laws.”).
Baltimore Brew alleges that it has reported “on BPD lawsuits and settlements involving allegations of police brutality” since the summer of 2011. AC ¶ 68. To report these stories, Baltimore Brew relies on (1) Board of Estimates’ published agendas which include settled lawsuits above $25,000, and (2) the City’s official memorandum for each settled lawsuit. AC ¶¶ 70-73. Baltimore Brew alleges that these documents are one-sided and incomplete without the version of facts as alleged by the plaintiffs in the various lawsuits. AC ¶ 75. Because the non-disparagement clauses in the settlement agreements prevent the plaintiffs from discussing their cases, Baltimore Brew argues that the clauses impair its “ability to gather news and receive speech” about incidents of police brutality. Pl.’s
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Opp. at 27, ECF No. 18. Specifically, the alleged injury is the “restriction of access to specific and essential sources of information–the victims of police brutality.” Id. at 26.1
However, Baltimore Brew has not shown that it was entitled to access the information at issue in the first place. Baltimore Brew is neither a party to the contract nor a thirdparty beneficiary to the contract. It appears to be arguing that Overbey, as a party to the Agreement, had the right to ignore confidentiality clauses if a member of the press asked for information covered by that clause.
The Supreme Court’s jurisprudence precludes a finding that the press has unrestricted access to any information they seek. See, e.g., Cohen, 501 U.S. at 669 (“the truthful information sought to be published must have been lawfully acquired.”). Because Baltimore Brew was not entitled to the information at issue in the first place, it would not suffer a legally cognizable injury if Overbey agreed not to provide the information.
Plaintiff Baltimore Brew relies heavily on a Sixth Circuit case to argue that it has standing in this case. See CBS Inc. v. Young, 522 F.2d 234, 237 (6th Cir. 1975). Although it is likely true that news gathering qualifies for First Amendment
1 Baltimore Brew does not allege that it has suffered injury due to self-censorship. Pl.’s Opp. at 26, ECF No. 18.
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protections, id., First Amendment protections are not absolute and may be curtailed under some circumstances, Cohen, 501 U.S. at 669. Moreover, the CBS Inc. case is distinguishable at the very least because Baltimore Brew had access to Overbey’s version of the facts as filed in her Civil Complaint, and could have interviewed Overbey prior to the Agreement. The Plaintiffs in CBS Inc., on the other hand, were “effectively cut off from any access whatever to important sources of information about the trial.” CBS Inc., 522 F.2d at 237.
Finally, any Baltimore Brew argument that it sustained an alleged injury-in-fact from the combination of all of the settlements containing a similar disparagement clause does not constitute “concrete and particularized” injury as required by Benham, 635 F.3d at 134.2
Accordingly, the City shall be granted summary judgment on Baltimore Brew’s claims.
C. Overbey’s First Amendment Claims Constitutional rights, including First Amendment rights, may be waived in a contract under certain circumstances. See
2 At the motions hearing, Plaintiff Baltimore Brew indicated that it seeks discovery to find a settling party that did not voluntarily enter into a settlement agreement with a nondisparagement clause. Hearing Rough Tr. 7:12-8:6. However, this type of investigation should have been completed before the suit was filed because the names of all settling parties are matters of the public record. Hearing Rough Tr. 17:15-24.
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Lake James Cmty. Volunteer Fire Dep’t, Inc. v. Burke Cty., N.C., 149 F.3d 277, 280 (4th Cir. 1998) (concluding that a contract requiring the fire department to waive its First Amendment right to petition the government was enforceable). For such a waiver to be effective, it must be “knowing,” “voluntarily given,” and “must not undermine the relevant public interest.” Id. Regarding public interest, the “contract will be enforced unless the interest promoted by its enforcement is outweighed by the public policy harms resulting from enforcement.” Id.
Plaintiff Overbey was represented by an attorney during her civil lawsuit and during the negotiations of the Agreement. She was advised by counsel to enter into the Agreement, and did so, despite some initial hesitations. AC ¶ 53. She was not coerced in any way to sign the agreement. Therefore, the Court finds that her waiver was “knowing” and “voluntarily given.” See Lake James, 149 F. 3d at 280.
Overbey argues that the waiver should not be enforced because it “undermines the accountability and transparency that is necessary to the effective operation of the Police Department.” Pl.’s Opp. at 19, ECF No. 18. However, it is by no means clear that preventing post-settlement discussions of police brutality cases would undermine the BPD’s ability to commit to transparency and accountability, when other procedures exist to hold the BPD accountable for its actions. See, e.g.,
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USA v. Police Department of Baltimore, Consent Decree, JKB-1799, ECF No. 2-2 (Jan. 12, 2017). Whether additional procedures are necessary as a matter of public policy is not for this Court to decide. Moreover, there are also public policy interests which are promoted by a enforcing a voluntary settlement agreement: e.g., reducing time and resources spent on litigation in courts and fostering confidence in negotiating future settlement agreements. Thus, the Court finds that any existing public policy harms do not outweigh the interest in enforcing the contract. See Lake James, 149 F.3d at 280.
To bolster her public policy argument, Plaintiff relies on a 9th Circuit case to argue that the waiver should be deemed unenforceable as a matter of public policy. See Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1398 (9th Cir. 1991). In Davies, plaintiff’s right to run for political office was restricted in a settlement agreement, which the Sixth Circuit invalidated because it “results in a limitation on the fundamental right to vote of every resident” under that jurisdiction. Id. There is a significant difference between waiving the right to run for political office and waiving the right to speak about the facts of a settled case. Thus, the Court finds that Davies is readily distinguishable from the present case.
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Overbey also argues that she did not understand the scope of the non-disparagement clause. However, any alleged unilateral mistake or misunderstanding about the Agreement would not be a valid excuse from performance. There is no allegation of fraud or inequitable conduct inducing any alleged misunderstanding. Nationwide Mut. Ins. Co. v. Voland, 103 Md. App. 225, 234 (1995) (“We note that ‘[t]he law in this State is clear that, absent intentional, culpable conduct, such as fraud, duress or undue influence, a unilateral mistake is ordinarily not a ground for relief from a contract.’”). Overbey was represented by an attorney and had every opportunity to investigate the scope of the provision before she signed the Agreement.3
Finally, Overbey argues that the provision was a product of unequal bargaining power, for two main reasons. First, because similar provisions are included in 95% of the settlement agreements, the “ubiquity of the provision suggests it is a nonnegotiable component” of all agreements. Pl.’s Opp. at 18, ECF
3 At the hearing, Plaintiff Overbey argued that it was not clear that the Agreement was signed voluntarily after substantive negotiations, and that she needs further discovery. See Hearing Rough Tr. 28:10-15 (“The fact is we don’t know if there was a negotiation over the money. We don’t know if there was a negotiation over anything.”). This speculation does not constitute “specific facts” showing a genuine issue for trial. Anderson, 477 U.S. at 250. See also id. at 249-50 (“If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted.”).
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No. 18. Second, Plaintiff Overbey was “homeless and destitute” at the time and had no real option but to sign the contract. Id.
The Court recognizes the Plaintiff’s difficult economic and social situation but does not agree with the contention that the non-disparagement obligation can be avoided. This contract was not a contract of adhesion because there was ample opportunity for Overbey to negotiate its terms. See Walther v. Sovereign Bank, 386 Md. 412, 430 (2005) (“A contract of adhesion has been defined as one ‘that is drafted unilaterally by the dominant party and then presented on a ‘take-it-or-leave-it’ basis to the weaker party who has no real opportunity to bargain about its terms.’”).
Typically, contracts of adhesion appear in consumer contract disputes in which the consumer signs a standard-form contract without the ability to negotiate about its terms. Walther, 386 Md. at 430. Here, the Agreement itself was only eight pages long and the non-disparagement clause was not hidden in fine print. Overbey was represented by counsel and could have decided to refuse the settlement and proceed to trial. She could have leveraged her position to demand that the nondisparagement clause be removed from the contract. The fact that these non-disparagement clauses are in the vast majority of agreements does not mean that they are non-negotiable clauses.
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And the fact that Plaintiff Overbey was impoverished at the time and decided to settle her claim for a financial payment does not render the Agreement a contract of adhesion.
The Court recognizes that a plausible claim could exist in a different case with different facts. However, Plaintiff Overbey has not presented any evidence showing any indication that her own contract negotiation was entered into involuntarily or somehow unfairly negotiated. This is fatal to her claim.
Accordingly, Defendant Mayor and City Council of Baltimore’s Motion for Summary Judgment as to Plaintiff Overbey’s First Amendment claims shall be GRANTED.
D. Overbey’s Contract Claims Counts III, IV, and V of the AC assert contract claims. In Count III, the AC alleges that the Agreement violates Maryland’s public policy of “promot[ing] the disclosure of information related to the administration of state and local services,” “impair[ing] the media from performing its vital role as government watchdog,” and “playing off the victim’s poverty.” AC ¶¶ 97, 99, 101. In Count IV, the AC alleges that the Agreement’s liquidated damages provision is unlawful because it is excessive and has the effect of punishing Overbey for breaching the contract. AC ¶¶ 105, 108. In Count V, the AC alleges that the City breached the contract when it unilaterally
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withheld half of the settlement amount owed to Overbey, instead of paying the full amount and then seeking a refund. AC ¶¶ 110113.
Even if these contract claims were meritorious, they are barred by the relevant statute of limitations. In Maryland, a contract claim against the local government is barred “unless the claimant files suit within the later of 1 year after: (1) The date on which the claim arose; or (2) The date of completion of the contract that gave rise to the claim.” Md. Code Ann., Cts. & Jud. Proc. § 5-5A-01.
The Agreement was signed in August 2014 and approved by the City’s Board of Estimates on September 10, 2014. The City tendered payment of half of the settlement funds on October 8, 2014, which, according to the AC, constitutes a breach of the Agreement. The original Complaint in the instant case was filed on June 29, 2017, substantially more than a year after the alleged breach. ECF No. 1.
Accordingly, Defendant Mayor and City Council of Baltimore’s Motion for Summary Judgment shall be GRANTED as to Counts III, IV, and V.
E. Motion to Stirke Jury Demand Because there are no more pending claims for jury trial, the City’s Motion to Strike Jury Demand is moot.
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IV. Conclusion For the foregoing reasons: 1. The Motion for Reconsideration [ECF No. 29] is GRANTED and all claims have now been adjudicated. 2. The Motion to Dismiss of Baltimore City Police Department [ECF No. 10] is GRANTED. 3. Defendant Mayor and City Council of Baltimore’s Motion for Summary Judgment and to Strike Jury Demand [ECF No. 11] is GRANTED. 4. All claims are dismissed against all Defendants. 5. Judgment shall be entered by separate Order. SO ORDERED, this Tuesday, November 28, 2017.
/s/__________ Marvin J. Garbis United States District Judge
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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-2444
ASHLEY AMARIS OVERBEY; BALTIMORE BREW,
Plaintiffs – Appellants,
v.
THE MAYOR AND CITY COUNCIL OF BALTIMORE; BALTIMORE CITY POLICE DEPARTMENT,
Defendants – Appellees.
------------------------------
AMERICAN SOCIETY OF NEWS EDITORS; ASSOCIATED PRESS MEDIA EDITORS; ASSOCIATION OF ALTERNATIVE NEWSMEDIA; BUZZFEED; GANNETT COMPANY, INCORPORATED; HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC; INTERNATIONAL DOCUMENTARY ASSOCIATION; INVESTIGATIVE REPORTING PROGRAM AT UC BERKELEY; INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN UNIVERSITY; TAWANDA JONES; MPA- THE ASSOCIATION OF MAGAZINE MEDIA; MARYLAND D.C. DELAWARE BROADCASTERS ASSOCIATION; MARYLAND-DELAWARE-DISTRICT OF COLUMBIA PRESS ASSOCIATION; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATIONAL WOMEN’S LAW CENTER; ONLINE NEWS ASSOCIATION; PUBLIC JUSTICE; PUBLIC JUSTICE CENTER; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; SOCIETY OF PROFESSIONAL JOURNALISTS; THE BALTIMORE SUN; THE CENTER FOR INVESTIGATIVE REPORTING; THE E.W. SCRIPPS COMPANY; THE WASHINGTON POST; TULLY CENTER FOR FREE SPEECH; WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS,
Amici Supporting Appellant.

