Ross v. Early
2012 U.S. Dist. LEXIS 137258
D. Maryland2012Background
- Ross was arrested in 2008 and 2009 for leafleting outside the Arena’s designated protest area under a 2004 Protocol drafted by Barclay as part of a city-wide policy with the police.
- The Protocol restricts demonstrators to a designated sidewalk area near the Arena and was intended to address pedestrian safety concerns following prior incidents.
- Ross challenges the Protocol as unconstitutional on its face and as applied, naming the City, BCPD, and city-official defendants; he also asserts false arrest and false imprisonment claims against Officer Early.
- The court previously denied summary judgment on facial challenges and narrow tailoring, distinguishing between generally applicable restrictions and injunction-like tailored restrictions.
- The court later denied reconsideration for the city/BCPD, granted Early’s qualified-immunity-based summary judgment, and kept Counts V and XI for trial, with Counts I-III and VI-IX addressed as well.
- The proceedings focus on whether the Protocol’s restriction is narrowly tailored under intermediate or heightened scrutiny and whether Early’s arrest was lawful under a qualified-immunity framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Protocol narrowly tailored under appropriate scrutiny? | Ross argues the Protocol is not narrowly tailored. | Barclay/BCPD argue the Protocol can be narrowly tailored under intermediate or heightened scrutiny. | No definitive tailoring conclusion; factual disputes require jury resolution. |
| Does Officer Early qualify for immunity for the 2008 and 2009 arrests? | Ross asserts violations of First and Fourth Amendments. | Early asserts qualified immunity; the right was not clearly established. | Officer Early is entitled to qualified immunity. |
| Are Ross’s state-law claims (false arrest/imprisonment; Article 26) viable given probable cause? | Arrests violated state-law rights independent of federal claims. | Probable cause/legal justification defeats state-law claims. | Ross’s state-law claims fail; probable cause supports the arrests. |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, and manner must be narrowly tailored to significant government interests)
- Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994) (injunction-like restrictions require least-restrictive means under heightened scrutiny)
- McTernan v. City of York, 564 F.3d 636 (3d Cir. 2009) (heightened tailoring analysis persuasive for injunction-like restrictions)
- Independence News v. City of Charlotte, 568 F.3d 148 (4th Cir. 2009) (time, place, and manner analysis in Fourth Circuit context)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (permissible to restrict speech to avoid disruption with potential future conduct)