J. FREDERICK MOTZ, District Judge.
Plaintiff Aaron Ross ("Plaintiff" or "Ross") has brought this action against Baltimore City Police Officer Wayne Early ("Officer Early"), as well as the Mayor and City Council of Baltimore ("the City"); Baltimore City Police Department ("BPD"); George Nilson, City Solicitor; Elena DiPietro, Chief Solicitor for the City; Linda Barclay, former Chief Solicitor for the City; and Frederick H. Bealefeld, III, Commissioner of BPD (collectively, excluding Officer Early, "the City Defendants"). Plaintiff alleges, among other things, violations of his federal constitutional rights to assembly and free speech and to be free from unreasonable searches and seizures. Pending before the court is Defendants' Joint Motion for Summary Judgment and Plaintiff's Counter-motion for Summary Judgment.
In March of each year, since at least 2003, the City has leased First Mariner
Prior to 2004, the City did not have a policy or protocol restricting the conduct of these demonstrators,
The Defendants assert that the demonstrators on the sidewalk also disrupted pedestrian traffic. The City and its employees, however, have not articulated specific problems caused by these demonstrators beyond their mere presence in the area. (See Defs.' Barclay Dep. 94:6-10 (reporting only that the demonstrators were "mingling with the large crowds").) In 2003, City officials discussed, but rejected, possible restrictions on sidewalk demonstrators beyond those imposed by generally
Although the evidence indicates the prior year's problems arose primarily as a result of the placement of the PETA truck and there was no subsequent request for a truck permit, in 2004, Defendant Barclay issued a written protocol regarding the location of sidewalk demonstrators prior to Circus performances ("the Protocol"
In subsequent years, the City continued to use the Protocol, which Defendant Barclay and her successor, Defendant DiPietro, reissued by email. The only change in the Protocol involved the sidewalk on the west side of the Arena. After 2004, the Protocol permitted demonstrators on the sidewalk at the corner of Howard Street and Baltimore Street and in the middle of the block south of the Howard Street entrance to the Arena. (Barclay Aff. ¶¶ 25-26; Joint Mot., Ex. 12 Mar. 6, 2007 Linda Barclay Email Chain ("2007 Barclay Email Chain"); Joint Mot., Ex. 13 2009 Elena DiPietro Protocol Email ("2009 Protocol"); Joint Mot., Ex. 11 Photograph of Arena's Howard Street Entrance.)
Defendant Barclay states that the Protocol applied to "[a]ny demonstrators that
Plaintiff Aaron Ross was arrested in both 2008 and 2009 for failing to obey a lawful order because he refused to comply with Officer Early's orders that he return to the designated area. On March 12, 2008, Ross was distributing leaflets on the sidewalk on the north side of the Arena outside of the designated area. After Ross refused to comply with Officer Early's repeated requests to stand behind the brick border in the designated area, Officer Early placed him under arrest. On March 25, 2009, Officer Early again arrested Ross for failure to obey a lawful order when Ross refused to cease distributing leaflets outside of the designated area north of the Arena. (Joint Mot., Ex. 2 Deposition of Wayne Early ("Defs.' Early Dep.") 9:18-12:19, 37:18-41:3.) Both arrests were captured on video by other demonstrators. (Pl.'s Opp., Ex. 12 Video of 2008 Arrest ("2008 Arrest Video"); Pl.'s Opp., Ex. 15 Video of 2009 Arrest ("2009 Arrest Video").) At the time of the 2009 arrest, Officer Early was wearing a shirt containing a pro-deer hunting slogan, "Will Hunt 4 Bucks." (Pl.'s Opp., Ex. 13, Affidavit of Aaron Ross ("Ross Aff.") ¶ 9.) Plaintiff reports that, after this arrest, Officer Early took him to a police station rather than Central Booking, refused to permit him to use the restroom, threatened to have him held for thirty days, and abandoned him at the station. (Id. at ¶¶ 11-13.)
Plaintiff has asserted claims falling into two categories: (1) common law and constitutional torts against Officer Early,
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure when there is no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., the Supreme Court of the United States explained that in considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. In analyzing whether a genuine issue of material fact exists, the evidence and reasonable inferences from that evidence must be viewed in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. 2505.
