Lucero v. Early et al
Filing
86
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 9/25/2019. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENNETH LUCERO,
:
Plaintiff,
:
v.
:
WAYNE A. EARLY, et al.,
:
Defendants.
Civil Action No. GLR-13-1036
:
MEMORANDUM OPINION
THIS 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 Plaintiff’s 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.
I.
A.
BACKGROUND1
Factual Background
Baltimore City owns the First Mariner Arena (the “Arena”), located at 201 West
Baltimore Street in Baltimore, Maryland. (2d Am. Compl. ¶ 10, ECF No. 77).2 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).
In 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”) 3 that
restricted protestors’, including leafletters’, 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 leafletters 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
Unless otherwise noted, the Court takes the following facts from Lucero’s Second
Amended Complaint, (ECF No. 77), and accepts them as true. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).
2
The Court provided additional factual background in its September 11, 2018
Memorandum Opinion (ECF No. 68). The Court repeats only facts relevant to the pending
Motion and will address additional facts when discussing applicable law.
3
The Court uses the term “Policy” for the sake of simplicity. It is not intended as a
conclusion—express or implied—that the restrictions on leafletting are a policy under
Monell v. Department of Social Services, 436 U.S. 658 (1978).
1
2
other BPD officers “in a widespread custom” enforce the Policy “only against those who
oppose the Circus.” (Id. ¶¶ 51, 80).
In 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. (Id.).
B.
Relevant Procedural Background
On 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).
3
Lucero filed a Second Amended Complaint on October 11, 2018. (ECF No. 77).4 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).
On 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).
Also on 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).
C.
Ross v. Early Litigation
In a 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
4
Officer Early filed an Answer to the Second Amended Complaint on November 5,
2018. (ECF No. 78).
4
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), aff’d, 746 F.3d 546 (4th Cir. 2014).5 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.
5
Ross also brought false arrest and false imprisonment claims against Officer Early.
Ross III, 899 F.Supp.2d at 418.
5
II.
A.
DISCUSSION
Standard of Review
The 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
F.App’x 165 (4th Cir. 2013).
In 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
6
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 Cty., 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 678.
B.
Analysis
The 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.
1.
BPD’s Liability under § 1983
BPD 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. The Court addresses BPD’s arguments in turn.
a.
“Person”
BPD contends that it is a State agency, not an agency of the City of Baltimore, and
is therefore not a “person” under § 1983. In essence, BPD maintains that because states are
not “persons” under § 1983 and BPD is a state agency, it, too, is not a “person” subject to
suit. Lucero disputes this contention.
7
BPD points to § 1983 and Will v. Michigan Department of State Police, 491 U.S.
58, 71 (1989), for the proposition that a state is not a “person” under § 1983, and because
BPD is a state agency, it also is not a “person.” BPD does not, however, cite any federal
court cases that support this proposition. Indeed, this Court has repeatedly held that BPD
is a “person” subject to suit under § 1983. See, e.g., Chin v. City of Baltimore, 241 F.Supp.
2d 546, 548 (D.Md. 2003) (“[T]he Baltimore Police Department is a ‘person’ subject to
suit under § 1983.”); Hector v. Weglein, 558 F.Supp. 194 (D.Md. 1982) (concluding that
the BPD is amendable to suit under § 1983). The Court agrees with these conclusions.
Nevertheless, relying on Estate of Anderson v. Strohman, 6 F.Supp.3d 639, 644
(D.Md. 2014), BPD attacks this Court’s holdings Hector and Wilcher v. Curley, 519
F.Supp. 1 (D.Md. 1980), which concluded that BPD is too connected to the City to avoid
liability under § 1983. Hector, 558 F.Supp. at 199 (holding that BPD is “sufficiently cityconnected so as not to be entitled to the claimed Eleventh Amendment protection”);
Wilcher, 519 F.Supp. at 5 (concluding that BPD was not entitled to Eleventh Amendment
immunity because it was sufficiently connected to the City, not the state). BPD contends
that it cannot be so connected to the City for it to be a “person” under § 1983 while at the
same time the City is not sufficiently connected to BPD to be held liable for BPD officers’
conduct. The Court is not persuaded.
