Maryland Committee Against Gun Ban v. Simms, Civ. A. No. WN-91-3142.

Citation835 F. Supp. 854
Decision Date06 October 1993
Docket NumberCiv. A. No. WN-91-3142.
PartiesMARYLAND COMMITTEE AGAINST the GUN BAN, et al., Plaintiffs, v. Stuart O. SIMMS, et al., Defendants.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)



Howard J. Fezell, Frederick, MD, for plaintiffs.

J. Joseph Curran, Jr., Atty. Gen., Carmen M. Shepard and Lawrence P. Fletcher-Hill, Asst. Attys. Gen., Baltimore, MD, for Simms and Jessamy.


NICKERSON, District Judge.

A Report and Recommendation in this matter was entered by United States Magistrate Judge Daniel E. Klein on June 14, 1993 (Paper No. 51). Defendants Stuart O. Simms and Patricia C. Jessamy filed objections (Paper No. 52) to which Plaintiffs responded (Paper No. 54). Plaintiffs also filed objections (Paper No. 53). After a de novo review of the entire matter, IT IS this 5th day of October 1993, by the United States District Court for the District of Maryland,


1. That the Report and Recommendation of United States Magistrate Judge Daniel E. Klein entered June 14, 1993, (Paper No. 51) is AFFIRMED and ADOPTED;

2. That Plaintiffs' Objections filed June 30, 1993 (Paper No. 53) are OVERRULED;

3. That the Objections of Defendants Stuart O. Simms and Patricia C. Jessamy filed June 25, 1993 (Paper No. 52) are OVERRULED;

3. That Defendants' Motion for Summary Judgment (Paper No. 10) filed March 2, 1992 is GRANTED in part and DENIED in part, in that;

a. Summary judgment on Count VII is GRANTED;

b. Summary judgment on Counts I, III, VIII, IX, X, XI, XII, XIII, XV, XVI is DENIED;


KLEIN, United States Magistrate Judge.

This matter is before the Court upon motion of defendants Stuart O. Simms and Patricia C. Jessamy for summary judgment. The motion is opposed.1 Judge William M. Nickerson referred the case to the undersigned on March 17, 1993 for submission of a report and recommendation on the motion. As the issues have been fully briefed by the parties, no hearing is deemed necessary. Local Rule 105.6. Plaintiffs assert federal constitutional violations under 42 U.S.C. § 1983 and pendent state claims in connection with the service of a State's Attorney subpoena on their campaign headquarters on the eve of Maryland's 1988 general election. Simms and Jessamy assert, inter alia, that they are immune from civil liability.2 It will be recommended that the motion be denied in part and granted in part.

I. Background

On November 8, 1988, Maryland voters passed "Question 3" on their general election ballots. Question 3 referred to the voters a law enacted by the General Assembly which established an advisory committee, the Maryland Handgun Roster Board, to review and list those handguns that could be classified as "Saturday Night Specials." Sale of guns on that roster would be prohibited in Maryland. Simms was an outspoken public supporter of the referendum question and the law. Plaintiff Committee Against the Gun Ban ("the Committee") campaigned against Question 3. The voters ultimately approved the referendum.

The day before the election, the Baltimore Evening Sun reported that the Committee was contracting with local citizens to distribute campaign literature on election day.3 If true, such conduct would be a violation of Md.Ann. Code art. 33, § 26-9.1 which prohibits payment for "walk-around services" on election day. Simms directed Jessamy to prepare a subpoena duces tecum, which he signed, to compel production of evidence of such a violation.4 Since the subpoena is central to this case it is set out in full below.

IN RE: * IN THE CIRCUIT COURT A SPECIAL * OF BALTIMORE CITY INVESTIGATION * STATE OF MARYLAND ******** SUBPOENA DUCES TECUM DIRECTED TO: CUSTODIAN OF RECORDS MARYLAND COMMITTEE AGAINST THE GUN BAN 2506 N. CALVERT STREET BALTIMORE, MARYLAND 21218 Pursuant to Art 10 Sec 39A, Stuart O. Simms, State's Attorney for Baltimore City—commands you to produce immediately all records pertaining to the following ALL DOCUMENTS INCLUDING BUT NOT LIMITED TO CONTRACTS, MATERIALS CANCELLED CHECKS CONCERNING WALK-AROUND MONIES PAYMENT DISTRIBUTIONS PERTAINING TO ANTI-LAW LITERATURE SCHEDULED FOR DISTRIBUTION ON TUESDAY, NOVEMBER 8 1988. This information is returnable immediately to the bearer of said subpoena /s/ Stuart O. Simms State's Attorney for Baltimore City CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Subpoena Duces Tecum was personally served upon Steven A. Miller in Baltimore City, State of Maryland, on this 7th day of November, 198 8; further, I HEREBY CERTIFY that I am over the statutory age of eighteen (18) years. /s/Sgt. Wendell M. France Server Balto. Police Dept. R-456

