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Gag orders on survivors of police violence are unconstitutional, Fourth Circuit rules

July 11, 2019: Using terms like “hush money” and “the government’s purchase of a potential critic’s silence,” the U.S. Court of Appeals for the Fourth Circuit condemned as unconstitutional Baltimore City’s practice* of including gag order provisions in settlement agreements with civil rights plaintiffs. The July decision agrees with a PJC amicus brief that argued that such gag orders inhibit police accountability.

The Court’s ruling is a victory for Ashley Overbey Underwood, who was beaten by Baltimore City Police Department officers after she called the police to report getting burglarized. She sued the city but eventually settled the case. Part of the settlement agreement prohibited her from ever speaking about the incident (essentially a gag order), and if she violated the term, half of the settlement amount would be withheld. But the then City Solicitor issued a statement about the case in the Baltimore Sun disparaging Ms. Underwood. She defended herself in the comments section of the Sun article, and the city withheld half of her settlement, making clear that the gag order was one-sided.

Represented by the ACLU of Maryland and Crowell & Moring, Ms. Underwood sued the city over its policy of including gag order provisions in virtually all settlement agreements with civil rights plaintiffs, arguing the policy violated her First Amendment rights. The Baltimore Brew later joined the suit. The District Court dismissed the case, leading to the appeal.

2017-2018 Murnaghan Fellow K’Shaani Smith filed an amicus brief in support of Ms. Underwood on behalf of the Public Justice Center, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, the National Women’s Law Center, and Baltimore City civil rights advocate Tawanda Jones. In the brief, K’Shaani argued that silencing civil rights plaintiffs through gag orders inhibits police accountability and allows for the continuation of police violence against Black residents, particularly Black women, in Baltimore. The Fourth Circuit’s ruling agreed with the PJC brief, pointing to the public’s interest in voicing “mistrust of governmental power.” The decision is an important victory for residents seeking to hold police accountable for their conduct.

The Francis D. Murnaghan, Jr. Appellate Advocacy Fellowship allows a recent law graduate who has completed a judicial clerkship to spend a year engaging in appellate advocacy at the Public Justice Center in the areas of civil rights and poverty law. Learn more about this one-of-a-kind fellowship.

* The current City Solicitor, Andre Davis, has stated that the City no longer uses these provisions.