Beruflich Dokumente
Kultur Dokumente
132
Alexandria Division
BRIAN C. DAVISON, )
)
Plaintiff, )
)
v. ) 1:16cv932 (JCC/IDD)
)
LOUDOUN COUNTY BOARD OF )
SUPERVISORS, et al., )
)
Defendants. )
M E M O R A N D U M O F D E C I S I O N
Constitutions. A bench trial was held on May 16, 2017, and the
for the reasons set forth below, concludes that: (1) Defendant
Dockets.Justia.com
acted under color of state law in maintaining her Chair Phyllis
Tr. 16.
2
November of 2015 and took office January 1, 2016. Tr. 68.
Tr. 185.
82, 84.
3
through which they may interact with the interested public.
the day before she was sworn into office. Tr. 133, 176.
page and edit its contents. See Tr. 85, 109; Pl. Exh. 93.
4
14. Neither Defendant nor Ms. Arnett use County-issued
5
18. In one such post, Defendant designates her Chair Phyllis
6
memorializes the Boards decision to approve funding for
the Board has adopted a budget for fiscal year 2017. Pl.
7
legislative program, stating that she would report on her
122.
8
24. Occasionally, the posts are submitted [o]n behalf of the
9
Phyllis J. Randall Facebook page, and selecting it while
95-96, 217-18.
10
hosted by the Loudoun Education Alliance of Parents (LEAP),
Tr. 21.
11
@ChairRandall set up question? You might want to
Tr. 214.
12
probably not something [she] want[ed] to leave on her
County government.
Exh. 34.
41. Plaintiff is the only person Defendant has ever banned from
13
43. During the period he was banned from Defendants Chair
1
The statutory color-of-law prerequisite [of 1983]
is synonymous with the more familiar state-action requirement
and the analysis for each is identical. Philips v. Pitt Cnty.
Meml Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
14
Chair Phyllis J. Randall Facebook page generally, and in
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (noting that the
Assn, 531 U.S. 288, 295 (2001)), and the Fourth Circuit has
2006) (quoting Hicks v. S. Md. Health Sys. Agency, 737 F.2d 399,
402 n.3 (4th Cir. 1984). Rather, Courts look to the totality
15
in question will not revert to the County when Defendant leaves
takes place outside of both her office and normal working hours.
But while these are considerations for the Court to weigh, they
because the officers were off the clock and not acting pursuant
16
impetus for their actions, and thus those actions arose out of
free time did not insulate them from constitutional claims. See
also Givens v. OQuinn, 121 F. Appx 984, 985 (4th Cir. 2005)
Causey, 185 F.3d 407, 415 (5th Cir. 1999) (concluding that an
her Chief of Staff the day before she took office, and did so
17
for the purpose of addressing her new constituents. See Tr.
Chair Phyllis J. Randall Facebook page was born out of, and is
efforts after a storm, see Pl. Exh. 196, and Defendants efforts
events related to her work as Chair. See, e.g., Pl. Exhs. 162,
184, 186, 196. And, most frequently, Defendant has used the
18
and of important events in local government. See, e.g., Pl.
Exhs. 109, 122, 136, 150, 154, 156, 172, 180-82, 195.
Tr. 85, 109, 110-11, 133, 176, 180, 191; Pl. Exh. 93. Defendant
out that she and Ms. Arnett share a personal friendship separate
friendship, however, does not change the fact that Ms. Arnett is
Facebook page. See Tr. 115-17, 128; Pl. Exhs. 17-31. These
19
through a mailing list provided to Defendant by the County. See
2
The Court notes that, at trial, Defendant expressed
surprise that the Facebook icon at the bottom of her offices
newsletter links to her Chair Phyllis J. Randall Facebook
page. Given that Defendant has personally approved a large
number of such newsletters, it is unclear how she could be
unaware of this fact. Whether or not Defendant directed her
staff to include the link, however, it was undoubtedly included
because Defendant has consistently treated the Chair Phyllis J.
Randall Facebook page as a website associated with her public
office, to the extent that those working for her understand that
to be the case. It is therefore still ultimately Defendant who
has caused the County to expend resources to promote her
Facebook page.
20
Defendants office. See, e.g., Tr. 129-31; Pl. Exhs. 101-07,
110, 112, 116-19, 122, 124, 128, 132, 135, 138, 201, 231. Given
state. Hughes v. Halifax Cnty. Sch. Bd., 855 F.2d 183, 18687
3
While Defendant testified at trial that she frequently
posts on personal topics unrelated to her work as Chair of the
Loudoun County Board of Supervisors, the extensive record before
the Court includes roughly 100 exhibits depicting Defendants
posts to the Chair Phyllis J. Randall Facebook page, nearly
all of which relate directly or indirectly to Defendants public
office. There is comparably little evidence of posts of a more
personal nature.
21
to suppress criticism of county officials related to the
22
436 U.S. 658, 691 n.55 (1978). Moreover, a governmental entity
23
held liable. This doctrine, however, applies only where a
action and her rationale for that action. See City of St. Louis
Cnty. Sch. Bd., 354 F. Supp. 2d 616, 627 (E.D. Va. 2004) (There
24
Plaintiff from that page violated Plaintiffs rights under the
Liberties Union v. Mote, 423 F.3d 438, 442 (4th Cir. 2005).
from both the context in which Plaintiff made the comment and
Facebook page. See Mote, 423 F.3d at 443. The Fourth Circuit
has suggested that the government may open a forum for speech by
25
Lexington Cnty. Sch. Dist. One, 531 F.3d 275, 284 (4th Cir.
such a website.
her constituents:
26
Pl. Exhs. 201, 231.4 This sort of governmental designation of a
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985).
public forum. Mote, 423 F.3d at 443. The Court, however, need
Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006).
