Professional Documents
Culture Documents
No. 12-2547
AARON ROSS,
Plaintiff Appellant,
v.
WAYNE A. EARLY; MAYOR AND CITY
BALTIMORE CITY POLICE DEPARTMENT,
COUNCIL
OF
BALTIMORE;
Defendants Appellees,
and
RONALD FARLEY; GEORGE NILSON, In His Individual Capacity and
Official Capacities as City Solicitor for the Mayor and City
Council of Baltimore; ELENA DIPIETRO, In Her Individual and
Official Capacities as Chief Solicitor for the Mayor and
City Council of Baltimore; LINDA BARCLAY, In Her Individual
Capacity as former Chief Solicitor for the Mayor and City
and City Council of Baltimore; FREDERICK H. BEALEFELD, III,
In His Individual Capacity and His Official Capacity as
Commissioner of the Baltimore City Police Department,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:09-cv-03255-JFM)
Argued:
Decided:
March 5, 2014
Arena
(the
Arena)
in
Baltimore,
Maryland.
The
of
the
Mayor
and
(collectively,
the
City)
City
and
the
Council
of
Baltimore
Baltimore
City
Police
Department (BCPD).
unconstitutional
an
as
invalid
time,
place,
and
manner
his
state
and
federal
rights.
The
district
court
We
restriction,
and
we
find
no
reversible
error
as
to
Accordingly, we affirm.
I.
A.
discharge
passengers
adjacent
to
the
in
Arena,
the
area,
i.e.,
West
the
sidewalks
Baltimore
and
streets
Street,
Hopkins
This is
50
MTA
buses
make
stops
City
leases
on
the
surrounding
streets.
Once
year,
the
the
Arena
to
Feld
Bailey
Circus
(the
Circus).
These
performances,
Between
seven
weekday
and
ten
thousand
patrons
attend
the
7:30
p.m.
run,
these
protest
activities,
annual
demonstrators
including
engage
sign-holding,
During the
in
chanting,
various
and
Prior to
2004,
the
City
had
no
official
policy
restricting
the
Barclay
(Barclay),
then
Chief
of
the
Legal
Counsel
of
its
permit,
the
of
the
truck
seriously
the sidewalk into the street, and BCPD and MTA officers were
called to the scene to sort out the stalled traffic pattern and
disperse the crowd.
Subsequent
to
this
incident,
Officer
Early
and
at
permissible
ways
for
BCPD
to
manage
the
In response to this
to
various
City
and
BPCD
personnel,
setting
forth
certain
worked well, the Law Department has since reissued the Policy
by e-mail, with minor revisions, for each year of the Circus.
J.A. 197-199.
1.
East Side of the Arena (Hopkins Place) Any
protestors will be asked to move to the sidewalk
between the Arena and Hopkins Place.
This will help
alleviate
any
congestion
problems
at
the
main
entrance. 3
2.
North Side of the Arena ([West] Baltimore Street)
Any protestors will be directed to stay within the
brick area of the sidewalk, approximately 13 feet wide
between the curb and the middle of the sidewalk. This
provides the remainder closer to the building for foot
traffic to access Baltimore Street and main entrances.
3.
West Side of Arena (Howard Street) Any
protestors will be asked to remain on the corner of
Howard and Baltimore Streets or to move to the middle
of the block south of the Howard Street entrance.
This will allow sufficient room for attendees to
access the Arena from the Howard Street entrance.
Id.
least two verbal warnings prior to making any arrest for failure
to obey a lawful order.
Street
entrance.
On
each
occasion,
Officer
Early
he
order.
refused,
arrested
him
for
failing
to
obey
lawful
officials
for
violating
his
First
and
Fourth
Amendment rights.
B.
The
lengthy
procedural
in
the
history
district
of
courts
this
two
case
is
thoroughly
discussed
published
opinions,
(Ross I) and Ross v. Early, 899 F. Supp. 2d 415 (D. Md. 2012)
(Ross II), and we limit ourselves to summarizing the relevant
portions of the orders currently on appeal.
On December 8, 2010, the district court denied the
parties
cross-motions
for
summary
judgment
on
Appellants
319-25.
Specifically,
the
court
determined
the
level
of
material
fact,
i.e.,
whether
the
Policy
was
of
general
323.
The
ordinance-like
court
reasoned
restriction
that,
on
speech,
if
the
Policy
was
intermediate
Id.
an
scrutiny
Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989) (for
purposes of intermediate scrutiny, a time, place, and manner
restriction
on
speech
is
narrowly
tailored
so
long
as
the
serving
omitted)).
the
If,
governments
however,
significant
the
Policy
interests
was
an
(citation
injunction-like
Madsen v. Womens Health Ctr., Inc., 512 U.S. 753, 765 (1994)
(for purposes of heightened scrutiny, a time, place, and manner
restriction
in
the
form
of
an
injunction
is
only
narrowly
323.