On the present record and on the claims being asserted by Plaintiff, three possible outcomes could occur. First, as discussed in section III, infra, it might be found that the policy adopted by the City is facially unconstitutional. Second, as discussed in section IV, infra, it might be found that the policy adopted by the City is constitutional but that the policy was unconstitutionally applied by the BPD and Officer Early. Third, as discussed in section V, infra, it might be found that the policy adopted by the City is constitutional and was constitutionally applied. Which of these outcomes happens turns on factual determinations that must be made by the jury.
Plaintiff argues the Protocol is facially unconstitutional under the First Amendment, while Defendants contend it withstands constitutional scrutiny as a reasonable time, place, and manner restriction. In evaluating Plaintiffs' First Amendment claim, the court must first determine whether Plaintiff has engaged in protected speech. Goulart v. Meadows, 345 F.3d 239, 246 (4th Cir.2003) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). Next, the court must "identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic." Cornelius, 473 U.S. at 797, 105 S.Ct. 3439. Then, the court may determine whether the characteristics of the restriction at issue satisfy the applicable standard. See id.
This case involves speech at the core of First Amendment protection. "Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a
I conclude as a matter of law that the Protocol is a content-neutral restriction, serves a significant government interest, and permits sufficient alternative channels for communication. I further conclude, however, that there is a genuine dispute of fact regarding the tailoring of the Protocol.
The scrutiny that a court must apply to a restriction on speech depends upon whether it is content neutral, content based, or viewpoint based. A content-neutral time, place, and manner restriction will be upheld if it is "narrowly tailored to serve a significant government interest ... and leave[s] open ample alternative channels of communication." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). In contrast, a content-based restriction on speech in a public forum is permissible only if the government shows that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Id. Viewpoint-based restrictions are prohibited. Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009).
"[T]he government's purpose" is the "threshold consideration" in determining whether a restriction is content neutral or content based. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). "The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791, 109 S.Ct. 2746 (citing Clark, 468 U.S. at 295, 104 S.Ct. 3065). A court therefore must find the restriction to be content neutral "if it is justified without reference to the content of the violator's message or point of view." Am. Life League, Inc. v. Reno, 47 F.3d 642, 649 (4th Cir.1995) (emphasis added) (citations omitted).
A regulation does not become content or viewpoint based merely because the government, in promulgating it, was motivated to respond to the conduct of one ideological group. Hill v. Colorado, 530 U.S. 703, 724, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Nor is it content based because "it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791, 109 S.Ct. 2746; see also Am. Life League, 47 F.3d at 651 ("[A] statute is not rendered non-neutral simply because one ideologically defined group is more likely to engage in the proscribed conduct."). In fact, an ordinance that expressly
Here, the Protocol is content neutral. Although Defendant Barclay was responding to the prior conduct of animal welfare demonstrators at the time she created the Protocol and she intended the Protocol to affect these demonstrators' conduct, this does not render the law content based. Rather, the focus must be on the government's purpose in promulgating the Protocol, and the evidence on the record demonstrates that the Protocol's purpose was to confront the undesirable secondary effects of the protests—namely, traffic and pedestrian congestion. Defendant Barclay's testimony establishes that she drafted the Protocol in response to the traffic problems that occurred during the 2003 protest and police complaints of pedestrian-flow issues around the Arena. Plaintiff has failed to present any evidence to counter this conclusion. The "Circus Protesters" subject line in emails transmitting the Protocol does not show it is content or viewpoint based. Even if the Protocol applies only to those protesting the Circus, it remains content-neutral rule so long as it was intended to combat only the secondary effects of the protest.
It is well established that governments have a significant interest in preserving freedom of movement on public streets and sidewalks. See Heffron, 452 U.S. at 650, 101 S.Ct. 2559 ("As a general matter, it is clear that a State's interest in protecting the `safety and convenience' of persons using a public forum is a valid governmental objective."). Indeed, municipal governments have the duty to maintain freedom of movement on public streets. Cox v. Louisiana, 379 U.S. 536, 554-55, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Schneider v. New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939). A government may, therefore, restrict the time, place, duration, or manner of protests and public assemblies on public thoroughfares in order to fulfill this duty. See Cox, 379 U.S. at 558, 85 S.Ct. 453. Plaintiff's contentions to the contrary are unavailing, and his claims that the specific protests in which he participated did not impair the safety or convenience of pedestrians are more appropriately addressed under the narrow-tailoring element.