In Estate of Anderson, the Court addressed the City’s liability under § 1983 and
state law for BPD officers’ conduct. 6 F.Supp. 3d at 644–46. Because the City “sets no
policy or custom that Baltimore police officers execute,” the Court concluded that
8
“[m]unicipal liability under Monell cannot attach to the City for the unconstitutional
actions of Baltimore police officers.” Id. at 646. BPD argues that because BPD employees
are state employees and because the City does not set any policies or practices for BPD,
BPD and the City are not sufficiently connected for liability to attach under § 1983.
Here, BPD overlooks the cases that post-date Wilcher and Hector that specifically
address the issue of whether BPD is a “person” subject to liability under § 1983. Since
Wilcher and Hector, this Court decided Chin, in which it reiterated that as a “local
government entity” BPD is a “‘person’ subject to suit under § 1983.” 241 F.Supp.2d at
548–49. Since Chin, this Court has repeatedly affirmed its holding. See, e.g., Fish v. Mayor
of Baltimore, No. CCB-17-1438, 2018 WL 348111, at *3 (D.Md. Jan. 10, 2018) (“[T]he
court determines BPD is not entitled to Eleventh Amendment immunity and, as a result, is
a ‘person’ subject to suit under § 1983.”); Rockwell v. Mayor of Baltimore, No. RDB-133049, 2014 WL 949859, at *11 (D.Md. Mar. 11, 2014) (collecting cases) (“As the weight
of authority from this Court indicates, the Baltimore Police Department is not a state
agency for Eleventh Amendment purposes and, therefore, can be held liable
under § 1983.”). Further, as this Court has explained, “whether there are sufficient
connections between [BPD] and the [City] to preclude a claim of sovereign immunity by
[BPD],” and, as a result, is not a “person” under § 1983, “is a different question from
whether the City controls [BPD] to establish Monell liability, even if they may rely on
some of the same facts.” Dale v. Mayor, No. WDG-14-2152, 2015 WL 5521815, at *4
9
(D.Md. Sept. 15, 2015). These analyses “should not be collapsed into one.” Id. BPD
attempts to do just that. The Court rejects this attempt.
In sum, the Court concludes that BPD is a “person” under § 1983. The Court will,
therefore, deny BPD’s Motion on this basis.
b.
Eleventh Amendment Immunity
BPD contends that, as a state agency, it is immune from suit under the Eleventh
Amendment. The Court disagrees.
The Eleventh Amendment to the United States Constitution provides that “[t]he
Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another
State.” U.S. Const. amend. XI. Notwithstanding the Eleventh Amendment’s explicit
mention of only “Citizens of another State,” the Supreme Court of the United States has
construed the Eleventh Amendment as also protecting states from federal court suits
brought by the state’s own citizens. Id.; Lee-Thomas v. Prince George’s Cty. Pub. Sch.,
666 F.3d 244, 248 (4th Cir. 2012) (quoting Port Auth. Trans-Hudson Corp. v. Feeney, 495
U.S. 299, 304 (1990)). The States’ immunity extends to “state agents and
instrumentalities.” Id. (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
(1997)).
To determine whether an entity is a state agent or instrumentality, and therefore is
entitled to Eleventh Amendment immunity, courts apply the “arm-of-the-State” analysis.
See Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 395 n.5 (4th Cir.