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Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:17-cv-01793-MJG)

Argued: January 30, 2019

Decided: July 11, 2019

Before FLOYD, THACKER, and QUATTLEBAUM, Circuit Judges.

Reversed and remanded by published opinion. Judge Floyd wrote the opinion, in which Judge Thacker joined. Judge Quattlebaum wrote a dissenting opinion.

ARGUED: Daniel William Wolff, CROWELL & MORING LLP, Washington, D.C., for Appellants. Andre M. Davis, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Deborah Jeon, Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, Baltimore, Maryland; Charles D. Austin, Nkechi Kanu, Tyler O’Connor, CROWELL & MORING LLP, Washington, D.C., for Appellants. Suzanne Sangree, Senior Counsel, Lydie E. Glynn, Assistant Solicitor, Colin P. Glynn, Assistant Solicitor, Jason R. Foltin, Assistant Solicitor, Frederic Smalkin, Jr., Assistant Solicitor, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. Jennifer D. Bennett, PUBLIC JUSTICE, Oakland, California; Ajmel Quereshi, Civil Rights Clinic, HOWARD UNIVERSITY SCHOOL OF LAW, Washington, D.C., for Amici Howard University School of Law Civil Rights Clinic and Public Justice. K’Shaani Smith, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici Public Justice Center, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, National Women’s Law Center, and Tawanda Jones. Bruce D. Brown, Katie Townsend, Caitlin Vogus, REPORTER COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C.; Lisa B. Zycherman, DAVIS WRIGHT TREMAINE LLP, Washington, D.C., for Amici Reporters Committee for Freedom of the Press and 19 Media Organizations.

