Mayor Jack Young signed an executive order on Friday that bans the use of gag orders in “unreasonable” city settlements, a move that an ACLU lawyer called a “complete sham that accomplishes precisely nothing.”
David Rocah, a senior staff attorney with the ACLU of Maryland, said the order was meant to distract from a city council bill that would permanently end the practice.
Baltimore has often required gag orders -- that is, court-mandated silence through a nondisclosure agreement -- from people seeking to settle their cases against city workers and receive a pay-out. Meanwhile, city workers are generally allowed to freely discuss those cases.
“I believe that people who bring a claim forward against the city, and receive a settlement should absolutely be able to speak their truth,” Young said in a Monday statement. “I signed the executive order as affirmation that Baltimore will never again restrict anyone from speaking openly about their experiences with their government. This is a basic right that should never be limited.”
But Rocah said the net effect of the order amounts to zero.
“Despite claiming to want to end the practice, this executive order is very carefully worded by the city solicitor to accomplish nothing,” Rocah said.
Young’s order applies only to “unreasonable” cases. And City Solicitor Andre Davis gets to decide what is reasonable and what isn’t. That means the city can continue to silence those who settle in police brutality cases, Rocah said.
“Secrecy breeds abuse,” he said. “The city's practice of silencing victims of police misconduct has been a direct contributor to the culture of impunity that exists among and has existed among police in Baltimore.”
Young’s administration promised the ACLU that it would have the opportunity to review the text of the executive order before it was released, but that didn’t happen, Rocah said.
The mayor signed his executive order just days before the City Council’s Public Safety Committee was to hold a hearing on the Transparency and Oversight in Claims and Litigation bill, bill introduced in July by Council President Brandon Scott and Councilwoman Shannon Sneed. The bill would permanently ban the practice of gag orders in all police brutality and discrimination cases.
The bill would also mandate transparency by making information about all city settlements public. The hearing was scheduled Monday evening.
Scott said the efforts to pass the bill are still underway.
“Let’s ensure future mayors of Baltimore do not have the power to arbitrarily reverse course when it comes to an individual’s right to free speech,” he said in a statement.
Sneed affirmed her commitment to the legislation, which she said is “critical to ensuring non-disclosure agreements are not used to silence residents who have experienced an injustice.”
The mayor’s order and the council bill stem from a federal appeals court ruling in July that held the city’s gag orders undermine the right to free speech. The judges’ written opinion noted that Davis has said that about 95 percent of the city’s settlement agreements include some kind of non-disclosure clauses.
“It is difficult to see what distinguishes [a gag order] from hush money,” the judges wrote. “We have never ratified the government’s purchase of a potential critic’s silence.”
Tawanda Jones, an activist who walked away from a city settlement payout after brother was killed by police six years ago, says there is no difference.
The only reason her family sued the city at all was in hopes of criminal justice, Jones said. “But at the end of the day, you got a prosecutor that doesn’t want to prosecute.”
Jones said the city offered her family a settlement of $1 million but waited until the very end of the process to make clear their silence was mandatory.
“It’s not about the income, it’s about the outcome,” she said.
Instead of taking the settlement and signing a gag order, Jones began to organize weekly protests about her brother’s death, which she speaks about regularly. More than 65 families who have accepted city settlements in exchange for silence have reached out to her, distraught that they cannot publicly acknowledge their trauma and heartbreak, she said.
Victims of police brutality need to have the opportunity to discuss their experiences and should especially be able to name repeat violent offenders, Jones said.
“At the end of the day, you're not going to silence me from speaking what happened to my family,” she said.