Posted on 07/05/2010 5:52:10 PM PDT by The Magical Mischief Tour
A police officers actions have cost the Baltimore Police Department, and by extension the taxpayers of Baltimore, $200,000.
That much, the city has agreed to make public.
Other details who the officer was; when and where the incident occurred; who the victim was; who arrested him, and why his claim was worth six figures remain secret.
In the nearly four months since the settlement was approved, the city solicitor has told The Daily Record that the taxpayers right to know must take a backseat to the privacy interest of the victim, who demanded confidentiality. He also said the arrest stemmed from a rookie mistake by a police officer with an otherwise impeccable record.
It seems to me that thats just not enough, said former U.S. Attorney for Maryland and state Attorney General Stephen H. Sachs, who recently led an independent review of the Maryland State Polices spying on activists.
Asked to comment on the facts the city had shared with The Daily Record, Sachs said he must be missing something.
Number 1, the fact is [the claimants] wholly exonerated, and nothing can change that, Sachs said. I dont see how theres any shame in the world knowing that he didnt do anything wrong and that the police made a terrible mistake. But what transcends that is the taxpayers of Baltimore spent $200,000 because of a police mistake. The publics entitled to know why.
Undeniably innocent
It began with a cryptic item on the March 10 Baltimore Board of Estimates agenda.
In the case of Unnamed Individual vs. Baltimore Police Department, the citys spending panel was asked to approve a confidential settlement to resolve a claim for significant damage to professional career and reputation with a loss of clientele.
The Baltimore Sun published an article on March 13 giving the amount of the settlement and City Solicitor George Nilsons reasons for keeping all other details secret.
The Daily Record decided not to publish an article at that point but filed a request for all further details under the Maryland Public Information Act.
The city has since denied The Daily Records request. However, Nilson did agree to be interviewed for this article.
At a time and place he could not disclose, Nilson said, a man was served with a warrant for a pretty serious crime but not what most people would describe as an act of violence.
It was an act that, if that individual had anything at all to do with it, would be extremely harmful [to] the individuals career, profession, and livelihood, Nilson said in late June.
The man might have been arrested and briefly incarcerated Nilson wasnt sure before the authorities realized their mistake: They had the wrong guy. Same unusual name, wrong man, Nilson said.
The police officer who found an address for the targets name didnt do a double or triple check against other possible sources, Nilson said.
It was a new task, totally new to this officer, he said. Rookies make mistakes, and he made a mistake. Hes not a bad officer.
Nilson said the officers record was otherwise clean and totally impeccable.
In any event, the warrant was served, though Nilson would not say if it was by that officer, another city officer or some other law enforcement agency.
It was a total case of mistaken identity, he said, calling the unfortunate arrestee undeniably innocent.
It turned out that the man the police arrested, an immigrant, had not yet arrived in this country when the crime at issue occurred, and he was able to prove it, Nilson said.
But the damage had already been done to his reputation.
Despite not even close to being a public figure, the mans encounter with the police became instantly public and went viral in the persons community, Nilson said.
The man hired a lawyer, sued, and ended up negotiating the $200,000 settlement.
Nilson said this is the first time hes kept a police settlement secret in his three and a half years as city solicitor. All these things make this a unique case in my experience, he said.
Generally immune
Sachs, Nilsons supervisor as state attorney general in the early 1980s, was among the lawyers contacted by The Daily Record who believe Nilsons explanations dont provide a sufficient reason for secrecy in this case.
I dont understand. I truly dont understand, Sachs said in late June. Im not questioning George Nilsons good faith, Im not questioning anybodys good faith, but I just dont think its sound judgment. I just dont understand the need, the desirability, the justification for confidentiality.
Another former state attorney general, J. Joseph Curran Jr., was hesitant to weigh in.
I dont know why [Nilsons] taken that position but I can tell you my experience with him hes a very astute and competent attorney, said Curran, who now works at the Injured Workers Insurance Fund. But that doesnt mean hes always right or always wrong.
James Rhodes, a private Baltimore lawyer who won a mistaken-identity case in the states highest court just a few weeks before the city approved the mysterious $200,000 settlement, believes there must be more to the story.
Police officers are generally immune from suit for ordinary negligence, he noted.
There is simply no way the board would have signed off on a $200,000 judgment, much less a $5,000 for [ordinary] police officer negligence, Rhodes said. They just would not.
The Baltimore Police Departments maximum liability for a single claimant the under the Local Government Tort Claims Act is $200,000.
By comparison, the city paid that amount in December to settle a claim by a Navy veteran who was strip-searched and anally probed, in public, in an act of harassment by the since-disbanded Special Enforcement Team in April 2006.
Last November, the city paid $225,000 to 17 plaintiffs to settle similar allegations against some of the same Special Enforcement Team defendants.
The city did not try to keep either of those settlements from becoming public.
Rhodes thinks the city is looking after its own interests, rather than the claimants, in withholding the details in this instance.
Unanimous vote
The approval of the recent $200,000 settlement came in March, the second month of Stephanie Rawlings-Blakes term as mayor.
Both as City Council president and as mayor, Rawlings-Blake has made transparency, especially with respect to the city police department, a public priority. As council president she introduced a resolution to disclose the final investigation results of police-involved shootings. The names of such officers were kept secret for a time during the administration of Sheila A. Dixon, when Nilson also was city solicitor.
Rawlings-Blake also pushed for the police department to send crime alerts via text-messages, hired a new inspector general and backed greater transparency in the dealings of the Baltimore Development Corp.
In an interview with The Daily Record earlier this year, Rawlings-Blake underscored the need to eliminate the gray area in transparency in city dealings.