10
2014). This analysis examines four nonexclusive factors: (1) “whether any judgment
against the entity as defendant will be paid by the State or whether any recovery by the
entity as plaintiff will inure to the benefit of the State”; (2) “the degree of autonomy
exercised by the entity, including such circumstances as who appoints the entity’s directors
or officers, who funds the entity, and whether the State retains a veto over the entity’s
actions”; (3) “whether the entity is involved with state concerns as distinct from non-state
concerns, including local concerns”; and (4) “how the entity is treated under state law, such
as whether the entity’s relationship with the State is sufficiently close to make the entity an
arm of the State.” U.S. ex rel. Oberg v. Kentucky Higher Educ. Student Loan Corp., 681
F.3d 575, 580 (4th Cir. 2012) (quoting S.C. Dep’t of Disabilities & Special Needs v.
Hoover Universal, Inc., 535 F.3d 300, 303 (4th Cir. 2008)). In Owens, the Fourth Circuit
explained that the Supreme Court previously held that the first factor was most important,
but has since “abandoned this view.” 767 F.3d at 395 n.5. Accordingly, the Court “must
also consider at least three other factors—the degree of autonomy exercised by an entity,
whether an entity is involved with state concerns, and how an entity is treated under state
law—without giving preeminence to any single factor.” Id.
BPD argues that applying the arm-of-the-State factors to BPD shows that it is a State
agency for the purposes of the Eleventh Amendment.6 The Court disagrees. BPD overlooks
6
BPD, citing Garner v. Harper, No. GLR-11-1919, 2012 WL 3263848, at *3 (D.Md.
Aug. 8, 2012) contends, “At least once, this Court has granted BPD Eleventh Amendment
immunity. (BPD’s Mot. at 8). BPD’s argument misses the mark. Garner involved an
unrepresented litigant who sued BPD and individual officers for an alleged assault that
occurred during his arrest. Garner, 2012 WL 3263848, at *1. BPD and the individual
11
this Court’s holding in Alderman v. Baltimore City Police Department, 952 F.Supp. 256
(D.Md. 1997).
In Alderman, this Court applied the arm-of-the-State analysis to BPD and concluded
that it was not entitled to Eleventh Amendment immunity. Id. at 258. To be sure, this Court
decided Alderman when the primary factor was whether any judgment would be paid from
the State treasury—and concluded that this factor alone was dispositive. Id. (citing Harter
v. Vernon, 101 F.3d 334, 338 (4th Cir. 1996)). This Court further concluded, however, that
the other three factors also weighed against concluding that BPD is an arm of the state,
and, as a result, that BPD was not entitled to Eleventh Amendment immunity. Id. at 259.
With regard to the second factor, this Court noted that the City “exercises a significant
degree of control” over BPD, including determining how many employees to hire,
reviewing employment applications, setting employee salaries, offering medical insurance,
and providing legal representation. Id. at 258. As to the third factor, this Court concluded
that BPD’s functions are “unquestionably local.” Id. (quoting Hess v. Port Auth. TransHudson Corp., 513 U.S. 30, 44 (1994)). With regard to the fourth factor, this Court rejected
BPD’s reliance on state court decisions concluding that it is a state agency, citing the Fourth
officers filed motions to dismiss, which the Court granted unopposed. Id. In its discussion
regarding Eleventh Amendment immunity, the Court does not specify the claims to which
it applies. See id. at *3. Thus, the Court does not read Garner to necessarily stand for the
proposition that Eleventh Amendment immunity prevents BPD from being held liable
under § 1983. Further, given the case law, discussed above, concluding that BPD is not
entitled to Eleventh Amendment immunity, the Court declines to hold based on a single
unpublished opinion that Eleventh Amendment immunity shields BPD from suit
under § 1983.
12
Circuit’s admonishment to federal courts regarding cases “that have mistakenly treated a
state court decision as to whether an entity is a state actor as determinative.” (quoting
Harter, 101 F.3d at 342). Besides the Fourth Circuit noting that the first factor is no longer
the most important one, BPD gives the Court no reason to depart from Alderman and the
Court finds none.
Thus, the Court concludes that BPD is not an arm of the State and, consequently, is
not entitled to Eleventh Amendment immunity. Accordingly, the Court will deny BPD’s
Motion on this ground.
