Borkowski v. Dever

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

ANNA BORKOWSKI, et al.

:

v. : Civil Action No. DKC 18-2809

:

BALTIMORE COUNTY, MARYLAND,

et al. :

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights case is a motion for summary judgment filed by Defendants

Scott Shellenberger, Lisa Dever, and Bonnie Fox of the State’s

Attorney’s Office (“SAO”) (“SAO Defendants”) and Defendants

Kristin Burrows and Nicholas Tomas (“Detective Defendants”) (all

collectively “Defendants”). (ECF No. 117). Accompanying the

dispositive motion, Defendants filed two motions for leave to file

audio and video exhibits, (ECF Nos. 116; 132) and two motions to

seal and redact, (ECF Nos. 119; 134). Plaintiff Anna Borkowski

also filed a motion to seal. (ECF No. 130). The issues have been

fully briefed, and the court now rules, no hearing being deemed

necessary. Local Rule 105.6. For the following reasons,

Defendants’ non-dispositive motions will be granted, Ms.

Borkowski’s motion to seal will be granted in part and denied in

part, and Defendants’ motion for summary judgment will be denied.

I. Factual Background

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

(“Towson”). (ECF No. 117-5, at 13 (Borkowski Depo.)).1 She and

a friend met up for happy hour after classes. (Id., at 19). They

continued to drink throughout the evening and met up later with

three men Ms. Borkowski had previously been classmates with. (Id.,

at 21, 25-28). After drinking and dancing together, they went to

her friend’s apartment. (Id., at 28-37). The men encouraged the

women to continue drinking. (Id., at 41-43, 50-51; ECF No. 117-

8, at 6 (Incident Report)).

Ms. Borkowski remembers little of what happened next, and her

friend has no memory of it, (ECF No. 117-48, at 13, 20-21 (Hendler

1 Deposition citations are to the transcript page number,

rather than the ECF page number.

Depo.)). 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. (ECF No. 117-5, at 57-59, 67

(Borkowski Depo.)). In that moment, Ms. Borkowski “felt like [she]

was paralyzed” and feared that she would be physically harmed by

the men’s actions. (Id., at 53-54, 70). Ms. Borkowski does not

have any memory of the men either threatening her with force or

using force against her. (Id., at 69). But both women were

injured when they awoke the next day. (Id., at 71; ECF No. 117-

48, at 23 (Hendler Depo.)). Ms. Borkowski believes that her

injuries were consistent with force being used to facilitate sex.

(ECF No. 117-5, at 71-72). Ms. Borkowski and her friend

immediately went to the police station to report the incident.

(ECF No. 117-8, at 5 (Incident Report)). At that time, Ms.

Borkowski also had a brief memory of sex with two men on the

balcony. (Id., at 7).

The State’s Attorney’s Office declined to bring charges. (ECF

Nos. 117-5, at 105 (Borkowski Depo.); 117-18, at 87 (Burrows

Depo.)). 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. (See ECF No. 117-5, at 105-07, 111). 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[.]” Sibley v. Doe, 227 Md.App. 645, 657 (2016)

(quotation omitted). They receive sworn applications for charges

and determine whether there is probable cause to issue them. Md.

Code Ann., Cts. & Jud. Proc. § 2-607(c)(1); Md.R.Cr. 4-211(b)(1).

State’s Attorneys may, however, terminate or dismiss a charge by

entering a nolle prosequi. Md.R.Cr. 4-247(a).

In March 2020, Ms. Borkowski filed two applications with

different Commissioners. (ECF Nos. 117-21; 117-22). She believed

that charges would issue and hoped that a prosecution would ensue.

(ECF No. 117-5, at 130-31 (Borkowski Depo.)). 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. (See, e.g., ECF No. 117-20, at 67 (Dever

Depo.)). There is no evidence, however, that Defendants told Ms.

Borkowski this fact. (See id., at 68-70).