In light of this precedent, I conclude the City, in creating the Protocol, acted to further a significant government interest.
To be reasonable, a time, place, and manner restriction must permit ample alternative channels of communication. Ward, 491 U.S. at 791, 109 S.Ct. 2746. "An ordinance will not fail for lack of adequate alternatives as long as it provides avenues for `the more general dissemination of a message.'" Green v. City of Raleigh, 523 F.3d 293, 305 (4th Cir.2008) (quoting Frisby v. Schultz, 487 U.S. 474, 482-84, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). Speakers are not entitled to their ideal means of communication; the Constitution demands "only that individuals retain the `ability to communicate effectively.'" Menotti v. City of Seattle, 409 F.3d 1113, 1138 n. 48 (9th Cir.2005) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). There is, therefore, no constitutional requirement that speakers be permitted to distribute leaflets provided that they are afforded other avenues to express their message. See McCullen v. Coakley, 571 F.3d 167, 180 (1st Cir.2009) ("[H]andbilling is not specially protected." (citations omitted)); Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 14 (1st Cir.2004) ("[A]lthough the opportunity to interact directly with the body of delegates by, say, moving among them and distributing literature, would doubtless have facilitated the demonstrators' ability to reach their intended audience, there is no constitutional requirement that demonstrators be granted that sort of particularized access.").
Here, although the Protocol forecloses the demonstrators' ideal means of communication, it provides ample alternative channels of communication. Plaintiff and other animal welfare activists prefer to move among the pedestrians on the sidewalk to distribute literature. Nevertheless, the parameters established by the Protocol do not bar "the more general dissemination" of their message. Plaintiff can convey his views on the Circus by providing literature to those pedestrians who pass through or near the designated area or by holding signs, chanting, and engaging in other protest activities. Unrestricted
There remains for consideration the fourth factor set forth in Ward v. Rock Against Racism: whether the Protocol is narrowly tailored to implement the government's legitimate interest in preventing traffic and pedestrian congestion. For reasons I will next explain, as to this factor, I find that there is a genuine issue of material fact.
In deciding the "narrowly tailored" issue, the Supreme Court has drawn a distinction between ordinances generally imposing time, place, and manner restrictions on protected speech and injunctions whose purpose is to restrict the exercise of the free speech rights of a particular group. Compare Ward, 491 U.S. at 797-800, 109 S.Ct. 2746 (holding that, for a generally applicable ordinance, the regulation "need not be the least restrictive or least intrusive means" of serving the government's interest), with Madsen, 512 U.S. at 765, 114 S.Ct. 2516 (holding that an injunction must "burden no more speech than necessary to serve a significant government interest"). A more rigorous standard applies in determining the constitutionality of an injunction than a general ordinance. Specifically, as is particularly pertinent in this case, the constitutionality of a general ordinance will be upheld if it addresses not only disruptive conduct that has occurred in the past but also anticipated problems of the same nature. See City of Memphis v. Greene, 451 U.S. 100, 126, 101 S.Ct. 1584, 67 L.Ed.2d 769 (1981) ("As a matter of constitutional law a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events."). On the other hand, in order to meet the "narrowly tailored" factor, an injunction must be focused only on past disruptive conduct that might reasonably be anticipated to re-occur. See Madsen, 512 U.S. at 765, 114 S.Ct. 2516 ("[Injunctions] can be tailored. . . to afford more precise relief than a statute where a violation of the law has already occurred."). Thus, in this case, if the Protocol is deemed to be the equivalent of a general ordinance, it would be constitutional even though it covers possible pedestrian congestion and the only past conduct which triggered it was the traffic congestion caused by the PETA truck for which a permit had been issued in 2003. On the other hand, if the Protocol is deemed to be the equivalent of an injunction, it is unconstitutional because its purpose of assuring the flow of pedestrian traffic, while valid, simply was not invoked by what had occurred in the past. While the constitutionality of the Protocol is ultimately a legal question, resolution of this question depends upon a finding as to the underlying factual issue: whether or not the Protocol was of general application or specifically targeted to circus and animal welfare protestors.