2.
Monell Claims
Under Monell v. Department of Social Services, municipalities and units of local
government are subject to suit under § 1983. 436 U.S. 658, 690 (1978). A plaintiff may sue
a municipality under § 1983 if he suffered a constitutional violation at the hands of an
employee acting under color of a municipal policy. Id. at 692. Under Monell, however, “a
municipality is liable only for its own illegal acts.” Owens v. Balt. City State’s Attorney’s
Office, 767 F.3d 379, 402 (4th Cir. 2014). As a result, “[o]nly if a municipality subscribes
to a custom, policy, or practice can it be said to have committed an independent act, the
sine qua non of Monell liability.” Id. Put differently, if “‘a policy statement, ordinance,
regulation, or decision officially adopted and promulgated’ by a municipality’s officers
directly caused a constitutional violation, then the municipal body may be sued directly.”
Ashby v. Isle of Wight Cty. Sch. Bd., 354 F.Supp.2d 616, 625 (E.D.Va. 2004) (quoting
13
Monell, 436 U.S. at 690). Respondeat superior liability is insufficient under Monell’s
standard. Monell, 436 U.S. at 693–94.
All § 1983 Monell claims have three elements: “(1) identifying the specific ‘policy’
or ‘custom’[;] (2) fairly attributing the policy and fault for its creation to the municipality;
and (3) finding the necessary ‘affirmative link’ between identified policy or custom and
specific violation.” Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987), cert. denied
sub nom. City of Fayetteville v. Spell, 484 U.S. 1027 (1988); see also Jones v. Chapman,
No. ELH-14-2627, 2015 WL 4509871, at *12 (D.Md. July 24, 2015) (“[A] municipality is
liable when a policy or custom is fairly attributable to the municipality as its own, and
is . . . the moving force behind the particular constitutional violation.” (citation omitted)).
A plaintiff may allege four types of customs, policies, or practices: (1) the “decisions
of a government’s lawmakers;” (2) “the acts of its policymaking officials;” (3) “a local
government’s decision not to train certain employees about their legal duty to avoid
violating citizens’ rights,” known as a “failure to train” claim; and (4) “practices so
persistent and widespread as to practically have the force of law,” known as a condonation
claim. Connick v. Thompson, 563 U.S. 51, 61 (2011).
“Although prevailing on the merits of a Monell claim is difficult, simply alleging
such a claim is, by definition, easier.” Owens, 767 F.3d at 403. To sufficiently state a
Monell claim under Rule 12(b)(6), a plaintiff “need only allege facts which, if true, ‘state
a claim to relief that is plausible on its face.’” Id. (quoting Iqbal, 556 U.S. at 678). The
complaint’s facts “need not be particularly detailed, and the chance of success need not be
14
particularly high.” Id. “A plaintiff fails to state a claim only when he offers ‘labels and
conclusions’ or formulaically recites the elements of his § 1983 cause of action.” Id.
(quoting Iqbal, 556 U.S. at 678).
Here, Lucero alleges the second and fourth types of customs, policies, or practices—
the acts of policymaking officials and a persistent and widespread practice of violating
citizens’ constitutional rights. Lucero brings the second type of Monell claim against the
City and BPD in Count 2; he brings the fourth type against BPD only in Count 3.7 The
Court first addresses Lucero’s claim premised on the second type of Monell custom, policy,
or practice.
a.
Acts of Policymaking Officials Claim (Count 2)
Both BPD and the City maintain that Lucero fails to state a § 1983 Monell claim
based on the acts of policymaking officials because Lucero fails to allege that BPD or City
official with final policymaking authority adopted the Policy. The Court disagrees.
A municipality is not “automatically subject[ed]” to § 1983 liability for “every
decision by municipal officers.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)
(plurality). Rather, a municipality may be liable “only where the decisionmaker possesses
final authority to establish municipal policy with respect to the action ordered.” Lane v.
