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Maryland and Baltimore County each put $50,000 on the table to settle a lawsuit alleging the county state’s attorney’s office and police violated a woman’s First Amendment rights when they intervened to dissuade her from filing criminal charges against three former male college baseball players who she said sexually assaulted her in 2018.
Approved Wednesday morning by the Board of Public Works, the $100,000 agreement is less than what the University of Maryland, Baltimore County paid to each baseball player — $150,000 — to settle a defamation lawsuit against the college’s student newspaper, The Retriever.
It’s less than the current salaries of two Baltimore County police detectives — one of whom is suspended from patrol duty while under investigation by internal affairs — who obtained the former Towson University student’s address and drove over the Baltimore City line to confront her in March 2019.
And it’s less than the salaries of prosecutors — one of whom was promoted in 2020 to the topmost position in State’s Attorney Scott Shellenberger’s office — who ordered police to the plaintiff’s home that night.
“When you read the details of this settlement — this should not have occurred,” state treasurer Dereck Davis said during the state board meeting.
“And as a result, the people of Maryland are paying for something that shouldn’t have happened,” he said.
Civil lawyers and former municipal attorneys say the offer is a good deal for Baltimore County and Shellenberger, who in December was denied immunity by a federal judge and was scheduled to testify before a jury last month. The settlement offer was disclosed just days before the trial was to start.
But First Amendment cases — especially against public officials afforded immunities — are among the most difficult to win, lawyers say.
Even within the realm of constitutional rights lawsuits, circumstances of the case against Shellenberger, his office and the Baltimore County Police Department are “bizarre;” “unusual;” and “a bit of uncharted territory,” former top attorneys for Baltimore City and Anne Arundel County said.
“The heart of what’s going on here is how wickedly unfair the civil justice system is to victims whose rights are violated by the government,” said Cary Hansel, a Baltimore-based civil rights attorney.
“What it shows is a need for reform,” he said.
The case, brought by former Towson University student Anna Borkowski, was whittled from a 2018 class action filed by five female college students against UMBC, the Baltimore County Police Department and the state’s attorney office. County police and prosecutors have been dogged for years by reports they mishandled sexual assault complaints. The Baltimore Banner typically does not name victims of sexual assault, but Borkowski has spoken about her case.
District Court Judge Deborah K. Chasanow jettisoned all claims except for Borkowski’s allegation that prosecutors and Baltimore County Police violated her First Amendment rights when they attempted to stop her from seeking criminal charges against three men she said sexually assaulted her.
Among the defendants named in the lawsuit are Shellenberger; then-Assistant State’s Attorney Lisa Dever; Bonnie Fox, an investigator in the prosecutors’ office; and former county police detectives Kristin Burrows and Nicholas Tomas.
Court records detail authorities’ actions to quash Borkowski’s attempts to file criminal charges.
Dever ordered a court commissioner not to accept Borkowski’s petition for criminal charges in March 2019.
Shortly thereafter, Dever directed police to intercept criminal summonses issued to the three men after Borkowski petitioned a second commissioner, who accepted charges for first-degree rape and other sex offenses, court documents show.
On orders from Shellenberger and Dever, Police detectives Burrows and Tomas obtained Borkowski’s class schedule and address without a subpoena and drove to Borkowski’s residence with an armed, uniformed officer, according to court records.
Burrows’ handwritten notes show she was meant to tell Borkowski, who was 21 when she said the assault occurred, to cease petitioning court commissioners or prosecutors would file criminal abuse of process charges against her.
Burrows then convinced a district court commissioner to send “a department-wide email” advising other commissioners “not to act” if they received any petitions from Borkowski and to notify Burrows directly if Borkowski continued to seek charges, according to court exhibits.
Shellenberger, a Democrat running for a fifth term as state’s attorney, maintains he sent police to Borkowski’s residence to protect her from being countersued. His office declined to bring criminal charges against the three men Borkowski said sexually assaulted her and her friend at a party in 2018 because prosecutors said it didn’t meet the “element of force or incapacitation” in criminal statutes defining sexual assault.
