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Federal judge sides with Loudoun commonwealth’s attorney in First Amendment suit

Lansdowne resident Brian Davison at a Loudoun County School Board meeting. Times-Mirror File Photo
Loudoun County Commonwealth’s Attorney Jim Plowman (R) did not violate the First Amendment by deleting the Facebook comment of Lansdowne resident Brian Davison, U.S. District Judge James C. Cacheris ruled in late March.

Cacheris's decision brings to a close a contentious civil rights suit against Plowman, who deleted Davison's critical comment and later blocked the local resident from his official Facebook page.

Over the course of the last year, as the lawsuit unfolded, Plowman eventually restored Davison’s ability to comment. Plowman and county officials have updated a Loudoun County social media policy that used to say public officials have the right to delete comments they deemed “clearly off topic.” The revised county policy states public officials are no longer allowed to delete “off-topic” comments.

Davison still has two civil rights lawsuits pending in federal court, one against the Loudoun Board of Supervisors and Chairwoman Phyllis Randall (D-At Large) and another against the Loudoun County School Board. Both lawsuits are for either blocking him from their Facebook pages or deleting critical comments he posted.

Despite his loss in the Plowman case, the Lansdowne resident thinks he'll eventually prevail in his objectives. He hopes the suit will encourage more people to speak out if they believe their right to free speech on a politician's official social media page is denied.

Davison also believes that, had he not taken Loudoun’s top prosecutor to court, Plowman would have never restored his right to post on his official Facebook page.

“But for filing a case against Plowman, Plowman not only would have not restored my comment, he would not have unblocked me and he would not have even talked to me about why he did it,” Davison said. “Once I filed the suit, he unblocked me, he restored the comment and they changed the Loudoun social media policy.”

Plowman, however, says Davison's position is merely a theory.

“He has all sorts of theories, many of which don’t carry much water, as the judge pointed out,” Plowman said.

The commonwealth's attorney also noted that Davison's suit cost the taxpayers thousands of dollars.

“It’s unfortunate because as fiscally conscious as [Davison] seems to be with government spending, he wasted tens of thousands of dollars of taxpayer money, which is a bit of an irony in this whole thing,” Plowman added.

The Lansdowne resident said he's confident in his two other suits.

Because the court ruled that Loudoun County’s original and amended version of its social media comments policy created a “limited public forum,” court documents note that the government “may police the boundaries of a limited public forum it has created.”

According to the court, it therefore needed to determine whether Davison's comment was off-topic and fell outside the bounds of the forum Plowman had created with his Facebook page, and if so, whether the “clearly off-topic” restriction was “viewpoint neutral and reasonable in light of the purpose of the forum.”

The court found Davison's comment on Plowman’s post did not engage with the original post and attempted to “hijack the discussion.” Therefore, Davison’s comment fell outside the bounds of the limited public forum established by the county’s social media comments policy.

The court said Davison's comment did not comport with the purpose of the forum and that the restriction justifying its removal was both “viewpoint neutral and reasonably related to the purpose of the forum.”

Judge Cacheris also said Plowman was entitled to “qualified immunity” in his individual capacity as the commonwealth’s attorney with respect to his decision to block Davison from further posting on his Facebook page.

Qualified immunity shields government officials from individual liability for civil damages when their actions do not violate clearly established law.

Cacheris also noted that Plowman was entitled to Eleventh Amendment immunity against Davison's claim for damages against him in his official capacity.

When asked how many people the commonwealth’s attorney’s office believes it has either blocked or deleted the comments of, Commonwealth's Attorney spokeswoman Heather Williamson said they have only blocked two people, including Davison, and deleted just Davison's comment.

A May 16 trial date has been set for Davison’s suit against the Board of Supervisors and Randall.

Comments


To imagine that Callme is supposedly teaching critical thinking skills to our students.  Lord, help our kids.  Let’s recap.

1. In his Jan-2016 summary judgment memo not reported on in this story, the federal judge determined the LCAO Facebook page to be a “limited public forum” guaranteeing participants certain constitutional rights such as freedom from viewpoint discrimination.  This was the first time a court had made such a ruling.