Thereafter, on September 25, 2012, the court granted
Officer Earlys motion for summary judgment as to the claims
against him in his individual capacity.
Supp. 2d at 425-32.
immunity
because
he
had
not
violated
any
of
Id. at
Id. at 430-31.
Faced with an imminent jury trial that would determine
the
level
of
scrutiny
applicable
to
the
Policy,
the
parties
remaining
factual
consistent
with
dispute
its
thus
prior
9
J.A. 156.
resolved,
orders,
the
With the
district
determined
that
favor
of
reasonable
speech.
the
time,
City
and
place,
BCPD,
and
upholding
manner
the
restriction
Policy
on
as
protected
the
applicable
standard
of
review
and
challenges
only
the
judgment
We
review
de
novo,
district
viewing
court
the
order
evidence
in
granting
the
summary
light
most
See Bd.
protected speech.
apply
whether
fora
the
time,
place,
restrictions
violate
the
placed
First
and
on
manner
doctrine
protected
Amendment.
See
speech
Ward
v.
to
in
Rock
Here, it is
content-neutral
in
that
it
may
be
justified
for
Creative
Consequently,
the
Non-Violence,
Policy
will
be
468
U.S.
upheld
if
288,
it
Clark v.
293
is
without
(1984).
narrowly
U.S. at 293).
Before
undertaking
this
analysis,
however,
we
must
Under
Ward
and
its
progeny,
content-neutral
is
ordinarily
subject
to
intermediate
scrutiny.
See
Id. at 799
least
intrusive
means
significant interests.
of
serving
the
governments
Id. at 798-99.
injunction,
however,
the
Supreme
Court
has
determined
that the standard time, place, and manner analysis set forth
in Ward is not sufficiently rigorous.
765.
Noting
inexorably
obvious
that
analyzed
generally
under
differences
Ward,
between
applicable
the
Court
ordinances
statute[s]
identified
and
are
three
court-ordered
legislative
regarding
First, [o]rdinances
the
promotion
of
for
violations
(or
threatened
12
violations)
of
the
public
censorship
at
and
ordinances.
large,
and
thus
discriminatory
Id.
carry
greater
application
than
risks
do
of
general
activity,
and
as
such,
injunctions
can
be
Court
reasoned,
application
of
the
call
narrow
context.
Id.
requiring
that
the
burden
more
speech
no
somewhat
tailoring
test
more
stringent
the
injunction
in
government interest.
In
for
These differences,
the
challenged
than
provisions
necessary
to
of
the
injunction
serve
significant
dissents
view,
Ward
and
Madsen
present
involving
restrictions
that
words,
is
charged
with
are
neither
generally
conduct[ing]
fact-intensive
Post at 8-9.
Extrapolating from
this principle, the dissent posits that the Policy more closely
13
resembles
an
involved
injunction
no
available.
than
legislative
an
ordinance
choice
and
because
(2)
is
not
it
(1)
publicly
dissents
threshold
premise,
although
well-
See McTernan
v. City of York, 564 F.3d 636, 65455 (3d Cir. 2009) (applying
heightened scrutiny to a targeted and ad hoc police directive,
issued
by
officers
in
the
field);
see
also
Huminski
v.
Corsones, 386 F.3d 116, 155 (2d Cir. 2004) (citing Madsen with
approval
in
analyzing
the
reasonableness
of
targeted
protester,
in
nonpublic
forum).
In
contrast,
the
action,
neither
ordinance
nor
injunction,
under
intermediate scrutiny.
689
(2d
F.3d
98,
101,
106
Cir.
2012)
(policy
instituted
by
630-31 (7th Cir. 2011) (ad hoc oral police directives issued by
officers in the field); Saieg v. City of Dearborn, 641 F.3d 727,
730-31, 738-39 (6th Cir. 2011) (policy instituted by police);
Faustin v. City and Cnty. of Denver, Colo., 423 F.3d 1192, 119697, 1200-01 (10th Cir. 2005) (unwritten city policy); Menotti v.
City of Seattle, 409 F.3d 1113, 1124-25, 1131-37 (9th Cir. 2005)
(executive order issued during civil emergency); Hobbs v. County
of
Westchester,
397
F.3d
133,
148-50
(2d
Cir.