I recognize, of course, that the Protocol is not a court issued injunction but a policy adopted by the City Law Department. That fact, however, is not dispositive. Although the Fourth Circuit has not addressed the issue of Madsen's applicability to restrictions other than injunctions, the Second and Third Circuits have extended the Madsen standard to other non-statutory restrictions because these restrictions possess characteristics that the Supreme Court identified as warranting heightened scrutiny for injunctions. McTernan v. City of York, 564 F.3d 636, 654-55 (3d Cir.2009) (applying the Madsen standard to "a police directive, issued by officers in the field," because it "pose[d]
In Madsen, the Supreme Court identified several characteristics of injunctions that give rise to the need for heightened scrutiny. "First, injunctions do not emanate from deliberative, democratic decisionmaking processes," but rather "`are remedies imposed for violations (or threatened violations) of a legislative or judicial decree.'"
Here, the record demonstrates that the Protocol poses many of the risks presented by an injunction. The Protocol was not created through a formal legislative or regulatory decisionmaking process. In fact, the City Defendants, in their motions to dismiss, seized on the informality of the process leading to the promulgation of the Protocol to argue that it should not be treated as a municipal policy under 42 U.S.C. § 1983. (See City Defs.' Mot. Dismiss; BPD Defs.' Mot. Dismiss.) The Protocol appears to have been crafted instead as a response to the disruption that occurred during the 2003 protest. Because it was created to respond to a specific problem—a truck that blocked bus lanes, preventing the uninterrupted flow of traffic—the creation of a more precise policy, addressing only demonstrators' vehicles, would be possible. Additionally, as with the police directive at issue in McTernan, the Protocol "present[s] potentially greater opportunities for arbitrary enforcement than injunctions" because it was not a published rule that members of the public could reference in order to conform their behavior to the law. See McTernan, 564 F.3d at 655 ("Whereas injunctions are written, police directives are oral. Oral directives often lack the precision and
All of this said, and imperfect though the Protocol may have been, Plaintiff's facial challenge fails if the Protocol is deemed to be the equivalent of a generally applicable ordinance rather than an injunction. As previously stated, that question turns upon the determination, to be made by the jury, whether the Protocol was targeted only against circus and animal welfare demonstrators.
In addition to bringing a facial challenge, Plaintiff contends that the Protocol is unconstitutional as applied. The same legal standard analysis applies to facial and as-applied challenges to time, place and manner restrictions. See Independence News v. City of Charlotte, 568 F.3d 148, 155 & n. 3 (4th Cir.2009) (applying the same time, place, or manner analysis to a content-neutral zoning ordinance "regardless of whether [the] challenge is styled as facial or as-applied").
A facially constitutional time, place, or manner restriction will be unconstitutional as applied where the restriction is content neutral on its face but has been applied in a viewpoint- or content-specific manner. Cf. Menotti, 409 F.3d at 1146-48 (refusing to grant summary judgment for the defendant-city on the plaintiff's as-applied challenge because the evidence "create[d] a genuine issue of material fact as to whether it was the policy of the City to apply Order No. 3 in a manner that excluded only anti-WTO protestors"); Benham v. City of Charlotte, 682 F.Supp.2d 549, 557 (W.D.N.C.2010) (considering an as-applied challenge where plaintiffs "allege[d] a pattern of discriminatory enforcement"
Thus, I will deny summary judgment as to the as-applied challenge so that a factfinder may determine whether the Protocol, even if constitutional on its face, was discriminatorily enforced.
