# Schiff v. Brown

> District Court, D. Maryland · October 18, 2023

URL: https://www.frixlaw.com/law-library/cases/10209228

## Case

- **Court:** District Court, D. Maryland
- **Decided:** October 18, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10209228

## How later opinions describe it (automated extraction)

- explaining that discovery is needed “as a precursor to any true facial analysis” and determining that “the district court could not properly evaluate the [challenged statute’s] validity in all or most of its applications without evidence” regarding its applications
- noting that a “credible threat of prosecution” gave the plaintiff “standing to mount an as-applied challenge to the statute”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

:
GRAHAM SCHIFF
:

v. : Civil Action No. DKC 23-338

:
ANTHONY BROWN, et al.
:

MEMORANDUM OPINION
Plaintiff Graham Schiff commenced this action to challenge
the constitutionality of Maryland laws that criminalize harassment
via phone and electronic mail. Presently pending and ready for
resolution are motions for preliminary injunction (ECF No. 11),
for a temporary restraining order (ECF No. 13), to disqualify
defense counsel (ECF Nos. 23, 36), and for summary judgment (ECF
No. 37), filed by Plaintiff; a motion to dismiss filed by
Defendants Marcus Jones, Montgomery County Police Department, and
Nicholas Picerno (ECF No. 25); and a motion to dismiss filed by
Defendants Anthony Brown and John McCarthy (ECF No. 31). The
issues have been briefed, and the court now rules, no hearing being
deemed necessary. Local Rule 105.6. For the following reasons,
Plaintiff’s motions will be denied; the motion to dismiss filed by
Defendants Jones, Picerno, and Montgomery County Police Department
will be granted in part and denied in part; and the motion to
dismiss filed by Defendants Brown and McCarthy will be granted in
part and denied in part.
I. Background

The following facts are alleged in Plaintiff’s Amended
Complaint. (ECF No. 10-3). In 2019, Plaintiff was arrested,
charged, and convicted of stalking under Md. Code Ann., Crim. Law
§ 3-802, for his communications to an assistant state’s attorney.
(Id. ¶¶ 2-3). In October 2022, Plaintiff was again arrested and
charged for communications he sent to or about United States
Supreme Court Justice Kavanaugh and/or Justice Kavanaugh’s wife.
(Id. ¶¶ 7-8). Those charges were later dropped. (Id. ¶ 8).
In December 2022, Plaintiff called and emailed the Montgomery
County Police Department (“MCPD”) about recovering property that
was taken during the execution of a search warrant in connection
with the October 2022 arrest. (Id. ¶ 9). MCPD Captain Nicholas

Picerno sent Plaintiff an email on December 22, 2022, a copy of
which Plaintiff attached to his initial complaint. (ECF No. 1, at
11-12). The email stated the following:
It is my understanding that you were
provided information on December 20th on how
to retrieve your property from the 1st District
station.
Furthermore, in the past week, you have
emailed me twice and called my office twice.
The nature of these communications contained
mostly irrelevant commentary, including
derogatory comments about Montgomery County
Police (MCPD) employees and their physical
appearance. This also includes emails you
have sent to other Montgomery County Police
employees, including Officer Weber, that
contained no official business requests and
were derogatory and insulting.
Sections 3-804 and 3-805 of the Criminal
Law Article of the Annotated Code of Maryland
state:

§3-804. Misuse of telephone facilities
and equipment:
a. Prohibited.- A person may not use
telephone facilities or equipment to
make:
1. An anonymous call that is
reasonably expected to annoy,
abuse, torment, harass, or
embarrass another;
2. Repeated calls with the intent to
annoy, abuse, torment, harass, or
embarrass another; or
3. A comment, request, suggestion,
or proposal that is obscene,
lewd, lascivious, filthy, or
indecent.
[b]. Penalty.- A person who violates this
section is guilty of a misdemeanor and
on conviction is subject to
imprisonment not exceeding 3 years or
a fine not exceeding $500 or both.

