Ross v. Early

Decision Date25 September 2012
Docket NumberCivil No. JFM–09–3255.
Citation899 F.Supp.2d 415
PartiesAaron ROSS, Plaintiff, v. Wayne EARLY, et al., Defendants.
CourtU.S. District Court — District of Maryland


Sean Robert Day, Law Office of Sean R. Day, Greenbelt, MD, for Plaintiff.

Troy Alfred Wiley Priest, Stroud and Priest LLC, Steven John Potter, Kara K. Lynch, Valerie Ann Thompson, Baltimore City Department of Law, Baltimore, MD, for Defendants.


J. FREDERICK MOTZ, District Judge.

This case stems from plaintiff Aaron Ross's (“Ross or plaintiff) arrests, in 2008 and 2009, for leafleting beyond the area designated for protest activities outside the First Mariner Arena (“the Arena”). The designated area, an outer portion of the sidewalk around the Arena demarcated by a brick border, was defined by a written protocol (“the Protocol”) issued by defendant Linda Barclay (“Barclay”), the former Chief Solicitor for the City of Baltimore, as part of a joint policy between the Baltimore City Police Department (“BCPD”) and the City Solicitor's office. Ross claims the Protocol unconstitutionally restricts his First Amendment activity and names as defendants the Mayor and City Council of Baltimore (“the City”), BCPD, and several individuals associated with these offices (collectively defendants). Confining his expression to the designated area, he contends, violates the First Amendment on its face and as applied. Ross also asserts claims for false arrest and false imprisonment against his arresting officer, Wayne Early (Officer Early).

On December 8, 2010, I issued an Opinion (1) denying defendants' joint motion 1 for summary judgment; (2) denying Ross's countermotion for summary judgment; and (3) denying, without prejudice, Officer Early's motion for summary judgment. (ECF No. 44.) Defendants subsequently moved for partial summary judgment based on qualified immunity (for individual defendants Barclay, Bealefeld, III, Officer Early, DiPietro, and Nilson) and for reconsideration of my December 8th ruling. (ECF No. 48.) On February 25, 2011, I denied reconsideration but granted defendants' motion for qualified immunity except as to Officer Early. (ECF No. 53.) Accordingly, judgment was entered in favor of defendants and against plaintiff as to Counts IV and X of the Second Amended Complaint, both § 1983 claims filed against defendants in their individual capacities. (ECF No. 54.)

At that point, both parties moved for certification for an interlocutory appeal, which I granted on June 3, 2011. (ECF Nos. 60–61, 64.) The Fourth Circuit denied the petitions for permission to appeal. (ECF No. 65.) Discovery thereafter resumed. Now pending are (1) BCPD and the City's joint motion for summary judgment on Ross's § 1983 claims, Counts V and XI (ECF No. 80); (2) Officer Early's motion for summary judgment 2 on all claims asserted against him, Counts I–III and VI–IX (ECF No. 81); and (3) Ross's motion for reconsideration of my December 8th ruling denying summary judgment (ECF No. 84). For the reasons articulated below, BCPD and the City's motion will be denied, Officer Early's motion will be granted, and Ross's motion will be denied.


I described the factual background of this case in detail in my December 8, 2010 Opinion, Ross v. Early, 758 F.Supp.2d 313 (D.Md.2011), so I will provide only a brief recitation of the relevant facts. Prior to 2004, there were no restrictions on protest activities or demonstrations outside the Arena. In 2003, a truck used by animal welfare demonstrators 3 to protest the Ringling Brothers Barnum and Bailey Circus (“the Circus”) caused a traffic problem outside the Arena, endangering nearby drivers and pedestrians. In 2004, in response to the 2003 truck incident,4 a member of the City Solicitor's office, at the request of Officer Wayne Early (Officer Early) and other Baltimore City Police Department (“BCPD”) officers, drafted the Protocol, 5 a policy restricting demonstrators to designated portions of the Arena's perimeter. See Ross, 758 F.Supp.2d at 317 (laying out the Protocol's restrictions). The 2004 Protocol was disseminated and implemented prior to, and during, all Circus performances in subsequent years.6

Plaintiff, Aaron Ross (Ross), was arrested in 2008 and again in 2009 by Officer Early for failing to heed an order to stop leafleting in the fifteen feet of sidewalk closest to the Arena, outside the Protocol's designated area. Ross thereafter filed an 11–count complaint against BCPD, the City of Baltimore (“the City”), Officer Early, and individuals from the City Solicitor's office. The majority of the counts remain.7 Ross asserts state law claims against Officer Early, including, based on the 2008 arrest for false arrest (Count I); a violation of Article 26 of Maryland's Declaration of Rights (Count II); and based on the 2009 arrest, for false arrest (Count IV); false imprisonment for post-arrest detention (Count VII) and violation of Article 26 of Maryland's Declaration of Rights (Count VIII). Ross also asserts claims pursuant to 42 U.S.C. § 1983 against Officer Early, in his individual capacity, for the 2008 and 2009 arrests (Counts III and IX, respectively), and against the City and BCPD for violating his rights under the First and Fourth Amendments (Counts V and XI). The three motions pending before me relate to these remaining counts. For the following reasons, BCPD and the City's motion for summary judgment is denied, Officer Early's motion for summary judgment is granted, and Ross's motion for reconsideration is denied. Counts V and XI will proceed to trial.

A. Summary Judgment

A court may properly award summary judgment when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). A material fact is one that “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute about a material fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. When reviewing a motion for summary judgment, the court must look at the facts and inferences drawn therefrom in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

While the burden is on the moving party to demonstrate the absence of any genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), [a] mere scintilla of proof ... will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir.2003). The non-moving party may not merely rest upon allegations or denials in her pleadings but must, by affidavit or other evidentiary showing, set out specific facts showing a genuine issue remains for trial. Fed.R.Civ.P. 56(e)(2). A court should enter summary judgment where a non-moving party fails to make a sufficient showing to establish the elements essential to the party's claim and on which the party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505.

If there is insufficient evidence for a reasonable jury to render a verdict in favor of the non-moving party, there is no genuine issue of material fact, and summary judgment may be granted. See id. at 248, 106 S.Ct. 2505. The District of Maryland has held that “a party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md.2001). Summary judgment is inappropriate, however, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505;see JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001).

B. Motion for Reconsideration

Federal Rule of Civil Procedure 59(e) permits the district court to reconsider a decision in certain circumstances. Fed.R.Civ.P. 56(e). “There are three situations in which a district court may amend an earlier judgment: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.’ McLaughlin v. Murphy, 372 F.Supp.2d 465, 476 (D.Md.2004) (quoting United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir.2002)). However “reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly.” Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998) (quoting 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2801.1 (2d ed. 1995)).

A. BCPD and the City's Motion for Summary Judgment

The City and BCPD move for summary judgment on Counts V and XI, § 1983 claims against the municipal defendants for the allegedly unconstitutional Protocol underlying Ross's 2008 and 2009 arrests. Defendants previously moved for summary judgment on these counts, arguing that the Protocol constituted a reasonable time, place, and manner restriction, and therefore was not unconstitutional. I concluded that the Protocol was content-neutral, served a significant government interest, and provided sufficient alternative avenues of communication. Ross, ...

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