It follows from what I have said that Plaintiff's summary judgment motion must also be denied. It is for the jury to determine whether the Protocol was facially unconstitutional because it was targeted solely against circus and animal welfare
This case arises from Plaintiff's arrest, on two occasions, for engaging in demonstrations opposing the circus on the sidewalk outside of the First Mariner Arena ("the Arena"). Plaintiff has challenged a protocol, created by members of the Baltimore Police Department and City Solicitor's office, which required demonstrators to remain within a designated area around the Arena, as violative of the First Amendment on its face and as applied. On December 8, 2010, I issued an Opinion denying Defendants' motion for summary judgment. Defendants now move for reconsideration of this decision and for qualified immunity as to Defendants sued in their individual capacities. The Motion for Reconsideration will be denied, but the Motion for Qualified Immunity will be granted except as to Defendant Wayne Early ("Officer Early").
I described the factual background of this action in detail in my December 8th Opinion, so I will provide only a brief recitation of the relevant facts here. After a 2003 incident in which a truck used by animal-welfare protesters caused a vehicular traffic problem endangering drivers and pedestrians, a member of the City Solicitor's office, at the request of BPD officers, drafted a protocol restricting demonstrators to certain areas of the sidewalk surrounding the Arena. Although there was no subsequent request to use a truck during the demonstrations and the protocol did not address vehicles, the protocol was disseminated by the City Solicitor's Office and implemented during all circus performances at the Arena in subsequent years. I concluded in my prior Opinion that there was a genuine issue of material fact as to whether the protocol was generally applicable—applying equally to all persons engaged in demonstrations during the relevant times—or was applicable only to circus or animal-welfare demonstrators. Defendants have presented no new evidence that would lead me to depart from this conclusion.
Defendants sought summary judgment on the ground that the protocol constituted a reasonable time, place, and manner restriction, and therefore was not facially unconstitutional. Although I found that the protocol was content-neutral, served a significant government interest, and provided sufficient alternative avenues of communication, I declined to grant summary judgment because I could not determine whether the protocol was narrowly tailored. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (listing the requirements for a reasonable time, place, and manner restriction). In my December 8th Opinion, I distinguished between two standards for narrow tailoring: an intermediate standard for generally applicable ordinances and regulations, see id. at 797-800, and a heightened standard that the Supreme Court articulated for injunctions, see Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). Considering Third and Second Circuit cases that
Defendants first seek reconsideration of my decision that, in the event the protocol is found not to be generally applicable, the heightened standard for tailoring should apply. I decline to do so. Although—as I acknowledged in my prior Opinion—the Fourth Circuit has not ruled that the heightened standard should be applied restrictions other than injunctions, the Third and Second Circuit decisions provide persuasive authority. Based on the reasoning in these cases, I believe that heightened scrutiny should apply where there is a content-neutral but not generally applicable restriction
The cases cited by the Defendants do not convince me that the Fourth Circuit has rejected this approach. With respect to claims that a police directive violated the First Amendment, Swagler v. Neighoff, No. 09-1737, 2010 WL 4137530 (4th Cir. Oct. 18, 2010), merely held that the district court had not erred in declining to dismiss the plaintiffs' First Amendment claims because the pleadings, when read in the light most favorable to the plaintiffs, could be read to allege a content-based restriction on speech. See id. at *6-7. The opinion contained no discussion of the proper standard to apply for narrow tailoring. See id. In Willis v. Town of Marshall, 426 F.3d 251 (4th Cir.2005), the Fourth Circuit did not engage in the analysis to determine if a time, place, or manner restriction was reasonable because the court determined
Defendants may seek appellate review of my decision, and the Fourth Circuit may ultimately reach a different conclusion than that I have reached here.