§3-805. Misuse of electronic mail:
(b)(1) A person may not maliciously
engage in a course of conduct, through
the use of electronic communication,
that alarms or seriously annoys
another:
(i) with the intent to harass,
alarm[,] or annoy the other;
(ii) after receiving a reasonable
war[n]ing or request to stop by
or on behalf of the other; and
(iii) without a legal purpose.
. . .

Your frequent harassing phone calls
constitute telephone harassment under
§3-804(a)(2) of the Criminal Law Article.
Your emails constitute misuse of electronic
mail under §3-805(b)(1) of the Criminal Law
Article. Therefore, I instruct you to stop
this pattern of harassing telephone calls and
electronic mail communications with all
employees of the Department.
If you continue to engage in this pattern
of harassing telephone calls and electronic
mail to employees of Montgomery County Police
Department, you will be referred to the
State’s Attorney’s Office for prosecution for
misuse of telephone facilities under
§3-804(a)(2) of the Criminal Law Article and
misuses of electronic mail under §3-805(b)(1)
of the Criminal Law Article.
In the future, should you need to conduct
any further official business with the
Montgomery County Policy Department, please
use either the non-emergency number, the
relevant district station main line, or 911 if
the event is an emergency.

(Id.).
Plaintiff, proceeding pro se, filed a complaint against
Defendants Anthony Brown, in his official capacity as the Attorney
General of Maryland; John McCarthy, in his official capacity as
the State’s Attorney of Montgomery County; Nicholas Picerno, in
his official capacity as Captain for the Montgomery County Police
Department; and Marcus Jones, in his official capacity as Chief of
the Montgomery County Police Department. (ECF No. 1). Plaintiff
later amended his complaint to add the Montgomery County Police
Department as a defendant. (ECF No. 10).
The Amended Complaint challenges the constitutionality of Md.
Code Ann., Crim. Law §§ 3-802 through 3-805 (the “Maryland anti-
harassment laws”). (ECF No. 10-3). Sections 3-804 and 3-805,
referenced in the email quoted above, criminalize harassment via
phone call and email, respectively. Sections 3-802 and 3-803
criminalize stalking and harassment, respectively.1 As previously

mentioned, Plaintiff was convicted of stalking under § 3-802 in
2019; it is unclear from the Amended Complaint whether Plaintiff
has ever been charged or convicted of harassment under § 3-803.
Plaintiff claims that these laws violate the free speech
clause of the First Amendment to the United States Constitution,
as made applicable to the states by the Fourteenth Amendment.2
Plaintiff’s claim will be construed as a claim brought pursuant to
42 U.S.C. § 1983, which provides a cause of action against state

1 Md. Code Ann., Crim. Law § 3-802 defines stalking as “a
malicious course of conduct” that intentionally or knowingly
“place[s]another in reasonable fear” of “serious bodily injury,”
“assault,” “rape,” “false imprisonment,” or “death,” or causes the
other “serious emotional distress.”
Md. Code Ann., Crim. Law § 3-803 defines harassment as

follow[ing] another in or about a public place
or maliciously engag[ing] in a course of
conduct that alarms or seriously annoys the
other:
(1) with the intent to harass, alarm, or annoy
the other;
(2) after receiving a reasonable warning or
request to stop by or on behalf of the other;
and
(3) without a legal purpose.

2 Plaintiff also claims, in passing, that the laws violate
the “probable cause/unlawful search and seizure” clauses of the
Fourth Amendment and the due process clause of the Fourteenth
Amendment, but he does not explain in what way they do so. (ECF
No. 10-3, at 20).
actors for deprivation of rights guaranteed by the United States
Constitution. Plaintiff claims that the four anti-harassment laws
are unconstitutional as applied to him,3 and he also claims that

