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Lawsuit over Baltimore circus protests returns to 4th Circuit

A 2013 lawsuit over a limit on protests at Royal Farms Arena during circus performances will go to the 4th U.S. Circuit Court of Appeals for a third time after a judge denied motions to dismiss by the Baltimore Police Department and the city last month.

Kenneth Lucero’s constitutional challenge to the city’s “buffer zone” restriction on leaflets and protesters near the arena was most recently revived by the 4th Circuit in 2017. On Sept. 25, U.S. District Judge George L. Russell III denied motions to dismiss and the department noted an appeal to the 4th Circuit Wednesday.

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

The city’s legal department drafted a controversial protocol for circus performances in 2004 after an incident the previous year in which traffic was stalled and pedestrians were blocked near the arena during an animal-rights protest. The protocol was distributed by email annually to city officials in advance of the circus’  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.

Baltimore City Solicitor Andre M. Davis declined to comment on the case Monday.

Attorney Sean R. Day said Monday that the city long ago abandoned the protocol in question but that his client was continuing to seek damages and attorney’s fees.

“They’ve really dragged it out a long time and it’s just been astonishing how long it’s taken,” said Day, a Greenbelt solo practitioner.

Lucero’s lawsuit claims the 2004 protocol was in place only when the circus was at the arena and enforced only against those who opposed the circus, a violation of his First Amendment rights.

A judge dismissed the lawsuit in 2014 in light of a related 4th Circuit case, Ross v. Early, in which a protester conceded the protocol was viewpoint-neutral and not specifically aimed at preventing circus protests, but Lucero never conceded this point. After initially remanding the case for a final judgment, the 4th Circuit heard arguments in 2017.

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

The city and the police department argued for the dismissal of the lawsuit based on sovereign immunity, failure to state a claim and other issues. Russell concluded the department is a “person” that can be sued civilly for deprivation of an individual’s rights and is not immune from suit under the Eleventh Amendment.

Russell also determined Lucero sufficiently alleged that the city and the department had a policy of violating constitutional rights, finding he “plausibly” alleged a claim “based on the acts of policymaking officials” and a “widespread custom or practice of discriminatory enforcement.”

The case is Kenneth Lucero v. Wayne A. Early et al., 1:13-cv-01036.

The circus ended its 146-year run in 2017, in part due to legal battles with animal-rights groups.

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