The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Borkowski v. Baltimore County, decided yesterday by Judge Deborah K. Chasanow (D. Md.):
This case began as a putative class action revolving around the investigation and handling of sexual assault allegations by various Baltimore County and University of Maryland affiliated entities and individuals. After two motions to dismiss, the sole remaining claim is one for First Amendment retaliation brought by Plaintiff Anna Borkowski against the remaining Defendants.
Ms. Borkowski's claim centers on Defendants' response to her efforts in March 2018 to have her alleged rape charged and prosecuted. The alleged assault occurred over the night of October 19 and into the early morning hours of October 20, 2017. At the time, Ms. Borkowski was a 21-year-old student at Towson University. She and a friend met up for happy hour after classes. They continued to drink throughout the evening and met up later with three men Ms. Borkowski had previously been classmates with. After drinking and dancing together, they went to her friend's apartment. The men encouraged the women to continue drinking.
Ms. Borkowski remembers little of what happened next, and her friend has no memory of it. As of her January 2021 deposition, Ms. Borkowski has only one brief memory of recognizing that two of the men were having sex with her while the third man had sex with her friend, who appeared to be passed out. In that moment, Ms. Borkowski "felt like [she] was paralyzed" and feared that she would be physically harmed by the men's actions. Ms. Borkowski does not have any memory of the men either threatening her with force or using force against her. But both women were injured when they awoke the next day. Ms. Borkowski believes that her injuries were consistent with force being used to facilitate sex. Ms. Borkowski and her friend immediately went to the police station to report the incident. At that time, Ms. Borkowski also had a brief memory of sex with two men on the balcony.
The State's Attorney's Office declined to bring charges. Ms. Borkowski was upset by the decision and spoke with multiple individuals about it in November and December, including Assistant State's Attorney Dever, Investigator Fox, and Detective Burrows. Eventually, she decided she "wanted to give it another shot" by requesting that a District Court Commissioner charge her alleged assailants. (See id., at 129). The Commissioners are "today's equivalent of a magistrate[.]"They receive sworn applications for charges and determine whether there is probable cause to issue them. State's Attorneys may, however, terminate or dismiss a charge by entering a nolle prosequi.
In March 2020, Ms. Borkowski filed two applications with different Commissioners. She believed that charges would issue and hoped that a prosecution would ensue. Defendants, however, viewed Ms. Borkowski's attempts to apply for charges as futile, because they would move to dismiss any charges unless Ms. Borkowski had new evidence. There is no evidence, however, that Defendants told Ms. Borkowski this fact.
The first application was denied after the Commissioner consulted with Assistant State's Attorney Dever. After obtaining representation, Ms. Borkowski added more detail to her second application, including citing to Maryland's first-degree rape statute. Both applications alleged, however, that the assailants had sex with Ms. Borkowski "by force." On March 20, the second application was approved and charges were issued against all three alleged assailants for various offenses, including first-degree rape.
Assistant State's Attorney Dever described her reaction to the charges as follows: "I was very upset….I wanted to try and communicate somehow that she needed to stop going to the Commissioner's Office[.]"She consulted with State's Attorney Shellenberger and he instructed Ms. Dever to have detectives speak with Ms. Borkowski. They wanted an in-person meeting despite having Ms. Borkowski's contact information and knowing that she had an attorney. On Ms. Dever's instructions, Investigator Fox asked Detective Burrows "to go talk to Ms. Borkowski, and talk[ ] to her about no further charges….[In other words,] asking her not to go to another Commissioner or go to the Commissioner to seek charges again." Detective Burrows' notes may suggest she believed that she was to tell Ms. Borkowski that she needed to "stop going to comm[issioner]" and that, if she didn't, Ms. Borkowski faced a "civil lawsuit or worse[,] criminal charges[.]" …
On March 22, Detectives Burrows and Tomas obtained Ms. Borkowski's class schedule and went with an armed and uniformed county police officer to Ms. Borkowski's home in Baltimore City at a time she was not supposed to be in class. The officer had never before been asked to accompany or escort county detectives in Baltimore City, nor has he since. Ms. Borkowski's grandmother answered the door. The officer told her she was being recorded and Detective Burrows proceeded to ask her questions about Ms. Borkowski's whereabouts. The encounter lasted less than two-and-a-half minutes. The detectives stated that they wanted to speak with Ms. Borkowski about charges she had filed and did not elaborate further. Ms. Borkowski learned about the encounter from her grandmother later that day.