§§ 3-802 and 3-804 are facially overbroad. He alleges that there
is a credible threat that the laws will be enforced against him in
the future and, therefore, that they have a chilling effect on his
speech. Plaintiff seeks a declaratory judgment that the laws are
unconstitutional, an injunction to prevent future prosecutions of
Plaintiff under those laws, and the appointment of a special master
to oversee all future prosecutions of Plaintiff.
Plaintiff filed motions for a preliminary injunction and a
temporary restraining order, requesting that the court appoint a
special master to oversee any prosecutions initiated against
Plaintiff during the pendency of this litigation. (ECF Nos. 11,
13). Plaintiff also filed a motion to disqualify Wendi Shiff, the

Assistant Attorney General who represents Defendants Brown and
McCarthy in this case. (ECF No. 23). Plaintiff contends that Ms.
Shiff has a “conflict of interest” because of her involvement in
the prior criminal prosecutions of Plaintiff. Plaintiff later
filed a supplement to this motion, requesting that the entire

3 Defendants interpret the Amended Complaint as only bringing
an as-applied challenge as to §§ 3-803 and 3-805, but the court
reads it as bringing an as-applied challenge as to all four laws,
given that he seeks an injunction preventing Defendants from
initiating criminal proceedings against him under all four laws.
(See ECF No. 10-3 ¶¶ 55-56).
Office of the Attorney General of Maryland be disqualified from
the case for the same reason. (ECF No. 36). Defendants Jones,
Picerno, and Montgomery County Police Department filed a motion to

dismiss the complaint for lack of standing and failure to state a
claim, moving in the alternative for a more definite statement.
(ECF No. 25). Defendants Brown and McCarthy separately filed their
own motion to dismiss for lack of standing and failure to state a
claim. (ECF No. 31). Finally, Plaintiff moved for summary
judgment on all his claims except his request for the appointment
of a special master. (ECF No. 37). Plaintiff did not attach any
exhibits to his motion for summary judgment.
II. Analysis
A. Motion to Disqualify Counsel
Disqualification of counsel is considered a “drastic remedy”
that is “permitted only [w]here the conflict is such as clearly to

call in question the fair and efficient administration of justice.”
Gross v. SES Americom, Inc., 307 F.Supp.2d 719, 722-23 (D.Md. 2004)
(citing Maryland Attorneys’ Rules of Professional Conduct Rule
19-301.7) (internal quotation marks omitted); see also Shaffer v.
Farm Fresh, Inc., 966 F.2d 142, 145-46 (4th Cir. 1992). Under the
Maryland Attorneys’ Rules of Professional Conduct (“MRPC”),
A conflict of interest exists if:
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the
representation of one or more clients will be
materially limited by the attorney’s
responsibilities to another client, a former
client or a third person or by a personal
interest of the attorney.

MRPC 19-301.7. There is no apparent conflict of interest in the
representation by Ms. Shiff or the Office of the Attorney General
of Defendants Brown and McCarthy in this case. Their involvement
in the prior prosecution of Plaintiff creates no conflict because
their interests were adverse to Plaintiff then and remain adverse
to Plaintiff now. Because there is no conflict of interest,
Plaintiff’s motion to disqualify counsel will be denied.
B. Motions to Dismiss
In their motions to dismiss, Defendants argue that
Plaintiff’s claim should be dismissed because (1) he lacks
standing, and (2) he has failed to state a claim under 42 U.S.C.
§ 1983 of an infringement on free speech rights by the Maryland
anti-harassment laws, either on their face or as applied to
Plaintiff. Defendant MCPD also argues that it is not an entity
that is capable of being sued.
Motions to dismiss under Fed.R.Civ.P. 12(b)(6) test the
sufficiency of the facts alleged in the complaint, which must
allege enough facts to state a plausible claim for relief. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible
when the facts pleaded allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id. Legal conclusions or conclusory statements do not suffice.
Id. The court must examine the complaint as a whole, consider the
factual allegations in the complaint as true, and construe the

factual allegations in the light most favorable to the plaintiff.
Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm’rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005).
Additionally, when a plaintiff is proceeding pro se, his “pleadings
are to be liberally construed,” and his “complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” King v. Rubenstein, 825
F.3d 206, 214 (4th Cir. 2016) (internal quotation marks omitted).
A motion to dismiss for lack of standing is governed by
Fed.R.Civ.P. 12(b)(1) because it is premised on the court lacking
subject matter jurisdiction to hear the case. See Beyond Sys.,
Inc. v. Kraft Foods, Inc., 777 F.3d 712, 715-16 (4th Cir. 2015).

