Cities Make Public Their Accomplices In Wrongdoing By Issuing Settlements Tied To Gag Orders

from the buy-us-a-halo dept

It's not enough that lawsuit settlements for police misconduct, brutality or officer-involved-deaths come attached to "no admission of wrongdoing" statements. In far too many cases, they also come with stipulations forbidding recipients from making public statements about the lawsuit or its allegations.

When city officials here settle police-misconduct claims, they usually bar the person who alleged mistreatment from speaking publicly about the case. Violating that restriction can result in a settlement being cut in half.

The city [Baltimore] last year withheld $31,500 of one woman’s $63,000 payment after she posted messages about her case on a newspaper website, for instance.
The Wall Street Journal points out that Baltimore is somewhat unique in its use of confidentiality agreements in settlement agreements. But it is by no means the only government entity to do so. The mother of Darrien Hunt, who was killed by Utah police officers last year, recently rejected a $900,000 settlement from Saratoga Springs over the inclusion of a gag order.
"To me it was a gag order [that said], 'Here's hush money, don't ever say Darrien's name again,'" Susan Hunt, mother of Darrien, told Utah's KSL news about turning down the $900,000 settlement the city offered in response to her wrongful death lawsuit.

"My biggest concern is for the truth to be told," Susan said.
If the locality isn't interested in forcing gag orders on settlement recipients, the law enforcement agencies at the center of these lawsuits will sometimes help out by arresting plaintiffs and using pending charges as leverage against further public disclosure.
Criminal charges are commonly used to thwart the possibility of lawsuits, said attorney Marcus Sidoti, who has handled multiple civil rights lawsuits the city settled in recent years.

For instance, Judi Patrizi was arrested in 2007 and charged with obstructing official business after an officer said she impeded an assault investigation at Bounce Nightclub.

In a report, an officer described Patrizi pointing in his face and swinging her arm away from him -- an account later disproven by video surveillance at the club. The charges were later dropped and Patrizi sued the city saying she was maliciously prosecuted after the unlawful arrest. The city settled her case for $87,000.


In some cases, those who claimed police brutalized or shot them were offered plea deals that would reduce or drop charges against them only if they agreed not to sue the officers or the city -- a move some call unethical.
The Cleveland.com article lists a handful of other cases where lawsuit plaintiffs were arrested and charged with criminal activity after filing brutality complaints. In almost every case, charges were dropped or (in the one felony case) the grand jury did not return an indictment.

This sort of thing isn't strictly limited to lawsuits filed over police misconduct. These tactics also used to protect other government employees and officials from public scrutiny.
The Beecher School District [Flint, MI] paid nearly $250,000 to avoid two lawsuits over alleged sexual misconduct by a former public school administrator.

But no lawsuit was ever filed, so taxpayers did not have easy access to this information because of a state law that allows public bodies to enter into non-disclosure clauses that bar either side from discussing specifics of a case.
Unless allowed to be filed under seal, court documents are, by default, public records. The best way to keep the public from viewing public records is to create as few of them as possible -- hence the quick settlements and the accompanying gag orders. If done swiftly enough, no documents will make their way onto court dockets. Add in a bit more enforced secrecy, and even FOIA requesters won't know what to look for… or if anything even exists.
Court records are created when a lawsuit is filed and eventually dismissed, which could tip a potential FOIA user off to a settlement.

However, a keen eye may be needed to realize when a government agency agreed to a settlement with a non-disclosure clause to prevent a lawsuit from ever being filed, such as the situation in Beecher.
While confidentiality clauses are common to lawsuit settlements between private parties, the use of them in the public sphere is not nearly as acceptable. These agreements force the public to not only pay for the misdeeds of their public servants but shield them from additional scrutiny. Settlements are often offered by government agencies because it guarantees them something they'd can't obtain through a jury trial: the ability to exonerate themselves. It also heads off the chance that they'll have to hand over other incriminating information in response to discovery requests.

Nearly every lawsuit settlement contains clauses indicating that the payout is not an admission of wrongdoing. Government agencies are continually buying "innocence"... using money they've collected from citizens who have little say in how their tax money is spent. Whether it's a confidentiality agreement or a speedy settlement issued in an attempt to head off a lawsuit, the end result is the same: more secrecy, less accountability and the continued diminishing of any deterrent effect these civil suits are supposed to have.

Filed Under: cities, gag orders, police brutality, police misconduct, settlements, silence


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  • identicon
    Anonymous Coward, 30 Oct 2015 @ 3:44pm

    While confidentiality clauses are common to lawsuit settlements between private parties, the use of them in the public sphere is not nearly as acceptable.


    I frankly have very little use for them even in the private sector. But I do agree that it's worse when it happens in the public sector.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 30 Oct 2015 @ 3:53pm

    Sailing down 'de Nile'

    I can neither confirm or deny that I got out of bed this morning, therefore officer, you cannot arrest me because I am not actually here, oh, and that money does not exist, so you cannot arrest it either.

    I really hate these statements denying responsibility, or rather denying it to their collective selves because no one else actually believes them.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 1 Nov 2015 @ 10:21am

      Re: Sailing down 'de Nile'

      "rather denying it to their collective selves"

      The denial is purely for legal purposes. Nobody is expected to actually believe it.

      reply to this | link to this | view in chronology ]

  • identicon
    Michael J. Evans, 30 Oct 2015 @ 4:18pm

    accountability through transparency

    If the entire budget, taxes received to money spent, were fully documented (optionally with classified items being release and review date sealed to specific periods), then this wouldn't be nearly such an issue.

    Of course for that to have teeth falsifying such a report should be considered defrauding the entire taxpayer base (that many /counts/ of fraud) as well as reason for automatic termination.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2015 @ 4:32pm

    If a regular citizen beats the shit out of a regular person, they get criminal charges and possibly a civil lawsuit against them and the incident becomes a part of public record.