4
The Court notes that Defendant posted this comment
several months after the incident giving rise to this suit. The
phrase I really try to keep back and forth conversations . . .
on my county Facebook page, however, clearly describes a past
and present practice rather than a change of policy.
27
only person Defendant has ever banned from her Chair Phyllis J.
28
allegations were being made against
individuals who are identified?
29
government had acted unethically, Defendant committed a cardinal
5
At various times throughout this litigation, Defendant
has attempted to excuse her decision to ban Plaintiff from her
Chair Phyllis J. Randall Facebook page by claiming that his
comment was off topic. This appears to be a reference to the
Loudoun County Social Media Comments Policy, which permits the
removal of comments deemed to be off topic. Defendant,
however, has successfully argued that her Facebook page is not
governed by the Countys policy. See Mem. Op. [Dkt. 116]. It
is therefore unclear why Defendant believes she may shelter her
actions under that policy, particularly given her own contrary
statement on her Facebook page that she really want[s] to hear
from ANY Loudoun citizen on ANY issue[ ] . . . on [her] county
Facebook page (Chair Phyllis J. Randall). Pl. Exhs. 201, 231.
The Court notes as well that Defendant has deemed many of
Plaintiffs comments on her Facebook page to be off topic, but
only banned him when he criticized her colleagues in the County
government. See Tr. 164. Regardless, Plaintiffs comment
apparently concerned a question Defendant had fielded at the
town hall earlier that night, and the post on which he left it
likewise concerned that town hall.
30
modern forum for the exchange of views. Id. at 1735. The
Roberts, 730 F.3d 368, 386 n.14 (4th Cir. 2013), as amended
31
Amendment pitfalls of this protean and revolution[ary],
32
While Plaintiff is correct that [w]hen a State would
471, 481 (1972). The fact that the Supreme Court has held that
Anne, 393 U.S. 175, 181 (1968), does not mean that such a
33
Supreme Court has distinguished between (a) claims based on
Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880
6
Some courts have held that the actions of high ranking
government officials are never unauthorized for purposes of
due process. See DiBlasio v. Novello, 344 F.3d 292, 302-03 (2d
Cir. 2003). The Fourth Circuit reached the opposite conclusion
in Fields v. Durham, 856 F.2d 655, 658 (4th Cir. 1988), cert.
granted, judgment vacated, 494 U.S. 1013 (1990). See id. (We
agree with the Fifth Circuit that . . . isolated instances of
misconduct become no less random or unauthorized simply because
they were taken by high ranking officials.). The Supreme
Court, however, vacated the Fourth Circuits judgment, and the
Fourth Circuit reconsidered its earlier holding on remand. See
Plumer v. State of Md., 915 F.2d 927, 930 n.3 (4th Cir. 1990)
(discussing the difference between the Fourth Circuits holdings
in Fields I and Fields II). The Fourth Circuit has subsequently
taken a narrow view of what constitutes an unauthorized action
for purposes of due process, Bogart v. Chapell, 396 F.3d 548,
565 (4th Cir. 2005) (Williams, J., dissenting) (discussing the
development of the Fourth Circuits jurisprudence), but it does
not appear to have gone so far as to hold that the actions of a
high ranking official may never be unauthorized.
34
available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). No
Chapell, 396 F.3d 548, 563 (4th Cir. 2005). Moreover, its not
35
and employees treat all social media accounts they maintain as
400, 411 (4th Cir. 2016) (discussing the First Amendment right
Assuming this case does not fit the Hudson mold, the
36
meaningfully curtailed his speech. Rather, Plaintiff testified
2017 WL 1164480, at *7 (E.D. Va. Mar. 28, 2017). And while that
7
The Court is somewhat puzzled by this suggestion,
given that Plaintiff does not here challenge the removal of a
comment from Defendants Facebook page, but rather Defendants
decision to ban him from that page.
37
officials decision to ban an individual from their Facebook
deprivation.
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 281 (3d Cir. 2004)
Ohio St. L.J. 405, 446 n.208 (2014) (Trolls have become
38
this context may be impracticable, and could spell the end of
2016), Fields v. Durham, 909 F.2d 94, 99 (4th Cir. 1990), and
process.
See Tri Cnty. Paving, Inc. v. Ashe Cty., 281 F.3d 430, 441 (4th
39
Cir. 2002). While the Court has, in light of Plaintiffs pro se
and his due process claims fail. See Leavell v. Illinois Dept
that, had the ban continued for more than a few hours, he would
40
have been deprived of due process, not that he actually suffered
henceforth follow the law. See Tr. 239. But as the Court has
41
formulation for such an injunction. Moreover, given the
Plaintiff.
that federal courts may declare the rights and other legal
United Capitol Ins. Co. v. Kapiloff, 155 F.3d 488, 494 (4th Cir.
42
proceeding. Centennial Life Ins. Co. v. Poston, 88 F.3d 255,
256 (4th Cir. 1996) (quoting Aetna Cas. & Sur. Co. v. Quarles,
(citing Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386
find and declare that (1) Defendant acts under color of state
43
adopt new policies for the Chair Phyllis J. Randall Facebook
III. Conclusion
/s/
July 25, 2017 James C. Cacheris
Alexandria, Virginia UNITED STATES DISTRICT COURT JUDGE
44