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Lucero v. Early

United States Court of Appeals, Fourth Circuit

October 13, 2017

KENNETH LUCERO, Plaintiff - Appellant,
v.
WAYNE A. EARLY; MAYOR AND CITY COUNCIL OF BALTIMORE; BALTIMORE CITY POLICE DEPARTMENT, Defendants - Appellees.

          Argued: September 12, 2017

         Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:13-cv-01036-JFM)

         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, Maryland, for Appellees.

          Before THACKER and HARRIS, Circuit Judges, and Norman K. MOON, Senior District Judge for the Western District of Virginia, sitting by designation.

          THACKER, Circuit Judge

         Kenneth Lucero ("Appellant") was arrested in April 2010 after leafleting outside a Baltimore arena during a performance of the Ringling Brothers and Barnum & Bailey Circus ("Circus"). Specifically, he was arrested for failing to confine his leafleting to an area designated for protest activities, as set forth in a protocol formulated by Baltimore's legal department in 2004 ("Protocol"). Appellant filed suit in the District of Maryland, challenging the constitutionality of the Protocol.

         Three years ago, we addressed a challenge to the same Protocol. See Ross v. Early, 746 F.3d 546 (4th Cir. 2014). In that case, Aaron Ross likewise failed to confine his leafleting activities to the designated areas, was arrested, and filed suit challenging the constitutionality of the Protocol. The district court upheld the Protocol, and we affirmed. See id. at 549.

         In the instant case, the district court dismissed Appellant's complaint, reasoning that this court had already considered his constitutional claim in Ross. We disagree. Significantly, in Ross, the parties entered into a stipulation that dictated the level of constitutional scrutiny, but the parties to the instant case did not. Moreover, the district court in the instant case did not consider an intervening relevant Supreme Court decision, McCullen v. Coakley, 134 S.Ct. 2518 (2014), and did not have the benefit of another, Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). For these reasons, we vacate and remand for further proceedings.

         I.

         The First Mariner Arena ("Arena") is a sports and entertainment venue in downtown Baltimore. Once a year, the city of Baltimore leases the Arena to Feld Entertainment for performances of the Circus. The Circus attracts thousands of patrons for weekday performances, along with activists objecting to the Circus's treatment of animals. ...


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