Argued: September 12, 2017
from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Robert Day, LAW OFFICE OF SEAN R. DAY, Greenbelt, Maryland,
John Potter, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore,
Maryland, for Appellees.
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.
THACKER and HARRIS, Circuit Judges, and Norman K. MOON,
Senior District Judge for the Western District of Virginia,
sitting by designation.
THACKER, Circuit Judge
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
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.
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.
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. ...