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FLOYD, Circuit Judge: When the city of Baltimore has settled civil-rights lawsuits alleging police
misconduct, it has typically required settling claimants to agree to a “non-disparagement clause,” under which they promise not to speak to the media about either their underlying allegations or the settlement process itself. Claimants who breach the non-disparagement clause are, by the terms of the clause, liable to Baltimore for damages equaling half of their settlement funds. Ashley Overbey, a police-misconduct claimant who settled her case but then spoke about it publicly, claims that Baltimore violated her First Amendment rights when it enforced the non-disparagement clause against her. Separately, a local news website, the Baltimore Brew (the Brew), claims that Baltimore’s alleged practice of including non-disparagement clauses in virtually all settlement agreements with policemisconduct claimants violates the First Amendment on its face. The district court granted summary judgment to the City on both claims. For the reasons that follow, we reverse.
I. 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.1 She brought various claims against the defendants under both state and federal law. Her case ground through the
1 Because the district court disposed of the relevant claims on the City’s motion for summary judgment, we recount the facts in the light most favorable to the non-movants.
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system for about two years, during which 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,2 Overbey’s settlement agreement included what we will call a “nondisparagement clause.” This clause required Overbey to “limit [her] public comments” regarding her lawsuit “to the fact that a satisfactory settlement occurred involving the Parties.” J.A. 96. 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. Id. 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
2 This figure derives from a statement made by Baltimore’s former City Solicitor and reported by the Wall Street Journal. See J.A. 54.
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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. J.A. 28.
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.3 It retained the other half as “liquidated damages.” See Appellees’ Br. at 3.
Overbey, having obtained new representation, filed another lawsuit in which she named the City and the BPD as defendants. In this second suit, she sought to compel the City to pay her the other half of her settlement sum. She brought a variety of claims under federal and state law, only one of which is relevant to us now: that the City violated her First Amendment rights when it withheld half of her settlement because of her speech
3 Incidentally, from the $31,500 disbursed by the City, Overbey’s attorney took a cut of approximately $20,500—one-third of the $63,000 that Overbey would have received if the City had not determined that she had violated the non-disparagement clause. Once her attorney took his cut, Overbey was left with about $11,000 in settlement funds.
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about her case. Overbey was joined in her second suit by the Brew, a local news website that, among
other things, investigates and reports on how the City and its police department handle allegations of police misconduct. The Brew claimed that the City’s policy of including non-disparagement clauses in its settlements with police-misconduct claimants violated the Brew’s First Amendment interest in newsgathering. The Brew sought both declaratory and injunctive relief.
The BPD moved to dismiss, arguing that neither Overbey nor the Brew had stated a claim against it. The district court granted the BPD’s motion.
The City moved to dismiss or, in the alternative, for summary judgment. It attached to its motion a number of exhibits pertaining to Overbey’s settlement agreement and the online comments that had led the City to withhold half of her settlement funds. Overbey and the Brew filed a response; they attached to their response a declaration from Overbey in which she averred that she had not understood the scope of the non-disparagement clause when she signed the settlement agreement.
After a hearing on the motions, the district court decided that because it had “relied upon supplemental affidavits and documents filed outside of the pleadings,” it would treat the City’s motion as one for summary judgment pursuant to Federal Rule of Civil Procedure 12(d), even though the parties had not yet conducted discovery. J.A. 352–53. The district court then granted summary judgment to the City on Overbey’s First Amendment claim, reasoning (1) that by signing the settlement agreement, Overbey had knowingly, voluntarily, and intelligently waived her First Amendment right to speak
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about her police-misconduct suit; and (2) that enforcement of the waiver was not contrary to public policy. The district court also granted summary judgment to the City on the Brew’s First Amendment claim, concluding that the Brew lacked standing to challenge the City’s practice of using non-disparagement clauses in virtually all settlement agreements with police-misconduct claimants. Overbey and the Brew now appeal.4

II. We review de novo the district court’s order granting summary judgment to the City. Wood v. Arnold, 915 F.3d 308, 313 (4th Cir. 2019).

III.
A.
We begin with Overbey’s First Amendment claim. Overbey does not dispute that the
non-disparagement clause, on its face, permitted the City to withhold half of her
settlement funds as liquidated damages.5 But she argues that the non-disparagement
4 Appellants’ notice of appeal encompasses the dismissal of their claims against the BPD. But Appellants address the dismissal of the police department in nothing more than a footnote, and they do not assert, much less argue, that the dismissal of the department was legally erroneous. Therefore, we see no reason to disturb that portion of the district court’s order, and we do not analyze it further. 5 At one point below, Overbey argued that as a matter of contractual interpretation, the non-disparagement clause did not give the City the right to withhold any portion of her settlement funds; rather, it merely gave the City the right to seek a refund of half her settlement funds. The district court held that that contract-based claim was untimely, and the question is no longer before us.
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clause was, and is, void, because it amounts to an unenforceable waiver of her First Amendment rights.6 According to Overbey, since the clause is void, the City violated the First Amendment when it preemptively clawed back half of her settlement funds based on her speech about her case.
The City, for its part, argues that the non-disparagement clause did not require Overbey to “waive” anything; rather, in agreeing to be bound by the non-disparagement clause, Overbey merely exercised her right not to speak in exchange for payment from the government. Alternatively, the City argues that even if the non-disparagement clause amounts to a waiver of Overbey’s First Amendment rights, there is no reason for us to hold that the waiver is void; thus, the City’s enforcement of the waiver cannot have violated the First Amendment.
We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void.
1. According to the City, there is no need for us to subject the non-disparagement clause
6 Overbey also argues that the enforcement of the non-disparagement clause was unconstitutional because it was illegal for the City to include the clause in the first place; according to Overbey, the First Amendment prevents the City from introducing and negotiating for non-disparagement clauses in settlement agreements with policemisconduct claimants. The district court did not address that argument, and we decline to do so now, because it is not necessary for us to resolve the central question of Overbey’s appeal: whether the district court correctly granted summary judgment to the City on her First Amendment claim. We note, however, that Overbey has not abandoned the argument.
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to First Amendment scrutiny, because Overbey’s promise not to speak about her case was not a waiver of anything. It was, rather, a reasoned decision to exercise her right not to speak in return for payment.7 The City points out that it did nothing to stop Overbey from speaking, and that it has paid her every cent that she was due under the terms of the settlement agreement—i.e., half the settlement sum. As the City would have it, Overbey agreed to exercise her rights in a particular way in return for money; she then exercised her rights in a different way, leaving her entitled to less money. Thus, in the City’s view, Overbey’s First Amendment rights were neither waived nor infringed.
We disagree. It is true that the right not to speak is protected by the First Amendment, for the Supreme Court has “held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’” Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448, 2463 (2018) (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)). But the City errs in equating “the right to refrain from speaking,” id., with mere abstention from voluntary speech.
At its heart, the right to refrain from speaking is concerned with preventing the government from “[c]ompelling individuals to mouth support for views they find objectionable,” Janus, 138 S. Ct. at 2463, or “[m]andating speech that a speaker would not otherwise make,” Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781,