Defendants also argue that the protocol burdens no more speech than necessary, satisfying the heightened standard for tailoring, and they urge me to reconsider my conclusion that the protocol is unconstitutional if this standard applies. Defendants are correct that injunctions may address imminent violations of the law, as well as problems that have occurred in the past. See Madsen, 512 U.S. at 765 n. 3. Where there were past problems, however, an injunction may be "tailored . . . to afford more precise relief," so as "to ensure that the injunction [is] no broader than necessary to achieve its desired goals." Id. at 765. Here, I see no reason to disturb my conclusion that, in light of the fact that prior problems involving circus demonstrators were caused by the presence of a truck, the protocol cannot reasonably be found to burden no more speech than necessary because it affects only pedestrians and forces every circus demonstrator to remain in the prescribed area. Although limitations on the presence of demonstrators on sidewalks has been held to meet the "no broader than necessary" standard in other cases, those cases involved specific evidence of past problems caused by pedestrian demonstrators, such as violence, the disruption of medical services or severe impediments to pedestrian traffic. See Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 36264, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997); Madsen, 512 U.S. at 758-59; Frantz v. Gress, 359 Fed.Appx. 301, 302-04 (3d Cir.2009) ("[The officer] testified that Frantz was standing in the middle of the sidewalk, causing pedestrians either to walk into the street or get `shoved up against' the wall."). The evidence in this case cannot similarly justify
Defendants assert that they are entitled to qualified immunity as to the claims against them in their individual capacities. I have already rejected Officer Early's motion for qualified immunity, and Defendants present no argument as to why I should reconsider this determination. Accordingly, the Motion is denied as to Officer Early. I find, however, that the remaining defendants are entitled to immunity from suit in their individual capacities.
Qualified immunity shields government officials performing discretionary functions from civil damages so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This protects officials from liability where they act "reasonably but mistakenly." Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ("[T]he qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law"). The defense applies "regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (internal quotation marks and citations omitted). Hence, defendants are immune from suit in their individual capacities unless "it appears that (1) they violated a statutory or constitutional right of the plaintiff, and (2) the right was `clearly established' at the time of the acts complained of such that an objectively reasonable official in their position would have known of the right." McVey v. Stacy, 157 F.3d 271, 276 (4th Cir.1998) (citations omitted).
A right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated on other grounds by Pearson, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565. This may be clear "based on controlling authority in the jurisdiction in question or on a `consensus of cases of persuasive authority.'" Waterman v. Batton, 393 F.3d 471, 476 (4th Cir.2005) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). I have acknowledged that Fourth Circuit authority does not mandate the application of the heightened standard of tailoring in the present action. Additionally, the Second and Third Circuit cases I have found to be persuasive do not establish such a clear consensus that a reasonable person would have known that the protocol was unconstitutional. Under these circumstances, it would not have been clear to a reasonable person promulgating the protocol that it was unlawful. Defendants Nilson, DiPietro, Barclay, and Bealefeld therefore are entitled to qualified immunity.
For the foregoing reasons, Defendants' Motion for Reconsideration will be denied and their Motion for Qualified Immunity will be granted as to Defendants Nilson, DiPietro, Barclay, and Bealefeld.
For the reasons stated in the accompanying Memorandum, it is, this 25th day of February 2011.
ORDERED that
2. Judgment is entered in favor of Defendants and against Plaintiff as to Counts IV and X of the Second Amended Complaint.
Here, it is well established that a content-neutral policy cannot be discriminatorily enforced. See, e.g., Cox, 379 U.S. at 558, 85 S.Ct. 453 ("[A]ppropriate, limited discretion. . . concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is exercised with uniformity of method of treatment upon the facts of each application, free from. . . unfair discrimination. . . .") United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972) (reversing convictions for violations of government regulations occurring during demonstrations on government property because the regulations had been selectively applied); Nieto v. Flatau, 715 F.Supp.2d 650, 656-57 (E.D.N.C.2010) (holding that a regulation was unconstitutionally applied because, "although viewpoint neutral on its face, [it] has not been applied in a viewpoint-neutral manner"). Officer Early may nevertheless be entitled to immunity if he reasonably but mistakenly believed that the Protocol applied only to circus or animal welfare demonstrators, and he enforced it in conformity with this belief. The terms of the Protocol do not specify its scope, and the email subject "Circus Protesters" may have led him to conclude it applied only to those protesting the Circus or its treatment of animals. I will not dismiss the federal claims against Officer Early on the basis of qualified immunity, however, because he has not presented sufficient evidence regarding the information conveyed to him regarding the Protocol to show that a belief that it was targeted at circus or animal rights demonstrators was reasonable. In light of the evidence suggesting animus, a reasonable jury could conclude that Officer Early was aware the Protocol was content-neutral and generally applicable, but enforced it only against circus and animal welfare demonstrators.
