The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHAUN PORTER,
Plaintiff,
v. Case No. 24-cv-2832-ABA
ROBIN SHUSKO, et al.,
Defendants
MEMORANDUM OPINION
Plaintiff Shaun Porter describes himself as a “political protestor and reporter,
best known for hilarious free speech signs along highways and at major public events on
traditional public forums.” ECF No. 5 (amended complaint) at 3. On November 2, 2023,
Mr. Porter went to Frederick Community College (“FCC”) to conduct what he describes
as a “Pro Israel protest.” Id. ¶ 40. (The month before, he showed up at the same college
for an anti-military-draft protest.) There were counter-protestors present, and after
tensions escalated, Frederick City Police Captain Kirk Henneberry directed the
protestors (not just Mr. Porter) to leave. Mr. Porter refused, and was later charged with
a misdemeanor for refusing to comply with the directive to leave. He claims his First
Amendment rights were violated. For the reasons explained below, the claims against
Henneberry will be dismissed.
I. BACKGROUND
At the pleadings stage, the Court “must accept as true all of the factual allegations
contained in the complaint and draw all reasonable inferences in favor of the plaintiff.”
King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). In relevant part, Plaintiff alleges
as follows.1
On November 2, 2023, Plaintiff went to FCC’s campus to stage a political protest,
arriving around 11:45 a.m. ECF No. 5 ¶ 42. A person accompanied him to record videos
for YouTube and he recorded other videos for “his viewers” himself. Id. ¶¶ 51, 61. There
were some counter-protestors who Plaintiff alleges were using “bullhorns and loud
stereo equipment.” Id. ¶ 42. Plaintiff claims the volume of the other protestors’ speech
exceeded limits under what he describes as a local noise ordinance. Id. ¶ 43. Plaintiff
alleges he asked Captain Henneberry to “silence” the counter-protestors, but that
Henneberry “refused” to do so. Id. ¶¶ 43-46. Plaintiff claims that Captain Henneberry
violated Plaintiff’s own “rights to free speech or peaceable assembly” by declining to
suppress the volume of the counter-protestors’ speech, id. ¶ 49, by allegedly telling
Plaintiff that he was speaking too loudly, id. ¶ 53, and then, as described further below,
by arresting him for failing to comply with the directive to leave the campus.
At some point, Captain Henneberry, along with Public Safety Supervisor Kevin
Poole, whom Plaintiff has also named as a defendant, approached the protestors and
informed them, including Plaintiff, that everyone would need to “leave.” Id. ¶ 56.
Plaintiff refused. Id. As Plaintiff himself puts it, he “informed Defendant Kirk and Poole
that he was going to stay until 2pm like he had scheduled and to stop harassing Plaintiff
1 The amended complaint also includes allegations about the protest a month before, on
October 3, 2023, on a different topic. Those allegations are asserted against Robin
Shusko, the Director of College Public Safety at Frederick Community College, who was
involved in responding to that earlier appearance on the campus. The pending motion
involves only Captain Henneberry’s conduct in connection with the November 2
appearance, so the allegations related to the October 3 incident are omitted here.
or Plaintiff would swear out criminal charges against Poole for interrupting Plaintiff's
First Amendment Protected activity.” Id. The other protestors left, but Plaintiff stayed
on FCC’s property for “the rest of the day.” Id. ¶ 59. He also returned the next day to
continue protesting. Id. ¶ 62.
Captain Henneberry, who had warned Plaintiff to leave the campus to which
Plaintiff refused, prepared a criminal complaint charging Plaintiff with trespass in
violation of § 26-102(e)(2) of the Education Article of the Maryland Code, which makes
it unlawful for a person to “[f]ail[] or refuse[] to leave the grounds of [a ‘public
institution of . . . higher education’] after being requested to do so by a person
designated in subsection (b) of this section as being authorized to deny access to the
buildings or grounds of the institution.” See ECF No. 5 ¶¶ 56, 63-65. In March 2024,
Plaintiff accepted a stet of the trespass charge in exchange for staying away from FCC for
one year. Id. ¶ 73.
