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First Amendment May Prohibit Police Agencies From Requiring Victim Confidentiality

LadyJustice

In almost every type of injury case, including cases that involve police brutality, the police agency or government agency that settles your case will require that you sign a release. This is a document that generally says that whatever you have settled for is all that you are getting, and you are prohibited from suing the city or police department again for the same injuries.

Confidentiality and Non-Disparagement Clauses

However, hidden in many of these settlement agreements are confidentiality clauses. As the name indicates, these clauses require that victims keep every fact about the case and the settlement completely confidential. This includes keeping the information secret from the media, but also includes keeping information secret from a victim’s own family members. They may even require that you object to any legal request by a court (such as a subpoena) for information about your case.

Similar to confidentiality clauses are non-disparagement clauses. These clauses in settlement agreements prohibit victims from saying anything negative about the Defendant, whether related to the actual case or not. It does not matter whether the disparaging statement is an actual, proven fact, or just someone’s opinion.

Many of these confidentiality agreements have penalties for violating them, including requiring that you, the victim, pay the police department or government agency if you say anything about your case. You owe the money even if the government agency is not actually harmed by your discussing the information about your case.

First Amendment Problems

Although these confidentiality agreements are binding on you if you sign them in cases against private companies, some courts have found them to violate the First Amendment when settling with a government agency. One court even referred to a settlement agreement that requires the victim remain forever silent about the facts of the case as “hush money.”

Many of these confidentiality agreements are one sided—that is, although you, the victim, cannot speak about your case or your settlement, the city can speak about it. Recently, the City of Baltimore characterized a victim who had settled a case with the city as being “hostile.” When the victim spoke out on his own behalf in response to the city’s statements, explaining why the officers were at fault and not him, the city withheld half of his settlement payout, alleging his defense of himself was a violation of the confidentiality clause in his settlement agreement.

He sued the City of Baltimore and won. The Court noted that the public has an interest in learning about police conduct, and the confidentiality clause was found to be nothing more than government constraint of constitutionally protected speech.

Like many cities, Baltimore has since abandoned its practice of requiring police abuse victims who settle cases to sign confidentiality agreements.

Get help at every stage if you have been victimized by the wrongful acts of police officers or law enforcement. Contact the Alabama police misconduct attorneys at Lasseter Law Firm today to discuss whether you have a cause of action for damages.

Resources:

ca4.uscourts.gov/opinions/172444.P.pdf

pfaw.org/blog-posts/trump-circuit-judge-tries-to-approve-use-of-hush-money-to-silence-survivor-of-police-violence-confirmed-judges-confirmed-fears/

https://www.lasseterlaw.com/court-says-handcuffing-7-year-old-in-school-is-legal/

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