ACLU suit seeks transparency in Salisbury police excessive force settlement

Delmarva

Now more than ever, police departments across the country are under close scrutiny.

Since the June acquittal of the Minnesota officer who fatally shot Philando Castile, the outcry for police transparency and accountability has amplified.

Just last month, Salisbury Police Chief Barbara Duncan helped lead a conference session on community policing and the impact of implicit bias.

She highlighted local police's recent implementation of body cameras as an effort to build trust with the community by promoting transparency and accountability.

"We had an accusation made to one of our council members about an arrest that was made and the entire event was captured on the body-worn camera, which was phenomenal, completely eviscerated any argument whatsoever," she said June 26.

But the ACLU and others believe police transparency goes beyond body cameras.

Now, a lawsuit against Salisbury officials is challenging their failure to release documents about a settlement agreement in a 2014 lawsuit alleging police misconduct, a move lawyers for the plaintiffs say hinders transparency.

The lawsuit, which was filed June 29 by the ACLU of Maryland and The Real News Network, argues officials' failure to release information about the settlement violates the Maryland Public Information Act.

The city, Salisbury Police Department and Chris Demone, the city's public information officer, are named as defendants.

Demone directed The Daily Times to attorney Skip Cornbrooks, who declined to comment on the lawsuit. Duncan had also previously declined to comment.

Background

The case at the heart of the litigation is Adams v. Aita, one of four lawsuits against former Salisbury police officer Justin Aita, who resigned in 2015.

The plaintiffs in the Adams case were three Salisbury University students whose "complaint claimed that the students had sustained both physical and emotional injuries due to the use of excessive force by an SPD officer," according to the ACLU lawsuit.

The Adams lawsuit was filed in Maryland U.S. District Court in September 2014, naming Aita, the city and the police department as defendants, and two years later, a settlement was reached.

From [HERE] The terms of that 2016 settlement were never made public, despite Maryland Public Information Act requests from the ACLU and The Real News Network to the city asking for documentation of the settlement agreement.

"Taxpayer money is what funds the money that goes to pay for the victim in these settlements and so we believe that's a matter of public concern and should be public information," said Nick Steiner, ACLU of Maryland legal and public policy counsel.

The first request, which was made in November 2016, was denied he said because Demone told them neither the city nor the police department had documentation of the settlement.

The ACLU followed up with a question clarifying whether Demone represented the police department and knew if the agency had the requested documents. 

Demone's email response stated the police department did not have the documents and that " 'the City is represented by Local Government Insurance Trust' but never indicated the relevance of this representation," according to the lawsuit.

Steiner said they were told the city's lawyers had the documents, which sparked two main questions: Why couldn't the city simply ask its lawyers for the information and why didn't the city maintain documentation of a settlement agreement that spent taxpayer money?

"In either instance, it seems kind of absurd that the city of Salisbury has nothing in response to a public information act request for those settlement documents," he said.

In December, the lawsuit shows the ACLU and The Real News Network submitted a second request directly to Duncan and Mayor Jake Day that "emphasized the gravity of Defendants' failure to produce the documents, particularly in light of the significant public interest in police accountability and transparency."

When the lawsuit was filed, they had yet to receive a response to that second request.

Confidentiality clause

Before University of Maryland law professor Kathleen Hoke started teaching about public health policy, she spent eight years working with the Maryland Attorney General's Office, where she handled issues related to the state's public information act.

If the documents have been handed over to the city's attorneys, she said it doesn't exempt them from the Maryland Public Information Act.

"Generally speaking, there are exceptions to every rule, but I think when a public entity, when a municipality, enters into a settlement agreement, it can't be rendered private," Hoke said. "That's part of the game."

If a settlement has been paid out, she said there should be some sort of financial record, and, therefore, underlying documentation of the agreement. The city would be obligated to redact private information to protect the parties involved, but that doesn't mean the documents can be withheld altogether, Hoke said.

Trying to obtain information about the settlement agreement isn't just a matter of finding out what dollar amount was included in the settlement, said Charles Austin, an attorney for Crowell & Moring who is representing The Real News Network.

There is also the question of whether the settlement terms specify that a new policy or procedure should be implemented, he said.

"The lawsuit is not necessarily about whether police brutality occurred, but it's about whether someone is allowed to speak about allegations, whether the public can access information about how the city is going about settling these practices and how often these occur," Austin said.

The same day the Salisbury lawsuit was filed, the ACLU of Maryland also filed a lawsuit against the Baltimore mayor, city council and police department on behalf of Baltimore Brew, a news website, and Ashley Overbey, who alleged police misconduct and sued the Baltimore Police Department in 2012.

This litigation is challenging the practice of requiring plaintiffs settling allegations of police misconduct to "agree to a one-sided confidentiality agreement" and forgo half of the settlement proceeds if they breach the agreement "as unconstitutional and otherwise unlawful."

Overbey's case was settled two years after it was filed, with the city agreeing to pay Overbey $63,000 and a second plaintiff $13,000, according to the ACLU lawsuit.

However, the settlement included a "gag policy" that required Overbey and her attorney to "limit their public comments regarding the litigation and the occurrence to the fact that a satisfactory settlement occurred involving the parties."

The lawsuit shows that after signing the agreement, Overbey disputed online comments on a story about her settlement by recounting her alleged assault by police. She subsequently lost half her settlement payment.

A confidentiality clause was also included as a condition of the settlement agreement in the Adams v. Aita lawsuit.

Accountability

Luke Rommel, the attorney who represented the Salisbury University students, said that when lawsuits involving allegations of police misconduct come up in Maryland, a group called the Local Government Insurance Trust Fund often gets involved.

"LGIT is a member-owned association authorized by state law, wholly owned and managed by its local government members. The Trust’s main purpose is to provide joint self-insurance programs or pools for towns, cities and counties in the state of Maryland," according to the organization's website.

Whenever LGIT is involved in a settlement, Rommel said there is a standard release that includes a confidentiality clause that doesn't allow the plaintiffs to talk about the amount of the settlement or the underlying facts that led to the settlement.

If any of the parties involved in the Adams case are asked about what happened, he said there's an agreed upon response outlined in the release that they're supposed to use.

The release also states that the terms of the settlement are to be kept "completely confidential."

At least one of the students involved in the Adams lawsuit is concerned about whether the officers involved are being held accountable, but he is unable to air those concerns publicly because of that confidentiality clause, an ACLU of Maryland lawsuit states.

"I think that the fear of the inability to speak out and hold both accountable and make it a public issue is not speculative," Austin said. "It's certainly a real fear as you can see with what happened to Miss Overbey in the Baltimore case that we filed on that same day."

Steiner said one of the major motivations for these lawsuits is making sure that police are serving their communities and not themselves.

Particularly in cases of police brutality or excessive force, he said there's a need for transparency because the public can't hold law enforcement accountable for reforming its practices without being knowledgeable.

But "gag orders" that prevent victims of police misconduct from speaking out also keep the media from reporting events accurately and getting a full picture of the circumstances that surround a case, Steiner said.

"It's all part of a larger strategy to kind of open up the government so that the regular citizen and taxpayer can see exactly what goes into these settlements and make sure that the people can hold their governments accountable for the things that they do," he said.