ROSS V. EARLY, NO. 12-2547

Decided: March 5, 2014

The Fourth Circuit affirmed the district court with respect to Appellant’s constitutional and state law challenges arising from two arrests that occurred when Appellant failed to obey a police officer’s lawful enforcement of a policy restricting protected speech. The Fourth Circuit held the policy was constitutional under the reasonable time, place, and manner doctrine.

Aaron Ross (“Ross”) brought this action against Officer Wayne Early (“Officer Early”), the Mayor and City Council of Baltimore (collectively, the “City”), the Baltimore City Police Department (“BCPD), and other government officials after he was arrested twice—first on March 12, 2008 and again on March 25, 2009. The arrests took place outside the First Mariner Arena (the “Arena”) in Baltimore, Maryland when the Ringling Brothers Barnum and Bailey Circus (the “Circus”) was performing in the Arena. At the time of both arrests, Ross was participating in protest activities as a member of the People for the Ethical Treatment of Animals organization.

For a number of years, the City of Baltimore leased the Arena to the Circus annually. Due to the Arena’s central location, the sidewalks and streets adjacent to it frequently experience heavy pedestrian and automotive traffic. The Circus performances, moreover, attracted large crowds, including a number of animal welfare activists, such as Ross. During the Circus’s run, these activists engaged in various protest activities on the sidewalks contiguous to the Arena. Before 2004, the City had no official policy restricting the demonstrators’ access to the relevant streets. In March 2004, however, the Chief of the Legal Counsel Division in the City’s Law Department issued the current policy (the “Policy”) setting forth certain limitations on the location of sidewalk demonstrators prior to Circus performances. The Policy sets forth multiple designated areas where protestors should confine their protest activities on each street adjacent to the Arena. Additionally, the Policy states the problems the location restrictions seek to alleviate—primarily to eliminate congestion and allow sufficient room for Circus attendees to access the Arena. 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.

On March 12, 2008 and March 25, 2009, Ross was leafleting within the prohibited area outside the Arena. On each occasion, Officer Early repeatedly warned Ross to move to the nearest designated area and, when he refused, Officer Early arrested him for failing to obey a lawful order. Ross subsequently filed suit in the district court, alleging common law and constitutional torts against Officer Early as well as claims under Section 1983 against the City, BCPD, and other government officials for violating his First and Fourth Amendment rights. The district court, applying intermediate scrutiny, upheld the Policy as a reasonable time, place, and manner restriction on protected speech, and thus entered judgment in favor of the City and BCPD. Additionally, because the court determined Officer Early was entitled to qualified immunity, the court granted Officer Early’s motion for summary judgment as to the claims against him in his individual capacity. This appeal followed.

On appeal, the Fourth Circuit primarily focused its analysis on the time, place, and manner doctrine to determine whether the Policy’s restrictions on protected speech violated the First Amendment. At the outset of its analysis, the court observed that the parties did not dispute that the Policy is content-neutral. It thus applied intermediate scrutiny, focusing its analysis, in turn, on (1) whether the Policy is narrowly tailored to serve a significant governmental interest, and (2) whether it leaves open ample alternative channels for communication of the information.

In examining the first issue, the court found that, because undisputed evidence revealed that the sidewalks surrounding the Arena suffers from severe congestion during Circus performances, and because, at least once—in the years preceding the Policy’s issuance—the presence of protestors caused a significant safety hazard, the Policy materially reduced the risks the City intends to prevent. Therefore, the court held that the Policy’s limited proscription on the locale of expressive activities is narrowly tailored to address threats to sidewalk congestion and public safety. In examining the final prong of the time, place, and manner test, the court held that the limited nature of the prohibition at issue left no doubt that the designated area afforded ample opportunity for protestors to communicate, and engage in expressive activities, with their intended audience. The court, therefore, held that the district court correctly granted summary judgment as to Ross’s First Amendment claims against the City and BCPD.

Next, the Fourth Circuit addressed Ross’s challenge that the district court improperly granted Officer Early’s summary judgment motion with respect to Ross’s First and Fourth Amendment claims on the basis of qualified immunity. Finding that Officer Early did not arrest Ross with a content or viewpoint-based discriminatory purpose, the court held that Officer Early was entitled to qualified immunity and therefore affirmed the district court with respect to both Ross’s First and Fourth Amendment claims.

Finally, the court held that the district court correctly granted summary judgment in favor of Officer Early with respect to Ross’s state law false arrest and false imprisonment claims. In so holding, the court observed that Ross failed to show that his liberty was deprived without justification. The Fourth Circuit, therefore, affirmed the judgment of the district court with respect to all claims.

Full Opinion

– W. Ryan Nichols

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