Ross v. Early

Decision Date05 March 2014
Docket NumberNo. 12–2547.,12–2547.
Citation746 F.3d 546
PartiesAaron ROSS, Plaintiff–Appellant, v. Wayne A. EARLY; Mayor and City Council of Baltimore; Baltimore City Police Department, 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.
CourtU.S. Court of Appeals — Fourth Circuit


ARGUED:Sean Robert Day, Law Office of Sean R. Day, Greenbelt, Maryland, for Appellant. Barron Stroud, Jr., Stroud & Priest, LLC, Baltimore, Maryland; Steven John Potter, Baltimore City Law Department, Baltimore, Maryland, for Appellees. ON BRIEF:George Nilson, Glenn T. Marrow, Baltimore City Law Department, Baltimore, Maryland, for Appellees Mayor and City Council of Baltimore and Baltimore City Police Department.

Before KEENAN, WYNN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge KEENAN joined. Judge WYNN wrote a dissenting opinion.

THACKER, Circuit Judge:

Appellant Aaron Ross (Appellant) brought this action challenging his March 12, 2008 and March 25, 2009 arrests for refusing to obey Baltimore City Police Officer Wayne Early's (Officer Early) repeated orders to confine his leafleting to the area designated for protest activities outside the First Mariner Arena (the “Arena”) in Baltimore, Maryland. The designated protest area was defined by a written policy (the “Policy”) of the Mayor and City Council of Baltimore (collectively, the City) and the Baltimore City Police Department (BCPD). Appellant claims the Policy is facially unconstitutional as an invalid time, place, and manner restriction on First Amendment activity, and that Officer Early violated his state and federal rights. The district court granted summary judgment against Appellant on all claims. We hold, as did the district court, that the Policy is facially valid under the First Amendment as a reasonable time, place, and manner restriction, and we find no reversible error as to Appellant's remaining claims. Accordingly, we affirm.


The Arena is a large sports and entertainment venue located in downtown Baltimore. Due to its central location and the thirteen Mass Transit Administration (“MTA”) bus routes that discharge passengers in the area, the sidewalks and streets adjacent to the Arena, i.e., West Baltimore Street, Hopkins Place, West Lombard Street, and South Howard Street, regularly experience heavy pedestrian and automotive traffic. This is particularly so between 6:30 and 7:30 p.m. on weekdays, when approximately 50 MTA buses make stops on the surrounding streets.

Once a year, the City leases the Arena to Feld Entertainment for performances of the Ringling Brothers Barnum and Bailey Circus (the “Circus”). These performances, ordinarily held in late March, attract large crowds. Between seven and ten thousand patrons attend the 7:30 p.m. weekday shows, and putative attendees begin to gather outside of the Arena's main entrance, located on the corner of West Baltimore Street and Hopkins Place, at 6:00 p.m. The performances also draw a number of animal welfare activists, such as Appellant, who object to the Circus's treatment of animals. During the Circus's run, these annual demonstrators engage in various protest activities, including sign-holding,chanting, and leafleting, on the sidewalks contiguous to the Arena. Prior to 2004, the City had no official policy restricting the demonstrators' access to the relevant streets.1

On March 12, 2003, the City, on the recommendation of Linda Barclay (Barclay), then Chief of the Legal Counsel Division in the City's Law Department, issued a permit to People for the Ethical Treatment of Animals (“PETA”) to park a media truck on the West Baltimore side of the Arena prior to that night's Circus performance. Although PETA complied with the terms of its permit, the position of the truck seriously obstructed the flow of traffic and caused several MTA buses to double park. Bus passengers and circus patrons overflowed from 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 least one other BCPD officer sought advice from Barclay as to constitutionally permissible ways for BCPD to manage the potential disruption to pedestrian and automotive traffic caused by protesters during Circus performances. In response to this request, on March 10, 2004, Barclay issued the Policy, an e-mail to various City and BPCD personnel, setting forth certain limitations on the location of sidewalk demonstrators prior to Circus performances.2 Noting the implementation of this plan had “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. As last revised in 2006, the Policy provides:

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. The Policy further directs police officers to issue at least two verbal warnings prior to making any arrest for failure to obey a lawful order. See id.; see alsoMd.Code Ann., Crim. Law § 10–201(c)(3) (a person who “willfully fail[s] to obey a reasonable and lawful order that a law enforcement officer makes to prevent a disturbance to the public peace” is guilty of a misdemeanor).

On March 12, 2008, and March 25, 2009, Appellant was leafleting within the prohibitedarea outside the Arena's West Baltimore Street entrance. On each occasion, Officer Early repeatedly warned Appellant to move to the designated area and, when he refused, arrested him for failing to obey a lawful order. Appellant subsequently filed suit, alleging common law and constitutional torts against Officer Early as well as claims pursuant to 42 U.S.C. § 1983 against the City, BCPD, and other government officials for violating his First and Fourth Amendment rights.


The lengthy procedural history of this case is thoroughly discussed in the district court's two published opinions, Ross v. Early, 758 F.Supp.2d 313 (D.Md.2010) (“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 Appellant's facial challenge to the Policy. See Ross I, 758 F.Supp.2d at 319–25. Specifically, the court determined the level of scrutiny applicable to the Policy turned on a disputed question of material fact, i.e., whether the Policy “was of general application,” like an ordinance, or “specifically targeted to circus and animal welfare protestors,” like an injunction. Id. at 323. The court reasoned that, if the Policy was an ordinance-like restriction on speech, intermediate scrutiny would apply and the Policy would be upheld. Id. at 323–25;see Ward v. Rock Against Racism, 491 U.S. 781, 798–99, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (for purposes of intermediate scrutiny, a time, place, and manner restriction on speech is narrowly tailored ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation,’ and it need not be “the least restrictive or least intrusive means” of serving the government's significant interests (citation omitted)). If, however, the Policy was an injunction-like restriction on speech, heightened scrutiny would apply and the Policy would fail. Ross I, 758 F.Supp.2d at 323–25;see Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (for purposes of heightened scrutiny, a time, place, and manner restriction in the form of an injunction is only narrowly tailored if “the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest”). The ultimate resolution of this question, the court ruled, was a matter for the jury. Ross I, 758 F.Supp.2d at 323.

Thereafter, on September 25, 2012, the court granted Officer Early's motion for summary judgment as to the claims against him in his individual capacity. See Ross II, 899 F.Supp.2d at 425–32. With respect to Appellant's claims that Officer Early violated his First and Fourth Amendment rights under 42 U.S.C. § 1983, the court concluded that, irrespective of the Policy's constitutionality, Officer Early was entitled to qualified immunity because he had not violated any of Appellant's “clearly established” constitutional rights. Id. at 428–29. As for Appellant's state law claims for false arrest and false imprisonment, the court concluded that Appellant had failed to demonstrate the absence of legal justification for his arrest and detention, a...

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