The first application was denied after the Commissioner

consulted with Assistant State’s Attorney Dever. (ECF No. 117-

20, at 53-55). After obtaining representation, Ms. Borkowski added

more detail to her second application, including citing to

Maryland’s first-degree rape statute. (Compare ECF No. 117-21,

with ECF No. 117-22; see also ECF No. 117-45, at 4:57-5:18

(Greenberg Interview)). Both applications alleged, however, that

the assailants had sex with Ms. Borkowski “by force.” (Id.). On

March 20, the second application was approved and charges were

issued against all three alleged assailants for various offenses,

including first-degree rape. (ECF No. 117-23).

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[.]” (ECF No. 117-20, at 67-68 (Dever

Depo.)).2 She consulted with State’s Attorney Shellenberger and

he instructed Ms. Dever to have detectives speak with Ms.

Borkowski. (ECF No. 117-24, at 12-13, 24-25 (Shellenberger

Depo.)). They wanted an in-person meeting despite having Ms.

Borkowski’s contact information and knowing that she had an

attorney. (ECF Nos. 117-27, at 30 (Fox Depo.); 117-24, at 83

(Shellenberger Depo.); 117-20, at 57 (Dever Depo.); 117-15, at 2

(Burrows Notes)). 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

2 Ms. Dever’s deposition also includes the following exchange:

“Q. And did you instruct Ms. Fox to do anything or not do anything?

A. I wanted to know how we could get it to stop. Q. How we could

get what to stop? A. Get her to stop going to the Commissioner’s

Office because I had already told her that we weren’t going forward

with charges. I had told her mother we weren’t going forward with

charges. I told you, as her attorney . . . . I did not understand

where this communication [sic] and how it was not being understood,

and I wanted –- and so all I asked was how do we get her to stop

going to the Commissioner’s Office.” (ECF No. 117-20, at 74).

her not to go to another Commissioner or go to the Commissioner to

seek charges again.” (ECF No. 117-27, at 28-30). 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[.]” (ECF No. 117-15, at 2). Separately,

Defendants subpoenaed Ms. Borkowski’s first application and

intercepted the summons for her second. (ECF No. 117-18, at 47-

50, 61-62, 100-01 (Burrows Depo.); 117-14 (Subpoena)).

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. (ECF Nos. 117-19, at

57 (Tomas Depo.); 117-25, at 8 (Dorfler Depo.)). The officer had

never before been asked to accompany or escort county detectives

in Baltimore City, nor has he since. (ECF No. 117-25, at 11, 21).

Ms. Borkowski’s grandmother answered the door. (ECF No. 117-3

(Body Worn Camera Footage); see also ECF No. 117-4 (Gonzalez

Depo.)). The officer told her she was being recorded and Detective

Burrows proceeded to ask her questions about Ms. Borkowski’s

whereabouts. (Id.). The encounter lasted less than two-and-a-

half minutes. (Id.). The detectives stated that they wanted to

speak with Ms. Borkowski about charges she had filed and did not

elaborate further. (Id.). Ms. Borkowski learned about the

encounter from her grandmother later that day. (ECF No. 117-5, at

153, 240-41 (Borkowski Depo.)).

Detective Tomas then called Ms. Borkowski twice, exchanged

voicemails with her, but did not speak with her directly. (ECF

No. 117-19, at 49 (Tomas Depo.); ECF No. 117-16, at 2 (Tomas

Notes); ECF No. 117-5, at 152-53, 155-56 (Borkowski Depo.)). 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. (ECF No. 117-19, at 49). State’s

Attorney Shellenberger then decided “that was the end of it.” (ECF

No. 117-24, at 26-28 (Shellenberger Depo.)). Defendants concluded

that “there was now a lawyer involved, and so [they] did not feel

like [a] meeting had any purpose.” (Id., at 28). At no time did

Defendants explicitly deliver the message to Ms. Borkowski that

she should stop filing charges. (ECF Nos. 117-19, at 134-35);

117-5, at 158-59). They successfully dismissed the charges over

Ms. Borkowski’s objections, however. (ECF No. 117-20, at 123

(Dever Depo.); see, e.g., ECF Nos. 117-28, 117-31 (Motion to Vacate

Dismissal and Denial).