Anderson, 660 F.App’x 185, 197 (4th Cir. 2016) (quoting Pembaur, 475 U.S. at 481). A
7
Lucero also arguably pleads the third type of Monell claim—failure to train. In the
Second Amended Complaint he alleges a “failure to correct.” (2d Am. Compl. ¶ 78).
Lucero does not allege, however, the constitutional rights about which BPD failed to train
its officers or in what ways BPD’s training was deficient. Accordingly, the Court construes
Count 3 as alleging only a widespread custom or practice type of Monell claim.
15
decisionmaker with final policymaking authority is an individual who has “the
responsibility and authority to implement final municipal policy with respect to a particular
course of action.” Lytle v. Doyle, 326 F.3d 463, 472 (4th Cir. 2003) (quoting Riddick v.
Sch. Bd. of Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000)). Put another way, a
decisionmaker possesses “final authority” to set a particular policy when “no further action
is needed for the policy to take effect.” Liverman v. City of Petersburg, 844 F.3d 400, 413
(4th Cir. 2016). To determine which officials have final policymaking authority for the
challenged policy, the Court considers “the relevant legal materials, including state and
local positive law, as well as ‘custom or usage having the force of law.’” Riddick, 238 F.3d
at 523 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Further “[a]
policy or custom need not receive ‘formal approval through the municipality’s official
decision-making channels to subject the municipality to liability.’” Lytle, 197 F.Supp.2d
at 493 (quoting Riddick, 238 F.3d at 522).
The City contends that Chief Solicitors do not have final policymaking authority
over the conduct of BPD officers. Specifically, the City posits, because the City Solicitor
is not a final policymaker, neither are his subordinates, Chief Solicitors Linda Barclay and
Elena DiPietro. Likewise, BPD asserts that only the Commissioner has final policymaking
authority under state law, and therefore, Lucero’s allegations that the Chief of the BPD
Law Department; BPD’s second-in-command, Anthony Barksdale; and then-BPD
16
Commissioner, Leonard Hamm were involved in developing and implementing the Policy
are insufficient.8
Here, Lucero alleges that Barclay “created” the Policy in 2004, that she “continued”
it through 2008, and that DiPietro “continued” it until 2010. (See 2d Am. Compl. ¶ 27).
Lucero further alleges that “City Solicitors have final decision-making authority-in-fact
over matters under their purview, including the Policy at issue here.” (Id.). “BPD
Command Staff” were allegedly “involved in creation of the Policy” and “designated BPD
supervisors,” including Barksdale and Hamm, “have final decision-making authority-infact over matters under their purview, including the Policy at issue here.” (Id. ¶ 28). In
addition, these “designated BPD supervisors” either “implemented the Policy or through
actual or constructive notice caused it to be implemented.” (Id.). It is true that the Court
looks to “state and local positive law” to determine whether an official has final
policymaking authority, which, in this case, does not vest any officials besides the
Commissioner and the Chief Solicitor with final decision-making authority. But the Court
also considers ‘custom or usage having the force of law.’” Riddick, 238 F.3d at 523
Both the City and BPD also argue that Lucero’s allegations that the Chief Solicitor,
City Solicitors, and “BPD Command Staff,” including the Commissioner, “presumptively
received,” (2d Am. Compl. ¶¶ 27–28), emails regarding the Policy are insufficient to
establish that the City or BPD implemented or ratified it. Defendants misconstrue Lucero’s
allegations. Lucero does not plead that Defendants only received emails regarding the
Policy. Rather, Lucero alleges that Chief Solicitor Barclay “created” the Policy, “BPD
Command Staff,” including the Commissioner, “were involved in the creation of” the
Policy, and that “designated BPD supervisors,” including the Commissioner, “reviewed”
the Policy. (Id.). The allegations related to the emails illustrate that these individuals were
involved in developing and implementing the Policy.