Plaintiff filed this lawsuit on October 1, 2024 (and amended his complaint on
November 1, 2024) against Defendants Shusko, Poole, and Henneberry. ECF No. 1; ECF
No. 5 (amended complaint). Plaintiff seeks compensatory damages, punitive damages,
and costs, expenses, and attorney’s fees (though he is representing himself). ECF No. 5
at 28. Defendants Shusko and Poole have filed answers to the amended complaint. ECF
Nos. 8, 9. Defendant Henneberry filed a motion to dismiss, or in the alternative, a
motion for summary judgment. ECF No. 12 (the “Motion”). Plaintiff responded to the
Motion, ECF No. 16, and Defendant replied, ECF No. 20.
Captain Henneberry, in addition to moving to dismiss the amended complaint
under the Rule 12(b)(6) standard, also filed evidence, including body-worn camera
footage, and in the alternative has requested that the Court enter summary judgment in
his favor. ECF No. 12-1 at 4-7 (describing the events reflected in the footage). The Court
need not convert the motion to one for summary judgment because even accepting
Plaintiff’s allegations as true, the Court concludes that Captain Henneberry is entitled to
dismissal of the complaint, for the reasons explained below.
II. LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When a defendant asserts that, even
assuming the truth of the alleged facts, the complaint fails “to state a claim upon which
relief can be granted,” the defendant may move to dismiss the complaint. Fed. R. Civ. P.
12(b)(6). At the pleadings stage, the Court “must accept as true all of the factual
allegations contained in the complaint and draw all reasonable inferences in favor of the
plaintiff.” King, 825 F.3d at 212.
To withstand a motion to dismiss, the complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative relief” by containing “enough facts
to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And
although a court reviewing a 12(b)(6) motion “must accept as true all of the factual
allegations contained in the complaint and draw all reasonable inferences in favor of the
plaintiff,” King, 825 F.3d at 212, bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a plausible claim. Iqbal, 556 U.S. at
679.
A “pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89,
94 (2007), and a court should be reluctant to dismiss a pro se complaint, see, e.g.,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). But a pro se litigant must
still “give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.” Erickson, 551 U.S. at 93 (quoting Twombly, 550 U.S. at 555).
III. DISCUSSION
A. Counts 1 & 5: First Amendment Retaliation
In Counts 1 and 5, pursuant to 42 U.S.C. § 1983, Plaintiff alleges that his arrest
violated his First Amendment rights (Count 1), and that the charge of criminal trespass
was retaliation for exercising his First Amendment rights (Count 5), ECF No. 5 at 17-18,
22-24, because Captain Henneberry treated the other counter protestors that were
present on FCC’s campus differently from Plaintiff solely on the basis of his protected
speech. Captain Henneberry argues that (1) qualified immunity applies to his actions
and shields him from liability for Plaintiff’s claims, and (2) in any event Plaintiff has
failed to state a claim on which relief can be granted because the statute at issue is
sufficiently tailored to satisfy the requirements of the First Amendment. ECF No. 12-1 at
9-10; ECF No. 20 at 1-11.
Qualified immunity “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) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). It protects government officials “performing discretionary functions” by
“shielding them from civil damages liability as long as their actions could reasonably
have been thought consistent with the rights they are alleged to have violated.”
Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). Qualified immunity generally
entails a two-part inquiry: first, whether a constitutional violation has occurred, and
second, whether that violation was of a “clearly established constitutional right.” E.g.,
Quinn v. Zerkle, 111 F.4th 281, 290 (4th Cir. 2024) (emphasis added).
“A clearly established right is one that is ‘sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.’” Mullenix v.
Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
While courts “do not require a case directly on point,” the “constitutional question”
must be “beyond debate.” Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)). A
court’s inquiry into whether a clearly established right exists is to be “undertaken in
light of the specific context of the case, not as a broad general proposition.” Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam) (cleaned up).
Here, even accepting Plaintiff’s allegations as true and drawing all reasonable
inferences in his favor, Plaintiff has failed to show that it was clearly established that the
First Amendment precluded Captain Henneberry from enforcing § 26-102(e)(2),
making it a misdemeanor for a person to refuse to leave the grounds of a school after
being requested to do so. Although a lack of probable cause is not always required to
bring a retaliatory arrest claim, as discussed further below, see Gonzalez v. Trevino, 502
U.S. 653, 658 (2024); Nieves v. Bartlett, 587 U.S. 391, 406 (2019), here there was
probable cause that Mr. Porter violated that law when he refused to comply with
Captain Henneberry’s directive to leave. And there are no allegations that would clearly
bring Mr. Porter’s November 2, 2023 protest within the “narrow qualification” in
Nieves, 587 U.S. at 406, as discussed below. That entitles Defendant Henneberry to
qualified immunity, even at the pleadings stage, and thus Counts 1 and 5 will be
dismissed for failure to state a claim.
