# Borkowski v. Dever

> District Court, D. Maryland · December 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10206154

## Case

- **Court:** District Court, D. Maryland
- **Decided:** December 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- discussing police officers repeatedly parking outside a journalist’s home without reason
- describing so-called “unitary event” cases

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10206154. Public record. Not legal advice.