At 7:30 p.m. on election eve, a contingent of Baltimore City police officers led by Sergeant Wendell M. France and Detective Vernon Gundy, also defendants in this suit, attempted to serve the subpoena at the Committee's Baltimore headquarters at 2506 North Calvert Street. Simms and Jessamy waited for the documents outside the Committee's headquarters in a car parked about a block away.5 Simms and Jessamy intended to take any documents produced home that evening for review.6 Sergeant France and Detective Gundy conferred with Simms and Jessamy two or three times in the succeeding hour. Initially, they reported to Simms that service had been refused. Later, Sergeant France reported that he had served Stephen A. Miller, who purported to be the Committee's authorized agent. Miller had wished to consult Paul Sullivan, the Committee's counsel, on the telephone. Having reached Sullivan, Sullivan then spoke to Sergeant France and told him there were no documents responsive to the subpoena. Frederick A. Griisser, the Committee's president, arrived and told Sergeant France there were no responsive documents. Simms, Jessamy, and the police left at about 8:30 p.m. It is not clear whether they left with any documents. The State's Attorney's Office for Baltimore City did not further pursue the matter. Rather, on referral, the State Prosecutor prosecuted a number of election code violations for payment of "walk-around" monies which resulted in guilty pleas.7

Violations of state and federal law allegedly occurred inside the Committee's headquarters during the service of the subpoena.8 Essentially, the allegations are these: Sergeant France, Detective Gundy, Lieutenant Leeson, Sergeant Dixon, Officer Serio and perhaps as many as seven other unnamed officers appeared at the scene to serve the subpoena.9 Inside, Detective Gundy "corralled" thirty-to-forty campaign workers at a basement phone bank to a first floor conference room, disrupting their campaign activities.10 Some, if not all, of the campaign workers present were paid employees of the Committee and/or Vanguard Communications, a concern which the Committee retained to "get out the vote."11 Plaintiff Francine Cornish, a Vanguard bookkeeper, went to her second floor office, locked the door, and called the Committee's Laurel, Maryland office and an attorney.12 Sergeant France and Detective Gundy appeared at the door. According to Cornish, Detective Gundy said: "Open the door or we'll knock it down." She opened the door, they entered, and Detective Gundy said: "Since you haven't given us the records, we have to take them."13 Detective Gundy proceeded to the office of Vanguard's president, Stephen Miller; Sergeant France went to the office of Vanguard's vice-president, Lathan Hollis.14 Cornish watched as Sergeant France went through Hollis' desk drawers and briefcase. According to Cornish, Sergeant France "said he could take anything he wanted."15 Sergeant France took some blank checks; Detective Gundy returned with a computer printout of the general ledger.16 At some point, plaintiffs Allen, Briscoe, Cornish, Rothstein, Williams, and others were arrested.17 Eventually, the police permitted the campaign workers to leave the conference room and some chose to leave the building altogether.18

Plaintiffs claim the deprivation of due process of law and of their freedoms of speech and assembly, to petition for redress of grievances, and to be free from unreasonable searches and seizures. Only defendants Simms and Jessamy move for summary judgment, which they seek on those counts in the complaint naming them specifically or all the defendants generally.19 Simms and Jessamy have chosen not to directly contest the allegations of unconstitutional conduct for purposes of this Motion. See Paper No. 10 at 6. Rather, they seek judgment on the basis that they are immune from civil liability on all counts.

II. Standard of Review

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party initially bears the burden of proof and all documentary materials must be assessed in the light most favorable to the nonmoving party (here, the plaintiffs). Pulliam Invest. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). While the nonmoving party is entitled to all inferences in its favor, those inferences must be justifiable inferences from the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Because plaintiffs bear the burden of proving their claims at trial in the instant case, it is their responsibility to confront defendants' motion and attached affidavits and exhibits with counter affidavits or other similar evidence. Atkinson v. Bass, 579 F.2d 865, 866 (4th Cir.), cert. denied, 439 U.S. 1003, 99 S.Ct. 615, 58 L.Ed.2d 679 (1978). The nonmoving party must go beyond its pleadings and by its own affidavits or by depositions, answers to interrogatories or admissions on file designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Ross v. Communications Satellite Corp., 759 F.2d...

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