KENNETH C. ROSSIGNOL, et al. :

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v. : Civil Action WMN-99-3302

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RICHARD VOORHAAR, et al. :

Before the Court are: Plaintiffs’ Motion for Summary

Judgment on Liability Issues (Paper No. 69); Cross-Motion for

Summary Judgment filed by Defendants Doolan, Long, Merican,

Myers, Willenborg, and Young (the Off-duty Deputies) (Paper

No. 73); Defendant Fritz’s Cross-Motion for Summary Judgment

(Paper No. 74); Cross-Motion for Summary Judgment filed by

Defendants Voorhaar, Alioto, and Board of County Commissioners

for St. Mary’s County (Paper No. 75). These motions were

previously addressed by this Court in a Memorandum and Order

dated February 21, 2002. That order granted summary judgment

to Defendants on Plaintiffs’ federal claims on the grounds

that Defendants had not acted under color of state law, and

dismissed Plaintiffs’ state law claims without prejudice. The

case was then appealed to the Fourth Circuit, which reversed

Voorhaar, and the Off-duty Deputies had acted under color of

state law, and accordingly, had violated Plaintiffs’

constitutional rights.

The parties’ cross motions for summary judgment now

return to this Court on remand for a determination as to: (1)

whether any of the defendants will benefit from qualified

immunity or municipal immunity; (2) the extent to which the

defendants’ conduct is actionable under the Maryland

Declaration of Rights and Maryland common law; and (3) the

extent to which Defendant Alioto participated in the seizure,

and thus, his ultimate liability. See Rossignol v. Voorhaar,

316 F.3d 516, 527 n.3 (4th Cir. 2003). All parties rest on

their original pleadings, which are ripe for decision. Upon

review of the pleadings and applicable case law, the Court

determines that no hearing is necessary (Local Rule 105.6) and

that the bulk of Defendants’ motions will be denied and

This action, raising Federal Constitutional claims under

42 U.S.C. § 1983, as well as claims under the Maryland

filed on behalf of both Rossignol and "Island Publishing

Company," the entity through which he published St. Mary’s

Today.

Defendants argue, and Rossignol does not dispute, that Island

Publishing Company must be dismissed as an improper party due

to the forfeiture of its corporate charter in 1992. Although

the Court sees no practical effect on the relief sought by

Rossignol, Island Publishing Company will nonetheless be

dismissed. Hereinafter, the Court will treat the claims as

asserted by Rossignol alone and refer to Plaintiff in the

their organized efforts to suppress the distribution of the

election day issue of his newspaper, St. Mary’s Today. The

defendants in this suit are divisible into three separately

represented groupings: (1) Sheriff Voorhaar, Deputy Alioto,

and the Board of County Commissioners for St. Mary’s County

(the County Defendants); (2) the Off-duty Deputies who carried

out the purchasing of Plaintiff’s newspapers; and (3) Richard

Fritz, a candidate for St. Mary’s County State’s Attorney in

the 1998 elections. The largely undisputed facts were set

forth at length in this Court’s first memorandum as well as

the opinion rendered by the Fourth Circuit, and need not now

be recounted in any great detail.

Certain findings by the Fourth Circuit, however, render

moot several issues not reached in this Court’s first opinion,

candidate for State’s Attorney, actively encouraged and

sanctioned the organized censorship of his political opponents

by his subordinates, contributed money to support that

censorship, and placed the blanket of his protection over the

acted under color of state law, they violated these

plaintiffs’ constitutional rights."). While the Fourth

Circuit did not explicitly address Rossignol’s claims

concerning the violation of his Fourth and Fourteenth

Amendment rights, it did refer to the defendants’ acts as both

a "seizure" and a "prior restraint," id. at 522, two terms

classically linked to Fourth and Fourteenth Amendment

violations. This Court views the analysis concerning

violation of the First Amendment to be inextricably

intertwined with violations of the Fourth and Fourteenth

Amendments, and will treat the Fourth Circuit’s color of law

finding as determinative that violations of all three

"[b]oth Voorhaar and Fritz personally supported and

participated in the mass purchase." Rossignol, 316 F.3d at

521. Because the Fourth Circuit found, in no uncertain terms,

that the Sheriff and the State’s Attorney candidate were part

of the quasi-private conspiracy pursued under color of state

law, this Court need not reach either defendant’s arguments

that they were not subject to suit as co-conspirators, or that

Fritz, as a private individual, was not subject to suit under

from this court’s purview, any claim that Defendants’ actions

to liability specifically mentioned in the final footnote of

Summary judgment is appropriate where there is no genuine

issue as to any material fact and the moving party is entitled

to summary judgment as a matter of law. Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A party seeking summary judgment bears the initial

responsibility of informing the court of the basis of its

motion and identifying the portions of the opposing party's

case which it believes demonstrate the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The non-moving party is entitled to have

"all reasonable inferences . . . drawn in its respective

favor." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1129

(4th Cir. 1987).