Where a defendant contends that the complaint “simply fails to
allege facts upon which subject matter jurisdiction can be based,”
the court affords the plaintiff the same procedural protections as
it does when evaluating a motion to dismiss for failure to state
a claim—that is, the court construes the facts alleged in the
complaint as true and most favorably to the plaintiff. See Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The court must
determine whether it has subject matter jurisdiction before
reaching the merits of the case. See Jones v. Am. Postal Workers
Union, 192 F.3d 417, 422 (4th Cir. 1999).
1. Standing

Defendants argue that Plaintiff lacks standing to challenge
the Maryland anti-harassment laws because he cannot show an injury
in fact. Because federal courts only have jurisdiction over cases
or controversies, it is imperative that a plaintiff has standing
in order to sue. See Lujan v. Defs. of Wildlife, 504 U.S. 555,
559-60 (1992). To have standing, a plaintiff must (1) “have
suffered an injury in fact—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical”; (2) show a “causal
connection between the injury and the conduct complained of”; and
(3) show that it is “likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Id.

at 560-61 (internal quotation marks and citations omitted).
These requirements are somewhat relaxed in First Amendment
cases. See Sec’y of State of Md. v. Joseph H. Munson Co., Inc.,
467 U.S. 947, 956 (1984). Because of the “possibility that, rather
than risk punishment for his conduct in challenging [a] statute,
[a plaintiff] will refrain from engaging” in protected speech
activities, id., the injury-in-fact element may be satisfied by a
showing of “self-censorship, which occurs when a [plaintiff] is
chilled from exercising h[is] right to free expression.” Benham
v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal
quotation marks omitted). Alternatively, plaintiffs can satisfy
the injury-in-fact element by showing “that they intend to engage

in conduct at least arguably protected by the First Amendment but
also proscribed by the policy they wish to challenge, and that
there is a ‘credible threat’ that the policy will be enforced
against them when they do so.” Abbott v. Pastides, 900 F.3d 160,
176 (4th Cir. 2018) (quoting Kenny v. Wilson, 885 F.3d 280, 288
(4th Cir. 2018)). In determining whether a party has standing,
“[w]hether the statute in fact constitutes an abridgement of the
plaintiff’s freedom of speech is, of course, irrelevant to the
standing analysis.” Meese v. Keene, 481 U.S. 465, 473 (1987)
(internal quotation marks omitted).4
In Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013), the United
States Court of Appeals for the Fourth Circuit held that a litigant

had standing to challenge a North Carolina licensing law that
restricted who may provide dietary and nutrition advice to the
public. In that case, the North Carolina Board of Dietetics and
Nutrition advised Mr. Cooksey that his nutrition advice website
was under investigation, that the Board could “seek an injunction”

4 “Although the assertion of a facial challenge to an
ordinance based on the First Amendment may warrant some relaxation
of the prudential rule that a claimant may assert her own rights
only, the claimant must nevertheless satisfy the injury-in-fact
requirement grounded in Article III.” Benham, 635 F.3d at 135.
against him, and that he should remove certain aspects of his
website in order to comply with the state licensing law. Id. at
231-32. The Fourth Circuit held that Mr. Cooksey had suffered an

injury in fact both because his speech was chilled by the Board’s
actions and because there was a credible threat of prosecution.
Id. at 236-38.
Similar to Cooksey, Plaintiff has suffered an injury in fact
in the form of a credible threat of prosecution under §§ 3-804 and
3-805, based on MCPD’s email that explicitly threatened to refer
him for prosecution under those laws if he continues to call and
email MCPD in the same manner. This email would be “likely to
deter a person of ordinary firmness” from continuing to engage in
the restricted speech activities and presents a “credible threat
of prosecution” under those laws. Id. at 236-37 (internal
quotation marks omitted) (quoting Benham, 635 F.3d at 135).

