4th Circuit revives Baltimore circus protester’s First Amendment claim

In this 2005 photo, elephant trainer Mike Haywald of the Ringling Bros. and Barnum & Bailey Circus lines up some of the elephants during the “Lunch with the Elephants” annual event at Lexington Market. (File photo)

A federal appeals court has revived the free-speech claim of a man who was arrested near Royal Farms Arena in Baltimore while protesting the treatment of circus animals when the three-ring event was in town.

In its published 3-0 decision, the 4th U.S. Circuit Court of Appeals sent Kenneth Lucero’s constitutional challenge back to district court with instructions the judge determine if the city’s limit on protests at circuses is viewpoint-neutral, and thus constitutional, or targeted at protests against the circus, and thus constitutionally suspect.

U.S. District Judge J. Frederick Motz had dismissed Lucero’s First Amendment claim, citing the 4th Circuit’s earlier decision upholding the city’s law-department-approved protocol, which limits circus protests to areas away from Royal Farms Arena’s entrances.

But the 4th Circuit said last week the protester in that 2014 case, Ross v. Early, had conceded the protocol was viewpoint-neutral and not specifically aimed at preventing circus protests – a concession Lucero has not made.

Police arrested Lucero on April 17, 2010, while he was handing leaflets denouncing the treatment of animals to people attending the Ringling Bros. and Barnum & Bailey Circus. The officers said Lucero encroached on the protocol’s buffer zone for protesters.

The city’s legal department drafted the controversial protocol in 2004 after an incident the prior year in which traffic was stalled and pedestrians were blocked near the arena during an animal-rights protest of the circus.

The protocol had been distributed by email annually to city officials in advance of the circus’ yearly arrival and called for police to direct “any protesters” to move away from the arena’s entrances to give pedestrians access to the doors and sidewalks. The police were told to give “anyone who refuses to obey” the guidelines two verbal requests before initiating an arrest, according to the 4th Circuit’s opinion.

Lucero claims the protocol is too restrictive in that it prevented him from getting within arms’ reach of and conversational distance to the circus-goers as he sought to hand them leaflets and voice his concerns about animal treatment.

In remanding the case, the 4th Circuit said the district court should examine whether the protocol is unconstitutionally targeted at animal-rights protestors, as Lucero claims, or validly aimed at anyone who gets within the buffer zone — regardless of their message — and interferes with customer access to the arena, as the city alleges.

The 4th Circuit cited the U.S. Supreme Court’s 2014 McCullen v. Coakley decision that a restriction should be upheld if it “depends not on what they (the protesters) say, but simply on where they say it.”

But the 4th Circuit also told the district court that a seemingly content-neutral protocol, as the city claims, “can nonetheless be considered content based if it ‘cannot be justified without reference to the content of regulated speech, or (it was) adopted by the government because of disagreement with the message the speech conveys,’” as the Supreme Court stated in its 2015 decision Reed v. Town of Gilbert.

“In light of McCullen and Reed, there is much in dispute that may be critical to the content neutrality question in this case, including but not limited to whether the protocol required officers to check the content of the leaflets before engaging in enforcement measures (i.e., whether violation of the protocol depends on what protestors say, not just where they say it), and, if facially content neutral, whether the protocol was adopted because of a disagreement with (Lucero’s) message,” Judge Stephanie D. Thacker wrote for the 4th Circuit.

“The district court failed to take account of the factual dispute below, did not consider McCullen, and did not have the benefit of Reed,” Thacker added. “We therefore remand this action for the district court to analyze in the first instance whether the protocol is content neutral and, in turn, the correct scrutiny to apply” in the case.

Lucero’s attorney, Sean R. Day, praised the court’s decision and said he will show the protocol was not content neutral but directed at animal-rights protesters by citing the law department’s email that accompanied the protocol’s distribution prior to his client’s 2010 protest. The email’s subject line referred specifically to “circus protesters” and its body addressed “those who wish to express their views about the circus,” said Day, a Greenbelt solo practitioner.

The 4th Circuit’s decision “hit the reset button in regards to the policy and we hope that we can get this right eventually,” Day added.

Baltimore City Solicitor Andre M. Davis did not return a telephone message Thursday seeking comment on the court’s decision.

Thacker was joined in the opinion by Judges Pamela A. Harris and Norman K. Moon, a senior judge on the U.S. District Court in western Virginia who was sitting by designation.

The 4th Circuit rendered its decision in Kenneth Lucero v. Mayor and City Council of Baltimore et al., No. 16-1767.