Shortly after the Wednesday vote, Shellenberger maintained his intent was “to protect the plaintiff in this case from either being sued, or the men she was accusing going and charging her with a crime.”
“Certainly at this point it’s been flipped and misconstrued,” he continued. “It’s clear that the plaintiff did not understand what our intent was; my intent was to help her. Always was, always will be.”
But former Baltimore City Solicitor George Nilson, the city’s top lawyer from 2007 through 2016, said the argument that Shellenberger’s office sought to protect Borkowski from legal retribution “is just not a credible defense.”
“Normally, if someone wants to pursue a claim — criminal or civil — you don’t usually prevent them from doing that ‘for their own good,’” Nilson said. “That doesn’t sound very legitimate.”
Efforts to prevent Borkowski from applying for charges baffled some attorneys, who said even if a court commissioner accepted criminal charges, Shellenberger, 63, could have refused to bring them forward.
The incumbent — who in July narrowly thwarted his first-ever primary challenger, progressive Towson attorney Robbie Leonard — is running for reelection against 72-year-old Republican James Haynes, who criticized Shellenberger’s judgement in the case during a virtual October candidate forum.
If elected, Haynes, a former federal administrative judge, said he would not cause taxpayers to pay for mistakes or misconduct.
During the state board meeting, Davis said “this is simply a matter of if we do our jobs, and stay in our lane, then we would not need to be giving away $50,000 of the people’s money.“
”Hopefully we won’t be in this position again,” he said.
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‘Minimize the harm’
Municipalities consider myriad factors while determining whether to move to trial or how much they’re willing to pay to rest a civil rights case, said Nilson, who represented the city in the wrongful death lawsuit that resulted in a $6.4 million settlement with the family of Freddie Gray, a Black man who died from injuries sustained in police custody in 2015.
“The primary consideration of the city or county, to be crass about it, is to minimize the harm to the city or the county as a result of the case,” Nilson said.
Public agencies may settle to avoid negative publicity of a trial or prevent high financial costs should the court rule in the plaintiff’s favor, he said. Extraneous circumstances, such as the city unrest following Gray’s death in police custody, may pressure an agency to pony up a sizable offer, Nilson added.
“To settle this case and it only cost the county $50,000?” he said. “That sounds a lot to me like a good settlement for the government.”
Last year, Baltimore County agreed to spend more than $15.9 million to settle cases filed by hundreds of complainants, according to a list provided by the County Council attorney. Among the larger payments was a $1.1 million settlement to rest a religious discrimination lawsuit brought by Hunt Valley Baptist Church after a zoning appeals board struck down a proposal to build a massive church in northern Baltimore County in 2017.
Weighed against possible outcomes of a jury trial and broad immunities afforded to public officials, settling is a safe guarantee a plaintiff wins redress for the violation.
To prove First Amendment retaliation, District Court Judge Deborah K. Chasanow wrote in a December opinion, Borkowski must prove law enforcement officials “took some action that adversely affected” her First Amendment rights.
Chasanow cited case law that provides “public officials may not respond to constitutionally protected activity with conduct or speech that would chill or adversely affect this protected activity.”
But county authorities argued in court documents those protections don’t apply to Borkowski because, they said, her applications for criminal charges were “materially false” when she asserted the men had sex with her by force. According to prosecutors, the case did not meet the elements of first-degree rape as defined in Maryland statute.
Chasanow contended in her December opinion that it’s not clear whether Borkowski, who was 21 years old at the time of the reported assault, “knew the legal elements of the crime [first-degree rape] or intended to assert that her allegations were consistent with that meaning,” and that the county didn’t prove force wasn’t used.
But without tangible evidence of the harms suffered by those whose First Amendment rights are violated — being terminated from a job, for example — calculating the worth of civil rights, whether deliberated by jurors or lawsuit parties, is notoriously difficult, said David Plymyer, a former Anne Arundel County attorney.
“The relatively low amount [settlement] reasonably reflects the intangible nature of the harm at issue in this case,” he said.
