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City and protester settle suit over 2010 arrest outside circus

A lawsuit dating to 2013 over a Baltimore Police Department policy regarding protests during circus performances has tentatively settled.

Kenneth Lucero’s constitutional challenge to the city’s “buffer zone” restriction on leaflets and protesters near the Royal Farms Arena is currently before the 4th U.S. Circuit Court of Appeals for the third time after a judge denied motions to dismiss by the police department and the city.

On Friday, attorneys told the trial judge in a joint report that the case has settled and requested an order dismissing the case, pursuant to local rules.

Attorney Sean R. Day declined to provide details of the settlement Friday but confirmed it will not need approval by the Board of Estimates, which must sign off on settlements of $25,000 or more.

City Solicitor Andre M. Davis did not immediately respond to a request for comment Friday.

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

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 before 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.

The city no longer uses the protest protocol and the circus ended its 146-year run in 2017, in part due to legal battles with animal-rights groups.

Day, a Greenbelt solo practitioner, said the case “painfully dragged and crawled on” for various reasons, including the two previous appeals.

“After reaching the one decade mark (since the arrest and) given that non-monetary objectives of the litigation were resolved or moot, Mr. Lucero and I decided to try to close the case, which we have done,” Day said via email.

Lucero’s lawsuit claimed 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. The case was dismissed in 2014 due to a ruling in another protester’s case, but Lucero’s lawsuit was revived because he had not conceded that the protest protocol was “viewpoint-neutral” as the other plaintiff had.

The most recent appeal to the 4th Circuit stems from the trial judge’s denial of the police department’s motion to dismiss based on sovereign immunity because it is a state agency.

The Baltimore Police Department was established as a state agency and the state is immune from suit in U.S. District Court for unconstitutional behavior by its agents.

But U.S. District Judge George L. Russell III 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 11th 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 issue of whether the police department is a city or state agency for the purposes of federal lawsuits alleging liability for the misconduct of BPD officers is also before the 4th Circuit in two consolidated cases.

The plaintiffs are Umar Burley and Brent Matthews, who both seek damages from the city and the Baltimore Police Department for actions of corrupt Gun Trace Task Force officers, and Garreth Parks, who is suing the department over his wrongful conviction in 1999. The parties are currently briefing the appeals court on the issue.

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