If the movant demonstrates that there is no genuine issue

of

material fact and that the movant is entitled to summary

judgment as a matter of law, the non-moving party must, in

order to withstand the motion for summary judgment, produce

sufficient evidence in the form of depositions, affidavits or

fact exists for trial. Celotex, 477 U.S. at 324. Unsupported

speculation is insufficient to defeat a motion for summary

judgment. Felty, 818 F.2d at 1128 (citing Ash v. United

Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir. 1986)).

When both parties file motions for summary judgment, the

court applies the same standards of review. Taft Broadcasting

Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991); ITCO

Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir.

1983) ("The court is not permitted to resolve genuine issues

of material facts on a motion for summary judgment--even where

... both parties have filed cross motions for summary

judgment") (emphasis omitted), cert. denied, 469 U.S. 1215

(1985). The role of the court is to "rule on each party's

motion on an individual and separate basis, determining, in

each case, whether a judgment may be entered in accordance

with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford

Acc. and Indem. Co., 627 F.Supp. 170, 172 (D. Md.

1985)(quoting Wright, Miller & Kane, Federal Practice and

The Off-duty Deputies, Sheriff Voorhaar, and Deputy

cannot benefit from qualified immunity, which only pertains to

violated the plaintiff’s federal constitutional rights, they

should nevertheless be entitled to summary judgment based on

shields government officials performing discretionary

functions from liability for civil damages when "their conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Generally, when the doctrine of qualified immunity is raised

as a defense, the Court must first identify the right

infringed by the challenged conduct. Taylor v. Waters, 81

F.3d 429, 433 (4th Cir. 1996). The Court then considers

whether, at the time of the violation, the right was clearly

established, and whether a reasonable person in the official’s

position would have known that his conduct would violate that

right." Id. (quoting Gordon v. Kidd, 971 F.2d 1087, 1093 (4th

Cir. 1992)).

Here, the Fourth Circuit has clearly determined that

Rossignol’s First Amendment rights were infringed by

Defendants’ conduct. The arguments in the briefs go largely

consequences of a reasonableness inquiry into Defendants’

conduct. Rossignol frames the issues broadly, as "(1) the

right to speak critically of local government officials

without imposition of a prior restraint; and (2) the right to

be free from government officials suppressing speech in

retaliation for the content of past speech critical of them."

Pl.’s Opp./Reply at 32. Defendants, on the other hand, frame

the issue in extremely narrow terms, as "the right not to have

off-duty law enforcement officers, without the exercise of any

police authority whatsoever, purchase a ‘bunch’ of

newspapers[.]" Off-duty Deputies’ Cross Motion for Summary

Judgment and Opp. at 39; see also County Defendants’ Cross

Motion for Summary Judgment and Opp. at 27. The Court need

not decide which framing of the issues comports most closely

with qualified immunity case law as the facts of this case do

not easily lend themselves to a rigid application of the

standard qualified immunity analysis. Therefore, this Court

will resolve the immunity issue without resort to the

intricacies of the parties’ rights-based arguments.

The typical qualified immunity case involving police

officers centers around action that is unquestionably taken in

the course of the officers’ discretionary function of

Deputies’ Reply at 29 ("Defendants’ assertion of qualified

immunity is, of course, contingent upon this Court’s finding

in the first place that they acted within the scope of their

action was taken within the scope of the officer’s employment

is rarely debated within this legal genre. This element is

nevertheless a crucial piece of a qualified immunity analysis,

Indeed, it would be nonsensical to allow a defense created to

prevent the "fear of personal monetary liability and harassing

litigation [from] unduly inhibit[ing] officials in the

discharge of their duties[,]" Anderson v. Creighton, 483 U.S.

635, 638 (1987), to apply to a situation in which police

officers acknowledge that they were acting completely outside

of any relevant law enforcement duties. The Fourth Circuit’s

own recitation of the qualified immunity standard of analysis,

reinforces this truism. See Knussman v. State of Maryland,

272 F.3d 625, 633 (4th Cir. 2001) (Police officers "are

protected by qualified immunity when performing their duties

within the scope of their employment") (quoting Sigman v. Town

of Chapel Hill, 161 F.3d 782, 786 (4th Cir. 1998)).