Immunities give public officials upper-hand, attorney says
Hansel, who advocates for criminal justice reform in the State House, said the offer illustrates the need to “overhaul” court-created immunities that shield public officials and law enforcement agents accused of misconduct from lawsuits or liability, which impede justice for private citizens, Hansel said.
“People can violate your rights, the court can agree — and nevertheless find that there is immunity,” he said.
Courts rarely revoke immunities afforded to public officials, experts say. When Chasanow denied Shellenberger qualified immunity in December, it opened the door to settle or proceed to a jury trial, but narrowed Borkowski’s case — and her odds of success — to a single First Amendment rights violation claim, Hansel said.
If jurors were persuaded there was a significant possibility that Borkowski’s petition for criminal charges would have resulted in a trial for her claims against the former UMBC baseball players, they “could get really angry at the county for blocking her from doing that,” Nilson said.
But Shellenberger could reasonably argue that even if the criminal charges were filed, he would have tossed them, according to Plymyer.
“What damage did she suffer when it’s conjecture to say that the case [criminal charges] would have ever made it to trial?” Plymyer said.
And even if a jury verdict favored Borkowski, “that victory can be snatched away from them by a judge in post-trial reviews or appellate courts,” Hansel said.
To Hansel, Borkowski’s case points to the overarching problem of government immunity.
“When immunities are used to shave a case down to one count, and when that one count is likely to face challenges post-trial or appeal — which adds a year or two, at least, to the case — and where you have a victim who’s going to have to relive her trauma on the stand ... the power that the state wields in these negotiations becomes daunting,” Hansel said.
Neither settlements nor verdicts that confirm prosecutors committed rights violations trigger reprimand by Maryland’s attorney conduct watchdogs. Maryland attorneys accused of professional misconduct are investigated by the Office of Bar Counsel and reviewed by the Attorney Grievance Commission, which may prosecute or discipline an attorney found to have violated Maryland Attorneys’ Rules of Professional Conduct. The office may open an investigation of their own volition or resulting from complaints alleging rules violations.
County Executive Johnny Olszewski Jr., a Democrat who has endorsed Shellenberger for reelection, said in an interview that he doesn’t “condone any of the circumstances” that prompted the lawsuit.
There are “certainly opportunities to do more in that office [the state’s attorney’s office] to support women and victims of sexual assault,” Olszewski said.
It’s unclear how much of the offer may cover Borkowski’s attorneys fees.
According to the settlement agreement, neither Baltimore County nor the prosecutor’s office admit to any “wrongdoing, misconduct, negligence, or liability.”
Under the settlement terms, the defendants are shielded from liability should Borkowski or others try to seek the same or similar damages related to Borkowski’s claims.
The agreement iterates, however, that it does not indemnify defendants if they’re sued again over claims made by Borkowski’s four co-plaintiffs, all of which were dismissed without prejudice by a federal judge who wrote that while the women may have “meritorious allegations,” those claims were marred by “overambitious pleading.”
But even if clauses in the agreement absolve county authorities of liability, Plymyer said there’s “no doubt that for all other purposes other than legal ones, this settlement is an admission of guilt.”
Plymyer agrees with Hansel, who pursues “impact litigation” meant to achieve results beyond the particular case involved, that the settlement alone is not enough to pressure lawmakers into changing how sexual assault or civil rights cases are handled.
“Fifty thousand dollars to the state of Maryland is probably the equivalent of 50 cents to the average Marylander,” Hansel said — but added that the emotional burden of being cross-examined in a case related to the plaintiff’s alleged sexual assault could come at the price of “many more years” of litigation and potentially their mental health — possibly for no redress.
But, Plymyer said, Borkowski’s “courage and the fact that the state and the county were forced to settle it and acknowledge that some harm did occur, will move the needle.”
taylor.deville@thebaltimorebanner.com
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Taylor DeVille covered Baltimore County government for The Baltimore Banner with a focus on the County Executive, County Council, accountability and quality of life issues affecting suburban residents. Before joining The Banner, Taylor covered Baltimore County government and breaking news for The Baltimore Sun.
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