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Media Alerts - Lucero v. Early -- Fourth Circuit
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November 21, 2017
  Lucero v. Early -- Fourth Circuit
The Greatest Case on Earth: Lower Court Must Reconsider Circus Protestor's First Amendment Claim

Areas of Law: Constitutional Law

Issue Presented: Whether the district court erred in holding that recent precedent commanded dismissal of a circus protestor's First Amendment claim.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the district court improperly dismissed the case without considering whether the city's protesting protocol was targeted specifically to restrict animal-rights protests.

Extended Summary: Throughout its 146 years in operation, the Ringling Brothers Circus made many stops at Baltimore's Royal Farms Arena. But, the circus' treatment of animals brought many protestors out. In 2004, the Baltimore City Law Department drafted a protocol, setting out rules for where protestors could stand. The Law Department's internal emails referred to "Circus Protestors" rather than all protestors generally. In addition to laying out the prohibited protest areas, the protocol warned individuals that they would be arrested after disobeying two verbal warnings from police officers.

Before one of the circus' performances in April 2010, Kenneth Lucero handed out anti-circus leaflets to passersby. Lucero disregarded the protocol because he believed it relegated him to a low-traffic area. Officer Wayne Early asked Lucero twice to adhere to the protocol and move his protest activity to one of the permitted areas, but Lucero refused. Lucero was then arrested, but was not formally charged. Shortly thereafter, Lucero brought a 42 U.S.C. § 1983 claim against the police department, the mayor, and Early in the U.S. District Court for the District of Maryland. Lucero alleged that the protocol violated the First Amendment, because it hindered his ability to hand out leaflets and spread his message. The district court dismissed the case pursuant to the Fourth Circuit's recent decision in Ross v. Early, 746 F.3d 546 (4th Cir. 2014), a case with nearly identical facts involving the same arresting police officer.

The Fourth Circuit held that the district court erred in dismissing Lucero's case because it failed to analyze whether the City protocol was content-neutral. The case was remanded for the court to determine if the protocol was targeted at animal-rights protestors, or generally aimed at all protestors regardless of their message.

The court first laid out the differing types of judicial review that govern claims brought under the First Amendment. Strict scrutiny (sometimes referred to as "heightened scrutiny") controls content-based procedures, where a protocol restricts specific types of activity, such as protestors handing out animal-rights leaflets. It is nearly impossible for a protocol to pass muster under strict scrutiny review. In contrast, intermediate scrutiny governs content-neutral regulations. A rule is content-neutral if it regulates all protestors, without reference to the particular issue they are protesting. Early contended the protocol at issue in the instant case was content-neutral.

In analyzing the merits of the appeal, the court distinguished the case from Ross, where the parties agreed to a stipulation, stating "that the Protocol was 'generally applicable toward all expressive activity' and 'not targeted toward restricting activities of circus and animal welfare street protestors specifically.'" Because the court in Ross never actually decided whether the protocol was content-neutral and since the parties in the instant case had not agreed to a similar stipulation, the Ross decision was not controlling.

The court stated that on remand, the district court should consider two recent Supreme Court decisions in determining whether the protocol was content-neutral: McCullen v. Coakley, 134 S. Ct. 2518 (2014) and Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Specifically, the Court in Reed held that a law or protocol is content-based if, "on its face [it] draws distinctions based on the message a speaker conveys." Reed's implication was that the circus protocol could be content-based even if it was not specifically designed to impede individuals protesting animal-rights. Based on these two cases, the Fourth Circuit instructed the district court to analyze facts such as whether officers were required to examine the content of the leaflets before enforcing the protocol, and also the reasoning behind the initial development of the protocol.

To read the full opinion, click here.

Panel: Judges Thacker, Harris, and Moon sitting by designation.

Argument Date: 09/12/2017

Date of Issued Opinion: 10/13/2017

Docket Number: No. 16-1767

Decided: Decided by published opinion.

Case Alert Author: Jeremy Himmelstein, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Sean Robert Day, LAW OFFICE OF SEAN R. DAY, Greenbelt, Maryland, for Appellant. Steven John Potter, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. ON BRIEF: David E. Ralph, City Solicitor, Glenn T. Marrow, Chief Solicitor, Kara Lynch, Assistant City Solicitor, Ashley McFarland, Assistant City Solicitor, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, 2 Maryland, for Appellees.

Author of Opinion: Judge Thacker

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 03:25 PM     4th Circuit  

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