A federal judge has awarded Ashley Overbey Underwood damages she won from a brutality settlement six years ago against the Baltimore Police Department – funds that were then withheld because the city said she violated a non-disclosure agreement by responding to comments about her case on a newspaper blog.
The city had withheld half of Underwood’s $63,000 settlement, but the American Civil Liberties Union of Maryland sued on her behalf, challenging the use of so-called “gag” orders to settle police misconduct suits.
After years of legal wrangling, the Fourth Circuit Court of Appeals ruled in 2019 that using non-disclosure agreements to silence plaintiffs was an unenforceable violation of their constitutional rights, describing the payments as “hush money.”
The city chose not to challenge that decision, but a final resolution of the Underwood case had dragged on amid negotiations over legal fees and the Young administration’s continued refusal to pay Underwood the remainder of her award:
The city’s offer to Underwood? $1.
The city argued that Underwood “is only entitled to ‘nominal damages of one dollar’ for an infringement of her First Amendment right to speak, ‘perhaps coupled with a formal declaration to that effect,’” U.S. District Judge Deborah K. Chasanow noted in her ruling yesterday.
Chasanow, however, rejected the arguments, ordering the city instead to pay Underwood the $31,500 it withheld, plus interest – which means she should receive about $45,000.
“It was a long time coming,” said Underwood, who went by Overbey when the case was originally filed, but has since married and lives in Virginia.
“I just think it was to prove a point that they can shut up whoever they want to shut up” – Ashley Underwood.
The 33-year-old mother of four said she could only guess why the city fought so hard against her, even after the appeals court struck down the gag orders and the City Council pushed through an ordinance prohibiting their use to settle police misconduct and discrimination claims.
“I just think it was to prove a point that they can shut up whoever they want to shut up,” Underwood said in an interview The Brew.
Free Speech, Racial Justice
Lawyers who brought the complaint said Chasanow’s ruling “completes the victory” in a cutting-edge case they framed from the beginning as a matter of both free speech and racial justice.
“This order finally brings about well-deserved resolution for Ms. Underwood who, throughout this long ordeal, never wavered in her commitment to fundamental free speech rights, notwithstanding the City’s bullying and thievery,” said Deborah Jeon, legal director for the ACLU of Maryland.
“For free speech to truly have meaning it must protect the rights of all people,” Jeon said in a statement released this morning. “And for too long, Black people have had their free speech rights denied when they challenge abuse at the hands of police. ”
The 2017 lawsuit, Overbey v. Mayor and City Council of Baltimore, also attacked gag orders as an assault on the First Amendment rights of the press to report on government actions – in this case, police misconduct – of vital interest to the public.
The Baltimore Brew was co-plaintiff in the case, which drew support from many other news organizations, including the Washington Post, Buzzfeed, Associated Press Media Editors, American Society of News Editors, Reporters Committee for Freedom of the Press, Maryland D.C. Delaware Broadcasters Association, E.W. Scripps, Gannett Co., and the Baltimore Sun.
“Ashley Overbey Underwood and the Baltimore Brew have struck a blow for free speech and greater transparency in policing in the City of Baltimore,” Tyler O’Connor, pro-bono counsel from Crowell & Moring LLP said.
“Glad I didn’t give up”
Asked if the city will abide by Chasanow’s ruling and pay Underwood, acting City Solicitor Dana P. Moore said, “Yes, we are ready to do it. . . We can have a check to her in a week to 10 days.”
As for the city’s initial insistence on paying only $1 – discussed in Chasanow’s 13-page opinion memorandum – Moore said she would have to check before commenting.
Moore has not yet gotten back to us about the city’s $1 offer.
Underwood, meanwhile, said she was glad she stuck with the lawsuit through some rough patches.
In addition to her lawyers, she thanked the network of grassroots groups and community activists who organized a social media campaign, marched and protested to raise awareness about her case.
“So many people put in so much work and showed endless support,” she said. “I’m glad I didn’t give up.”
Underwood said she never received an apology from the mayor or the police for what happened in 2012 when police. responding to her own 911 call of an attempted burglary in her house, beat her and her mother up.
Charges filed against her were eventually dropped, but it took her years to get her record expunged. Until she succeeded, the charges left “a big red mark” that made it hard to find work.
“I know I won’t get badges on the table,” she said, referring to punishment for the officers involved in the incident.
She said she will have to be satisfied with the apology she got at a public hearing from City Council Brandon Scott – and the knowledge that she raised an important issue and helped other victims tell their stories.
“To bring about awareness, to help people tell their stories – there were some terrible things we heard about. It was worth the fight.”