In the instant case, Rossignol has not alleged that

Defendants were acting within the scope of their employment.

defendants’ actions could not have been within the scope of

their employment, since "each and every individual defendant

who participated in the collective purchase of papers

testified that their motivation was personal; that their

purchase of the newspapers was not directed by the Sheriff;

that the purchases occurred while each was on leave or offduty;

and that the purchases of the newspapers was unrelated

to any of their official duties as law enforcement

asserted" that they acted outside the scope of their

these positions and the undisputed facts of the case, this

Court would be hard-pressed to find that Defendants acted

within the scope of their employment in order to raise the

potential of qualified immunity.

Defendants’ briefing focuses on the lack of action under

color of law as the main counter-point to the bulk of

Rossignol’s claims. The effectiveness of this strategy is

evidenced by this Court’s being persuaded, upon its first

consideration of the case, that despite its abhorrence for

Defendants’ actions, they were not taken under color of law

sufficient to trigger a cause of action under § 1983. With

the benefit of the Fourth Circuit’s contrary determination,

however, this Court can now only conclude that this case falls

into that category of actions taken under color of law, yet

enforcement officers. See, e.g., Rambo v. Daley, 68 F.3d 203,

206 (7th Cir. 1995) (refusing to reach the merits of a

qualified immunity defense asserted by police officers

involved in a violent arrest outside of their jurisdiction,

because the defendants could not "claim that they acted as

private citizens while simultaneously seeking shelter under a

doctrine that only protects public officials."). Accordingly,

the same arguments made in Defendants’ briefs that persuaded

this Court in its prior opinion that their actions were not

taken under color of state law, now lead it to conclude that

the defense of qualified immunity is unavailable to any of the

Rossignol’s claims under Articles 40, 24, and 46 of the

Maryland Declaration of Rights, although asserted as common

law actions for damages rather than through an enabling

statute like § 1983, are nonetheless analyzed in the same

manner as the corresponding Federal Constitutional violations

under the First, Fourth, and Fourteenth Amendments. See

Dipino v. Davis, 354 Md. 18, 50 (1999). Accordingly, the

Court’s preliminary determination that Defendants violated

that Rossignol’s rights granted by Maryland’s Declaration of

Rights were also violated.

Although Defendants do not dispute this principle, they

assert that statutory immunity prevents liability from

attaching to the Off-duty Deputies, Voorhaar, and Alioto for

claims based on the Maryland Declaration of Rights or common

law claims for tortious interference with business relations

and civil conspiracy. This argument is based on a provision

of the Maryland Code which holds state personnel immune "from

liability in tort for a tortious act or omission that is

within the scope of the public duties of the state personnel

and is made without malice or gross negligence[.]" Cts. &

Jud. Pro., § 5-522(b). Because the phrase "in the scope of

public duties" is coextensive with the common law concept of

"scope of employment," Sawyer v. Humphries, 322 Md. 247, 254-

58 (1991), this defense fails for the same reasons detailed in

part A, supra.

1. Tortious Interference with Business Relations

Rossignol asserts that Defendants’ seizure of his

newspapers constitutes a tortious interference with his

lawful business relationships. The required elements of this

tort in Maryland are: "(1) intentional and wilful acts; (2)

conduct was arguably in breach of the Newspaper Theft Act, Md.

business; (3) done with the unlawful purpose to cause such

damage and loss, without right or justifiable cause on the

part of the defendants (which constitutes malice); and (4)

actual damage and loss resulting." Natural Design, Inc. v.

Rouse Co., 302 Md. 47, 70-71 (1984) (quoting Willner v.

Silverman, 109 Md. 341, 355 (1909)). Maryland courts have

further required that the interfering acts be independently

wrongful or unlawful to allow recovery. See, e.g., Travelers

Indemnity v. Merling, 326 Md. 329, 343 (1992), cert. denied,

506 U.S. 975 (1992).

The Off-duty Deputies and Fritz challenge this last

requirement because "there is nothing unlawful in simply

purchasing newspapers that are for sale." Off-duty Deputies’

Cross Motion for Summary Judgment and Opp. at 47; Fritz’s

Cross Motion for Summary Judgment and Opp. at 29. Having

already held that Defendants’ acts violated both federal and

state constitutional protections, however, the Court concludes

Defendants also insist that the second prong is lacking

because "there is no evidence that any defendant harbored the

Cross Motion for Summary Judgment and Opp. at 47. Despite

Defendants’ contention that their acts were intended as a

protest, they cannot escape from the rule that "actor[s]

desire[] to cause consequences of [their] acts . . . that are

substantially certain to result[.]" Restatement (Second) of

Torts § 8A. Thus, by preventing distribution of the

newspaper, Defendants necessarily intended to "interfer[e]

with the relationship that Rossignol had with his readers, who

would not be able to purchase the newspaper, and his

advertisers, whose advertisements would not be seen." Pl.’s

Opp./Reply at 46.

