Kenneth Lucero v. Wayne Early
2017 U.S. App. LEXIS 20015
| 4th Cir. | 2017Background
- Kenneth Lucero was arrested in April 2010 for leafleting outside the First Mariner Arena during a Ringling Bros. circus performance after Baltimore police ordered him to confine his leafleting to areas designated by a 2004 city "Protocol."
- The Protocol (circulated annually by Baltimore’s legal department) directed protesters to specific portions of sidewalks or corners to alleviate congestion and stated officers would give at least two verbal requests before arresting noncompliant persons.
- Lucero sued under 42 U.S.C. § 1983 and Monell, alleging the Protocol and its enforcement violated his First Amendment rights by preventing effective leafleting (requiring conversational distance) and also asserted state-law false arrest/unreasonable seizure claims against the arresting officer.
- The City and BPD moved to dismiss, relying principally on this court’s prior decision in Ross v. Early, where the Protocol had been upheld under intermediate scrutiny after the parties in Ross stipulated that the Protocol was generally applicable.
- The district court dismissed Lucero’s complaint as controlled by Ross; the Fourth Circuit reversed, vacating and remanding because Ross involved a stipulation about general applicability and the district court below had not addressed intervening Supreme Court decisions (McCullen and Reed) affecting content-neutrality analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Protocol is content neutral (which determines level of scrutiny) | Lucero: Protocol is content-based or adopted to suppress animal-welfare speech; strict or heightened scrutiny should apply | City/BPD: Protocol is content neutral and generally applicable; intermediate scrutiny applies (as in Ross) | Remanded: court must first decide content neutrality in light of disputed facts and intervening Supreme Court precedent (McCullen, Reed) |
| Whether Ross v. Early precludes Lucero’s suit (issue preclusion / law-of-the-case) | Lucero: Ross does not control because parties there stipulated to general applicability; factual dispute remains here | City/BPD: Ross resolved the constitutional question and mandates dismissal | Held: Ross does not control this case because of the stipulation in Ross and differing factual posture here; dismissal was improper |
| Whether district court properly considered intervening Supreme Court decisions | Lucero: Court should apply McCullen and Reed to content-neutrality analysis | City/BPD: Ross remains binding despite later decisions | Held: District court failed to consider McCullen and could not have considered Reed; must reassess content-neutrality under those decisions |
Key Cases Cited
- Ross v. Early, 746 F.3d 546 (4th Cir. 2014) (upheld Protocol under intermediate scrutiny after parties stipulated to general applicability)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (buffer-zone law was content neutral because enforcement turned on location, not message)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (law that draws distinctions based on communicative content is content based and subject to strict scrutiny)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test: content neutrality, narrow tailoring to significant government interest, ample alternatives)
- Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal liability under § 1983 requires a policy or custom)