II. Procedural Background

This lawsuit commenced in September 2018. The third amended

complaint was filed in December 2019. (ECF No. 81). All of the

claims but Ms. Borkowski’s remaining First Amendment retaliation

claim against Defendants were dismissed in September 2020. (ECF

Nos. 103; 104). Ms. Borkowski’s remaining claim survived over

Defendants’ arguments that her applications were not protected by

the First Amendment, that their own alleged actions were not

sufficiently adverse, and that they were entitled to qualified

immunity. (ECF No. 103, at 27-41). It was narrowed, however, to

exclude on prosecutorial immunity grounds Ms. Borkowski’s theory

centered on SAO Defendants’ communications with District Court

Commissioners. (Id., at 26-27 & 27 n.15).

After discovery, Defendants moved jointly for summary

judgment. (ECF No. 117). Ms. Borkowski opposed, (ECF No. 125),

and Defendants replied, (ECF No. 133). That dispositive motion

was accompanied by several non-dispositive ones. Defendants

sought to file audio and video exhibits. (ECF Nos. 116; 132).

Defendants, (ECF Nos. 119; 134), and Plaintiff, (ECF No. 130),

sought to file exhibits under seal. Defendants’ motions also

requested permission to file unredacted memoranda under seal and

to file partially redacted versions publicly. Defendants’ non-

dispositive motions are unopposed. Ms. Borkowski’s motion to seal

is opposed in part. (ECF No. 131).

III. Non-Dispositive Motions

A. Leave to File Audio and Video Exhibits

Defendants’ unopposed motion for leave to file audio and video

exhibits will be granted.

B. Leave to File Under Seal and with Partial Redactions

A motion to seal must comply with Local Rule 105.11, which

requires that the proponent include “(a) proposed reasons

supported by specific factual representations to justify the

sealing and (b) an explanation why alternatives to sealing would

not provide sufficient protections.” This rule endeavors to

protect the common law right to inspect and copy judicial records

and documents, Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597

(1978), while recognizing that competing interests sometimes

outweigh the public’s right of access, In re Knight Publ’g Co.,

743 F.2d 231, 235 (4th Cir. 1984).

Defendants’ motions will be granted. All of the exhibits and

the proposed redactions in their memoranda contain sensitive

medical information that should remain confidential at this time.

Exhibits 5B and 39 through 43 (ECF Nos. 118-1; 118-3 through 118-

7) are medical records. Exhibit 38, (ECF No. 118-2), is an excerpt

of Ms. Borkowski’s deposition that discusses her medical history

at length. The information Defendants propose to redact in their

memoranda references the same. (ECF Nos. 117-1; 133). Their

exhibits cannot be easily redacted.

Ms. Borkowski’s motion will be granted in part and denied in

part. Exhibit 3, (ECF No. 128), is a medical record that is also

exhibited by Defendants, (ECF No. 118-1), and contains sensitive

information that should remain confidential at this time.

Exhibit 1, (ECF No. 126), is Ms. Borkowski’s full deposition

transcript. It contains some medical information but could be

filed in redacted form. Ms. Borkowski will be directed to file

publicly a version of her deposition transcript that includes

redactions only for sensitive medical information. Exhibit 2,

(ECF No. 127), is Ms. Dever’s full deposition transcript and

contains no sensitive medical information. The Clerk will be

directed to unseal the unredacted version of Ms. Dever’s deposition

transcript.3 Ms. Borkowski will not be permitted to withdraw

either deposition because she relies extensively on both in her

publicly filed response to Defendants’ dispositive motion.

IV. Motion for Summary Judgment

Defendants move for summary judgment on three general

grounds, two of which they raised at the motion to dismiss. First,

they argue that Ms. Borkowski cannot meet her burden of proof on

any element of her First Amendment retaliation claim. (ECF

No. 117-1, at 27-36). Second, they assert that they are entitled

to qualified immunity. (Id., at 37-38). If those arguments are

rejected, Defendants contend that Ms. Borkowski can only establish

3 In their reply, Defendants redacted part of one sentence

from Ms. Dever’s transcript, (ECF No. 133, at 10 n.5), likely

because Ms. Borkowski moved to seal the entire document. Rather

than deny Defendants’ motion to correct this one minor issue, the

court provides that the redacted sentence reads: “ASA Dever’s

testimony is clear, however, that it was her decision – and no one

else’s – whether to charge. See Defs.’ Mem. Ex. 9, at 170:8-21.”

that nominal damages were caused by their alleged retaliation.