2005)
(county
they
involve
legislative
delegation[s]
of
policymaking
of
these
purported
distinctions
Post at 14-15.
is
less
than
The
clear.
even
in
Indeed,
the
to
limited
the
extent
universe
these
of
non-legislative
distinctions
are
even
the
dissents
obvious
and
actual
notice
category
in
addition to the fact that the Policy has been publicly enforced
since 2004, the videos of Appellants arrests demonstrate that
the police officers repeatedly advised the protestors (1) where
they were permitted to demonstrate; (2) that the City had a
law
proscribing
expressive
activities
to
certain
defined
areas; and (3) that they should call the Law Department if they
wanted more information.
officers
asked
pursuant
to
protestor
unwritten
city
leave
and/or
policy);
remove
Intl
her
Caucus
banner
of
Labor
any
event,
we
need
not
definitely
resolve
this
J.A. 156.
As set forth in detail by the district court, the injunctionspecific concerns warranting heightened scrutiny identified in
Madsen
are
largely
inapposite
16
in
the
context
of
generally
Consequently, even
the
dissents
concerns
the
procedures
surrounding
the
are
more
like
bygone
due
process
and
vagueness
We should
17
short,
the
parties
have
stipulated
to
set
of
tailored
to
serve
significant
governmental
begin
tailored
interest[.]
293).
by
addressing
to
serve
whether
the
significant
Policy
is
governmental
substantial
government
interest
that
would
be
achieved
less
more
speech
than
is
necessary
to
further
the
18
governments
omitted).
legitimate
interests.
Id.
at
799
(citation
Policy
would
be
promotes
achieved
less
substantial
government
effectively
absent
interest
the
that
regulation.
circus
protesters
and
circus
attendees
while
ensuring
entrances,
exits
or
handicapped
ramps;
and
(c)
do
not
J.A. 167.
301 (4th Cir. 2008) (quoting Cox v. City of Charleston, 416 F.3d
281, 284 (4th Cir. 2005)).
FCC, 512 U.S. 622, 664 (1994) (That the Governments asserted
interests are important in the abstract does not mean, however,
that
the
[challenged
interests.). 5
materially
law]
will
in
fact
advance
those
advances
an
important
or
substantial
interest
by
Satellite
Broad. & Commcns Assn v. FCC, 275 F.3d 337, 356 (4th Cir.
2001).
20
that the recited harms are real, not merely conjectural, and
that
the
material
Policy
alleviate[s]
way.
Satellite
these
Broad.,
harms
275
F.3d
in
at
direct
356
and
(quoting
Turner, 512 U.S. at 664); see also Marcavage, 689 F.3d at 105
(where
the
government
interest
involves
reducing
risk
to
entitled
to
advance
its
interests
by
arguments
based
on
undisputed
the
Arena
evidence
suffer
reveals
from
severe
that
the
sidewalks
congestion
during
Inasmuch as the
that
regulation.
would
be
achieved
less
effectively
absent
the
Next,
substantially
we
more
must
speech
ask
whether
than
is
the
Policy
necessary
to
burden[s]
further
the
To
satisfy this standard, the City need not regulate using the
least restrictive or least intrusive means available to achieve
its goals.
Id. at 798.
22
invalid
simply
because
court
concludes
that
the
Policy
restricts
Id. at 800.
the
protestors
to
three
Frisby v. Schultz,
nonetheless
contends
the
Policy
is
not
Appellants
are
relevant
consideration
in
determining
He
leaving
things
be
to
implementing
system
of
Appellants
significant
effort
suggestions
in
are
and
pro-rated
vague
implementation
of
and
would
enforcement
require
-
the
debate.
In
any
event,
even
if
such
alternatives
are
plausible, they do not alter our conclusion that the Policy does
not burden substantially more speech than necessary.
See Ward,
of
persons,
presumably
on
Cox,
in
which
leafleters,
from
its
purview.
held
the
lack
of
small
group
416
in
striking
down
the
permit
24
requirement
as
facially
at
286
(citation
omitted).
Faced
with
such
416
clearly
all
these
reasons,
we
conclude
the
Policys
Post at 17 (alteration in
this
test,
the
fatally
underinclusive
dissent
because
contends,
the
reveals
secret
nature
Id. at 19.
to
of
be
the
The
dissent
derives
its
test
for
underinclusiveness
491
U.S.
at
799800
(emphasis
supplied)
(internal
The
authority, and the dissent has cited none, that supports its
particular iteration of the narrow tailoring test.
See post at
17.
We recognize, in any event, that the limited scope of
a regulation on speech, i.e., underinclusiveness, can serve to
26
undermine[]
the
interest[.]
