Armed Police Visit to Grandmother, Aimed at Getting Granddaughter to Stop Trying to File Rape Charges, May Be a First Amendment Violation

Starting at Borkowski v. Baltimore CountyJudge Deborah K. Chasanow, D. Md.):

The case was originally a class action that revolved around investigating and handling sexual assault claims by several Baltimore County and University of Maryland-affiliated entities and individuals. Two motions were made to dismiss the claim. The sole remaining claim was one for First Amendment Retaliation by Plaintiff Anna Borkowski, against all the remaining defendants.

The claim of Ms. Borkowski centers around the response by the defendants to her March 2018 efforts to have her alleged sexual assault charged and brought to trial. This alleged attack occurred on the evening of October 19th and early in the morning hours of Oct 20th 2017. Ms. Borkowski was 21 years old and a student at Towson University. A friend and she met up after class for happy hours. They continued to have fun and then met up with the three other men with whom Ms. Borkowski was once a classmate. They danced and drank together before they headed to the apartment of a friend. They encouraged their female friends to keep drinking.

Ms. Borkowski has very little memory about what occurred next. Her friend also doesn’t remember it. At her deposition in January 2021, Ms. Borkowski only has one memory. She remembers that three of the men had been having sex while she was with them, and her friend who seemed to have passed out, but it is not something she can recall. At that point, Ms. Borkowski felt “like”. [she]”was paralysed” by men’s actions and she feared for her physical health. Ms. Borkowski has no memory of men threatening or using force against herself. Both women suffered injuries when they awoke on the following day. According to Ms. Borkowski, her injuries are consistent with the use of force for sex. Ms. Borkowski immediately reported the incident to her friend. Ms. Borkowski had also sex briefly with two men from the balcony at that point.

The State’s Attorney’s Office did not bring any charges. Ms. Borkowski expressed her dismay at the decision in November and December. She spoke to multiple people about it, including Detective Burrows, Assistant State’s Attorney Dever and Investigator Fox. She decided that she wanted to “give it another chance” and asked for a District Court commissioner to charge her accused assailants. (See the id., at 129). The “modern equivalent of a magistrate”, the Commissioners.[.]”They will receive and examine sworn charges applications. They’ll determine if there’s probable cause to charge them. However, the State’s Attorneys can terminate or dismiss any charge by entering into a nolle prosequi.

Ms. Borkowski submitted two separate applications to different Commissioners in March 2020. Her hope was that she would face charges and that the prosecution would follow. However, Ms. Borkowski tried to make a complaint, but the defendants thought it futile. If Ms. Borkowski presented new evidence, they would dismiss all charges. However, there is no evidence that the Defendants ever told Ms. Borkowski.

After consulting with the Assistant State’s Attorney Dever, the Commissioner denied her first request. Ms. Borkowski subsequently obtained representation and added further detail to her second request, citing Maryland’s first degree rape statute. The applications allege that both the attackers had sex “by force” with Ms. Borkowski. All three accused assailants were charged for various offenses including first-degree molestation.

Assistant State’s Attorney Dever described her reaction to the charges as follows: “I was very upset….I wanted to try and communicate somehow that she needed to stop going to the Commissioner’s Office[.]She consulted State’s attorney Shellenberger, and he told Ms. Dever that detectives should speak to Ms. Borkowski. They requested an in-person meeting, despite Ms. Borkowski having her contact information and being aware that she has an attorney. According to Ms. Dever, Investigator Fox instructed Detective Burrows, “to talk to Ms. Borkowski and have a conversation.”[ ] to her about no further charges….[In other words,]Asking her to not go to another Commissioner, or to the Commissioner again to pursue charges. The notes of Detective Burrows might suggest that she thought she was going to tell Ms. Borkowski to “stop going comm.”[issioner]She was told that she could be sued by the civil court if she failed to comply.[,]Criminal charges[.]” …

Tomas, Detective Burrows and Tomas gathered Ms. Borkowski’s class schedule. They then went along with an armoured and uniformed Baltimore County police officer to Ms. Borkowski’s Baltimore City home at a time when she wasn’t supposed to be there. This was the first time that an officer has been asked to accompany and escort Baltimore City county detectives. Ms. Borkowski’s grandmother answered the doors. Officer Burrows informed her that her voice was being record and began asking her questions regarding Ms. Borkowski. It lasted for less than two-and a-half minutes. They stated they were interested in speaking with Ms. Borkowski to discuss the charges that she has filed, but did not go into detail. The encounter was reported to Ms. Borkowski by her grandmother the next day.