Additionally, there is a clear “causal connection” between MCPD’s
actions and Plaintiff’s chilled speech and fear of prosecution,
and a declaratory judgment that §§ 3-804 and 3-805 are
unconstitutional would redress his injury. Lujan, 504 U.S. at
560. Thus, Plaintiff has standing to challenge §§ 3-804 and 3-
805.
Plaintiff has not, however, alleged sufficient facts to show
that he has suffered an injury in fact as to §§ 3-802 and 3-803.
Plaintiff has not alleged that MCPD has threatened to refer him
for prosecution under those laws, either in the referenced email
or otherwise. Plaintiff relies solely on his prior arrests and
convictions for stalking as support for his fear of future

prosecution under that law. While “past wrongs are evidence
bearing on whether there is a real and immediate threat of repeated
injury,” “[p]ast exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief
. . . if unaccompanied by any continuing, present adverse
effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974); see
also Abbott, 900 F.3d at 176 (“[A] plaintiff seeking prospective
injunctive relief may not rely on prior harm to establish Article
III standing.” (internal quotation marks omitted)). Plaintiff has
not alleged that the conduct for which he was previously arrested
and convicted is similar to the conduct he now fears will lead to
prosecution for stalking or harassment—his calls and emails to the

MCPD. Indeed, he provides few details about his past arrests and
convictions. Additionally, he does not clearly allege that he has
ever been charged or convicted under § 3-803 for harassment. Thus,
any threat of future prosecution of Plaintiff under §§ 3-802 and
3-803 is conjectural at this point.
Plaintiff has failed to allege sufficient facts showing that
there is a credible threat that he will be prosecuted under
§§ 3-802 and 3-803 or that the existence of those laws has
reasonably chilled his protected speech. Because Plaintiff has
failed to satisfy the injury-in-fact element as to §§ 3-802 and
3-803, he lacks standing to challenge those laws. Those aspects
of his claim will be dismissed for lack of subject matter

jurisdiction.
2. Legal Entity Status of MCPD
Defendants Jones, Picerno, and MCPD move to dismiss the claims
against MCPD on the ground that MCPD is not a legal entity capable
of being sued. Maryland courts have held that county police
departments “are not legally cognizable entities subject to suit
in [their] own name.” Hines v. French, 157 Md.App. 536, 573 (2004)
(internal quotation marks omitted). Plaintiff concedes this in
his response to the motion to dismiss filed by Defendants Jones,
Picerno, and MCPD. (ECF No. 29, at 4). Thus, the claims against
Montgomery County Police Department will be dismissed.
3. First Amendment Challenge5

Defendants contend that Plaintiff has failed to state
adequate facts supporting either a facial or as-applied First
Amendment challenge to the Maryland anti-harassment laws. The
First Amendment prohibits state and local governments, via the
Fourteenth Amendment, from “abridging the freedom of speech.” U.S.
Const. amend. I; Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019).

5 Because Plaintiff has not provided any support for his
separate claims based on the Fourth and Fourteenth Amendments, see
supra note 2, those claims will be dismissed for failure to state
a claim.
There are exceptions to this prohibition—“[l]aws that impinge upon
speech receive different levels of judicial scrutiny depending on
the type of regulation and the justifications and purposes
underlying it.” Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir.

2014). For example, “regulations that discriminate against speech
based on its content are presumptively invalid, and courts usually
apply the most exacting scrutiny.” Id. (internal quotation marks
and citations omitted). Conversely, the First Amendment does not
protect “certain categories of speech, including defamation,
incitement, obscenity, and pornography produced with real
children.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 245–46
(2002).
“As-applied” challenges to a statute are generally based on
the contention that a law’s “application to a particular person
under particular circumstances deprived that person of a
constitutional right.” BLM of Shenandoah Valley, LLC v. Augusta
County, No. 5:21-cv-00060, 2023 WL 2505493, at *7 (W.D.Va. Mar.

