Week Forty-One

Week of October 9, 2017 through October 13, 2017

United States of America v. Blain Salmons, Jr. (Wilkinson 10/12/2017):  The Fourth Circuit held that the crime of aggravated robbery as defined in West Virginia categorically qualifies as a predicate crime of violence under the force clause of U.S.S.G. § 4B1.2.  At sentencing, the district court determined that the defendant had been convicted of a crime of violence due to his prior conviction for aggravated robbery.  On appeal, the Fourth Circuit looked to see if the predicate offense of aggravated robbery could be committed without satisfying the definition for a crime of violence, which would make the statute overbroad.  However, the court found that U.S.S.G. § 4B1.2 “covers only what are truly violent predicate offenses” and thus affirmed the district court’s decision.  Full Opinion

Dr. Amr Fawzy v. Wauquiez Boats SNC (Niemeyer 10/12/2017):  The Fourth Circuit held, under the final decision doctrine, that it cannot hear appeals of district court orders to dismiss when the appellant amends his complaint right before the district court dismisses the case since such orders are interlocutory rather than final.  Here, the district court filed an order dismissing the case, but the plaintiff filed an amended complaint roughly an hour before the district court filed its order.  Rather than timely informing the court of the amended complaint, the plaintiff chose to appeal the order to dismiss.  The Fourth Circuit determined that the amended complaint superseded the original complaint, rendering the original complaint void.  Because the district court order was based on the original complaint rather than the amended complaint, the Fourth Circuit determined the order was interlocutory and that a final decision had not been made.  Because the court only has appellate jurisdiction over final decisions of district courts, the court dismissed the case for lack of appellate jurisdiction.  Full Opinion

Siena Corporation v. Mayor and City Council of Rockville, Maryland (Wilkinson 10/13/2017):  The Fourth Circuit held that a city zoning ordinance amendment specifically designed to prevent the construction of self-storage facilities within 250 feet of public school property does not violate the Fourteenth Amendment substantive due process or equal protection rights of the company intending to build the facility.  Reviewing the district court decision de novo, the Fourth Circuit determined that substantive due process was not injured because Appellants never had a protected property interest since they had not acquired a building permit, and that equal protection was not violated because the zoning ordinance was rationally based since the self-storage facilities could increase crime and traffic near schools.  Consequently, the Fourth Circuit affirmed the lower court’s dismissal of the appellant’s claims.  Full Opinion

Kenneth Lucero v. Wayne A. Early (Thacker 10/13/2017):  The Fourth Circuit vacated the district court’s dismissal of appellant’s complaint and remanded the case back to the district court to determine whether a city protocol confining leafleting at an event to specific locations without defining whether it was content-based or content-neutral violated the appellant’s First Amendment rights.  The district court dismissed the appellant’s claims by applying intermediate scrutiny based on Ross v. Early.  However, due to subtle factual differences between the present case and the facts of Ross, and because recent Supreme Court decisions discussed the content-neutrality issue, the Fourth Circuit determined that the district court’s dismissal of the appellant’s complaint was improper.  Thus, the Fourth Circuit vacated and remanded the district court’s decision.  Full Opinion


Highlight Case

Kenneth Lucero v. Wayne A. Early, No. 16-1767

Decided: October 13, 2017

The Fourth Circuit vacated the district court’s dismissal of Kenneth Lucero’s (“Appellant”) complaint and remanded the case back to the district court to determine whether a city protocol confining leafleting at an event to specific locations without defining whether it was content-based or content-neutral (“Protocol”) violated Appellant’s First Amendment rights.  The district court dismissed Appellant’s claims by applying intermediate scrutiny based on Ross v. Early.  However, due to subtle factual differences between the present case and the facts of Ross, and because recent Supreme Court decisions discussed the content-neutrality issue, the Fourth Circuit determined that the district court’s dismissal of Appellant’s complaint was improper.  Thus, the Fourth Circuit vacated and remanded the district court’s decision.

In 2010, while the Barnum & Bailey Circus (“Circus”) was performing at a Baltimore arena, Appellant handed out leaflets outside the arena regarding the Circus’s treatment of animals.  Leafleting during the Circus performance had previously caused issues with traffic and pedestrian flow, so the Baltimore legal department created a Protocol in anticipation of the Circus’s 2010 visit.  The Protocol designated certain areas where protestors could engage in leafleting on the East, North, and West sides of the arena.  The Protocol emphasized that these restrictions were being implemented to alleviate congestion of pedestrian flow.  As he was leafleting, Appellant claims police officers told him about the Protocol and requested that he move to one of the designated areas.  Appellant did not move to one of the designated areas as directed, leading to his arrest.

He thereafter filed suit against the Baltimore City Police Department, the Mayor and City Council of Baltimore, and Officer Early, raising federal constitutional claims against all appellees pursuant to 42 U.S.C. § 1983 and Monell v. Department of Social Services, 36 U.S. 658, 694 (1978), and state law claims alleging false arrest and unreasonable seizure against Officer Early specifically. Appellant’s federal claims argued that the Protocol violated his rights under the First Amendment because the only effective way to leaflet at the Circus was to be within a conversational distance of the Circus attendees.  Appellant argued that the placement of the designated areas diminished the efficacy of his speech altogether.

The district court dismissed Appellant’s complaint based on a previous Fourth Circuit decision in Ross v. Early.  The facts of Ross were similar to the present case: a protestor failed to confine his leafleting activities to designated areas, was arrested, and thereafter filed suit regarding the protocol.  However, the parties in Ross stipulated that the protocol was “generally applicable towards all expressive activity” and that it was not targeted towards the protestors specifically.  That stipulation led the district court and the Fourth Circuit to determine that the protocol was content neutral and that intermediate scrutiny was appropriate.

Unlike the parties in Ross, the parties here made no stipulation as to whether the Protocol was generally applicable or targeted Circus protestor specifically.  This issue was heavily contested at the district court and the Fourth Circuit on appeal.  Further, the court noted that, after deciding Ross, the Supreme Court had decided two cases, McCullen v. Coakley and Reed v. Town of Gilbert.  The Fourth Circuit opined that these cases may affect the content neutrality analysis in the present case.  Accordingly, the Fourth Circuit vacated the district court decision and remanded to determine the applicable level of scrutiny, and to complete further proceedings as necessary.

Full Opinion

Jonathan D. Todd

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