2. Prior to the filing of the lawsuit in Feb 2016, Plowman refused to restore my comment or unblock me from commenting on the LCAO page even though he had spoken with my attorney.  For over six weeks after the filing of the lawsuit, Plowman refused to unblock me either.  In May 2016, Plowman reversed course and did both.

3. The judge stated that Plowman’s June 2016 claims that he would not block future comments was a “bald allegation” that the court could not rely upon.  After 8 months of undisturbed comments; however, the judge ruled in March 2017 that Plowman’s behavior indicated he would not block me on the LCAO Facebook page.  Therefore it made no sense to issue an order to “follow the law”.  The issue had resolved itself.

4. In the first case of its kind, the Honolulu Police Dept deleted comments on its Facebook page.  A defense fund filed suit on behalf of the author of the deleted comments.  The parties agreed to change the social media policy of the Honolulu Police and restore the comments.  The case didn’t go to trial but was dismissed as N/A.  The court awarded $30K+ in attorney’s fees to the defense fund because the “status of the parties” had changed as a result of the litigation even though official ruling resulted.  The same occurred here.  Plowman reversed course because of the litigation and changed the policy.  We could have sought attorney’s fees; however, I would not have recouped my $3K contingency deposit since the latter fees likely would not have been awarded.  I left it to my attorney whether he wanted to seek some fees.  Make no mistake, the status changed as a result of this suit and we could have recovered some fees.

5. Did I get everything I wanted?  No.  Plowman clearly deleted the comment because of viewpoint.  We didn’t prove that so the judge ruled otherwise.  Public bodies also don’t have the right to indefinitely block someone even if they post “off-topic comments”.  However, given the way the court ruling read - the law wasn’t settled - I chose not to appeal as it would likely be futile.  Had the court ruled the deletion was based on viewpoint, Plowman would likely be found personally liable even though he is a state constitutional officer immune in his official capacity regardless of what he does.

For an LCPS teacher to claim that this case was a total loss shows Callme is simply incapable of “close reading”, a skill that Common Core focuses on in depth.


Loco Wonders-perhaps you don’t understand the court system?  How can anyone conclude anything except that SGP lost?  The judge ruled against him. That is the definition of loosing!  Only SGP could conclude otherwise


Thanks LoCo Wonders!


Virginia SGP

I admire your detailed analysis and thoughtful comments on the shenanigans we see in LoCo politics.  I do not think themost of the commenters here understand how the legal system works. You clealry won and helped preserve some bit of transparency for Loudoun taxpayers.  Keep up the good work. 

My four favorite areas:  1) LCPS and their spending 2) rezoning commerical land to residential to benefit a few developers and 3)  the Riverside High School land purchase. 4) Loudoun County budget

Nice work, neighbor!


Brian, I admire your stamina. I’m not sure you will ever get anything out of this but wow, you just will not quit. I don’t know how you have the time for all of the lawsuits, court appearances, commenting on every article, etc. Whew, I’m exhausted just trying to comprehend.


EasternLoudouner, thank you.

Note that while I likely won’t file new cases against Loudoun officials, most learned their lessons and changed behavior), I have promised to dedicate at least half of any award I receive from LCSB to fund cases on behalf of others. I realize Loudoun officials violate the law against many of their citizens but most don’t have the means or familiarity with the law to defend themselves. While the bar ensures I can’t represent them myself (they colluded to restrict who can represent parties), I do know a good lawyer or two. Especially if I do much of the legwork, such cases could be taken on contingency so the party doesn’t have to pay. Let’s just say this possibility could cause many officials to shape up in and of itself.

Rdj, I pity you and thus will not respond.

I do not, however, pity Jim Plowman. Together with Judge Irby, they represent the most serious danger to Loudouners particularly poor youth who can’t properly use the legal system and get railroaded by these two. Plowman does not need to be in office. From trying to foolishly prosecute asst principals for dealing with sexting cases wisely to failing to prosecute serious drug dealers because he was friends with the defense attorney (and as I recall contributed to Plowman’s campaign), Jim is as corrupt as they come. The legal case may be over but the educational campaign to inform Loudouners of your hijinks is about to begin. Let’s see if folks want such a corrupt man representing them once they know the whole story.