14, 2023). These challenges are usually “based on a developed
factual record and the application of a statute to a specific
person.” Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165,
172 (4th Cir. 2009).
Defendants’ only argument as to why Plaintiff’s as-applied
challenge should be dismissed is that the phone and email
harassment laws have not been “applied” to Plaintiff because he
was never charged under those laws. (ECF Nos. 25, at 11; 31-1, at
7). They cite no authority for this argument. To the contrary,
as previously discussed, a credible threat of enforcement of a

statute as to a specific plaintiff gives that plaintiff standing
to mount an as-applied challenge to a statute. See Preston v.
Leake, 660 F.3d 726, 735 (4th Cir. 2011) (noting that a “credible
threat of prosecution” gave the plaintiff “standing to mount an
as-applied challenge to the statute”).
Plaintiff has alleged that his speech via phone calls and
emails to the MCPD was met with threatened prosecution under
§§ 3-804 and 3-805, which proscribes speech via phone and email
made with an intent to annoy, harass, or embarrass another, among
other things. At the motion to dismiss stage, the court cannot
opine on the merits of this claim but simply evaluates whether
Plaintiff has stated a plausible claim upon which relief can be

granted. Indeed, there is no “developed factual record” before
the court to allow a determination of whether Plaintiff’s calls
and emails were properly restricted as unprotected speech or
conduct rather than protected speech. The allegations in the
Amended Complaint are sufficient to state a plausible claim that
the application of §§ 3-804 and 3-805 to Plaintiff was
unconstitutional.
A facial challenge, on the other hand, is premised on the
contention that a statute is unconstitutional on its face,
regardless of its application to the plaintiff. As the Fourth
Circuit has explained,
In the First Amendment context, there are two
ways for a plaintiff to mount a facial
challenge to a statute. First, the plaintiff
may demonstrate that no set of circumstances
exists under which [the law] would be valid,
or that the [law] lacks any plainly legitimate
sweep. Second, the plaintiff may show that
the law is overbroad [because] a substantial
number of its applications are
unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City
Council of Balt., 721 F.3d 264, 282 (4th Cir. 2013) (internal
quotation marks and citations omitted) (citing United States v.
Stevens, 559 U.S. 460, 472-73 (2010)).
Here, as Defendants argue, it cannot be said that there is no
set of circumstances under which § 3-804 would be valid.6 Indeed,
the Fourth Circuit has held that West Virginia’s analogous
telephone harassment law, albeit with somewhat different statutory
language, is constitutional on its face and as applied to the
litigant in that case. See Thorne v. Bailey, 846 F.2d 241, 243-44
(4th Cir. 1988). Additionally, Congress has passed a similar
federal telephone harassment statute, see 47 U.S.C. § 223(a)(1),

6 Plaintiff only brings a facial challenge as to § 3-804 and
not § 3-805, conceding that § 3-805’s exception for “peaceable
activity (1) intended to express a political view or provide
information to others; or (2) conducted for a lawful purpose” saves
it from being overbroad. (ECF No. 10-3 ¶ 51).
which other circuits have upheld against as-applied challenges.
See generally United States v. Lampley, 573 F.2d 783 (3d Cir.
1978); United States v. Weiss, No. 20-10283, 2021 WL 6116629 (9th

Cir. Dec. 27, 2021).
Defendants also argue that Plaintiff has not alleged that any
applications of § 3-804, other than its application to himself,
are unconstitutional. They misread Plaintiff’s Amended Complaint.
Plaintiff alleges that § 3-804 “criminalizes any number of
commonplace situations in which an individual engages in
expressive activity that might offend a private citizen and/or
public official.” (ECF No. 10-3 ¶ 17). He goes on to provide an
example: “the law prohibits a person from repeatedly calling a
politician to complain about a bill they sponsored . . . if he or
she persists in calling[] and said politician claims to be annoyed,
abused, tormented, harassed, or embarrassed.” (Id. ¶ 18). In any

event, it is premature at this stage, without the benefit of
discovery, to conceive of the spectrum of applications of § 3-804
and assess whether most or all of them are constitutional. See
Greater Balt. Ctr. for Pregnancy Concerns, 721 F.3d at 282
(explaining that discovery is needed “as a precursor to any true
facial analysis” and determining that “the district court could
not properly evaluate the [challenged statute’s] validity in all
or most of its applications without evidence” regarding its
applications). By alleging that § 3-804 is facially overbroad in
that it criminalizes a substantial number of protected speech
activities in addition to its legitimate applications, Plaintiff
has alleged sufficient facts to support a facial challenge as well.

