Rossignol v. Voorhaar, No. 02-1326.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Wilkinson
• Citation: 316 F.3d 516
• Parties: Kenneth C. ROSSIGNOL; Island Publishing Company, a/k/a St. Mary's Today, Plaintiffs-Appellants, v. Richard J. VOORHAAR, Sheriff, St. Mary's County Sheriff's Office; Richard Fritz, State's Attorney for St. Mary's County, Maryland; Daniel Alioto, Deputy First Class, St. Mary's County Sheriff's Office; Steven Doolan, Captain, St. Mary's County Sheriff's Office; Lyle Long, Sergeant, St. Mary's County Sheriff's Office; Michael Merican, Sergeant, St. Mary's County Sheriff's Office; Steven Myers, Deputy First Class, St. Mary's County Sheriff's Office; Edward Willenborg, Sergeant, St. Mary's County Sheriff's Office; Harold Young, Deputy First Class, St. Mary's County Sheriff's Office; Board of County Commissioners for St. Mary'S County, Maryland, Defendants-Appellees, and John Does, 1-50, Defendants. The Reporters Committee for Freedom of the Press; American Society of Newspaper Editors; Association of Alternative Newsweeklies; Maryland-Delaware-DC Press Association; Maryland Media, Amici Curiae in Support of Appellants.
• Docket Number: No. 02-1326.
• Decision Date: 16 January 2003

316 F.3d 516 Kenneth C. ROSSIGNOL; Island Publishing Company, a/k/a St. Mary's Today, Plaintiffs-Appellants,
v.
Richard J. VOORHAAR, Sheriff, St. Mary's County Sheriff's Office; Richard Fritz, State's Attorney for St. Mary's County, Maryland; Daniel Alioto, Deputy First Class, St. Mary's County Sheriff's Office; Steven Doolan, Captain, St. Mary's County Sheriff's Office; Lyle Long, Sergeant, St. Mary's County Sheriff's Office; Michael Merican, Sergeant, St. Mary's County Sheriff's Office; Steven Myers, Deputy First Class, St. Mary's County Sheriff's Office; Edward Willenborg, Sergeant, St. Mary's County Sheriff's Office; Harold Young, Deputy First Class, St. Mary's County Sheriff's Office; Board of County Commissioners for St. Mary'S County, Maryland, Defendants-Appellees, and
John Does, 1-50, Defendants.
The Reporters Committee for Freedom of the Press; American Society of Newspaper Editors; Association of Alternative Newsweeklies; Maryland-Delaware-DC Press Association; Maryland Media, Amici Curiae in Support of Appellants. No. 02-1326. United States Court of Appeals, Fourth Circuit. Argued October 30, 2002. Decided January 16, 2003. Rehearing and Suggestion for Rehearing En Banc Denied March 12, 2003.

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COPYRIGHT MATERIAL OMITTED

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ARGUED: Ashley Ivy Kissinger, Levine, Sullivan & Koch, L.L.P., Washington,

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DC, for Appellants. Daniel Karp, Allen, Karpinski, Bryant & Karp, Baltimore, Maryland, for Appellees. ON BRIEF: Lee Levine, Seth D. Berlin, Audrey Billingsley, Levine, Sullivan & Koch, L.L.P., Washington, DC; Alice Neff Lucan, Washington, DC, for Appellants. Victoria M. Shearer, Kevin Karpinski, Allen, Karpinski, Bryant & Karp, Baltimore, Maryland; John F. Breads, Jr., Columbia, Maryland, for Appellees. Paul M. Smith, Thomas J. Perrelli, Nathan C. Guerrero, Brian Hauck, Jenner & Block, L.L.C., Washington, DC, for Amici Curiae; Lucy A. Dalglish, Gregg P. Leslie, Reporters Committee for Freedom of the Press, Arlington, Virginia, for Amicus Curiae Committee; Richard M. Schmidt, Jr., Kevin M. Goldberg, Cohn & Marks, L.L.P., Washington, DC, for Amicus Curiae Society; Richard Karpel, Association of Alternative Newsweeklies, Washington, DC, for Amicus Curiae Newsweeklies.

Before WILKINSON, Chief Judge, GREGORY, Circuit Judge, and Frank J. MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Reversed and remanded by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge GREGORY and Senior Judge MAGILL joined.

OPINION

WILKINSON, Chief Judge.

Plaintiff Kenneth Rossignol brought suit against defendants for their organized efforts to suppress the distribution of the election day issue of plaintiff Island Publishing Company's newspaper, St. Mary's Today. Plaintiffs sought damages and injunctive relief under 42 U.S.C. § 1983, the Maryland Constitution, and Maryland common law. The district court granted summary judgment to defendants on plaintiffs' federal claims on the grounds that defendants had not acted under color of state law. It then dismissed plaintiffs' remaining state claims without prejudice. Rossignol v. Voorhaar, 199 F.Supp.2d 279, 286-89 (2002). Because defendants sought to censor plaintiffs' criticism of them in their official roles, because their official positions were an intimidating asset in the execution of their plan, and because this sort of quasi-private conspiracy by public officials was precisely the target of § 1983, we reverse the judgment and remand for further proceedings consistent with this opinion.

