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Lawsuit claims city police misconduct settlements violate First Amendment

Several Charlottesville-area residents have filed a lawsuit alleging the city violated their constitutional rights by declining to provide settlement information about police misconduct suits and other cases.

Filed Thursday in Charlottesville Circuit Court by attorney Jeff Fogel, the lawsuit claims that by refusing to provide certain information about police misconduct settlements, the City has violated the plaintiffs’ First Amendment rights and violated Virginia Freedom of Information Act guidelines.

The filing seeks a writ of mandamus — a mandate from a court that orders a government body to comply with an legal obligation — to force the City to comply with the provisions of FOIA that the plaintiffs claim were violated and to issue a declaratory judgment and injunction to enforce compliance with the First Amendment.

Three plaintiffs are named in the case: Cherry Henley, operator of Lending Hands and a member of the People’s Coalition; local activist Tanesha Hudson; and journalist Dave McNair.

In the joint complaint/petition, Fogel wrote that the city did not properly respond to a recent series of FOIA requests for documents related to police misconduct and constitutional violation lawsuit settlements from the years 2017 through 2021.

The city provided emails and letters related to five cases, most of which were redacted, Fogel wrote. In nearly all instances, Fogel wrote that the city invoked several state code sections to justify its redactions. These code sections allow public entities to withhold “personnel information,” any information covered by the “attorney-client privilege” and attorney “work product.”

Although many of the redactions in the documents provided appear to be supported by the exemptions cited, Fogel wrote that there is a notable exception: a July 2020 letter from the lawyer of one of the complainants to a lawyer for the city.

“[It] is hard to imagine how the redaction of any contents of a letter from the lawyer of a putative plaintiff to a lawyer for the city could be justified by the lawyer-client or the attorney work product privilege,” Fogel wrote. “More importantly, it is clear that the five cases covered by [the city’s] responses were settled but [the city] failed to provide the actual settlement agreements or the releases provided by the plaintiffs or to justify their exclusion.”

Among these cases with suspected settlements was a case filed against the city and several current and former officials by former city manager Tarron Richardson.

The federal lawsuit, which alleged the defendants violated his First Amendment rights, was dropped by Richardson in March with prejudice, meaning the suit is permanently dismissed and can’t be reinstated.

However, according to the emails obtained via one of the FOIA requests mentioned in Fogel’s filing, it appears Richardson’s case was settled by the Virginia Risk Sharing Association, the City’s insurer.

Both city attorney Lisa Robertson and Richard Milnor, who acted as the defendant’s counsel in the case, declined to respond to requests for confirmation about whether Richardson’s case was settled.

According to Fogel, the City has a practice of referring most claims to the Virginia Risk Sharing Association (VRSA). Acting as an agent of the city, VRSA chooses the attorney and monitors the litigation, Fogel wrote. If a settlement is reached, it is reflected in a signed agreement and a release is provided by the plaintiff, he wrote.

“In each instance in which a settlement is released, the City or its agent VRSA requires the claimant to sign an agreement not to disclose the terms of the settlement and/or the incident which gave rise to the complaint self and/or to promise not to disparage the City or any of its employees or officers,” Fogel wrote.

According to the complaint, the city has claimed that VRSA does not inform the defendant of the outcome of cases in which a settlement is reached and that the city refused to disclose whether any cases were referred to VRSA that were not included in its responses to the petitioners.

“On information and belief, when the City or an employee is sued, there is a mechanism within the City to direct the person or to refer the matter to the City’s insurer,” Fogel wrote. “No records of that procedure with respect to the five cases that were identified by [the City] were provided.”

According to the joint complaint/petition, the city’s policy and practice of requiring non-disclosure and/or non-disparagement agreements as a condition of settlement “violates the First Amendment rights not only of the affected claimant but of the body politic which has a right to hear information about its government and how it is spending taxpayers money.”

The plaintiffs are asking the Charlottesville Circuit Court to 1) issue a declaratory judgment that the practice of the City of Charlottesville requiring claimants, as a condition of settlement, to waive their right to free speech violates the First Amendment to the United States Constitution; 2) issue a preliminary and permanent injunction prohibiting the Charlottesville from enforcing the non-disclosure provision in the settlement reached with Hudson; and 3) award the plaintiffs the reasonable costs and attorney’s fees.

No hearing is currently set.

Source: www.dailyprogress.com

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