(Id., at 38-40).

A. Standard of Review

A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving

party is entitled to judgment as a matter of law. See Fed.R.Civ.P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[S]ummary

judgement should be granted only when it is perfectly clear that

no issue of material fact exists.” Raynor v. Pugh, 817 F.3d 123,

129 n.2 (4th Cir. 2016) (quotation omitted). A material fact is

one that “might affect the outcome of the suit under the governing

law[.]” Liberty Lobby, 477 U.S. at 248. A dispute about a

material fact is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. A court

must view the facts and the reasonable inferences drawn therefrom

“in the light most favorable to the party opposing the motion,”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (quotation omitted), but “a party cannot create a

genuine dispute of material fact through mere speculation or

compilation of inferences,” Shin v. Shalala, 166 F.Supp.2d 373,

375 (D.Md. 2001).

To prevail on a motion for summary judgment, the moving party

generally bears the burden of showing that there is no genuine

dispute as to any material fact. No genuine dispute of material

fact exists, however, if the nonmoving party fails to make a

sufficient showing on an essential element that he bore the burden

to prove. Celotex, 477 U.S. at 322–23. Therefore, on those issues

on which the nonmoving party has the burden of proof, it is his

responsibility to confront the summary judgment motion with an

“affidavit or other evidentiary showing” demonstrating that there

is a genuine issue for trial. See Ross v. Early, 899 F.Supp.2d

415, 420 (D.Md. 2012), aff’d, 746 F.3d 546 (4th Cir. 2014).

B. First Amendment Retaliation Merits

“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.” McClure v. Ports, 914 F.3d 866, 871 (4th Cir. 2019)

(internal quotations omitted). Ms. Borkowski’s First Amendment

retaliation claim could arise equally under the Petition Clause or

the Free Speech Clause. The legal framework for retaliation claims

is the same for both, even though the protections under each clause

are somewhat different. See Borough of Duryea v. Guarnieri, 564

U.S. 379, 388-89 (2011). “A plaintiff seeking to recover for First

Amendment retaliation must [show] that (1) she engaged in First

Amendment protected activity, (2) the defendants took some action

that adversely affected her First Amendment rights, and (3) there

was a causal relationship between her protected activity and the

defendants’ conduct.” Constantine v. Rectors & Visitors of George

Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citing Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).

Defendants argue that no genuine dispute of material fact

exists, and that they are entitled to judgment as a matter of law,

for each element. For the reasons discussed below, Defendants

have not met their burden to show that no dispute exists and

therefore are not entitled to judgment.

1. Protected Petition or Speech

The First Amendment protects the right “to petition the

government for a redress of grievances” and the “freedom of

speech.” U.S. Const. amend I. Both clauses protect “the right of

individuals to appeal to courts and other forums established by

the government for resolution of legal disputes.” Guarnieri, 564

U.S. at 387. All agree that Ms. Borkowski’s applications for

charges are protected petitions and speech if they are true.

The parties disagree, however, about whether materially false

applications for charges are protected by the petition or speech

clauses. Defendants, relying primarily on McDonald v. Smith, 472

U.S. 479 (1985), argue that they are unprotected under both clauses

if the applicant knowingly, recklessly, or negligently submitted

materially false charges. (ECF No. 117-1, at 28 & 28 n.11).

Defendants do not indicate who bears the burden to show material

falsity, or the lack thereof. Ms. Borkowski, by contrast, contends

that applications for charges are protected even if they are false.

There appear to be three possible bases for Ms. Borkowski’s view.

She first suggests that the material falsity exception does not

apply under the petition clause. (See ECF No. 125, at 10). She

further suggests that the exception applies only in defamation

suits brought by private individuals. As a result, it does not

apply where a plaintiff alleges retaliation by means other than a

defamation suit or alleges retaliation by a government official.

(See id.). Ms. Borkowski is silent on the state of mind required

where the exception does apply.4

It is not necessary to resolve this legal dispute now. Under

any proposed standard, there is a genuine dispute of fact regarding

the material falsity of Ms. Borkowski’s applications and her state

of mind when she filed the applications. Defendants argue that

Ms. Borkowski falsely alleged that the assailants had sex with her

by using force as defined in Maryland’s first-degree rape statute.