We need to make sure that were doing everything we can to be open and fair about the information that is available to the public, she said.
But in March, Rawlings-Blake voted to approve the anonymous settlement as presented by Nilson, who also sits on the Board of Estimates.
This represents no deviation from the mayors previously stated policy, her spokesman said in late June.
Transparency is something shes committed to when theres a clear benefit, said Ryan ODoherty, the spokesman. In this case, additional transparency was in the view of the plaintiff damaging. I think its reasonable to accept that.
Nilson represents the city in all legal matters, and he recommended the terms of the settlement, including the decision to honor the plaintiffs demand for confidentiality, ODoherty said.
Pressed further, ODoherty invited The Daily Record to sue the city.
Take action if theres a concern, ODoherty said. Dont just whine about it in an opinionated editorial.
He added that every single member of the five-member board approved the settlement, not just the mayor and Nilson.
Spokesmen for two other board members, City Council President Bernard C. Jack Young and Director of Public Works David E. Scott, said they had been satisfactorily briefed and decided the plaintiffs request for anonymity was reasonable.
City Comptroller Joan Pratt, secretary of the board, said she knew everything about the incident that led to the settlement before casting her vote.
Its true what hes saying, Pratt said of Nilsons account of the mistaken arrest.
Asked about the high-dollar amount for a mistaken-identity arrest, Pratt alluded to the citys recent budget battles.
We wouldnt be giving money away if we didnt have to, she said.
Presumption of openness
Mistaken identity arrests happen and lawsuits against the city sometimes follow, but confidential settlements of them are rare.
In 1997, long before Nilson assumed the top spot in the city law department, the city tried to keep the amount of a settlement confidential only as to the amount, not the parties or the incident. The Baltimore Sun sued for the information, eventually winning at the Court of Appeals.
In that case, the family of a man shot dead at Lexington Market in 1997 sued the city but reached a settlement just before trial. The presiding judge closed the courtroom and sealed the file.
Judge M. Brooke Murdock denied The Suns request to intervene in the case, and the newspapers Public Information Act request was also rejected. In July 2000, the Court of Appeals decided the presumption of openness trumped the governmental interest in encouraging settlement and the privacy interests of James Quarles IIIs family.
David Wachen, a media lawyer Shulman, Rogers, Gandal, Pordy & Decker P.A. in Potomac, said the Quarles case seems right on point. He pointed to a footnote in that opinion that states, Courts generally take the position that the requirements of a public information statute cannot ordinarily be circumvented by agreements between the government officials and others.
However, the March settlement may include a twist not present in the Quarles case.
In its denial of The Daily Records Public Information Act request, the city claimed the arrest details are protected from disclosure under section 10-108 of the Criminal Procedure Article of the Maryland Code.
That section deals with expunged records. While the city has not responded to The Daily Records follow-up request for documentation on the time and reasons for the expungement, Nilson said in an interview last week that he believes the records were expunged.
If there has been an expungement, Robert McDonald, chief counsel for opinions at the Attorney Generals Office, said it could put the city in a bind.
It is an interesting issue that public moneys been spent and why and isnt there some way that the public can oversee that, but on the other hand, if theres been an expungement, theyre not supposed to be giving out the name of the person either, McDonald said. Our settlements are not confidential here, but I dont know if Ive ever heard of an expungement situation.
And Alice Neff Lucan, a media lawyer who serves as a hotline attorney for the Maryland-Delaware-D.C. Press Association, said the victim does have a legitimate invasion of privacy interest.
To Steve Sachs, though, the decision to keep the entire case confidential still seems untenable.
Theres official conduct or misconduct and the use of public funds, he said. Those two things are precisely what the public is entitled to know about. And thats the reason for the Public Information Act. Thats why we have one.
Man, we really are a police state.
Almost any charge involving doing something to a child can ruin a person even when proved false. This is the only possible reason I can think of. But if no one knows wheres the harm?
Could it be that the "immigrant" entered this county illegally, and that the leftists in Baltimore are covering that fact for him?
Could it be that he is a Muslim and the publicity would make it difficult for him to join the sleeper cell assigned to him by Obama?
/sarc
Fines should be paid by the people involved, not the taxpayers.
No pain, no gain, as they say.
“It turned out that the man the police arrested, an immigrant, had not yet arrived in this country when the crime at issue occurred, and he was able to prove it, Nilson said.”
Could it be that the “immigrant” entered this county illegally, and that the leftists in Baltimore are covering that fact for him?””
This is certainly one of the things that struck me as odd in reading this drawn out piece of ?journalism? I have no idea of the time line from crime to arrest but if the “wrong” person was arrested because he wasn’t even in the country yet at the time of the alleged whatever, how badly could he or his community have been damaged? You don’t get roots down that deep in a new country in a couple of months.
I think it stinks and someone has a whole lot of pull in keeping the details secret. It isn’t our fault that we’ve become so cynical.....
I would think the city would be able to provide the details of the type of charge without violating any privacy concerns for the individual who was arrested.
There is a larger point here - for a long time it has really bothered me that we treat alleged victims of rape or child abuse so gingerly - the media refuses to publish their names - but those arrested for the crimes have their names on the front page before a trial ever begins. I think that in cases like that, all proceedings should be confidential until a verdict is reached.
Oops. I missed spelled. Curran is Gov Omalley’s father in law.
Also Omalley was mayor of Baltimore until 2006.
and there's the problem ... if the news of the crime went viral, wouldn't it make sense that the victim would want a $200k exoneration to also go viral? If the damage was done already, what is there to protect? Nope, I see a lot of smoke and suspect there is fire.
Maryland “Freak State” PING!
Slush fund for something?
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