7 As the City puts it, “The facts alleged in the amended complaint show that the City did not restrict [Overbey’s] speech, instead, she agreed to exercise her right not to speak in exchange for a payment of money in settlement of her lawsuit.” Appellees’ Br. at 16.
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795 (1988). In other words, the right to refrain from speaking limits the government’s ability to sanction or override a private individual’s preference for not making certain speech. The First Amendment’s protection of this right advances our bedrock societal interest in “individual freedom of mind.” Wooley, 430 U.S. at 714 (quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)).
Overbey’s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because none of the interests protected by the right to refrain from speaking were ever at stake in this case. No one tried to compel Overbey to make speech she did not want to make; no one tried to punish Overbey for refusing to say something she did not want to say. Instead, Overbey agreed, on pain of contractual liability to the City, to curb her voluntary speech to meet the City’s specifications. In doing so, she waived the First Amendment protections that would have otherwise shielded her speech from government sanction.
2. Our determination that the non-disparagement clause operates as a waiver of Overbey’s First Amendment rights is only the first step of our analysis. The next step is to determine whether the City is entitled to summary judgment on the waiver’s enforceability. It is well-settled that a person may choose to waive certain constitutional rights pursuant to a contract with the government. Lake James Cmty. Volunteer Fire Dep’t, Inc. v. Burke Cty., N.C., 149 F.3d 277, 280 (4th Cir. 1998). Yet we do not presume that the waiver of a constitutional right—even one that appears in an otherwise
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valid contract with the government—is enforceable. Id. On the contrary, such a waiver is enforceable only if it meets two conditions: First, it was made knowingly and voluntarily. Id. Second, under the circumstances, the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement. Pee Dee Health Care, P.A. v. Sanford, 509 F.3d 204, 212 (4th Cir. 2007); see also Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1397 (9th Cir. 1991) (holding that when it seeks to enforce a contractual waiver of a constitutional right, the government bears the burden of “demonstrat[ing] that the public interest is better served by enforcement . . . than by non-enforcement”).
Today, we restrict our analysis to the second prong of this test, because the second prong is decisive as a matter of law. Under the circumstances, 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.
We begin by laying out the public interests favoring non-enforcement. Famously, one of the interests at the heart of the First Amendment is “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Claims of police misconduct, as well as the circumstances in which the City litigates and settles such claims, assuredly fall into the “public issues” category. Thus, enforcing the nondisparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she
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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.”8 Id.; see also Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010) (“The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”).
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.” Citizens United, 558 U.S. at 340. This mistrust is one of the “premise[s]” of the First Amendment, id., and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on governmentcritical 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

8 The City contends that Overbey’s silence about her case could not have appreciably inhibited debate on the relevant public issues, since her complaint and related filings are part of the public record. We are not convinced. We agree with the City that Overbey’s silence would not entirely foreclose debate on her experiences with law enforcement or the manner in which the City handled her claims; nevertheless, when someone with personal experience of how the City litigates and settles claims of police misconduct remains silent on those topics to avoid contractual liability to the City, the relevant public discourse cannot be considered “uninhibited” or “wide-open.” Citizens United, 558 U.S. at 339. This is especially true when it comes to Overbey’s experience of the settlement process itself.
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power in an effort to curb speech that is not to its liking.9 The First Amendment is meant to serve as a bulwark against such exercises of government power. See N.Y. Times, 376 U.S. at 265 (“The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.”); cf. Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and Civil Liability, 109 COLUM. L. REV. 1650, 1668 (2009) (“[I]t is important to note that sometimes the state can censor just as effectively through legal forms that are private as it can through ones that are public.”). Accordingly, we conclude that enforcement of the non-disparagement clause at issue here was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.
We now consider the City’s asserted interests in enforcing the non-disparagement clause. Under the circumstances, none of those interests are strong enough for the City to prevail.
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

9 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).
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enough to make the waiver enforceable—otherwise, no balance-of-interests test would be
required. Davies, 930 F.2d at 1398. 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 falls back on its argument 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. Appellees’ Br. at 36. Thus, in the City’s view, enforcement of
the non-disparagement clause is consonant with, and essential to, individual First
Amendment interests.10 We think not. As noted above, the right to refrain from speaking
10 To bolster its argument, the 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. Appellees’ Br. at 35. This, according to the City, would “reduce the number and mutual value of settlements.” Id. We are troubled by the underlying logic of this assertion: policemisconduct 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
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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. Wooley, 430 U.S. at 714 (quoting W. Virginia State Bd. of Educ., 319 U.S. at 637).
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.” Appellees’ Br. at 34. 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.” Appellees’ Br. at 34. It is well-established that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
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.” Id.
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officials” can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. N.Y. Times, 376 U.S. at 270. 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. Thus, the City’s asserted interest in enforcing the non-disparagement clause to avoid harmful publicity stumbles out of the gate, and we find it unpersuasive.
Finally, the City appeals to “fairness.” Appellees’ Br. at 40. 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.” Id. at 39. 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.
Under the circumstances, the enforcement of Overbey’s waiver of her First Amendment rights—i.e., enforcement of the non-disparagement clause—cuts against strong public interests that are highly relevant to the very right that Overbey waived. The City has not identified a comparably compelling public good or other legitimate governmental aim that was, or could be, furthered by enforcement of the nondisparagement clause (other than a general interest in using settlements to resolve
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lawsuits). Consequently, the City is not entitled to summary judgment on Overbey’s First Amendment claim.