Thus, Defendants’ motions to dismiss as to Plaintiff’s First
Amendment facial and as-applied challenges will be denied.
Defendants Jones and Picerno also move for dismissal or, in
the alternative, for a more definite statement based on the Amended
Complaint’s failure to provide a separate explanation of the basis
for the claims against each individual Defendant and its grouping
of the Defendants together. (ECF No. 25, at 4-6, 13-14).
Defendants Brown and McCarthy also express in their motion some
uncertainty as to what allegations apply to them specifically.
(ECF No. 31-1, at 7). Because pro se complaints are to be construed
liberally, and because the court had little difficulty making out
Plaintiff’s claims, the Amended Complaint will not be dismissed on

this basis. To assist Defendants in preparing their responses,
however, Plaintiff will be directed to provide a more definite
statement pursuant to Fed.R.Civ.P. 12(e). Plaintiff will be
ordered to file a second amended complaint that more clearly
indicates which allegations pertain to which individual defendants
within fourteen (14) days.
C. Plaintiff’s Motions
Because parts of Plaintiff’s Amended Complaint will survive
Defendants’ motions to dismiss, it is appropriate to evaluate
Plaintiff’s motions for preliminary injunction, temporary
restraining order, and summary judgment as to those remaining
claims. Fed.R.Civ.P. 65 governs preliminary injunctions and

temporary restraining orders. While different procedures apply to
preliminary injunctions and restraining orders, see Hoechst
Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir.
1999), the standard for granting either is the same, and they are
both viewed as “extraordinary” remedies. See Sarsour v. Trump,
245 F.Supp.3d 719, 728 (E.D.Va. 2017). The moving party must
establish, through a “clear showing,” that “1) they are likely to
succeed on the merits; 2) they are likely to suffer irreparable
harm absent preliminary relief; 3) the balance of the equities
favors relief; and 4) the relief is in the public interest.”
Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th
330, 339 (4th Cir. 2021); Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20-22 (2008).

Fed.R.Civ.P. 56 provides that a motion for summary judgment
shall only be granted if there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). To show that facts are not
disputed, the moving party must cite to “particular parts of
materials in the record.” Fed.R.Civ.P. 56(c)(1).
Plaintiff has not clearly established that he is likely to
succeed on the merits or that he is entitled to judgment as a
matter of law on his First Amendment claims. As previously noted,
the Fourth Circuit and other circuits have upheld similar telephone
harassment laws against both facial and as-applied challenges. At

this preliminary stage in the litigation, Plaintiff has not made
a clear showing that he is likely to succeed—that is, to obtain a
result that differs from those other cases. Additionally, it would
not be in the public interest to prohibit Defendants from
prosecuting Plaintiff under the Maryland anti-harassment laws, in
effect giving him carte blanche to harass MCPD employees via phone
and email, prior to determining the constitutionality of those
laws.
Plaintiff also has not produced any evidence, aside from a
copy of the email from MCPD, that establishes he is entitled to
relief on his claim as a matter of law. He has not, for example,
presented any evidence of the contents of his phone calls and

emails that provoked MCPD’s response, nor has there been any
discovery to illuminate the spectrum of constitutional and
unconstitutional applications of those laws. For those reasons,
Plaintiff’s motions for preliminary injunction, temporary
restraining order, and summary judgment will be denied.
III. Conclusion
For the foregoing reasons, Plaintiff’s motions will be
denied, and Defendants’ motions to dismiss will be granted in part

and denied in part. 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/10209228. Public record. Not legal advice.