8
17
(quoting Jett, 491 U.S. at 737). In this case, Lucero alleges that BPD and City officials
jointly formulated the Policy in 2004 and continued that Policy through 2010 when the
Circus ended. Thus, at this stage in the litigation, Lucero plausibly alleges a “custom or
usage having the force of law” in which BPD and City officials collaborated to create and
enact the Policy.9 In reaching this conclusion, the Court notes that the Policy did not need
“formal approval through the municipality’s official decision-making channels” for it to be
a municipal policy under § 1983. Lytle, 197 F.Supp.2d at 493 (quoting Riddick, 238 F.3d
at 522).
The City also argues that Barclay and DiPietro were acting within the policymaking
authority the City Solicitor delegated to them when they responded to BPD’s request for
legal advice with a recommendation. The Court is not persuaded for at least two reasons.
First, the City attempts to re-cast the allegations in the Second Amended Complaint to
characterize Barclay’s and DiPietro’s conduct as something other than what Lucero
expressly pleads. At the motion to dismiss stage, however, the Court considers only the
facts as alleged in the Second Amended Complaint and takes them to be true. Because
Lucero alleges that Barclay and DiPietro worked jointly with BPD to develop the Policy,
9
Further, the cases addressing whether an individual had final decision-making
authority were at the summary judgment stage, and therefore, the courts had evidence
before them as to the local custom or usage regarding final decision-making authority. See
Hunter v. Town of Mocksville, N. Carolina, 897 F.3d 538, 555–56 (4th Cir. 2018) (noting
that town board delegated decision-making authority to town manager, who exercised that
authority without oversight from the board as a matter of custom); Riddick, 238 F.3d at
523. Here, at this stage in the litigation, the Court does not have the benefit of such
information.
18
the Court takes his allegations as true. Second, in Ross III, this Court rejected this very
argument, stating that it had “already disposed of defendants’ argument that the protocol
constituted only ‘legal advice,’ which would shield them from § 1983 liability.” 899
F.Supp.2d at 419 n.5. At this stage in the litigation, the Court agrees.
The City next contends that Lucero fails to allege conduct attributable to the City
that caused a constitutional violation. In support of its argument, the City cites to the
Baltimore City Charter, which in relevant part, provides, that “no ordinance of the City or
act of any municipal officer . . . shall conflict, impede, obstruct, hinder or interfere with the
powers of the Police Commissioner.” Balt. City Charter, Art. II, § 27 (2019). Lucero
counters that he alleges a joint policy between the City and BPD, and therefore, it did not
violate Art. II, § 27 of the Baltimore City Charter. Lucero also notes that the Baltimore
City Charter grants the City the power to “regulate the use of streets and public ways,”
Balt. City Charter, Art. II, § 34(d) (2019), which is what the Policy does.
Here, while it is true that “the City does not sufficiently control the BPD to be
responsible for Baltimore police officer conduct under § 1983 (i.e., they are not City
employees),” Estate of Anderson, 6 F.Supp.3d at 644, and therefore, the City cannot be
held liable for BPD officers’ unconstitutional conduct, Lucero alleges that the City and
BPD developed and implemented the Policy, not that Officer Early was enforcing a policy
the City alone enacted. In addition, Lucero alleges that an incident with a media van
precipitated the City’s development of the Policy for the Arena, a City-owned property.
(2d Am. Compl. ¶ 16). Lucero further pleads that Officer Early was off duty and working
19
for his own private security company when he enforced the Policy against Lucero.
(Id. ¶¶ 22, 43). Thus, the Court can plausibly infer that the City developed and
implemented the Policy.
Finally, the City argues that Lucero fails to allege an unconstitutional City custom
enforced with deliberate indifference. To support this contention, the City cites to the
Fourth Circuit’s holding in Ross that the Policy was a “permissible time, place, and manner
restriction on speech” that “comports with the First Amendment.” 746 F.3d at 560. In Ross,
however, the 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.
Here, by contrast, the parties have not stipulated that the Policy applies generally to all
expressive activity. Rather, Lucero alleges that the Policy specifically applied to antiCircus protestors. (2d Am. Compl. ¶¶ 14, 23, 37, 38–40) (“The Policy was targeted at ‘those
who wish to express their views about the Circus’ and controlled ‘protestors’ (‘any
protestors will be asked to move’), which in the context of the Policy referred to anti-Circus
protestors.”). Put another way, Lucero alleges that the Policy was not content-neutral, and
therefore, it was an impermissible infringement on his First Amendment rights. In addition,
Lucero alleges that the City was either actually or constructively aware of the Policy
because of the Ross litigation. These allegations, taken together, at this stage of the
litigation, are sufficient to state a Monell claim against the City.
20
In sum, the Court concludes that Lucero plausibly alleges a Monell claim based on
the acts of policymaking officials.10 Accordingly, the Court will deny BPD’s Motion and
the City’s Motion to the extent they seek to dismiss Count 2 of the Second Amended
Complaint.
b.
Condonation Claim (Count 3)
BPD maintains that the Second Amended Complaint contains no factual allegations
of a widespread custom or practice or that BPD was deliberately indifferent to Officer
Early’s discriminatory enforcement of the Policy. The Court disagrees.
“Under th[e] [condonation] theory of liability, a city violates § 1983 if municipal
policymakers fail ‘to put a stop to or correct a widespread pattern of unconstitutional
conduct.’” Owens, 767 F.3d at 402 (alterations in original) (quoting Spell, 824 F.2d at
1390). The pattern of unconstitutional conduct must be “so permanent and well settled as
to constitute a ‘custom or usage’ with the force of law.” Carter v. Morris, 164 F.3d 215,
218 (4th Cir. 1999) (quoting Monell, 436 U.S. at 691). Generally, bringing a condonation
10
The City also contends that because the Fourth Circuit in Ross concluded that the
City Solicitors were entitled to qualified immunity, that the City could not have been
deliberately indifferent because Lucero’s rights were not clearly established. The City’s
argument misses the mark for at least two reasons. First, as addressed above, unlike Ross,
Lucero alleges that the Policy was not content-neutral. Second, the City conflates deliberate
indifference under Monell with the need for a constitutional right to be clearly established
to overcome qualified immunity. Qualified immunity holds that even though a government
official violated a citizen’s constitutional rights, he or she is immune from suit. See
Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (quoting Collinson, 895 F.2d at
998). Thus, concluding that a government official is entitled to qualified immunity does
not preclude a determination that he or she was deliberately indifferent to a citizen’s
constitutional rights.
21
claim requires a plaintiff to prove “a ‘persistent and widespread practice of municipal
officials,’ the ‘duration and frequency’ of which indicate that policymakers (1) had actual
or constructive knowledge of the conduct, and (2) failed to correct it due to their ‘deliberate
indifference.’” Owens, 767 F.3d at 402 (quoting Spell, 824 F.2d at 1391). Both elements
“can be inferred from the ‘extent’ of employees’ misconduct.” Id. (quoting Spell, 824 F.2d
at 1391). Only “widespread or flagrant” misconduct is sufficient. Id. at 403 (quoting Spell,
824 F.2d at 1387). “Sporadic or isolated” misconduct is not. Id. Further, the Court will not
infer a Monell custom from municipal inaction in the face of “isolated constitutional
deprivations by municipal employees.” Sutton v. Billings, No. ELH-16-3364, 2017 WL
2335555, at *7 (D.Md. May 26, 2017) (quoting Milligan v. City of Newport News, 743
F.2d 227, 230 (4th Cir. 1984)).
While proving a condonation claim “is no easy task,” alleging a condonation claim
is, “by definition, easier.” Owens, 767 F.3d at 403. To survive a motion to dismiss under
Rule 12(b)(6), a plaintiff need only support his condonation claim with facts which, if true,
“state a claim to relief that is plausible on its face.” Id. (quoting Iqbal, 556 U.S. at 678).
The facts “need not be particularly detailed,” and a plaintiff fails to state a condonation
claim “only when he offers ‘labels and conclusions’ or formulaically recites the elements”
of his condonation claim. Id. (quoting Iqbal, 556 U.S. at 678). “[G]eneral averments of an
unconstitutional policy or custom” paired with “particular examples” are sufficient to
survive dismissal. Jones, 2015 WL 4509871, at *17.
22
In Owens, the plaintiff pleaded that “reported and unreported cases” established that
BPD had a custom, policy, or practice of “suppressing exculpatory evidence in criminal
prosecutions” and that “numerous successful motions” challenging such suppressions
demonstrated that BPD knew of the evidence suppression and condoned it. Id. at 402–03.
The Fourth Circuit held that the cases and motions were factual allegations supporting the
plaintiff’s condonation claim. Id. The court further held that the plaintiff’s assertion that
BPD withheld such evidence on “multiple occasions could establish a ‘persistent and
widespread’ pattern of practice.” Id.
Here, Lucero alleges that BPD officers employed a “widespread custom” of only
enforcing the Policy “against those who oppose the Circus.” (2d Am. Compl. ¶ 51). He
states that Officer Early testified that in 2008 and 2009 he “enforced the Policy against
anti-Circus leafletters specifically because they were ‘protestors’ within the meaning of the
Policy.” (Id. ¶ 52). Lucero provides additional examples of discriminatory enforcement of
the Policy, including that Officer Early told a leafletter he arrested that “he would have
shown her more sympathy if she had been promoting a human cause such as homelessness”
and that Officer Early and other BPD officers “regularly declined to enforce the Policy
against persons who were openly leafletting other issues, but consistently and regularly
enforced it against anti-Circus leafletters.” (Id. ¶¶ 55a, 55e). These are factual allegations
that, if documented during discovery, could support a Monell claim. Owens, 767 F.3d at
403.
23
As to deliberate indifference, Lucero alleges that BPD was aware that Officer Early
was enforcing the Policy in a discriminatory manner because it was served with the Ross
complaint on November 9, 2009. (2d Am. Compl. ¶ 54). Lucero further alleges that after
receiving a copy of the Ross complaint, BPD “through deliberate indifference and inaction
allowed and caused the discriminatory enforcement to continue during the 2010 Circus
against Lucero.” (Id.). These allegations are sufficient, at this stage in the litigation, to
establish that BPD was deliberately indifferent to Officer Early’s purported discriminatory
enforcement of the Policy. See, e.g., Smith v. Aita, No. CCB-14-3487, 2016 WL 3693713
at *4 (D.Md. July 12, 2016) (holding, at the Rule 12(b)(6) stage, that it was “enough that
Smith has alleged that Salisbury was aware of ongoing constitutional violations by
Salisbury police officers and did nothing to stop or correct those actions, thereby allowing
an unconstitutional pattern to develop”); Garcia v. Montgomery Cty., No. JFM-12-3592,
2013 WL 4539394 at *5, 2013 U.S. Dist. LEXIS 120659 at *14 (D.Md. Aug. 23, 2013)
(holding that the plaintiff stated a viable Monell claim against the county where the plaintiff
alleged that the county “was aware of unconstitutional actions by [police] officers directed
towards members of the media but chose to ignore such behavior”).
In short, the Court concludes that Lucero adequately alleges a widespread custom
or practice of discriminatory enforcement of the Policy. Accordingly, the Court will deny
BPD’s Motion as to Count 3.
III.
CONCLUSION
24
For the foregoing reasons, the Court will deny the City’s Motion to Dismiss Count
Two of the Second Amended Complaint (ECF No. 79) and BPD’s Motion to Dismiss
Plaintiff’s Second Amended Complaint (ECF No. 80). A separate order follows.
Entered this 25 day of September, 2019.
/s/
George L. Russell, III
United States District Judge
25
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