Detective Tomas then called Ms. Borkowski twice, exchanged voicemails with her, but did not speak with her directly. After speaking with Ms. Borkowski's lawyer, he and Detective Burrows informed the SAO Defendants that Ms. Borkowski would only speak to them with her attorney present. State's Attorney Shellenberger then decided "that was the end of it." Defendants concluded that "there was now a lawyer involved, and so [they] did not feel like [a] meeting had any purpose." At no time did Defendants explicitly deliver the message to Ms. Borkowski that she should stop filing charges. They successfully dismissed the charges over Ms. Borkowski's objections, however….
"As a general matter, public officials may not respond to constitutionally protected activity with conduct or speech that would chill or adversely affect this protected activity. That is so even if the act, when taken for different reasons, would have been proper." …
There is a genuine dispute of material fact about whether Defendants' actions, viewed together, conveyed a message that the SAO Defendants and the Detective Defendants would impose negative consequences on Ms. Borkowski if she continued to apply for charges. Both parties acknowledge Defendants did not explicitly tell Ms. Borkowski to stop filing applications or else face civil or criminal punishment. They instead dispute whether Defendants' actions implicitly conveyed that message, pointing primarily to: (1) the visit by Detectives Burrows and Tomas to the home Ms. Borkowski shared with her grandparents, and (2) the two phone calls made by Detective Tomas to Ms. Borkowski.
A reasonable jury could conclude that Defendants' actions conveyed a message to stop or face consequences. Ms. Borkowski's grandmother told Ms. Borkowski that she "believed that the visit was an [attempt] to intimidate" her regarding her applications for charges. Ms. Borkowski believes that her grandmother reached this conclusion "[b]ecause they showed up with an armed officer and they kept asking where I was, when I was due home, if they knew that I had filed charges, and why I had filed charges[.]" Ms. Borkowski's grandmother also found the visit confusing because it was unnecessary and didn't seem to achieve anything. From her perspective, the Detectives asked questions to which they should have known the answers and they could easily have resolved over the phone. This confusion led her to question "[w]hat they were trying to accomplish by [the visit]." Ms. Borkowski learned about the visit at approximately the same time she received two phone calls and a voicemail from Detective Tomas. The voicemail, though "not out of the ordinary," provided little detail about why Detective Tomas wanted to speak with Ms. Borkowski. It just said, "This is Detective Thomas. Give me a call back."
In sum, the visit and phone calls occurred unexpectedly, nearly simultaneously, without explanation, and were carried out by detectives and an armed police officer outside their jurisdiction. A reasonable jury could find that these facts amounted to a "gratuitous show of uninvited law enforcement interest" that involved no explicit threats but was implicitly menacing. It would be a small step to find then that this message was intimidating and could chill First Amendment rights.
This conclusion could be supported by the status of, and relationship between, the parties. Ms. Borkowski was a recently traumatized 21-year-old student. Defendants were law enforcement officials accompanied by armed police. In addition, Ms. Borkowski might reasonably have believed that Defendants were antagonistic toward her or did not believe her because they opted not to prosecute her case.
Ms. Borkowski also points to other evidence that could support finding Defendants delivered a threatening message. Although not necessary because Defendants fail to meet their burden, the evidence strengthens that conclusion. For example, Ms. Borkowski was also later made aware that Detective Defendants obtained her class schedule. A jury might also find evidence of Defendants' motives relevant to interpreting any implicit message delivered. Both Defendants' statements that they wanted to tell Ms. Borkowski to stop filing charges and their abrupt cessation of all contact after Ms. Borkowski insisted that her attorney be present could support an inference that Defendants sought to bully Ms. Borkowski.
The result is not undermined by the fact that Ms. Borkowski's grandmother did not feel threatened by the home visit nor that Ms. Borkowski continued to pursue legal recourse…. [T]he test for an adverse retaliatory action is an objective standard. While evidence of someone's subjective response is relevant to the analysis, it is not dispositive. Here, Ms. Borkowski's grandmother's subjective response could be outweighed by other characteristics like Defendants' simultaneity, vagueness, and show of authority. A jury could also find that Ms. Borkowski was uncommonly committed to her pursuit of justice, as evidenced by her continued efforts to appeal the dismissal of her charges….
[And as to qualified immunity, an earlier precedent] provided notice in 2000 that threats or intimidation (even by speech) violates the First Amendment if done in retaliation of protected speech. Moreover, … [another case held that] the First Amendment is violated through "self-censorship" when conduct would deter a person of ordinary firmness from exercising their rights. Either of these cases disproves the Defendants' claim that "no caselaw" exists clearly establishing this right to be free from intimidation in applying for a statement of charges….
There's more in the opinion, including with regard to when filings of charges are viewed as false and thus as constitutionally unprotected speech or petition (I oversimplify here slightly); read the whole opinion for more.