Saltz v. City of Frederick, Civil Action No. ELH-20-0831

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Ellen Lipton Hollander, United States District Judge
• Citation: 538 F.Supp.3d 510
• Parties: Jason SALTZ, Plaintiff, v. CITY OF FREDERICK, MD, et al., Defendants.
• Decision Date: 10 May 2021
• Docket Number: Civil Action No. ELH-20-0831

538 F.Supp.3d 510

Jason SALTZ, Plaintiff,
v.
CITY OF FREDERICK, MD, et al., Defendants.

Civil Action No. ELH-20-0831

United States District Court, D. Maryland.

Signed May 10, 2021
As Amended August 16, 2021

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

Kevin Bock Karpinski, Sandra D. Lee, Karpinski, Cornbrooks & Karp, P.A., Baltimore, MD, for Defendants City of Frederick, Maryland, Dwight Sommers, John S. Corbett, Tracey Wiles.

Kevin Bock Karpinski, Karpinski, Cornbrooks & Karp, P.A., Baltimore, MD, for Defendant Edward Hargis.

MEMORANDUM OPINION

Ellen Lipton Hollander, United States District Judge

This case concerns the alleged infringement of the right to protest against horse-drawn carriage rides in the downtown shopping district of the City of Frederick, Maryland (the "City" or "Frederick"). Claiming a violation of his rights under the First Amendment, plaintiff Jason Saltz, an "animal rights advocate and activist," filed suit under 42 U.S.C. § 1983 against the City and four City employees, in their individual capacities: Edward Hargis, then the Chief of the Frederick City Police Department ("FPD"); Captain ("Capt.") Dwight Sommers of the FPD; Lieutenant ("Lt.") John S. Corbett of the FPD; and Sergeant ("Sgt.") Tracey Wiles of the FPD. ECF 1 ("Complaint"); ECF 12 ("Amended Complaint").

In particular, Saltz alleges that defendants violated his First Amendment rights during protests held on November 2 and

538 F.Supp.3d 523

November 9, 2019, because Saltz was not allowed to "chant or yell against horse-drawn carriages" from a position located directly across the street from the carriage loading zone. ECF 12, ¶ 12. Saltz also complains that his rights were infringed because he was not permitted to "offer leaflets at arm's reach and engage in civil discussion at a conversational distance with persons waiting" for carriage rides. Id. ¶ 13. Instead, Saltz and other protesters were restricted to chanting in a designated area on a street corner approximately 100 feet away from the carriage riders and were only allowed to leaflet individuals as they were leaving the carriage rides.

The Amended Complaint contains five counts and seeks damages as well as equitable relief. Counts 1 and 3 lodge " Monell " claims against the City, alleging "unconstitutional policies, failure to train, and customs." ECF 12, ¶ 60; id. ¶ 71; see Monell v. New York City Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Count 1 pertains to the events of November 2, 2019, and Count 3 concerns November 9, 2019. Count 2 alleges that on November 2, 2019, Lt. Corbett "prohibited Saltz from chanting across the street from potential [horse-carriage] riders." Id. ¶ 66. According to plaintiff, Corbett acted "at the express direction and authorization" of Chief Hargis and Capt. Sommers. Id. ¶ 68. Count 4 alleges that Sgt. Wiles prohibited Saltz from chanting and leafletting at his desired location on November 9, 2019. Id. ¶¶ 79, 80, 81. And, plaintiff asserts that Wiles acted pursuant to "the express direction and authorization" of Chief Hargis and Capt. Sommers. Id. ¶ 82. Count 5 brings a claim for declaratory and injunctive relief.¹

Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. ECF 16. They have also moved to bifurcate the Monell claims, pursuant to Fed. R. Civ. P. 42(b). The motion is supported by a memorandum (ECF 16-1) (collectively, the "Motion") and numerous exhibits, including video files of scenes from the protests. Plaintiff opposes the Motion (ECF 21, "Opposition") and has submitted multiple exhibits, including additional video files. However, he does not oppose consideration of at least part of the Motion as one for summary judgment. Defendants have replied. ECF 26.