I.

The facts of this case are largely undisputed. St. Mary's Today is a weekly newspaper owned by Kenneth Rossignol and primarily serving St. Mary's County in southern Maryland. It has reported extensively and often critically on local government and public officials, including County Sheriff Richard Voorhaar and his deputies, from "Captain [Steven] Doolan at the top of the rank ... all the way to the bottom." In defendants' own words, St. Mary's Today published "constant belittlement" and "scandalous things" about the sheriff's deputies' performance, including what they "buy for the agency, equipment, [and] positions [they] ask for." Nor was this just "one article"; it was constantly, "week, after week, after week." This criticism also extended to a personal friend of Voorhaar named Richard Fritz, a candidate for St. Mary's County State's Attorney in the November 1998 elections who enjoyed broad support in the Sheriff's Office.

Several deputies in the Sheriff's Office anticipated that the election day issue of St. Mary's Today would be critical of them and their favored candidates, particularly Voorhaar and Fritz. Over the course of a series of meetings and conversations, both

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on the job at the Sheriff's Office and in the evening at private homes, some of the deputies formulated a plan to deal with this problem. They decided to form two teams on election day, each comprising three sheriff's deputies, and buy out the stock of St. Mary's Today at vending locations throughout the county. They viewed the seizure as a "good opportunity" for two things: "to piss [Rossignol] off" and to "protest [their] disagreement" with Rossignol's "irresponsible journalism." They planned to stage a "bonfire party" when the seizure was completed.

The election day issue of St. Mary's Today bore the front-page headline "Fritz Guilty of Rape." It accurately reported that in 1965, Fritz and three other men had pled guilty to carnal knowledge of a fifteen-year-old girl. Fritz, who was eighteen at the time of the rape, was sentenced to probation and a suspended sentence of eighteen months in state prison. The same article reported that Fritz's opponent had been convicted of marijuana possession in 1973. Another article in the issue also reported an EEOC complaint which charged that Voorhaar had assigned a deputy who complained of sexual harassment to work directly under the supervision of the harasser. Six thousand five hundred total copies of St. Mary's Today were printed: 2,600 papers delivered to stores in St. Mary's County, 1,100 placed in newspaper boxes throughout the county, 1,100 delivered by mail to subscribers, and 1,700 distributed to other counties. Each copy cost seventy-five cents.

Late on the night before the election, six sheriff's deputies set out in two cars. The officers were off duty, wearing plainclothes, and driving their personal cars. They drove throughout the county, buying newspapers from both newsboxes and local stores. To prove that they were purchasing the newspapers and not stealing them, defendants got receipts from the stores and videotaped themselves removing papers from newsboxes. Later that night, Rossignol discovered defendants' plan and drove through the county attempting to resupply the stores and newsboxes. But defendants followed him around the county, buying up the fresh inventory as soon as it was replenished.

During the course of the mass purchase, a group of defendants met with an on-duty sheriff's deputy who had contacted them on their department-issued pagers in order to conduct official business. Some defendants also stopped at a Sheriff's Office outpost to use facilities there during the course of the evening. One defendant wore his Fraternal Order of Police sweatshirt with the word "Sheriff" written on top of the county seal. Two other defendants carried their service weapons during the mass purchase; those firearms are visible on two videotapes of the incident and were noticed by at least one eyewitness.

Many local clerks were quite familiar with county law enforcement personnel because of 7-Eleven's policy of giving free coffee and soft drinks to police officers, even those out of uniform. Thus, many of the clerks who interacted with defendants during the night knew that they were sheriff's deputies. One clerk testified that he sold the full supply of the paper to defendants because they were police officers, had a "real intimidating attitude," and made it "real apparent [that] they could make my life here a living hell." A different clerk told one of her store's other customers that the St. Mary's deputies were taking all of the papers. A manager of one 7 Eleven was told by one of her night employees that "it was a police officer [who] bought them." A clerk at another store also explained to her manager the next morning that "cops came in and bought them all." And a police report on

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the incident further notes that "several of the clerks" at convenience stores and a night watchman at Walmart had "recognized some of [the men involved in the seizure] as St. Mary's County Deputies."

The mass purchase was completed at approximately 7:00 a.m., defendants having visited roughly forty stores and forty newsboxes and removed at least 1,300 copies of the paper. At least 300 more copies were seized without payment from retailers who had not yet opened, but defendants contend that any copies taken without payment were not taken by them. One witness testified that after the mass purchase he could not find "any papers anywhere in the county."

Both Voorhaar and Fritz personally supported and participated in the mass purchase. Approximately one week before the election, one deputy spoke with Voorhaar and secured his approval for the plan. Voorhaar approved the plan, personally contributed $500 to defray purchasing costs, and wished his deputies "good luck" on the endeavor. He also personally purchased multiple copies of the newspaper early in the morning on election day. And during the days following the election, he made extensive comments in local media defending and celebrating the seizure. Likewise, Fritz explicitly approved the plan and was directly involved in planning its implementation and mapping out with the other defendants exactly how they should proceed on the night before election day. Fritz's co-defendants testified that...