Let’s see here…big government courts sides with big government in a case….no surprise here, the government class will do anything to keep their cushy gigs as overpaid bureaucrats…the ruling class do not want the people to have the facts or truth…just want them to stay dumb and pay their taxes…


Thanks for your hard work, VA SGP. You have made a big difference in how the little person is treated.  And by the way, I always appreciate reading your comments on any article.


Touche, TheMovingFinger.  Although I have tilled and hoed my family garden growing up in SC.

Notice that all the folks trying to claim this as a victory for Plowman are the same ones defending LCPS through all its scandals and the same ones so upset that the BOS and community were able to rein in (albeit not enough) the LCPS budget?  It’s quite clear that the deletion of my comment on the LCAO Facebook page and the sides being taken here are based on political ideology not principles.  There are a few like Lawman who recognize the importance of free speech for all, but not many.

Two points:

1. Public bodies have insurance companies to represent them in legal disputes.  Their in-house attorneys never show up in court, write pleadings, or make oral arguments (go figure).  These insurance attorneys get bulk rate deals that are rather economical $150-200/hr.  Plowman used a loophole to upgrade himself a high-priced attorney (paid for via your state tax $$) who has argued before the US Supreme Court.  That attorney told Plowman to immediately restore the comments, unblock me, and get the social media policy changed so he could make some credible argument in court.  Had Plowman taken these actions when I emailed him in Dec-2015 or Jan-2016, none of this would have ever been in court.  If Plowman had taken these same actions when my attorney called him in Jan-2016, none of this would have ever been in court.  Your “fiscally conservative” Commonwealth’s Attorney required being named as a defendant in a federal civil rights lawsuit to actually follow the law.  And he wasted even more $$ on an expensive attorney who finally convinced him to follow the law.

2. The “tough guy” prosecutor that is Jim Plowman is now so emasculated in administrating his LCAO Facebook page that he doesn’t even have the authority to remove comments.  He must ask permission from Loudoun County officials, county officials not state or constitutional officers mind you, to get comments removed from his LCAO page.  How telling is it that the “top prosecutor” in Loudoun is now so impotent that he has almost no authority over his own communications channels?

I have learned a lot from these cases.  I am very underwhelmed with most of the attorneys I have met.  The two federal judges and the defense attorney in this case, James Hundley, were very impressive.  In fact, I lifted most of the templates used by Hundley for my own use (apparently that’s the norm in legal circles). 

We didn’t prove our case.  I allowed the discretion of a lawyer to override what I knew we needed to present in court.  I am ultimately responsible for that mistake and it’s why the findings of “fact” do not match what really happened in life.  It’s also why this opinion is almost impossible to appeal (the way it is written, any appellate victory becomes moot on other issues).  I was given a fair shake and that’s all one can ask for.  These cases build on each other.  It’s likely the other two federal cases will be appealed regardless of who wins.

As for new hobbies, I do have one.  But not before Mark Herring gets his turn to explain why corrupt public officials refuse to prosecute their buddies in office for crimes.  It’s not my problem that the state laws have such large holes in them.  It’s quaint that the Office of the Attorney General suggested I seek “legal advice” before filing in court.  We shall see if that lawyer has the same opinion once that case has concluded.  Luckily for me, I don’t have to file it in Judge Jeanette “Jury Queen” Irby’s court in Loudoun but rather down in Richmond.


Allow me to point out that you were not forced to comment on this article, SGP.  You could have simply passed. You bring it on yourself


“So tell me again who won and lost in this episode?”

According to the article, you did.


brian davison

By focusing on Plowman alone, Davison (“Virginia SGP”) is deflecting from the most important elements of this story:

1. The courts recognized his comments leading to his being banned did not comport with the purpose of the forum in question, co-opting it for his own purpose.

2.  He was pretty much the only person who was banned from that forum which makes his claims of widespread government censorship and corruption laughable.

3. He wasted tens of thousands of dollars of taxpayer money in direct conflict with his claims that he seeks to avoid that kind of waste.

But this isn’t the first time he’s done this. In fact, the first time he was banned – from the page of the first of several school board members – was for comparable reasons: not only hijacking every attempt at conversation between the board member and other members of the public but attacking those participants so wantonly that, ironically, he shut down those conversations. Who WOULD participate knowing they would be belittled and demeaned with every statement they attempted?