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall construe the Motion (ECF 16) as one to dismiss with respect to the Monell claims and as to the supervisory liability claims against Hargis and Sommers, and as one for summary judgment with regard to the claims against Wiles and Corbett.² I shall grant the Motion in part and deny it in part. In particular, I shall deny the Motion as to Counts 2 and 4 as to defendants Sommers, Wiles, and Corbett. But, I shall grant the Motion as to Counts 2 and 4 with respect to Chief Hargis. I shall also grant the Motion as to the Monell claims in Counts 1 and 3 predicated on theories of custom and failure to train. But, I shall otherwise deny the Motion as to Counts 1 and 3. And, I shall grant the request to bifurcate the Monell claim.

538 F.Supp.3d 524

I. Background³

A. General Order 701

Frederick Police Department General Order 701, entitled "FIRST AMENDMENT RIGHTS," was "approved" on October 1, 2012. ECF 12, ¶ 18; see ECF 21-1 (the "General Order"); see also ECF 16-11.⁴ The General Order, which is almost six, single-spaced pages in length, summarizes First Amendment principles and the limitations as to First Amendment rights, explaining that "it is those limits that this General Order addresses." ECF 21-1 at 1. The express purpose of the General Order, set forth in Section .01, is to "specify guidelines for police response to, and intervention during, public protests, labor strikes, and other activities involving First Amendment rights." Id.

Notably, Section .03, titled "DISCUSSION," states, id. : "Limitations to the right to freedom of speech and assembly require that a clear and present danger be evidenced before any law enforcement action can be taken. This means that a police officer must observe a clear and present danger to the health, safety and welfare of the general public, or a violation of the City Code or State Criminal Code before he may engage in enforcement action against those involved in First Amendment activity."

Section .04 of the General Order, titled "POLICY," provides, id. at 1:

It is neither the intention nor the desire of the Department to suppress or restrain lawful speech, assembly, religion or any other lawful activity. The Department will expend whatever resources are necessary and appropriate to protect those lawfully exercising their rights pursuant to the First Amendment. However, the Department will require police officers to take appropriate enforcement action whenever there is a clear and present danger to the health, safety and welfare of the general public or a violation of the City Code or State Criminal Code.

And, the "EQUALITY OF TREATMENT" provision, Section .10, mandates, id. : "Police department personnel will treat all persons asserting rights under the First Amendment to the U.S. Constitution lawfully."

The General Order specifies actions that are permissible so long as "the activity does not constitute a clear and present danger ..." Id. at 2; Section .20. An individual may "assemble, preach, distribute

538 F.Supp.3d 525

literature, picket and protest on public property." Id. The General Order defines public property to include "public streets, sidewalks, parks and other common areas so designated." Id. And, it states, id. : "First Amendment activity on public property is fully protected, subject only to reasonable time, place and manner restrictions. Time, place and manner restrictions may be placed on First Amendment activity so long as those regulations are content neutral, serve a significant governmental interest, and leave open ample alternative channels of communication. Police personnel must consider time, location, and decibel level before attempting to interfere with any First Amendment activity."

In addition, the General Order sets out "NON-PERMISSIBLE ACTIONS." Id. ; Section .30. Pursuant to the General Order, individuals engaged in First Amendment activities may not "obstruct the path of persons utilizing a public sidewalk" or "interfere with the business of another by use of sound, by blocking entrances to buildings or dwellings; or by obstructing motor vehicles or pedestrian traffic." Id. at 2.

According to plaintiff, the General Order "primarily focuses on vague generalities and uninstructive statements"; plaintiff states that it "was obviously deficient in guiding officers on basic concepts and commonly-occurring situations." ECF 12, ¶¶ 20-22. Further, plaintiff posits that the General Order "does not inform officers that leafletters differ from protesters and should be permitted to be within arm's reach ..." and that "protesters and leafletters should be able to engage with people who might disagree with them...." Id. ¶¶ 23, 24. Plaintiff alleges that Chief Hargis, and "the prior police chief," "implemented, ratified, and approved" this policy." Id. ¶ 16.

B. Carriage Rides and Protests in 2017 and 2018

Donnie Lambert and his daughter, Jessica Lambert, offered horse-drawn carriage rides in Frederick in 2017, 2018, and 2019, "as part of a seasonal promotion by the Downtown Frederick Partnership." ECF 21-5 (Saltz Aff.), ¶ 1; see also ECF 16-9 at 5. The events that occurred in 2017 and 2018 provide context for the events at issue in 2019.

Each year, Stacy and Michael...