Had this tortious act been more than a one time

occurrence, the Court is convinced that Rossignol would be at

risk of losing both readers and advertisers, the lifeblood of

a healthy newspaper. The event’s isolated nature, however,

leaves only the extent of Rossignol’s damages in dispute.

Accordingly, the Court will grant Plaintiff’s motion for

summary judgment (and deny Defendants’) as to liability, with

damages to be assessed at trial.

2. Civil Conspiracy

Rossignol also accuses the defendants of participating in

a civil conspiracy to deprive him of his rights. A civil

persons by an agreement or understanding to accomplish an

unlawful act or to use unlawful means to accomplish an act not

in itself illegal with the further requirement that the act or

the means employed must result in damages to the plaintiff."

Green v. Washington Suburban Sanitary Comm’n, 259 Md. 206, 221

(1970). It is not necessary that each of the defendants named

in the conspiracy commit an overt act that is itself unlawful,

as long as they commit some overt act in furtherance of the

unlawful enterprise. Alleco, Inc. v. Harry & Jeanette

Weinberg Found., Inc., 99 Md. App. 696, 706-07 (1994), aff’d,

340 Md. 176 (1995).

Defendants’ counter to this tort is again that the mass

newspaper purchase was lawful. As previously explained, this

position is no longer tenable given the conclusions of the

Fourth Circuit. Furthermore, the injury to Rossignol’s

constitutional rights suffices to satisfy the damages element.

Accordingly, summary judgment will be granted to Plaintiff

(and against Defendants) as to liability, with the amount of

Rossignol asserts that pursuant to Monell v. Dept. of

Social Services, 436 U.S. 658 (1978), and its progeny, St.

his Opposition/Reply that the County Commissioners themselves

participated in a custom, practice or policy by the Office of

the Sheriff of violating Plaintiff’s right to freedom of

expression. This charge is drawn from page 10 of Plaintiff’s

Separate Statement of Additional Facts That Preclude Entry of

Summary Judgment in Defendant’s Favor, which asserts that

"[i]n 1991, after St. Mary’s Today began aggressively

reporting on County expenditures and other activities of the

Board of County Commissioners, the Board voted to change the

circulation requirements for obtaining legal advertising

contracts with the County to specifically exclude St. Mary’s

the individual defendants which violated his constitutional

rights. The Supreme Court established in Monell that there is

no § 1983 liability for local governments under the theory of

respondeat superior. "Instead, it is when execution of a

government’s policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the

government is responsible under § 1983." 436 U.S. at 694.

While a policy can often be deduced from consistent and

widespread action by a municipality’s agents, it may also "be

inferred from a single decision taken by the highest officials

responsible for setting policy in that area of the

government's business." City of St. Louis v. Praprotnik, 485

U.S. 112, 122 (1988). Here, Rossignol asserts that the

County’s liability stems from Sheriff Voorhaar’s participation

allegation, whether or not reflective of a First Amendment

violation, is completely separate from the acts by the Sheriff

and his Deputies complained of as the basis for the instant

suit. Accordingly, the Court will not consider this argument

Keenan v. City of Philadelphia, 983 F.2d 459, 469 (3d Cir.

1992) (noting that jury’s finding police commissioner

personally liable reinforced municipal liability).

Both Plaintiff and the County Defendants agree that for

purposes of a Monell analysis, Sheriff Voorhaar is the final

policymaker concerning law enforcement in St. Mary’s County.

The County Defendants assert, however, that Sheriff Voorhaar

and Deputy Alioto are state, not county, officers. See Md.

Code Ann., State Gov’t § 12-101(a)(6) (defining county

sheriffs and deputy sheriffs as state personnel for purposes

of the Maryland Tort Claims Act). If the Court were to agree,

then the § 1983 claims against Voorhaar and Alioto in their

official capacities would be barred by Eleventh Amendment

immunity. See Will v. Mich. Dep't of State Police, 491 U.S.