(ECF No. 117-1, at 30-31 & 31 n.12). Not only have Defendants

failed to establish this beyond dispute, but their argument turns

on Ms. Borkowski’s memory, knowledge, and intent at the time she

4 Ms. Borkowski also argues that her applications were

protected because her statements were absolutely privileged under

Maryland law. (ECF No. 125, at 10 n.3). Whether a petition or

speech is protected under the First Amendment is a question of

constitutional law and does not turn on Maryland law.

filed her application and must be resolved by a trier of fact.

“[A]n award of summary judgment is seldom appropriate in disputes

in which particular states of mind are decisive[.]”

Metric/Kvaerner Fayetteville v. Fed. Ins. Co., 403 F.3d 188, 197

(4th Cir. 2005) (quotation omitted).

First, it is not clear what Ms. Borkowski intended to

communicate by her reference to the first-degree rape statute and

the word “force.” Defendants assert that Ms. Borkowski “swore out

charges for first-degree forcible rape[.]” (ECF No. 117-1, at

31). Ms. Borkowski’s citation to the statute does not mean she

knew the legal elements of the crime or intended to assert that

her allegations were consistent with that meaning. Ms. Borkowski

denies that she did. (ECF No. 117-5, at 145-46 (Borkowski Depo.)).5

Even if she did, the citation at most makes a legal assertion that

the men violated the first-degree rape statute. Defendants’ have

not shown, however, that a layperson’s legal assertion in an

application for charges is material. The responsibility for

reaching legal conclusions based on the facts alleged rests with

the Commissioners, and not Ms. Borkowski.

5 “Q. Were you aware when you submitted these Applications

for Statement of Charges that forceable sex aided and abetted by

another is the more serious crime of first-degree rape . . . ? A.

I was not. Q. Were you aware that the statute CR [3]-303 is the

first-degree rape statute? A. No. I was not. . . . Q. And did

you have any understanding at any time . . . as to what the elements

of first-degree rape are? A. Forceable sex without consent.”

(ECF No. 117-5, at 145-46 (Borkowski Depo.)).

The word “force” similarly resolves little. Again, Ms.

Borkowski’s mere use of the term does not require that she intended

it to have the same meaning as in the first-degree rape statute.

Her statements again contradict this view and suggest she may have

intended that the term to have a broader, lay meaning. For

example, she testified that she meant that the men had “forceful

sex” with her. (ECF No. 117-5, at 71). If Ms. Borkowski intended

the term to have its lay meaning, a reasonable jury could find her

allegations true. She and her friend suffered injuries during the

alleged rape. In addition, she testified that she did not consent

to sex and would not have consented.

Even if Ms. Borkowski intended to allege that force consistent

with the first-degree rape statute occurred or may have occurred,

her application is not indisputably false. Defendants argue, and

Ms. Borkowski does not dispute, that force under that statute means

“more than the mere physical exertion required to engage in a

sexual act against the will and without the consent of the other

person.” (ECF No. 117-1, at 30 (quotation omitted)). Defendants

rely entirely on Ms. Borkowski’s own recollections to argue that

her applications falsely allege such force was used. (See ECF No.

117-1, at 30-31). But everyone concedes that Ms. Borkowski did

not have a complete memory of the events. If she “admitted”

anything in her statements, (ECF No. 117-1, at 8), it was only

that she did not remember force or threats of force consistent

with first-degree rape (as construed by Defendants). Such

testimony cannot establish that no force occurred. For this same

reason, any legal conclusions asserted are not demonstrably false

either. Nor were they rendered false by Assistant State’s Attorney

Dever’s belief that the evidence did not satisfy the elements of

first-degree rape.6,7

Defendants’ inability to establish that the applications were

false also dooms any attempt to show that, when filing, Ms.

Borkowski possessed a state of mind that rendered the applications

unprotected. She could not have negligently, recklessly, or

knowingly made false assertions of force if her allegations were

true. The same logic applies to any legal assertions in Ms.

Borkowski’s applications.