That led to a series of court cases Davison filed in district and circuit courts then later in the Virginia Supreme Court: Here’s a partial list of the docket numbers: GV15008313-00, CL00093308-00, CL00094635-00, CL00094775-00, CL00094902-00, CL00097072-00, CL00098468-00, all of which he lost; and appeals SCV #160306 and SCV #160189, which were refused.

Another article (in this paper, I believe) regarding his earlier actions states that all he was doing was questioning “one FOIA request”. Prior to the lower court cases, over a period spanning several months, however, Brian Davison filed no fewer than SIXTY FOIA requests with LCPS. So many arrived in rapid succession that the Public Information Officer had to establish a special numbering system just to keep track of them, and he spent almost full-time over a period of several months just entertaining them.

Some of that was because Davison didn’t understand how FOIA works: he was demanding that LCPS put together information and reports that did not exist as documents subject to the FOIA process. That became clear in court. I know that, because I attended many hours of the early hearings.

Davison did not need to hire a lawyer in these cases. He discovered that he could “represent himself” pro se, a legally guaranteed avenue that was originally intended to allow incarcerated, impoverished prisoners to represent themselves for their own court appeals. I watched as the presiding judge provided Davison every accommodation for his unfamiliarity with ordinary court processes. (He later castigated that judge as “corrupt” as well, to o one’s surprise.)

The school system has no such luxury, nor do any of the others against whom Davison has launched his self-serving legal attacks. It boggles the mind wondering how much his actions alone might have raised the “cost per pupil” if we could add up LCPS legal fees, time spent by their staff (several of whom he dragged into court to testify) catering to his demands, and the time spent by elected officials having to deal with his frivolous court filings.

No one can silence Davison, and no one should. All he’s doing is taking advantage of social and legal constructs designed to enhance and preserve our freedoms. That he is doing it for the satisfaction of his own derangement regardless of the harm it does to others is, unfortunately, irrelevant. It’s a price we are all forced to pay.

What we can do, what we must do when faced with such irresponsibility, is to ignore him other than to ensure he doesn’t go beyond the law. He thrives on attention. Starve him of that, and he may not go away, but he would have less fuel for the fires he lights.


Allow to point out that you were not forced to comment on this article, SGP.  You could have simply passed. You bring it on yourself


I would be happy to tell you, SGP.  You lost and we all won


So, the “top prosecutor” takes action against a citizen in Loudoun. The citizen asks the prosecutor to reverse course. The prosecutor ignores him. The citizen files suit in federal court. Suddenly, the prosecutor completely reverses course. He even asks Loudoun County, who he is not affiliated with since he is a constitutional officer, to change their social media policy. The policy is changed. The prosecutor and his lawyer beg the court to dismiss the case because he learned his lesson and changed behavior. He even offers to pay the citizen’s attorney’s fees.

So tell me again who won and lost in this episode?


SGP, I think this was nature’s way to telling you to give it a rest. Go find a new hobby.


As much as I hate to agree with him, SGP has a point on the 11th Amendment.  Qualified Immunity maybe, but, First Amendment right to associate with who he wishes, Ok, but 11th Amendment Immunity is a dangerous road to go down.


Virginia SGP, I won’t delete your comment but I will correct your syntax.  It’s ROW to HOE…not road to hoe (unless you have some really powerful cotton seeds).

Are you a yankee?


My biggest takeaway from this all as SGP continues his tirade against any and all government entities he deems to be against his views…...“It’s unfortunate because as fiscally conscious as [Davison] seems to be with government spending, he wasted tens of thousands of dollars of taxpayer money, which is a bit of an irony in this whole thing,” Plowman added.

I wonder how much public funding is being spent to defend all the suits against just this one citizen?

Oh, btw, that’s one looooonnnnggg excuse for what can be called a simple LOSS.


Not going to work, SGP.  You are not going to win the case by arguing that you are superior and above the law here in the online comments of a local paper.  Why not accept your defeat and the disdain you brought to yourself


Still laughing so hard I can hardly stand it.


nrcbtm1, the 11th Amendment provides immunity to States from suits.  In fact, you can’t bring a tort claim against your own state unless the state gov’t allows you too.  Why do you think so few lawsuits, if any, have been brought in the Flint, Michigan water case?  And the family who sued LCPS over their suicide policy has a tough road to hoe as well given governments are generally immune from such tort cases.

