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Maryland: Off-Duty Deputies Liable for Mass Purchase of Newspaper Critical of Sheriff on Eve of Election

In 2004, on remand from the Fourth Circuit, the U.S. District Court for the District of Maryland held that neither qualified nor statutory immunity shielded off-duty deputies from liability for damages for making a mass purchase of a newspaper on the eve of an election that was critical of the incumbent sheriff, their boss (who was running for reelection).

In 1999, publisher Kenneth Rossignol filed suit, pursuant to 42 U.S.C. § 1983, against the Sheriff of St. Mary's County, Richard Voorhaar, several off-duty deputies, and Richard Fritz, a candidate for St. Mary's County State's Attorney in the 1998 elections, alleging that the defendants violated his First Amendment rights, as well as his rights under the Maryland Declaration of Rights and Maryland common law, by their organized efforts to suppress the distribution of the election-day issue of his newspaper, St. Mary's Today.

In 2002, the district court granted summary judgment to the defendants, finding that they had not acted under color of state law and hence could not be sued under §1983. Rossignol appealed to the Fourth Circuit, which, in a published decision, see: Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003), reversed the district court's decision and found that the defendants had violated Rossignol's constitutional rights, but remanded the case for consideration of whether the defendants enjoyed immunity from liability.

As an initial matter, the district court concluded that, while the defendants had acted under color of state law (as the Fourth Circuit had found), they were nonetheless not acting within the scope of their employment as law enforcement officers and hence not entitled to qualified immunity.

The deputies, for their part, noting that their newspaper purchases occurred while they were off-duty, had openly asserted that they were acting outside the scope of their employment. Apparently, they believed that this (undisputed) fact would bolster their claim that they were not acting under color of state law- and indeed, the district court had initially found that argument persuasive. In light of the Fourth Circuit's contrary conclusion, however, that same fact proved to be the undoing of the deputies' quest for qualified immunity. For, as the district court reasoned, “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."

For similar reasons, the district court then found that the defendants also could not shield themselves from liability for damages by raising the state-law defense of statutory immunity.

After disposing of the legal issues, the district court left the issue of the amount of damages for trial. See: Rossignol v. Voorhaar, 321 F.Supp.2d 642 (D.Md. 2004).

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Rossignol v. Voorhaar

Rossignol v. Voorhaar