B. We now move to the Brew’s First Amendment claim. As noted above, the district court granted the City’s motion for summary judgment because it determined that the Brew lacked standing. We disagree. The district court relied on the allegations in the Amended Complaint in granting summary judgment on the Brew’s claim, but those allegations, on their face, suffice to establish the Brew’s standing. Accordingly, we reverse. To establish standing under Article III of the Constitution, a plaintiff must show: “(1) an injury in fact; (2) a sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision.” Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 207 (4th Cir. 2017). Each of these elements “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 208 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). Thus, when a defendant challenges a plaintiff’s standing, we analyze the challenge differently depending on the stage of litigation at which the challenge is brought and the substance of the defendant’s arguments. That general rule is complicated here. Recall that in the proceedings below, the City filed a pre-discovery motion to dismiss or, in the alternative, for summary judgment. As
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part of their briefing on the motion, both parties submitted evidence outside the pleadings. The district court granted a hearing on the motion, after which it decided to treat the motion as one for summary judgment. Having come to that decision, the district court concluded that “the City [would] be granted summary judgment on Baltimore Brew’s claims.” J.A. 360.
Yet neither the hearing on the City’s motion nor the district court’s analysis of the Brew’s standing indicates that the lower court considered the Brew’s standing, specifically, through the summary-judgment lens. Although the parties submitted exhibits and affidavits related to Overbey’s claims, it appears that neither party produced any evidence related to the Brew’s claims. Indeed, in attacking the Brew’s standing, the City focused entirely on what the Brew had or had not alleged; at the hearing on the City’s motion, neither the parties nor the district court made any significant reference to the record or to disputes of fact material to the Brew’s standing; and in its order dismissing the Brew’s claims, the district court’s reasoning turned on whether the Brew’s allegations were sufficient to confer standing as a matter of law. Thus, in every meaningful way, the parties and the district court limited their analysis of the Brew’s standing to the allegations in the Amended Complaint. We take that perspective as the starting point of our analysis. In other words, we begin by asking whether the Brew’s plausible allegations in the Amended Complaint, taken as true, are enough to give the Brew constitutional standing. See Wikimedia, 857 F.3d at 207–08.
The crux of this issue is whether the Brew has alleged an injury in fact. An injury in fact is “an invasion of a legally protected interest that is concrete and particularized and
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actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016), as revised (May 24, 2016) (internal quotation marks and citation omitted).
The legally protected interest at stake here is the Brew’s right to gather news, which derives from the First Amendment.11 Branzburg v. Hayes, 408 U.S. 665, 728 (1972); Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 520 (4th Cir. 1999) (“There are First Amendment interests in newsgathering.” (quoting In re Shain, 978 F.2d 850, 855 (4th Cir. 1992) (Wilkinson, J., concurring)). Indeed, it is “‘well established that the Constitution protects the right to receive information and ideas’ from a willing speaker.” Stephens v. Cty. Of Albemarle, 524 F.3d 485, 491 (4th Cir. 2008) (quoting Stanley v. Georgia, 394 U.S. 557, 564 (1969)). That interest has been invaded, the Brew tells us, insofar as the City’s alleged policy of making silence a condition of settlement with police brutality claimants has prevented the Brew from interviewing at least some of those claimants about (a) their cases or (b) their experiences with the settlement process.12
The City takes issue with this contention in multiple ways. First, according to the City, the Brew has no special right of access to non-public information; consequently, the only way the Brew can show an invasion of its interest in newsgathering is by showing
11 For this reason, we see no merit in the City’s argument that the Brew lacks prudential standing because it “seeks to assert the free speech rights of third parties . . . .” Appellees’ Br. at 46. 12 We use the term “police brutality” herein because that is the term the Brew uses in its allegations, along with “excessive force.” We express no opinion on the precise meaning of those terms or the types of allegations that fall under their umbrella.
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that the City prevented it from gathering newsworthy information from willing speakers. Yet in the City’s view, the Brew has not alleged that any willing speakers exist. The Brew alleges that some police brutality claimants have refused to discuss their cases with the Brew so as to avoid violating their settlement agreements, but the City believes that those claimants do not qualify, given that they were not ordered to refrain from discussing their cases or settlements with the news media. Rather, they agreed not to discuss their cases or settlements with the news media. If they are not willing to break their agreements, says the City, they cannot reasonably be considered willing speakers.
The City’s definition of “willing speaker” misses the mark. For the purposes of constitutional standing, a person qualifies as a willing speaker if she would be willing to provide information on a matter of public significance to the news media but chooses not to because she does not want to violate a settlement agreement with the government. See Stephens, 524 F.3d at 492 (acknowledging that a “willing speaker” exists, for purposes of a plaintiff’s constitutional standing, when one party to a settlement agreement with the government would be willing to speak to the plaintiff if not for a prohibition in the settlement agreement); see also American Civil Liberties Union v. Holder, 673 F.3d 245, 255 (4th Cir. 2011) (same). Cf. United States v. Wecht, 484 F.3d 194, 203 (3d Cir. 2007), as amended (July 2, 2007) (“[W]e hold that the consent of the parties to an order limiting speech is irrelevant to third-party standing analysis as long as the [plaintiff] can demonstrate that an individual subject to the order would speak more freely if the order is lifted or modified.”). We therefore reject the City’s argument that claimants who have settled police brutality suits and who subsequently refuse to discuss their suits because
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they believe themselves bound by non-disparagement clauses are categorically not willing speakers.13 They can be. And the Brew alleges that that “[o]n multiple occasions, plaintiffs who have settled civil rights lawsuits against BPD have refused to talk to Baltimore Brew specifically because of the gag order in their respective settlement agreements.” J.A. 34. Thus, the Brew has sufficiently alleged that the City’s pervasive use non-disparagement clauses in settlement agreements with police brutality claimants has interfered with its right to receive newsworthy information from willing speakers.
In addition, the City argues that based on the Brew’s own allegations, it is clear that the Brew has suffered nothing more than a mild inconvenience in its reporting. The Brew can, and does, use public records to obtain information on “police brutality” lawsuits settled by the City. Presumably, such records were available to the Brew even on those occasions when, according to the Amended Complaint, it tried and failed to get firsthand interviews with certain claimants. Since complaints and other litigation documents related to lawsuits against the police department are generally matters of public record, the City asserts that interviewing claimants “is not ‘a necessary prerequisite to any form of the expressive activity the [Baltimore Brew] wishe[s] to undertake.’” Appellees’ Br. at 45 (quoting Benham v. City of Charlotte, N.C., 635 F.3d 129, 136 (4th Cir. 2011) (alterations in source)).14
13 Since parties to a settlement agreement like the one at issue here may be willing speakers, and the Brew alleged as much, this case does not require us to decide whether the news media’s interest in newsgathering can be invaded when no willing speaker exists. 14 In the same vein, City adverts to our decision in Baltimore Sun Company v. Erhlich,
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Again, we are not persuaded. The Brew has alleged that legal documents in the
public record do not exhaust the newsworthy aspects of police brutality suits, and that
claimants who bring such suits are uniquely positioned to provide the public with
newsworthy information related to their claims. Additionally, the Brew has pointed out
that claimants’ firsthand experience of the process of settling with the City is not a matter
of public record and can only be obtained by communicating with settling claimants
directly. Thus, contrary to the City’s assertion, the mere fact that a significant amount of
information about most claimants’ lawsuits is available in the public record does not
mean that some claimants’ refusal to talk to the Brew could not have a significant and
deleterious effect on the Brew’s reporting.
The Brew has plausibly alleged that its legally protected interest in newsgathering
437 F.3d 410, 419 (4th Cir. 2006). But that case has little to tell us about the Brew’s standing. In Ehrlich, the relevant question was whether a plaintiff newspaper had suffered an adverse action for purposes of its First Amendment retaliation claim “when a government official denie[d] [a] reporter access to discretionary information or refuse[d] to answer the reporter’s questions because the official disagree[d] with the substance or manner of the reporter’s previous” publications. Id. We said no. Here, in contrast, we are not asked to decide whether the Brew has stated a claim for retaliation in violation of the First Amendment. And even if this case involved a retaliation claim, Ehrlich’s relevance would be limited to the legality of the City’s alleged conduct, whereas “standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975). Therefore, Ehrlich does not guide us. Similarly, Cohen v. Cowles Media Co., 501 U.S. 663, 665 (1991), is not relevant to the Brew’s standing. In that case, the question was “whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper’s breach of a promise of confidentiality given to the plaintiff in exchange for information.” Id. The Supreme Court did not discuss the newspaper’s standing. Even if it had, Cohen still would not control, because the state action challenged in that case—the enforcement of a generally applicable law governing an agreement between two private parties—is fundamentally different from the state action challenged here.
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has, at some point, been invaded by the City’s use of non-disparagement clauses in settlement agreements with police brutality claimants. Yet there remains a potential problem with the Brew’s theory of standing—a problem that neither the district court nor the parties have addressed. Although Overbey sought monetary damages as to Count One, the Brew seeks only declaratory and injunctive relief as to Count Two of the Amended Complaint. “The standing requirement applies to each claim that a plaintiff seeks to press,” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014), and “a plaintiff must demonstrate standing separately for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
Because the Brew seeks “declaratory and injunctive relief,” it “must establish an ongoing or future injury in fact.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (emphasis supplied). This means that the Brew’s standing to sue for declaratory and injunctive relief “may not rely on prior harms.” Abbott v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018). “[T]he party invoking the jurisdiction of the court must include the necessary factual allegations in the pleading, or else the case must be dismissed for lack of standing.” Bishop v. Bartlett, 575 F.3d 419, 424 (4th Cir. 2009).
The only one of the Brew’s allegations that could reasonably be construed as describing an ongoing or imminent harm is its allegation that the City’s pervasive use of non-disparagement clauses in settlements with police brutality claimants “impedes the ability of the press generally, and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions.” J.A. 35. This allegation is general, but it is plausible on its face. And when we evaluate
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standing based on the pleadings, as the district court did, “we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (internal citation and alteration omitted).
With that forgiving presumption in place, we conclude that the Brew has sufficiently pleaded an ongoing or imminent injury in fact that is both traceable to the City’s challenged conduct and redressable by the court. As discussed above, neither the parties’ arguments below nor the district court’s disposition went meaningfully beyond the pleadings in evaluating the Brew’s standing. We therefore decline to do so ourselves— even though the order under review is nominally a grant of summary judgment to the City. Instead, we remand to give the parties and the district court an opportunity to develop the evidentiary record relevant to the Brew’s claims.