468
U.S.
364,
396
likelihood
(1984)
of
(second
genuine
[governmental]
alteration
in
original)
(citation omitted).
secret
nature
the
infirm.
of
policy
renders
it
constitutionally
We
whether
the
Policy
leave[s]
open
ample
alternative
27
standard,
the
available
In order to satisfy
alternatives
need
not
be
the
for
the
more
general
dissemination
of
message.
imposes
no
employed therein.
restriction
on
the
channels
of
expression
considering
whether
regulation
leaves
open
ample
upheld
to
regulations
specific
part
which
of
the
merely
limit
regulated
area
expressive
or
to
limited time frame.); cf. Hill v. Colorado, 530 U.S. 703, 729
(2000) (Signs, pictures, and voice itself can cross an 8foot
gap with ease.).
28
Although
Appellant
does
not
dispute
the
protestors
via
other
hold[ing]
form[s]
contends
the
of
Policy
sign[s],
chant[ing],
or
communication,
Appellants
fails
of
for
lack
engaging
Br.
adequate
37,
in
he
alternatives
quotation
inalienable
regulation.
right
marks
omitted),
exempted
from
and
leafleting
is
all
forms
government
of
not
an
determined
that
governments
may
enact
reasonable
29
First
Amendment.
(internal
citation
omitted)).
Appellants
on
it
is
permissible
speech.
granted
summary
time,
Accordingly,
judgment
as
place,
and
manner
district
court
Appellants
First
the
to
Appellant
argues
the
district
court
erred
in
(a)
30
A.
We first decide whether the district court properly
granted qualified immunity to Officer Early on Appellants First
and
Fourth
Amendment
claims.
The
qualified
immunity
defense
insofar
established
as
their
statutory
or
conduct
does
constitutional
368,
391
(4th
Cir.
not
2013)
violate
rights
of
clearly
which
(quoting
Edwards
v.
City
of
Consequently,
[we]
must
decide
(1)
whether
the
defendant
has
that
Officer
Early
is
for
viewpoint
The record,
could find that Officer Early arrested Appellant with a contentor viewpoint-based discriminatory purpose.
718 F.3d 1210, 1230 (10th Cir. 2013) (The Supreme Court has
made clear that, for a discrimination claim rooted in the First
Amendment,
acted
with
because
plaintiff
must
show
discriminatory
of,
not
merely
that
purpose,
in
spite
of,
government
official
i.e.,
that
he
the
actions
acted
adverse
U.S.
662,
676
(2009))).
Rather,
as
the
district
court
targeted
Circus.
See Ross II, 899 F. Supp. 2d 415, 429 n.16 (D. Md.
2012).
[Appellant]
because
he
was
protesting
the
Fourth
unlawful
Amendment
arrests,
is
claim,
premised
similarly
on
infirm.
his
The
ordered
leafleting
activity
Appellant
Appellant
repeatedly
in
to
move
conformance
refused.
the
with
location
the
Ultimately,
of
his
Policy,
and
after
issuing
the
misdemeanor
crime
of
willfully
failing
to
obey
facts,
to
concluded
effectuate
the
that
Officer
challenged
Early
arrests
had
sufficient
probable
to
Ross II,
We agree.
committed
presence[.]
even
very
minor
criminal
offence
in
his
in
believing
that
the
suspect
has
committed,
is
Pritchett v.
Alford, 973 F.2d 307, 314 (4th Cir. 1992) (quoting Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979)).
we
first
observe
to
the
contours
that
Md.
Code
Ann.,
of
the
Crim.
offense
Law
in
10
Atty Grievance
this
subsection,
the
failure
to
obey
policemans
v.
State,
835
A.2d
575,
580
n.3
(Md.
2003)
(internal
Inasmuch
had
probable
cause
to
effectuate
both
arrests.
See
34
Appellants
Fourth
Amendment
rights,
and
the
district
court
respect
to
Appellants
state
law
claims,
the
could
not
be
sustained
because
each
requires
with
the
district
courts
legal
premise,
see
We
Okwa
v.
Harper, 757 A.2d 118, 190 (Md. 2000) (For a successful cause of
action
based
on
false
arrest
or
false
imprisonment,
the
his
or
her
justification.
liberty
(citation
without
consent
omitted)),
and
and
without
its
that
the
district
court
properly
legal
finding
that
We conclude,
granted
summary
10
Appellant
asserts
a
largely
identical
claim
for
unreasonable seizure under Article 26 of Marylands Declaration
of Rights. Inasmuch as Article 26 protects the same rights as
those protected under the Fourth Amendment, see Melgar ex rel.
