March 5, 2014 4th Circuit published opinions

Ross v Early

Ross sought to hand out flyers at the entrance of an arena where a circus was performing. Consistent with city policy, Early ordered Ross to move from the entrance to a designated protest spot a few feet away. Ross refused and was arrested. He then sued Ross and the City of Baltimore alleging violations of his First and Fourth Amendment rights as well as state law claims. The parties stipulated the policy requiring protestors to stay in the designated area as generally applicable. The district court granted summary judgment to the City on the First Amendment claims and to Early on immunity grounds. The panel, 2-1, affirmed. The majority held that because the parties stipulated the policy was generally applicable, intermediate scrutiny applied, It held the policy survived review as it was aimed at the precise issue of keeping the entranceways and adjoining roads open for traffic and was based on actual experience in allowing protestors to park a truck near one of the entrances in a previous year which caused significant congestion. The majority also held the policy was sufficiently narrow as it was aimed at the precise problem targeted and left ample opportunities for the protestors to communicate their message. It finally upheld judgment for early holding there was no evidence the arrest was motivated by t3eh content of Ross’ protest and were based on probable cause. The dissent argued that the City’s policy was created in secret by unelected officials and never communicated to the public. Thus, it was more like an injunction than an ordinance and must be held to the higher standard applicable to injunctions. The dissent argued the policy was not narrowly tailored as it is underinclusive in that it does not advance the goal of keeping the flow of pedestrians free given the need for police to obstruct the flow to warn those distributing flyers.

United States v Cox

Cox appealed his sentence arguing an enhancement was improper as there was no proof his primary purpose in taking photos of his victim was to produce the pictures. The panel affirmed. It held that the applicable sentencing guideline was to be construed broadly and having a purpose to take photos of an abuse victim did not need to be the sole or even primary purpose of taking the photos. Here, he took the photos after several episodes of abuse and kept them for several years. Thus the enhancement was appropriate and the sentence was affirmed.

 

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