58, 71 (1988) (holding that, in suits for damages, "neither a

State nor its officials acting in their official capacities

are ‘persons’ under § 1983[,]" since suits against officials

acting in their official capacity are indistinguishable from

suits "against the State itself").

the Supreme Court held that whether a sheriff is considered a

county or a state official, when acting in his law enforcement

capacity, for purposes of § 1983 depends on an analysis of

state law. That the Alabama constitution, at issue in that

case, listed sheriffs as state officers strongly supported

their interpretation as state officers for § 1983 purposes,

but was by no means dispositive of the issue. Id. at 787; see

also Ritchie v. Donnelley, 324 Md. 344, 357 (1991) ("While

under Maryland law, a sheriff is a state official, the state

law classification is not dispositive for purposes of §

1983.). In concluding that the Monroe County sheriff was a

state official when acting in his law enforcement capacity,

the Supreme Court minimized the importance of state law

provisions establishing that: (1) the sheriff’s salary was

paid out of the county treasury; (2) the county provided the

sheriff with materials and reimbursed him for reasonable

expenses; (3) the sheriff’s jurisdiction was limited to the

county’s borders; and (4) the sheriff was elected by county

voters. Id. at 791. In contrast, heavy emphasis was placed

on the fact that state officials maintained a degree of

control over the Alabama sheriffs while the counties, lacking

any law enforcement powers of their own, could not "instruct

or how to secure evidence of a crime." Id. at 790. Finally,

the McMillian Court had the benefit of a persuasive Alabama

Supreme Court opinion considering similar issues which held

that sheriffs were state officers. Id. at 789 (citing Parker

v. Amerson, 519 So.2d 442 (Ala. 1987)).

Here, Maryland county sheriffs are also designated state

constitutional officials for purposes of state law, Md. Const.

art. IV § 44, with their salaries set by the state rather than

the individual counties. See Md. Code Ann., Cts. & Jud. Proc.

§ 2-309. Maryland’s highest court has previously engaged in a

detailed analysis of Maryland’s Constitution and Code to

conclude that a sheriff and his deputies are state employees.

Rucker v. Harford County, 316 Md. 275 (1989). The same

factors pointing toward the sheriff’s status as a county

official (compensation from country treasury, limitations on

some aspects of their jurisdiction, election by county voters,

etc.) may be present, but have already been all but discounted

by the Supreme Court.

The major difference propounded by Plaintiff between

McMillian and the instant case is that St. Mary’s County

retains a degree of law enforcement power through its ability

"to provide for the appointment of county police and to

Ann., Art. 25 § 3(q). This unexercised authority, however,

does nothing to change the County’s basic impotence to

"directly abridge the functions and duties of a sheriff under

the common law and enactments of the General Assembly."

Rucker, 316 Md. at 288. Instead, direct control over the

sheriff in St. Mary’s and other Maryland counties remains

solidly with the State General Assembly and the judiciary.

Id. Accordingly, this Court concludes that the St. Mary’s

County Sheriff and his Deputies are state officials when

acting in their law enforcement capacities. It follows that

the official capacity claims raised against Voorhaar and

Alioto under § 1983 are barred by the Eleventh Amendment.

Furthermore, as the only claims plead against the Defendant

County Commissioners for St. Mary’s County were asserted for

claims are no longer viable pursuant to the analysis above,

The Fourth Circuit’s opinion, while effectively

dismissing Sheriff Voorhaar’s factual arguments in opposition

to summary judgment, did not dispose of those made by Deputy

that he "do[es] not wish to burden the parties or the Court

with a trial devoted solely to establishing Alioto’s

liability" and will accordingly expect Plaintiff to

voluntarily dismiss him from this suit upon receiving this

Memorandum establishing the liability of the remaining

individual defendants. See Pl.’s Motion for Summary Judgment

Defendant Alioto, the only deputy on-duty on the night of the

seizure, due to the allegation that there are material issues

of fact as to the extent of his participation in the planning

and execution of the newspaper seizure. The County Defendants

counter that summary judgment is appropriate in favor of

Defendant Alioto because the evidence linking him to the

seizure is "nothing more than conjecture." County Defendant’s

Cross Motion for Summary Judgment and Opp. at 21. This Court

agrees with Plaintiff’s assertion that the evidence that

Alioto attended a planning meeting and met with certain of the

other defendants on the night of the seizure, together with

Rossignol’s testimony that he overheard Alioto’s attempts to

provide surveillance assistance via radio, create a material

issue of fact more appropriate for resolution by a jury.

Accordingly, summary judgment for Defendant Alioto will be

Judgment will be granted as to the personal liability of the

Off-duty Deputies, Fritz, and Voorhaar and denied in all other

respects. The Cross Motions for Summary Judgement filed by

the Off-duty Deputies and Defendant Fritz will be denied. The

Cross Motion for Summary Judgment filed by the County

Defendants will be: granted as to the dismissal of Island

Publishing Company; granted as to the Board of County

Commissioners of St. Mary’s County; and denied in all other

respects. An order consistent with this memorandum will

issue.

/s/

William M. Nickerson

Senior United States District Judge