Detective Tomas called Ms. Borkowski two times, and exchanged voicemails, but never spoke directly with her. He and Detective Burrows spoke with Ms. Borkowski’s attorney, but Ms. Borkowski was not available to speak with them without her attorney. Shellenberger, the State’s Attorney decided that it was over. According to defendants, “There was now a lawyer involved. [they]It was not like that [a]Meeting had no purpose.” Ms. Borkowski was not told by the Defendants that she shouldn’t file charges. They successfully dismissed the charges over Ms. Borkowski’s objections, however….

Public officials cannot respond to constitutionally-protected activity by conduct or speech that could chill or adversely impact this activity. Even if the act was taken for other reasons, it is still valid. …

The material dispute is real about whether or not the actions of Defendants conveyed the message that Ms. Borkowski would face negative consequences if she continues to file for charges. Each party acknowledges that the Defendants never explicitly told Ms. Borkowski she should stop filing application or risk being subject to criminal and civil penalties. Instead, they dispute the assertion that Defendants implicitly communicated this message. They point to (1) Detective Tomas’ visit to Borkowski’s home with her grandparents and (2) Detective Tomas’ two calls to Borkowski.

An impartial jury might conclude that the defendants’ actions sent a message about stopping or facing consequences. Ms. Borkowski was told by Ms. Borkowski’s grandmother that her grandmother believed that Ms. Borkowski had visited an institution. [attempt]to intimidate her in relation to her application for charges. Borkowski feels that Ms. Borkowski’s grandmother came to this conclusion.[b]They arrived with an armed officer, kept asking me where I was and when I was due back, if I knew I had been charged and why they had asked.[.]”Ms. Borkowski’s grandmother was also confused by the visit, as it seemed incongruous and failed to deliver anything. She felt that the detectives were asking questions she should have answered and could have easily resolved the issue over the telephone. She was confused and asked “[w]What they wanted to do by [the visit].” Ms. Borkowski received the information about the visit around the same time as she received two calls from Detective Tomas and a voicemail. Even though the voicemail seemed “not uncommon,” it provided very little information regarding why Detective Tomas desired to speak with Ms. Borkowski. The voicemail said “This is Detective Thomas.” Please give me a call.

The phone call and visit occurred almost simultaneously and unexpectedly without explanation. They were conducted by police officers and detectives outside of their authority. Uninvited law enforcement officers could be found to have made these calls as a gratuitous act of kindness. Although there were no threats, the messages are still menacing. This would not be enough to prove that the message was frightening and might chill First Amendment rights.

These conclusions could be supported by information about the relationship between and the state of the parties. Ms. Borkowski was 21 years old and had just been through trauma. The law enforcement personnel accompanied with armed police were the defendants. Additionally, Ms. Borkowski could have reasonably believed that the Defendants were hostile to her or didn’t believe her. They chose not prosecute her case.

Ms. Borkowski points out other evidence which could be used to support the conclusion that Defendants sent a threatening email. Even though this isn’t necessary since Defendants don’t meet their burdens, it strengthens the conclusion. Ms. Borkowski later learned that Detective Defendants had obtained her class schedule. A jury may also consider evidence regarding the motives of Defendants in order to interpret any implied message they send. The statements by both Defendants to Ms. Borkowski that they were going to drop the charges could be supported with their sudden cessation all contact following Ms. Borkowski’s insistence that she have her lawyer present. This can support the inference that Ms. Borkowski was being bullied.

The result is not undermined by the fact that Ms. Borkowski’s grandmother did not feel threatened by the home visit nor that Ms. Borkowski continued to pursue legal recourse…. [T]The objective test to determine whether an individual has taken adverse retaliatory actions is met. Although subjective responses are relevant for the analysis, they do not constitute conclusive evidence. The subjective reaction of Ms. Borkowski to her grandmother could have been outweighed by the other traits such as the simultaneity, vagueness and display of authority that are characteristic for Defendants. A jury could also find that Ms. Borkowski was uncommonly committed to her pursuit of justice, as evidenced by her continued efforts to appeal the dismissal of her charges….

[And as to qualified immunity, an earlier precent]Notice was given in 2000 that intimidation or threats (even verbal) are violations of the First Amendment when used in retaliation for protected speech. Moreover, … [another case held that]Self-censorship is a violation of the First Amendment when it would prevent a person with ordinary firmness exercising their rights. Either of these cases disproves the Defendants’ claim that “no caselaw” exists clearly establishing this right to be free from intimidation in applying for a statement of charges….

The opinion contains more information, such as the question of when charges can be filed that are false or thus constitutionally unprotected speech/petition (I simplify a bit here); you can read the entire opinion.