United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendant Mayor & City
Council's ("Baltimore City" or the
"City") Motion to Dismiss Count Two of the Second
Amended Complaint (ECF No. 79) and Defendant Baltimore Police
Department's ("BPD") Motion to Dismiss
Plaintiffs Second Amended Complaint (ECF No. 80). In this 42
U.S.C. § 1983 (2018) action, Lucero challenges the
City's and BPD's restrictions on leafletting near the
First Mariner Arena (the "Arena") in Baltimore,
Maryland, and his arrest for violating those restrictions.
The Motions are ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2018). For
the reasons outlined below, the Court will deny the Motions.
City owns the First Mariner Arena (the "Arena"),
located at 201 West Baltimore Street in Baltimore, Maryland.
(2d Am. Compl. ¶ 10, ECF No. II). Every year, the
City leases the Arena to the owners of Ringling Brothers
Circus ("Ringling" or the "Circus") for
almost two weeks, during which time Ringling holds daily
performances. (Id. ¶ 12).
2004, apparently prompted by a 2003 incident in which a media
van impeded the flow of traffic, the City and BPD
"jointly formulated" a policy (the
"Policy") that restricted protestors', including
leaflerters', use of the sidewalk and plaza area
surrounding the Arena during the Circus. (Id
¶¶ 14-15). In effect, the Policy imposed a
"buffer zone" around "all public entrances to
the Arena" and "areas where Circus attendees are
likely to walk." (Id ¶ 44). These
restrictions prevent leaflerters from being at a
"conversational distance" from Circus patrons.
(Id.). They are in place only when the Circus is at
the Arena, (Id. ¶¶ 38-40). In addition,
Defendant BPD officer Wayne A. Early ("Officer
Early") and other BPD officers "in a widespread
custom" enforce the Policy "only against those who
oppose the Circus." (Id. ¶¶ 51, 80).
April 2010, Ringling was in Baltimore for its annual daily
performances. (See id ¶¶ 55-56). On April
8, 9, and 10, 2010, Lucero "wanted to leaflet in
restricted areas" but did not because Officer Early and
other BPD officers threatened him with arrest based on the
Policy. (Id. ¶ 55). On April 17, 2010, Lucero
leafletted in a restricted area, and Officer Early arrested
him for violating the Policy. (Id ¶ 56). BPD
detained Lucero for "several hours" at a booking
facility. (Id. ¶ 60). BPD ultimately released
Lucero without bringing any criminal charges against him.
Relevant Procedural Background
April 8, 2013, Lucero sued Officer Early, the City, and BPD.
(ECF No. 1). On October 17, 2014, Lucero filed an Amended
Complaint. (ECF No. 24). On September 11, 2018, the Court
granted the City's Motion to Dismiss Count Two of the
Amended Complaint and BPD's Motion to Dismiss the Amended
Complaint, dismissed Counts 2 and 3 without prejudice, and
granted Lucero leave to file a second amended complaint.
(Sept. 11, 2018 Mem. Op. at 22, ECF No. 68). Specifically,
the Court concluded that Lucero failed to sufficiently allege
that a final decisionmaker had implemented or approved the
Policy. (Id. at 16-17).
filed a Second Amended Complaint on October 11, 2018. (ECF
No. 77). In his five-count Second Amended
Complaint, Lucero alleges: direct liability for violations of
his constitutional rights under § 1983 against Officer
Early (Count 1); municipal liability for violations of his
constitutional rights under § 1983 against the City and
BPD, challenging the Policy as applied to the leafletters
(Count 2); municipal liability for violations of his
constitutional rights under § 1983 against BPD for
discriminatory enforcement of the Policy (Count 3); False
Arrest against Officer Early (Count 4); and violation of
Article 26 of the Maryland Declaration of Rights against
Officer Early (Count 5). (Id. ¶¶ 66-92).
Lucero seeks damages, attorney's fees, and costs.
(Id at 24).
November 13, 2018, the City filed its Motion to Dismiss Count
Two of the Second Amended Complaint. (ECF No. 79). Lucero
filed his Opposition on November 27, 2018. (ECF No. 81). On
December 10, 2018, the City filed a Reply. (ECF No. 83).
November 13, 2018, BPD filed its Motion to Dismiss
Plaintiff's Second Amended Complaint. (ECF No. 80).
Lucero filed his Opposition on November 27, 2018. (ECF No.
82). On December 11, 2018, BPD filed a Reply. (ECF No. 84).
Ross v. Early Litigation
related case, Aaron Ross v. Wayne A. Early, No.
JFM-9-3255 (D.Md. closed Nov. 30, 2012), Aaron Ross sued BPD,
the City, then-Commissioner Frederick H. Bealefeld, III, and
three solicitors for the Baltimore City Law Department,
alleging that the Policy at issue in this case violated the
First Amendment to the United States Constitution, both
facially and as applied. Ross v. Early (Ross
III), 899 F.Supp.2d 415, 418 (D.Md. 2012), affd, 746
F.3d 546 (4th Cir. 2014). The Ross III Court denied
BPD's and the City's motions for summary judgment
regarding the constitutionality of the Policy. Id.
at 425. In an earlier opinion, the Court concluded that the
Policy was content-neutral, served a significant government
interest, and provided sufficient alternative avenues for
communication. Id. at 421 (citing Ross v.
Early (Ross II), 758 F.Supp.2d 313, 320 (D.Md.
2010)). The Court further concluded that there was a genuine
dispute of material fact regarding whether the Policy was
narrowly tailored, which depended on the Policy's scope
and the corresponding level of scrutiny. Id. at 425.
As a result, the parties entered into a stipulation for the
purposes of appealing the Court's ruling. Ross,
746 F.3d at 551. The Ross parties stipulated that
the Policy applied generally to "all expressive
activity" and not to "the activities of circus and
animal welfare street protesters specifically."
Id. at 551-52. Consequently, the United States Court
of Appeals for the Fourth Circuit reviewed the Policy under
intermediate scrutiny and ultimately held that it did not
violate the First Amendment. Id. at 555.
Standard of Review
purpose of a motion under Federal Rule of Civil Procedure
12(b)(6) "is to test the sufficiency of a complaint,
" not to "resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses." King v. Rubenstein, 825 F.3d 206,
214 (4th Cir. 2016) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). A
complaint fails to state a claim if it does not contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief, " Fed.R.Civ.P.
8(a)(2), or does not "state a claim to relief that is
plausible on its face, " Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly. 550 U.S. 544, 570 (2007)). A claim is facially
plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. (citing Twombly, 550 U.S. at 556).
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id. (citing Twombly, 550
U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of America, N.A., 917
F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff d
sub nom. Goss v. Bank of America, NA, 546 Fed.Appx. 165
(4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs of Davidson Cry., 407 F.3d 266, 268 (4th
Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). But the court need not accept unsupported or
conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at
City and BPD advance several arguments for dismissing the
Second Amended Complaint. First, BPD contends that it is not
a "person" under § 1983 and that it is
entitled to Eleventh Amendment immunity. Second, the City
maintains that it cannot be held liable for BPD's or BPD
officers' conduct. Third, they assert that Lucero either
fails to state a claim or fails to sufficiently allege
Monell claims under § 1983.
BPD's Liability under § 1983
asserts that it cannot be held liable under § 1983 for
two reasons: (1) it is not a "person" for the
purposes of § 1983; and (2) it is entitled to Eleventh
Amendment immunity. ...