Melgar v. Greene, 593 F.3d 348, 360 (4th Cir. 2010), this claim,
too, fails upon a finding of probable cause.
35
V.
For
the
foregoing
reasons,
the
judgment
of
the
district court is
AFFIRMED.
36
On both
The
sole basis for Earlys order was that Ross was violating what
the majority opinion refers to as Baltimores Policy
pertaining to where circus protestors could stand.
But that Policy constituted nothing more than an e-mail
copied, pasted, and resent with minor modifications year after
yearfrom Baltimores city attorney to about a dozen members of
the police department and city staff.
staff attorneys e-mail that formed the only basis of what the
majority characterizes as Policy was neither adopted by the
Baltimore City Council nor disseminated to the public in any
systematic manner.
the only people who knew about the existence of the e-mail were
the unelected city employees who developed and sought to enforce
its restrictions.
37
decision will encourage local governments to avoid the timeconsuming and politically costly exercise of adopting speechrestrictive ordinances in favor of developing speech-restrictive
Policies at the staff level.
I.
Most of the salient facts in this case are covered in the
majority opinion and the district courts two published
opinions,
(Ross I) and Ross v. Early, 899 F. Supp. 2d 415 (D. Md. 2012)
(Ross II).
emphasis.
First, Ross was arrested in 2008 and 2009 for failing to
obey Earlys orders, which were aimed at enforcing the Citys
Protocol.
Id.
Moreover, when
J.A. 324.
Thus,
39
The police
at 421, 43233.
Ross II,
Id. at 422.
Id. at 42122
if, on the other hand, the restrictions were targeted toward the
circus protestors, then they would be more analogous to an
injunction than a statute of general application, and failing to
be sufficiently tailored under heightened scrutiny, would be
41
Id.
II.
The First Amendment prohibits the government from
abridging the freedom of speech . . . or the right of the
people peaceably to assemble[.]
Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the
freedom of speech against the states) and DeJonge v. Oregon, 299
U.S. 353, 36465 (1937) (incorporating the freedom of assembly
against the states).
public concern are classic forms of speech that lie at the heart
of the First Amendment, and speech in public areas is at its
most protected on public sidewalks, a prototypical example of a
traditional public forum.
Thus, even in a
Before
Injunctive orders, by
Id. at 765.
Thus,
44
And
Id.
Second, injunctions
Id.
[T]here is no
45
Id.
at 765.
If our analysis of the restriction reveals that it is more
like an ordinance, then we would apply the intermediate
standard.
Id.
description of the differences between Wards intermediatescrutiny standard and Madsens heightened-scrutiny standard.
B.
In Ward, a case involving sound-amplification guidelines
that applied to all users of a bandshell in Central Park, the
Court held that a regulation of the time, place, or manner of
protected speech must be narrowly tailored to serve the
governments legitimate, content-neutral interests but that it
need not be the least restrictive or least intrusive means of
doing so.
It
Id. at 799.
Id.
In other
47
Even under
48
III.
A.
Baltimores restrictions were imposed neither via an
injunction nor via an ordinance.
However, it is clear to me
that the cited cases are offered to guide our analysis, they are
easily distinguishable from the facts here because they involve
50
a legislative delegation of policymaking authority, 3 a one-of-akind security situation, 4 or obvious actual notice of the speech
restriction. 5
Here, by contrast, Ross had no idea of the existence of the
restrictions until he deposed Early while taking discovery in
this lawsuita full six months after his second arrest, and a
year-and-a-half after his first arrest.
Indeed, no evidence
Marcavage v. City of N.Y., 689 F.3d 98, 105 (2d Cir. 2012)
(involving the City of New Yorks demonstration policy that
pertained to the Republican National Convention at Madison
Square Garden, which presented extraordinary security
challenges in the wake of the 2001 terrorist attacks). The
demonstrators in Marcavage also had actual notice of the
restrictions.
5
51
After today,
52
I turn now to an
As
If the
If the restriction is
53
analysis. 6
The
Therefore, I
54
found, Ross posed no threat to public safety and did not impede
pedestrians while distributing leaflets.
2d at 427.
The
proper advice in this situation because the only people who knew
about Baltimores First Amendment restrictions were those few
recipients of the city attorneys e-mail.
As the majority correctly notes, it is the Citys burden to
demonstrate that the speech restrictions meet the applicable
level of scrutiny.
IV.
For the foregoing reasons, I would apply the heightened
standard described in Madsen and conclude that Baltimores
speech restrictions are unconstitutional because they burden
more speech than necessary to achieve the Citys goals.
But
56