6 To the extent Defendants also contend that Ms. Borkowski’s

applications were false because she lacked personal knowledge of

force, that argument fails too. Most importantly, Ms. Borkowski

knew of injuries consistent with force being used, at least in lay

terms, as discussed above. In addition, Defendants have not shown

that an applicant’s personal knowledge is required for, or material

to, an application for charges. Plaintiff suggests that a good

faith basis is enough. (ECF No. 125, at 7).

7 Defendants argue for the first time on reply that Ms.

Borkowski’s applications were false because she did not recall,

during a later police interview and deposition, one of the alleged

assailants having sex with her. (ECF No. 133, at 10 n.5). Again,

this allegation cannot be established as false based solely on the

fragmented memories Ms. Borkowski could recall after filing the

applications. Indeed, she initially remembered that the man had

sex with her when she reported the incident to police. (ECF

No. 117-8, at 7 (Incident Report)).

There are genuine disputes of material fact about the

truthfulness of Ms. Borkowski’s applications for charges and her

knowledge when she filed them. Although it appears that

determining whether something is protected by the First Amendment

is a question of law, Garcia v. Montgomery Cnty., 145 F.Supp.3d

492, 514 (D.Md. 2015), that determination cannot be made here until

the disputes of fact are resolved by a jury. See Carter v. Allen,

762 F.App’x 827, 833 (11th Cir. 2019) (unpublished) (citing Simmons

v. Bradshaw, 879 F.3d 1157, 1164 (11th Cir. 2018)). Defendants are

not entitled to judgment on protected activity grounds.

2. Adverse Action

An action is considered adverse when “a similarly situated

person of ‘ordinary firmness’ reasonably would be chilled by the

government conduct in light of the circumstances presented in the

particular case.” The Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 416

(4th Cir. 2006) (citation omitted). This is an objective test.

Garcia, 145 F.Supp.3d at 515 (citing Constantine, 411 F.3d at 500).

A plaintiff “need not actually be deprived of her First Amendment

rights” and need not “prove that the alleged retaliatory conduct

caused her to cease First Amendment activity[.]” Constantine, 411

F.3d at 500. “Even minor retaliation can have a chilling effect

on future expression.” Kirby v. City of Elizabeth City, 388 F.3d

440, 450 n.8 (4th Cir. 2004). Determining whether an action is

sufficiently adverse is “a fact intensive inquiry, that focuses on

[1] the status of the speaker, [2] the status of the retaliator,

[3] the relationship between the speaker and the retaliator, and

[4] the nature of the retaliatory acts.” Suarez, 202 F.3d at 686.

When, however, “a private citizen is the speaker and a public

official is the retaliator,” otherwise adverse actions may not be

actionable. McClure, 914 F.3d at 872; see also Balt. Sun, 437

F.3d at 416-17. If the challenged action is government speech, it

cannot create liability unless “it was threatening, coercive, or

intimidating so as to intimate that punishment, sanction, or

adverse regulatory action will imminently follow.” Balt. Sun, 437

F.2d at 417. This limitation “is necessary to balance the

government’s speech interests with the plaintiff’s speech

interests.” Id. This court held in its September 2019 Memorandum

Opinion, (ECF No. 103, at 29-30), that Defendants’ actions must

satisfy this heightened standard because Ms. Borkowski objects to

the alleged message they conveyed.

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. (ECF No. 117-5, at 240-41 (Borkowski Depo.)). 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[.]” (Id.).8 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. (Id.; ECF No. 117-4, at 16-20 (Gonzalez Depo.)). This

confusion led her to question “[w]hat they were trying to

accomplish by [the visit].” (ECF No. 117-4, at 20-21). Ms.

Borkowski learned about the visit at approximately the same time

8 In the video recording, Detective Burrows tells Ms.

Borkowski’s grandmother that she “need[ed] to speak with [Ms.

Borkowski] in regards to some charges that she had filed at the

district court the other day.” (ECF No. 117-3, at 1:34-1:41 (Body

Worn Camera Footage)).

she received two phone calls and a voicemail from Detective Tomas.

(ECF No. 117-5, at 153, 155-56). The voicemail, though “not out

of the ordinary,” provided little detail about why Detective Tomas

wanted to speak with Ms. Borkowski. (Id.). It just said, “This

is Detective Thomas. Give me a call back.” (Id.).