In the current suit, Plowman is a member of the state gov’t as a constitutional officer.  Local gov’ts are not.  Thus, you can sue the county or school district if they violate federal law or Constitution. 

Note that if Plowman had kept the block in place against me on Facebook, the judge would have considered that issue as well.  He could have told Plowman to restore my right to post.  However, since Plowman backed down, restored my ability to post, and promised to not block me in the future, the judge ruled he cannot order an official to “follow the law”.  Officials are expected to follow the law so such rulings are not applicable.

In fact, Plowman had argued back in May 2016 that the court could dismiss the case because he had reversed his block and deletion.  Effectively, the only issue at hand was damages and a future injunction.  Immunity prevented damages and the injunction was ruled N/A since Plowman reversed course.


Plowman has a lot of talk with no basis in reality in this article.  On my Virginia SGP page, I have posted his attorney’s December 2016 offer to settle in which Plowman would pay all of my attorney’s costs.  The only dispute was whether Plowman would have to sign a consent agreement in which he admits to violating rights.  Note that Plowman had to agree to such an offer before his attorney could offer it.  So apparently my “theory” that Plowman was at fault and that it was Plowman who wasted $10K’s of taxpayer $$ was supported by both Plowman and his attorney.

The article is accurate but a few clarifications that were not addressed:

1. The court ruled the comments were deleted because they were “off topic”.  I have $5000 I will give to Plowman or a charity if he passes a polygraph denying that my comments were deleted because they were critical of him and his office.  We didn’t provide the basic evidence and testimony in the trial to more clearly demonstrate Plowman deleted my comments.  Everyone in Loudoun knows that Plowman’s post regarding special prosecutors was to deflect his political efforts targeting Sheriff Chapman and Chairman York prior to the 2015 election.  Plowman has yet to post another such “educational” legal article on his Facebook page.  My comment clearly referenced the Chapman special prosecutor so how could it be off-topic?  We didn’t do our job in providing evidence but that won’t happen again.

2. The court never ruled on whether Plowman could block me.  They gave him immunity which is a convenient out.  In my other cases, I have included specific due process claims so the neither Chair Randall nor LCSB will get off.


While technically the court ruled for Plowman on immunity grounds, here is the end result:

1. Plowman restored my comment (as in “A Few Good Men”, why did you have to transfer Santiago off the base if you specifically ordered your men not conduct a Code Red?  -> if the comment was off-topic, why exactly was it restored?  It was obviously on topic).


2. Plowman unblocked me.  Both the restoration of the comment and the unblocking occurred in May 2016.

3. Loudoun County Gov’t changed its social media policy and implies notice will be provided to the Facebook user any time comments are deleted.

4. Plowman has yet to delete any other comment that I have created on his Facebook page.

I dare Plowman to start deleting comments.  He won’t do it.  He got lucky in this decision.  Some other official, likely Randall, will be the poster child for the first official to violate free speech on Facebook.  Gov’t officials will start complying with the Constitution or they will be repeatedly taken to court.


How did the eleventh Amendment, which specifically deals with suits by people from other states or other countries, come to provide protection of officials from a suit by a citizen of his own state? 


“Cacheris also noted that Plowman was entitled to Eleventh Amendment immunity against Davison’s claim for damages against him in his official capacity.”  Was the wrong Amendment cited?  Here is Amendment XI:
“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”


Laughing so hard I can hardly stand it.


Maybe now he will stop trying to hijack every public forum for his own arguments and the community can discuss issues at hand in peace.


Oh well, back to the drawing board.  I wish he could have wasted that time trying to get the racial background of all the people prosecuted by Plowman the last three to four years or the over use of such nebulous charges such as “Hindering” against minority offenders when they ask a question or refuse to give one.


Wow!!!  What a devastating defeat for Davison. Totally got owned by the courts.  Makes one proud to be an American when the rule of law outweighs the rankings of a single person.  Got the love the idea that the county decided that this guy tried to hijack the conversation-something he does on so many articles.

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