IV. For the foregoing reasons, we reverse the judgment of district court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED

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QUATTLEBAUM, Circuit Judge, dissenting: 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 nondisparagement 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.
I. In 2013, Overbey filed a lawsuit alleging egregious police misconduct. She had every right to a public trial on the allegations. She also had the freedom to speak about the case before, during and after the suit. Defendants in the suit denied the allegations of misconduct. They likewise had the right to defend themselves in a public trial and to comment on the case.1

1 The conduct by the Baltimore Police Department as alleged by Overbey is abhorrent. I express no opinion on which party was likely to prevail below or minimize in any way the injuries allegedly suffered by Overbey.
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However, as happens in the vast majority of cases, the parties gave up those rights. Rather than resolve their dispute publicly in a court of law, they decided to resolve the dispute privately through a negotiated settlement. With both sides represented by counsel, the parties entered into a written settlement agreement. As part of that agreement, the defendants agreed to pay Overbey $63,000. In return, Overbey agreed to dismiss her claims and, pursuant to the non-disparagement provision, not to comment about the allegations in her suit or the settlement process. She further agreed that if she violated the non-disparagement provision, the City was entitled to the return of $31,500.
Later, the Baltimore Sun published an article about the settlement. It included a comment made by the City Solicitor about Overbey during the settlement approval hearing. On the Sun’s website, members of the public made several comments critical of Overbey. She responded on the website with several posts about her case. At the time of her posts, the City had not yet paid the settlement amounts. The City sent Overbey a check for only $31,500. The City—believing Overbey’s comments to the Sun violated the non-disparagement provision—refused to send the additional $31,500. Overbey does not dispute that her public comments violated the agreement. Instead, she seeks to excuse her admitted breach by claiming that the non-disparagement provision in the agreement is unenforceable. As a result, she seeks to compel the City to pay the full $63,000 to her. Since she has already received $31,500, she seeks the $31,500 she previously agreed to give up if she spoke about the case.

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II. Prior to entering into the settlement agreement, Overbey had a constitutional right to speak about the allegations in the lawsuit. The question for us is whether Overbey waived that right by agreeing to the non-disparagement provision, and, if so, whether her waiver is enforceable. In explaining this issue, we have stated that “a contract will be enforced unless the interest promoted by its enforcement is outweighed by the public policy harms resulting from enforcement.” Lake James Cmty. Volunteer Fire Dep’t, Inc. v. Burke Cty., N.C., 149 F.3d 277, 280 (4th Cir. 1998); (citing Town of Newton v. Rumery, 480 U.S. 386, 392 (1987) and Restatement (Second) Contracts § 178(1) (1981)). While the law does not presume the waiver of constitutional rights, it also does not render the contract per se unenforceable “simply because a contract includes the waiver of a constitutional right.” Id. Thus, “[w]here a party knowingly and willingly enters into an agreement that waives a constitutional right, the agreement is enforceable so long as it does not undermine the public’s interest in protecting the right.”2 Pee Dee Health Care, P.A. v. Sanford, 509 F.3d 204, 213 (4th Cir. 2007). Here, the non-disparagement provision does not.
2 The majority does not address Overbey’s claim that she did not knowingly and voluntarily enter into the non-disparagement provision. But Overbey’s argument that she did not understand that the waiver would apply to her specific conduct is without merit. The non-disparagement clause prohibits discussion of opinions, facts or allegations about the case. Further, Overbey was represented by legal counsel throughout the litigation and settlement process. Last, a provision in the settlement agreement, labeled “Knowingly and Voluntary Act,” stated that both parties represented they entered into the agreement voluntarily, with the advice of legal counsel and had adequate opportunity to investigate the subject matter of the agreement.
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A. To examine whether there are any public policy harms implicated by enforcement of the non-disparagement provision, it is critical to look to the specific circumstances and the harm caused by enforcing this settlement’s non-disparagement provision. See Rumery, 480 U.S. at 392–94 (using a fact specific, case-by-case approach to determine whether a defendant’s waiver of his statutory right to sue was enforceable). Overbey broadly asserts that the non-disparagement provision harms the public policy favoring debate about public issues and the need to cautiously mistrust government power. No one would deny the importance of those issues. But it is not enough to simply posit general constitutional principles. If that were enough, no confidentiality agreement or nondisparagement provision could ever stand. See Leonard v. Clark, 12 F.3d 885, 892 n.12 (9th Cir. 1993). Instead, the proper inquiry is how much those public policy interests are impaired, if at all, based on the applicable record. Looking at the circumstances of this case, Overbey overstates the impairment of any potential public policy interests. First, it is important to note the narrow scope of the waiver. Under the nondisparagement 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
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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.3 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

3 The majority opinion acknowledges that Overbey’s silence would not entirely foreclose debate on her experiences with law enforcement, but stresses that even so, the relevant public discourse cannot be considered “uninhibited” or “wide-open.” Maj. Op. at 12 n.8. But that is not the issue. If it were, any limitation would fail. The issue is whether the public policy in promoting that discourse has been appreciably harmed.
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to speak.4 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.
B. 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. See Leonard, 12 F.3d at 891 (recognizing the public’s interest in the finality of collective bargaining agreements as one of the public policies favoring enforcement of the constitutional waiver not to speak). 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

4 I find no Supreme Court or Fourth Circuit authority to support the majority’s suggestion that Overbey had no recognizable right not to comment on this case. The majority is certainly correct that the First Amendment prevents the government from compelling individuals to express support for views to which they object. But citizens who have information on important issues are entitled to remain silent, or as the majority puts it, to abstain from speech. See Wooley v. Maynard, 430 U.S. 705, 714 (1977) (holding that “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”). The scarcity of cases when the government is not seeking to compel speech is likely due to the case and controversy requirement. Without government action, there is no case and controversy. But citizens have the freedom not to speak if they so choose. As Terence Mann said in initially rebuffing Ray Kinsella’s request to come to Iowa in the wellknown film Field of Dreams, “I don’t give interviews, and I’m no longer a public figure. I just want to be left alone . . . .” To suggest this freedom does not exist would be unprecedented and take us into a land well beyond what even Orwell envisioned.
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entering into an agreement with terms that furthered their interest in finality. The nondisparagement 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. See Hemstreet v. Spiegel, Inc., 851 F.2d 348, 350 (Fed. Cir. 1988) (holding “there is a compelling public interest and policy in upholding and enforcing settlement agreements voluntarily entered into.”). 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

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role for courts.5 In conclusion, the interests of the defendants in enforcing the agreement is
substantial. In agreeing with both district court orders below granting summary judgment, I believe the interests of the defendants in enforcing the non-disparagement provision outweigh the public’s interests in voiding it. Therefore, I part ways with my good colleagues in the majority. I would affirm the district court’s dismissal of the case.6

5 Surprisingly, my good colleagues in the majority characterize this position as endorsing “hush money.” Maj. Op. at 16. 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.
6 The majority also reverses the district court’s order which concluded that Baltimore Brew had no standing to pursue its claims. For the reasons set forth by the district court, I dissent on this issue as well. See Overbey v. Mayor & City Council of Baltimore, No. CV MJG-17-1793, 2017 WL 5885657, at *5 (D. Md. Nov. 29, 2017).
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 Case: 1:17-cv-1793 As of: 07/20/2019 11:11 AM EDT 1 of 5
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:17−cv−01793−MJG

CLOSED

Overbey et al v. Mayor and City Council Baltimore et al Assigned to: Judge Marvin J. Garbis

Case in other court:

Fourth Circuit Court of Appeals, 17−02444

Cause: 28:1331 Violation of Constitutional Rights

Plaintiff

Date Filed: 06/29/2017 Date Terminated: 11/29/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ashley Amaris Overbey

represented by Daniel William Wolff CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 202−624−2500 Fax: 202−628−5116 Email: dwolff@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Jeon American Civil Liberties Union of Maryland Foundation 3600 Clipper Mill Rd Ste 350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: jeon@aclu−md.org ATTORNEY TO BE NOTICED

Nicholas Taichi Steiner American Civil Liberties Union of Maryland 3600 Clipper Mill Road Suite 350 Baltimore, MD 21211 410−889−8555 Email: steiner@aclu−md.org ATTORNEY TO BE NOTICED

Plaintiff Baltimore Brew

represented by Daniel William Wolff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED

Nicholas Taichi Steiner (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
The Mayor and City Council of Baltimore

represented by Jason Robert Foltin Baltimore City Department of Law

Case: 1:17-cv-1793 As of: 07/20/2019 11:11 AM EDT 2 of 5

100 N. Holliday Street Baltimore, MD 21202 14103964431 Fax: 4105471025 Email: jason.foltin@baltimorecity.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic Nelson Smalkin , Jr Baltimore City Law Department Litigation Division 100 North Holiday Street Room 101 Baltimore, MD 21202 443−984−2310 Fax: 410−547−1025 Email: fred.smalkin@baltimorecity.gov ATTORNEY TO BE NOTICED

Lydie Essama Glynn Office of the Attorney General Contract Litigation Unit 200 Saint Paul Place, 19th Floor Baltimore, MD 21202 4105766976 Fax: 4105766997 Email: lglynn@oag.state.md.us ATTORNEY TO BE NOTICED

Defendant Baltimore City Police Department

represented by Colin Patrick Glynn Maryland Public Service Commission Office of General Counsel 6 St. Paul St. Baltimore, MD 21202 4436295930 Email: colin.glynn@maryland.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G Comeau City of Baltimore Law Department Workers' Compensation Division 7 East Redwood Street Seventh Floor Baltimore, MD 21202 410−396−3956 Fax: 410−547−1025 Email: Michael.Comeau@baltimorepolice.org ATTORNEY TO BE NOTICED

Defendant
Baltimore City Policy Department TERMINATED: 06/30/2017

Date Filed 06/29/2017
06/29/2017

# Docket Text
1 COMPLAINT against All Defendants, filed by Ashley Amaris Overbey, Baltimore Brew. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons)(Wolff, Daniel) (Entered: 06/29/2017)
2 Local Rule 103.3 Disclosure Statement by Baltimore Brew (Wolff, Daniel) (Entered: 06/29/2017)

Case: 1:17-cv-1793 As of: 07/20/2019 11:11 AM EDT 3 of 5

06/29/2017

3 Summons Issued 21 days as to The Mayor and City Council of Baltimore.(slss, Deputy Clerk) (Entered: 06/29/2017)

06/29/2017

4 QC NOTICE: 1 Complaint filed by Baltimore Brew and Ashley Amaris Overbey was filed incorrectly. The Summons for Baltimore Police Department was not issued. The Summons has Baltimore Police Department as the defendant to issue summons for, but the Complaint has Baltimore City Policy Department as the defendant. Please either correct the complaint with an Amended Complaint showing the correct defendant or refile the correct summons. (slss, Deputy Clerk) (Entered: 06/29/2017)

06/30/2017

5 AMENDED COMPLAINT against The Mayor and City Council of Baltimore, Baltimore City Police Department, filed by Ashley Amaris Overbey, Baltimore Brew. (Attachments: # 1 Errata Notice of Errata, # 2 Redline of Amended Complaint, # 3 Summons, Baltimore Police Department)(Wolff, Daniel) (Entered: 06/30/2017)

06/30/2017

6 NOTICE of Appearance by Deborah A Jeon on behalf of All Plaintiffs (Jeon, Deborah) (Entered: 06/30/2017)

06/30/2017

7 NOTICE of Appearance by Nicholas Taichi Steiner on behalf of All Plaintiffs (Steiner, Nicholas) (Entered: 06/30/2017)

07/05/2017

8 Summons Issued 21 days as to Baltimore City Police Department.(jnls, Deputy Clerk) (Entered: 07/05/2017)

07/13/2017

9 SUMMONS Returned Executed by Ashley Amaris Overbey, Baltimore Brew. Baltimore City Police Department served on 7/7/2017, answer due 7/28/2017; The Mayor and City Council of Baltimore served on 7/7/2017, answer due 7/28/2017.(Wolff, Daniel) (Entered: 07/13/2017)

07/27/2017

10 MOTION to Dismiss for Failure to State a Claim by Baltimore City Police Department (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Text of Proposed Order)(Glynn, Colin) (Entered: 07/27/2017)

07/27/2017

11 MOTION to Dismiss for Failure to State a Claim or for Summary Judgment and to Strike Jury Demand by The Mayor and City Council of Baltimore (Attachments: # 1 Supplement Memorandum of Law in Support of Defendant Mayor and City Council of Baltimores Motion to Dismiss or for Summary Judgment and to Strike Jury Demand, # 2 Exhibit 1 − Ms. Overbey's Circuit Court Complaint, # 3 Exhibit 2 − Circuit Court Case Information, # 4 Exhibit 3 − Ms. Overbey's Settlement Agreement, # 5 Exhibit 4 − Baltimore Sun Facebook Comments, # 6 Exhibit 5 − 10.8.2014 Letter from City to Ms. Overbey's Counsel, # 7 Text of Proposed Order, # 8 Text of Proposed Order − Alternative Proposed Order)(Foltin, Jason) (Entered: 07/27/2017)

07/28/2017 12 Local Rule 103.3 Disclosure Statement by The Mayor and City Council of Baltimore (Foltin, Jason) (Entered: 07/28/2017)

07/28/2017 13 NOTICE of Appearance by Frederic Nelson Smalkin, Jr on behalf of The Mayor and City Council of Baltimore (Smalkin, Frederic) (Entered: 07/28/2017)

07/28/2017 14 NOTICE of Appearance by Lydie Essama Glynn on behalf of The Mayor and City Council of Baltimore (Glynn, Lydie) (Entered: 07/28/2017)

07/28/2017 15 Local Rule 103.3 Disclosure Statement by Baltimore City Police Department (Glynn, Colin) (Entered: 07/28/2017)

08/07/2017

16 MOTION for Extension of Time to File Response/Reply as to 10 MOTION to Dismiss for Failure to State a Claim, 11 MOTION to Dismiss for Failure to State a Claim or for Summary Judgment and to Strike Jury Demand by Baltimore Brew, Ashley Amaris Overbey. (Attachments: # 1 Text of Proposed Order, # 2 Supplement Memorandum in Support of Motion)(Wolff, Daniel) (Entered: 08/07/2017)

08/08/2017 17 Paperless ORDER granting 16 Motion for Extension of Time to File Response/Reply. Signed by Judge J. Frederick Motz on 8/8/2017. (Motz, J.) (Entered: 08/08/2017)

09/01/2017

18 RESPONSE in Opposition re 10 MOTION to Dismiss for Failure to State a Claim, 11 MOTION to Dismiss for Failure to State a Claim or for Summary Judgment and to Strike Jury Demand filed by Baltimore Brew, Ashley Amaris Overbey. (Attachments: # 1 Exhibit A − Overbey Declaration)(Wolff, Daniel) (Entered: 09/01/2017)

Case: 1:17-cv-1793 As of: 07/20/2019 11:11 AM EDT 4 of 5

09/01/2017

19 Request for Hearing re 10 MOTION to Dismiss for Failure to State a Claim, 18 Response in Opposition to Motion, 11 MOTION to Dismiss for Failure to State a Claim or for Summary Judgment and to Strike Jury Demand (Wolff, Daniel) (Entered: 09/01/2017)

09/08/2017

20 Joint MOTION for Extension of Time to File Response/Reply as to 18 Response in Opposition to Motion, by Baltimore City Police Department, The Mayor and City Council of Baltimore. (Attachments: # 1 Memorandum of Law, # 2 Text of Proposed Order)(Smalkin, Frederic) (Entered: 09/08/2017)

09/08/2017 21 Paperless ORDER granting 20 Motion for Extension of Time to File Response/Reply. Signed by Judge J. Frederick Motz on 9/8/2017. (Motz, J.) (Entered: 09/08/2017)

09/28/2017 22 REPLY to Response to Motion re 10 MOTION to Dismiss for Failure to State a Claim filed by Baltimore City Police Department.(Glynn, Colin) (Entered: 09/28/2017)

09/29/2017

23 REPLY to Response to Motion re 11 MOTION to Dismiss for Failure to State a Claim or for Summary Judgment and to Strike Jury Demand filed by The Mayor and City Council of Baltimore.(Foltin, Jason) (Entered: 09/29/2017)

10/04/2017 24 MEMORANDUM. Signed by Judge J. Frederick Motz on 10/4/2017. (jnls, Deputy Clerk) (Entered: 10/05/2017)

10/04/2017

25 ORDER granting 10 Motion of Baltimore Police Department to Dismiss ; granting 11 Motion of Mayor and City Council of Baltimore to Dismiss or for Summary Judgment treated as one to dismiss; JUDGMENT is entered in favor of defendants against plaintiff. Signed by Judge J. Frederick Motz on 10/4/2017. (jnls, Deputy Clerk) (Entered: 10/05/2017)

10/13/2017

26 ORDER DIRECTING Clerk to reopen case to permit adjudication of motions. Signed by Chief Judge James K. Bredar on 10/13/2017. (hmls, Deputy Clerk) (Entered: 10/13/2017)

10/18/2017

Case reassigned to Judge Marvin J. Garbis. Judge J. Frederick Motz no longer assigned to the case. (cags, Deputy Clerk) (Entered: 10/18/2017)

10/19/2017 27 NOTICE of Appearance by Michael G Comeau on behalf of Baltimore City Police Department (Comeau, Michael) (Entered: 10/19/2017)

10/31/2017

Telephone Status and Scheduling Conference held on 10/31/2017 before Judge Marvin J. Garbis. (jnls, Deputy Clerk) (Entered: 11/01/2017)

11/01/2017 28 PROCEDURAL ORDER. Signed by Judge Marvin J. Garbis on 10/31/2017. (jnls, Deputy Clerk) (Entered: 11/01/2017)

11/02/2017

29 MOTION for Reconsideration re 25 Order on Motion to Dismiss for Failure to State a Claim,,, by Baltimore Brew, Ashley Amaris Overbey (Attachments: # 1 Text of Proposed Order)(Wolff, Daniel) (Entered: 11/02/2017)

11/13/2017

30 RESPONSE in Opposition re 29 MOTION for Reconsideration re 25 Order on Motion to Dismiss for Failure to State a Claim,,, filed by The Mayor and City Council of Baltimore. (Attachments: # 1 Text of Proposed Order)(Smalkin, Frederic) (Entered: 11/13/2017)

11/16/2017

31 Motion Hearing held on 11/16/2017 re 29 MOTION for Reconsideration re 25 Order on Motion to Dismiss for Failure to State a Claim,,, filed by Baltimore Brew, Ashley Amaris Overbey before Judge Marvin J. Garbis.(Court Reporter: Douglas Zweizig) (J. Herndons, Deputy Clerk) (Entered: 11/16/2017)

11/29/2017

32 MEMORANDUM AND ORDER granting 29 Motion of Baltimore Brew, Ashley Amaris Overbey for Reconsideration; granting 10 Motion to Dismiss of Baltimore City Police Department; granting 11 Motion of Mayor and City Council of Baltimore for Summary Judgment and to Strike Jury Demand. Signed by Judge Marvin J. Garbis on 11/28/2017. (jnls, Deputy Clerk) (Entered: 11/29/2017)

11/29/2017

33 JUDGMENT ORDER shall be, and hereby is, entered in favor of Defendants against Plaintiff Ashley Amaris Overbey and Plaintiff Baltimore Brew dismissing all claims with prejudice with costs. Signed by Judge Marvin J. Garbis on 11/28/2017. (jnls, Deputy Clerk) (Entered: 11/29/2017)

Case: 1:17-cv-1793 As of: 07/20/2019 11:11 AM EDT 5 of 5

12/20/2017

34 NOTICE OF APPEAL as to 32 Memorandum and Order,, Order on Motion for Reconsideration, 33 Judgment, by Baltimore Brew, Ashley Amaris Overbey. Filing fee $ 505, receipt number 0416−7063978.(Wolff, Daniel) (Entered: 12/20/2017)

12/21/2017

35 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 34 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(slss, Deputy Clerk) (Entered: 12/21/2017)

12/22/2017

36 USCA Case Number 17−2444 for 34 Notice of Appeal filed by Baltimore Brew, Ashley Amaris Overbey. Case Manager − Anisha Walker (slss, Deputy Clerk) (Entered: 12/22/2017)

01/10/2018

37 TRANSCRIPT ORDER ACKNOWLEDGMENT by Baltimore Brew and Ashley Amaris Overbey for proceedings held on Motions Hearing 11/16/2017 before Judge Garbis, re 34 Notice of Appeal − Transcript due by 3/19/2018 (Court Reporter: Douglas Zweizig).(slss, Deputy Clerk) (Entered: 01/10/2018)

03/16/2018

38 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of 11/16/17, before Judge Garbis, re 34 Notice of Appeal Court Reporter/Transcriber Douglas J. Zweizig, Telephone number 410−962−4474. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Does this satisfy all appellate orders for this reporter? − Y. Redaction Request due 4/6/2018. Redacted Transcript Deadline set for 4/16/2018. Release of Transcript Restriction set for 6/14/2018.(dz, Court Reporter) (Entered: 03/16/2018)

07/11/2019

39 JUDGMENT of USCA (certified copy)"Reversing" the judgment of the District Court and "Remanding" to the District Court for further proceedings consistent with the Court's decision as to 34 Notice of Appeal filed by Baltimore Brew, Ashley Amaris Overbey. (Attachments: # 1 Opinion (slss, Deputy Clerk) (Entered: 07/11/2019)