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. See Garcia, 145 F.Supp.3d at 515 (discussing police

officers repeatedly parking outside a journalist’s home without

reason). It would be a small step to find then that this message

was intimidating and could chill First Amendment rights. See

Suarez Corp., 202 F.3d at 689 (indicating that a statement is

intimidating if it implies that defendants “would utilize their

government power to silence” the plaintiff). 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. (ECF No. 117-5, at 242-43 (Borkowski Depo.)). 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. As noted above, the

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. Constantine, 411 F.3d at 500.

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.

Nor does the unique standard of review for video evidence

change things. The Fourth Circuit has held that where “the record

contains an unchallenged videotape capturing the events in

question, [a court] must only credit the plaintiff’s version of

the facts to the extent it is not contradicted by the videotape.”

Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008). None of the

characteristics described above are contradicted by the videotape.

It demonstrates only that the home visit was not carried out in a

blatantly intimidating manner. The encounter is brief and the

detectives and officer speak in even tones. (ECF No. 117-3 (Body

Worn Camera Footage)). At no time do they verbally threaten Ms.

Borkowski’s grandmother or encroach on her personal space in a

threatening manner. (See id.). While these features are helpful

to Defendants, they are not enough to foreclose a jury finding

that the other features highlighted above—simultaneity, vagueness,

and show of authority—could communicate a threat.

Because there is a genuine dispute of material fact regarding

the message conveyed by Defendants’ actions, they are not entitled

to judgment on adverse action grounds.

3. Causal Connection

In a First Amendment retaliation case, the plaintiff “must

show that ‘but for’ the protected [First Amendment activity] the

[government] would not have taken the alleged retaliatory action.”

Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (alteration and

citation omitted). The First Amendment protected activity was not

the “but for” cause if the defendants would have reached the same

decision absent the activity. Nieves v. Bartlett, 139 S.Ct. 1715,

1722 (2019). It appears that the proper formulation here may be

“whether the defendant would have reached the same decision absent

the retaliatory motive” because Defendants actions would not have

occurred at all absent Ms. Borkowski’s applications, as discussed

further below. See Martin v. Duffy, 977 F.3d 294, 303-04 (4th Cir.

2020) (describing so-called “unitary event” cases). The parties

do not address this issue in their papers, nor do they indicate

whether a burden-shifting framework applies to First Amendment

retaliation claims.

Regardless, there is no question that Ms. Borkowski’s

applications caused Defendants’ conduct. That is not disputed.

The sole question is whether Defendants possessed an impermissible

retaliatory motive. There is sufficient evidence for a reasonable

jury to conclude that they did. Defendants learned about the

second application on March 22 and Detectives Burrows and Tomas

visited Ms. Borkowski’s house and called her phone that same day.

(See ECF No. 117-20, at 84 (Dever Depo.)). Assistant State’s

Attorney Dever also testified that she “was very upset” and “wanted

to try and communicate somehow that she needed to stop going to

the Commissioner’s Office[.]” (Id., at 67-68). Detective Burrows’

notes suggest that she may have been instructed to tell Ms.

Borkowski that she faced civil or criminal penalties if she

continued to file applications. (ECF No. 117-15, at 2).

Defendants nevertheless argue that they are entitled to

summary judgment by pointing to their own testimony that they were

motivated instead to act in Ms. Borkowski’s best interest and

shield her from the risk that she would be held civilly liable to

her alleged assailants for filing false charges. (ECF No. 117-1,

at 36). This is a quintessential credibility determination that

must be resolved by a jury. Defendants are not entitled to

judgment on causation grounds.

C. Qualified Immunity

Qualified immunity is an affirmative defense to Section

1983 claims that “protects government officials from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quotation omitted). The two elements

of the defense are whether a constitutional violation

occurred and, if so, whether the right in question was

clearly established at the time of the alleged misconduct.

Tobey v. Jones, 706 F.3d 739, 385 (4th Cir. 2013). “To be

clearly established, a legal principle must be settled law,

which means it is dictated by controlling authority or a

robust consensus of cases of persuasive authority.” Feminist

Majority Found. v. Hurley, 911 F.3d 674, 704 (4th Cir. 2018).

Although the principle must be particularized, Plumhoff v.