B. Count 6: Malicious Prosecution
In Count 6, Plaintiff alleges that he was charged with trespass solely for
“exercising [his] first amendment rights to peaceably assemble and protest,” ECF No. 5
¶ 131, which he contends rose to the level of malicious prosecution under Maryland law.
Id. at 24. He captions this count “Selective prosecution in accordance with the holding
of Gonzalez v. Trevino [502 U.S. 653] (2024).” Id. In Gonzalez, the Supreme Court
reiterated that although “as a general rule, a plaintiff bringing a retaliatory-arrest claim
‘must plead and prove the absence of probable cause for the arrest,’” there is a “narrow
exception to that rule” under which “[t]he existence of probable cause does not defeat a
plaintiff’s [retaliatory-arrest] claim if he produces ‘objective evidence that he was
arrested when otherwise similarly situated individuals not engaged in the same sort of
protected speech had not been.’” 402 U.S. at 655 (quoting Nieves, 587 U.S. at 402 &
407).
Henneberry does not assert qualified immunity with respect to Count 6. Instead,
he argues that Porter fails to allege facts sufficient to make out a malicious prosecution
claim. Under Maryland law, a malicious prosecution claim has four elements: “1) the
defendant(s) instituted a criminal proceeding against the plaintiff; 2) the criminal
proceeding was resolved in favor of the plaintiff; 3) the defendant(s) instituted the
criminal proceeding without probable cause; and 4) the defendant(s) acted with malice
or for the primary purpose other than bringing the plaintiff to justice.” S. Mgmt. Corp.
v. Taha, 378 Md. 461 (2003). Henneberry argues the complaint falls short because he
did have probable cause to charge Plaintiff for failing to comply with the directive to
leave, which is apparent from the complaint because Plaintiff himself alleges that
campus security advised everyone to leave and admits that he refused to leave. ECF No.
12-1 at 12. He also argues the claim fails because an element of a claim for malicious
prosecution is that the criminal proceeding was “resolved in favor of the plaintiff,” S.
Mgmt. Corp. v. Taha, 378 Md. 461, 479 (2003), and a stet, which Mr. Porter received,
“is not a termination in favor of the accused,” State v. Meade, 101 Md. App. 512, 533
(1994). Finally, Henneberry argues that Plaintiff has not adequately alleged malice. ECF
No. 12-1 at 13.
“[A]s a general matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including criminal prosecutions, for
speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). To prevail on a retaliatory
prosecution claim, a plaintiff must allege a “causal connection between the government
defendant’s retaliatory animus and the plaintiff’s subsequent injury.” Nieves, 587 U.S. at
398 (cleaned up). In other words, a plaintiff must allege that the retaliatory motive was
the “but for” cause of the prosecution or other adverse action taken against the plaintiff
by the defendant. Id. at 399 (citing Hartman, 547 U.S. at 260). And where, as here,
there was probable cause for an arrest—Plaintiff concedes in the complaint that he was
directed to leave and refused to do so, e.g., ECF No. 5 ¶¶ 56, 59, 62—the plaintiff must
plead and prove, based on “objective evidence,” that “he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech had not
been.” Nieves, 587 U.S. at 407. He alleges that “[r]oughly a dozen students also
remained in the area that were ‘asked to leave’ and were similarly situated.” ECF No. 5 ¶
58. But that allegation is far too conclusory to constitute an allegation of fact sufficient
to bring his claims within the narrow Nieves/Gonzalez exception. Accordingly, Plaintiff
has failed to state a claim for malicious prosecution. The Court need not decide whether
the claim would also fail for the additional reasons Henneberry identifies (i.e., a stet not
constituting a termination in Porter’s favor, or inadequate allegations of malice).
IV. CONCLUSION
For the reasons discussed above, the Court will grant Defendant Henneberry’s
motion to dismiss (ECF No. 12). A separate order follows.
Date: August 29, 2025 _______/s_/__________
Adam B. Abelson
United States District Judge