    If a police officer acting nominally under the color of law beats the shit out of a regular person, they get a paid vacation during the investigation, found innocent of wrongdoing after a "thorough" investigation, and the city pays out taxpayer money to the victim on the condition that the city's police get to have the record of their criminal acts kept out of the public eye.

    I've seen this in dysoptian future comic books (Punisher 2099, for example) - the criminal gets to do whatever he wants, and then when he's caught, he gets to buy his way out.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2015 @ 4:37pm

    Since Ed Snowden, we've been getting encrypted, anonymized 'drop boxes' for whistle-blowers to safely submit documents to news agencies. Would something like that work for the gagged recipient of a settlement? If the government can't prove he/she is the one who outed the settlement, then it seems like it would be hard to halve their award or take other action.

    Either that, or we need a new profession: Parallel Construction Engineer for private parties. If cops can do it, so can we.

    reply to this | link to this | view in chronology ]

    • identicon
      Digitari, 30 Oct 2015 @ 4:55pm

      Re:

      This is so wrong, I'm embarrassed for what this country has become.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2015 @ 8:54am

      Re:

      "Since Ed Snowden, we've been getting encrypted, anonymized 'drop boxes' for whistle-blowers to safely submit documents to news agencies."

      The issue with that is this makes it harder for a news agency to confirm the possible authenticity of the leak. For instance at least with a disclosed source (disclosed to the news agency not the public) the news reporter can somewhat confirm that the person giving the tip is in a position to know what they claim to know. They can also ensure that disclosed sources keep their story straight and know who said what when multiple sources provide information. A disclosed source is much less likely to lie because they don't want to get caught telling lies since that will hurt their credibility in the future and they are also a lot more likely to get caught if they do lie. 100 anonymous tips could all be from the same person pretending to be from different people or they can be from 100 different people.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2015 @ 9:51am

        Re: Re:

        True, the initial source/claim can't be trusted on its own. I'm thinking more along the lines of the settlee (I don't think that's a real word, but I'll use it anyway) submitting copies of their own court & legal documents like the NDA (or whatever it's called). If nothing else, the submitter could provide a list of obscure terms that might allow other parties to file a revealing FOIA request.

        I can't really think this out very far, since I only really understand two things about the legal system: 1) Jack; 2) Shit.

        reply to this | link to this | view in chronology ]

  • identicon
    UncleJudas, 30 Oct 2015 @ 5:36pm

    Has become?!

    This country has been this way for many generations... until the recent past, those press-owners could be convinced not to reveal anything the public shouldn't know. The internet is the first time in the history of mankind that every person gets a chance to speak and be heard and for the wrongdoings and criminality to be truly exposed and this has the rulers scared sh**less.

    There's even a law (written or unwritten) that won't let the press report on IRS attacks... Why would there be such a law in a free country?

    Why does the legal system do everything in its power to keep the concept of jury nullification away from public ears?

    Corruption has been with us since time began... why do you think civilizations come and go? History repeats because most of humanity is dumber than dirt and the few that aren't and try to warn the rest are either shut up or murdered.

    Morons... every bit of corruption you think you're getting away with is sinking your society. You're digging your own graves. Police who think they can do anything they want... when its their child/spouse/family/friends who are mowed over by other officers... The country is well on its way to hell. Enjoy the ride, the party's over.

    reply to this | link to this | view in chronology ]

  • identicon
    Jyjon, 30 Oct 2015 @ 6:41pm

    Why does the government have to hide what it did? and why would you relect them again?

    Wouldn't the settlement be a violation of the plantiff's first amendment rights since it is a government entity demanding the keep quiet? Speak about it, then sue em again for violating your rights.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2015 @ 9:14am

      Re: Why does the government have to hide what it did? and why would you relect them again?

      "Wouldn't the settlement be a violation of the plantiff's first amendment rights since it is a government entity demanding the keep quiet?"

      Well the thing is they aren't demanding you agree to the settlement. You agreed to it voluntarily. Not sure if it's a first amendment issue because your unwillingness to settle with a non-disclosure agreement should theoretically have no bearing on the outcome of the case if it goes to trial and so no governmental judgement is being passed that is making you keep quiet. Now if your unwillingness to keep quiet did affect the outcome of the case if it does go to trial I would argue that is a first amendment violation. The reward you receive at trial should be irrelevant of whether or not you choose to disclose the information. So, in a sense, no one is forcing you not to say anything but they are threatening that your refusal to keep quiet will result in a trial or a lesser settlement. From a free speech perspective what those seeking public official misconduct judgements should ideally do is refuse to sign any non-disclosure agreements and they should publicly disclose that they were offered something better if they sign one (ie: either a better settlement or the opportunity to receive a settlement and not go to court). That should encourage governments not to include non-disclosure agreements if the public disclosure of those agreement offerings make them look bad.

      However I still think offering settlements to keep quiet should probably be made illegal for other reasons. If you receive a settlement the public has a right to know why you received public funds and so privacy issues between private parties that mutually wish to keep matters private should be a lot less relevant since government money is public money. If the government settles the public has a right to know why their taxpayer money is being spent on settlements. It's taxpayer money and taxpayers have a right to know where it's going and why.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2015 @ 2:46am

    I find it amazing people like this never seem to realize you can only walk over people you deem beneath you for so long before they start getting violent and fighting back.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2015 @ 10:08am

      Re:

      I'm doubtful any sort of Franklin/Jefferson/Adams sort of coordinated revolution could ever happen now. On the other hand, I think we could pull off organizing an army of Milton Waddamses, which might be weirdly effective.

      reply to this | link to this | view in chronology ]


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