Rickard, 572 U.S. 765, 779 (2014), “a court need not have

previously found the specific conduct at issue to have

violated an individual’s rights,” Feminist Majority, 911

F.3d at 704.

As discussed above, there is sufficient evidence, taken

in the light most favorable to Plaintiff, to prove that a

First Amendment violation occurred here. The sole remaining

question is whether the law as of March 2018 clearly

established that that conduct was prohibited. It did. As

this court previously held:

Suarez [] provided notice in 2000 that threats

or intimidation (even by speech) violates the

First Amendment if done in retaliation of

protected speech. Suarez, 202 F.3d at 687.

Moreover, . . . the First Amendment is

violated through “self-censorship” when

conduct would deter a person of ordinary

firmness from exercising their rights. Benham

v. City of Charlotte, N.C., 635 F.3d 129, 136

(4th Cir. 2011). 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.

(ECF No. 103, at 40-41).

Fourth Circuit precedent could not be more specific. Indeed,

when Suarez and Benham are read together with more recent

decisions, it is clear that individuals have the right to be free

from threats by public officials for filing a facially protected

grievance. See, e.g., Booker v. S.C. Dep’t of Corr., 855 F.3d

533, 539-40 (4th Cir. 2017). Ms. Borkowski did just that when she

filed an application for charges. Defendants should have known

that they could not retaliate against her for doing so through

threats and intimidation. They are not entitled to qualified

immunity.

D. Damages

To recover compensatory damages, Section 1983 plaintiffs must

establish that defendants’ challenged actions caused their alleged

injuries. Price v. City of Charlotte, 93 F.3d 1241, 1245 (4th Cir.

1996). “[C]ompensatory damages for emotional distress must be

attributed to the actual constitutional violation . . . and must

be proved by a sufficient quantum of proof demonstrating that the

violation caused compensable injury.” Id., at 1246 (citing Carey

v. Piphus, 435 U.S. 247, 263 (1978)). “A plaintiff’s failure to

prove compensatory damages results in nominal damages, typically

one dollar[.]” Id. (citing Carey, 435 U.S. at 266-67)). Ms.

Borkowski requests damages for “mental anguish, emotional

distress, anxiety, and humiliation[.]” (ECF No. 117-47, at 4

(Borkowski Interrogatory Answers)). Defendants do not contest

that she can point to sufficient evidence of the alleged harms.

They argue only that the harms Ms. Borkowski suffered were not

caused by their alleged conduct. (ECF No. 117-1, at 39).

Defendants again fail to satisfy their burden to show that no

dispute of material fact exists. It is enough for a plaintiff to

establish that a part of her injuries was caused by the conduct at

issue. Knussman v. Maryland, 272 F.3d 625, 640-42 (4th Cir. 2001)

(remanding for trial to determine extent to which injury was caused

by Section 1983 violation). Ms. Borkowski’s medical records and

deposition testimony make clear that she continued to suffer harms

after the Defendants’ actions in March 2018. Her testimony also

indicates that her condition worsened in April and May 2018, one-

to-two months after the alleged retaliation. (ECF No. 126, at

115-16 (Sealed Borkowski Depo.)). That temporal proximity is

enough to create a genuine dispute. Ms. Borkowski also bolsters

the dispute by declaring in an affidavit that “[t]he intimidation

by the Detectives and State’s Attorneys made the emotional pain of

my sexual assault worse.” (ECF No. 125-5, at 3).

Defendants’ attempts to undermine this evidence are

unsuccessful. Ms. Borkowski’s linking of her purported harms to

other causes in her deposition does not eliminate the dispute.

And Defendants have not shown that Ms. Borkowski must rely on

expert testimony to prove her damages. On the evidence presented,

a reasonable jury could conclude that Ms. Borkowski suffered more

harm than she would have absent Defendants’ conduct because their

actions caused her condition to worsen. Defendants are not

entitled to judgment on Ms. Borkowski’s request for compensatory

damages.

V. Conclusion

For the foregoing reasons, Defendants’ motions for leave to

file audio and video exhibits and to seal and redact will be

granted. Plaintiff’s motion to seal will be granted in part and

denied in part. Defendants’ motion for summary judgment will be

denied. A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge