Ross v. Early

Decision Date08 December 2010
Docket NumberCivil No. JFM–09–3255.
Citation758 F.Supp.2d 313
PartiesAaron ROSSv.Wayne EARLY, et al.
CourtU.S. District Court — District of Massachusetts


Sean Robert Day, College Park, MD, for Aaron Ross.Troy Alfred Wiley Priest, Stroud and Priest LLC, Valerie Ann Thompson, Steven John Potter, Baltimore City Department of Law, Baltimore, MD, for Wayne Early, et al.


J. FREDERICK MOTZ, District Judge.

Plaintiff Aaron Ross (Plaintiff or “Ross”) has brought this action against Baltimore City Police Officer Wayne Early (“Officer Early”), as well as the Mayor and City Council of Baltimore (“the City”); Baltimore City Police Department (“BPD”); George Nilson, City Solicitor; Elena DiPietro, Chief Solicitor for the City; Linda Barclay, former Chief Solicitor for the City; and Frederick H. Bealefeld, III, Commissioner of BPD (collectively, excluding Officer Early, “the City Defendants). Plaintiff alleges, among other things, violations of his federal constitutional rights to assembly and free speech and to be free from unreasonable searches and seizures. Pending before the court is Defendants' Joint Motion for Summary Judgment and Plaintiff's Counter-motion for Summary Judgment.1 I held a hearing on these Motions on October 1, 2010. I will now deny all Motions.


In March of each year, since at least 2003, the City has leased First Mariner Arena (“the Arena”) to Feld Entertainment for performances of the Ringling Brothers Barnum and Bailey Circus (“the Circus”). These performances attract large crowds. Between seven thousand and ten thousand patrons attend weekday shows, which begin at 7:30 p.m. (Joint Mot. Summ. J. (Joint Mot.”), Ex. 1 Affidavit of Linda C. Barclay (“Barclay Aff.”) ¶ 18; Joint Mot., Ex. 4 Mayor and City Council of Baltimore's Answers to Interrogatories (“City's Answers to Interrogs.”), no. 3.) Many patrons begin queuing on the sidewalk around the Arena at 6:00 p.m. in anticipation of the doors opening at 6:30 p.m. (Barclay Aff. ¶ 20; Joint Mot., Ex. 3 Deposition of Linda C. Barclay, Esquire (“Defs.' Barclay Dep.) 62:9–15.) Due to the location of the Arena, this area also experiences heavy pedestrian and automotive traffic before each performance as a result of the afternoon rush hour. One particular source of congestion is the approximately fifty Mass Transit Administration (MTA) buses that stop outside the Arena between 6:30 and 7:30 p.m. on weekdays. (Barclay Aff. ¶ 10; City's Answers to Interrogs., no. 3.) Additionally, these performances gave rise to protests and demonstrations by animal welfare activists who oppose the Circus, including Ross. Defendant Wayne Early, an officer with the Baltimore City Police Department, was present at these protests during the relevant years not only as a police officer, but also because a company that he co-owns, E & W Security, contracted with Feld Entertainment to provide security for the Circus. (Pl.'s Opp. Mot. Summ. J. and Counter-mot. Summ. J. (“Pl.'s Opp.”), Ex. 25 Deposition of Wayne Early (“Pl.'s Early Dep.”) 49:13–52:2.)

Prior to 2004, the City did not have a policy or protocol restricting the conduct of these demonstrators,2 and the City's adoption of the protocol at issue here was a response to events that occurred during the 2003 protests. (Barclay Aff. ¶ 4.) On March 12, 2003, People for the Ethical Treatment of Animals (PETA) requested a permit to park a truck next to the Arena prior to that night's Circus performance. ( Id. at ¶¶ 6–7.) Defendant Linda Barclay, then Chief of the Legal Counsel Division in the City's Law Department, determined that the City should issue the permit. After viewing the site, she selected a location for the truck she believed would not interfere with traffic patterns, including the three bus stops in front of the Arena. ( Id. at ¶¶ 8–9; Joint Mot., Ex. 5 George Winfield Mar. 11, 2003 Email; Joint Mot., Ex. 6 Linda Barclay Mar. 2003 Email.) Defendant Barclay's belief was incorrect. The truck's position obstructed the flow of traffic, and MTA buses began to double park, causing passengers to enter the road to reach their buses. Only after MTA police and Lieutenant Bailey of the BPD Central District reported to the scene were the police able to unravel the morass. (Barclay Aff. ¶¶ 10–13; City's Answers to Interrogs., no. 3.)

The Defendants assert that the demonstrators on the sidewalk also disrupted pedestrian traffic. The City and its employees, however, have not articulated specific problems caused by these demonstrators beyond their mere presence in the area. ( See Defs.' Barclay Dep. 94:6–10 (reporting only that the demonstrators were “mingling with the large crowds”).) In 2003, City officials discussed, but rejected, possible restrictions on sidewalk demonstrators beyond those imposed by generally applicable criminal law. Peter Saar, then acting Chief Legal Counsel for BPD, advised Officer Early on March 13, 2003, that demonstrators could approach and offer literature to people throughout the entire sidewalk surrounding the Arena, and police should intervene only if there was a criminal violation or the demonstrators engaged in behavior akin to aggressive panhandling. (Pl.'s Opp., Ex. 23 Email Chain with Linda Barclay, Ernest Crofoot, and Peter Saar.)

Although the evidence indicates the prior year's problems arose primarily as a result of the placement of the PETA truck and there was no subsequent request for a truck permit, in 2004, Defendant Barclay issued a written protocol regarding the location of sidewalk demonstrators prior to Circus performances (“the Protocol” 3). (Joint Mot., Ex. 8 2004 Linda Barclay Protocol Email (2004 Protocol”).) In 2004, the Protocol imposed the following restrictions:

1. On the east side of the Arena, demonstrators were required to stand on the sidewalk along Hopkins Place. (2004 Protocol; see also Joint Mot., Exs. 9a & 9b Photographs of Hopkins Place Sidewalk in front of Arena's Main Entrance.)

2. On the north side of the Arena, demonstrators were permitted only within a fourteen foot-wide area of sidewalk adjoining the street (“the designated area”), which was demarcated by a brick border, and demonstrators could not enter the fifteen feet of sidewalk closest to the Arena. (2004 Protocol; see also Joint Mot., Ex. 10 Photograph of West Baltimore Street next to Arena; Pl.'s Opp., Ex. 10 Affidavit of Sean R. Day, at ¶ 2 (providing measurements).) Plaintiff's arrest occurred in this area.

3. On the west side of the Arena, demonstrators were not allowed to protest due to the narrow sidewalk. (2004 Protocol.)

In subsequent years, the City continued to use the Protocol, which Defendant Barclay and her successor, Defendant DiPietro, reissued by email. The only change in the Protocol involved the sidewalk on the west side of the Arena. After 2004, the Protocol permitted demonstrators on the sidewalk at the corner of Howard Street and Baltimore Street and in the middle of the block south of the Howard Street entrance to the Arena. (Barclay Aff. ¶¶ 25–26; Joint Mot., Ex. 12 Mar. 6, 2007 Linda Barclay Email Chain (2007 Barclay Email Chain); Joint Mot., Ex. 13 2009 Elena DiPietro Protocol Email (2009 Protocol”); Joint Mot., Ex. 11 Photograph of Arena's Howard Street Entrance.)

Defendant Barclay states that the Protocol applied to [a]ny demonstrators that were desiring to exercise their First Amendment rights during the period of the circus.” (Pl.'s Opp., Ex. 24 Deposition of Linda C. Barclay, Esquire (“Pl.'s Barclay Dep.) 135:7–9.) There is, however, conflicting evidence on the record about whether the Protocol was in fact generally applicable. The Defendants submitted an affidavit by Mark Tognocchi, event manager of the Arena, who attests that on the day Plaintiff was arrested in 2009, he instructed religious demonstrators to remain within the designated area,4 and, on other occasions, he had applied the Protocol to individuals who were not animal welfare demonstrators. (Joint Mot., Ex. 14 Affidavit of Mark Tognocchi (“Tognocchi Aff.”) ¶¶ 4–10.) Plaintiff, however, has submitted affidavits of past demonstrators stating they witnessed the police allow leafleters and vendors to remain outside of the designated area while applying the Protocol to those demonstrating against the Circus. (Pl.'s Opp., Ex. 11 Affidavit of Robin Helfritch (“Helfritch Aff.”) ¶¶ 2–8; Pl.'s Opp., Ex. 26 Affidavit of Erin Marcus (“Marcus Aff.”) ¶¶ 6–9.) In addition, Officer Early stated that he knew that the Protocol applied to Ross [b]ecause [he was] actually protesting against the treatment of animals” (Pl.'s Early Dep. 28:5–6), and the 2009 email disseminating the Protocol described it as applying to “Circus Protesters.” (2009 Protocol.)

Plaintiff Aaron Ross was arrested in both 2008 and 2009 for failing to obey a lawful order because he refused to comply with Officer Early's orders that he return to the designated area. On March 12, 2008, Ross was distributing leaflets on the sidewalk on the north side of the Arena outside of the designated area. After Ross refused to comply with Officer Early's repeated requests to stand behind the brick border in the designated area, Officer Early placed him under arrest. On March 25, 2009, Officer Early again arrested Ross for failure to obey a lawful order when Ross refused to cease distributing leaflets outside of the designated area north of the Arena. (Joint Mot., Ex. 2 Deposition of Wayne Early (“Defs.' Early Dep.”) 9:18–12:19, 37:18–41:3.) Both arrests were captured on video by other demonstrators. (Pl.'s Opp., Ex. 12 Video of 2008 Arrest (2008 Arrest Video”); Pl.'s Opp., Ex. 15 Video of 2009 Arrest (2009 Arrest Video”).) At the time of the 2009 arrest, Officer Early was wearing a shirt containing a pro-deer hunting slogan, Will Hunt 4 Bucks.” (Pl.'s Opp., Ex. 13, Affidavit of Aaron Ross (“Ross Aff.”) ¶ 9.) Plaintiff reports that, after this arrest, Officer Early took him to a police station rather than...

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