Maryland Attorney General Opinion 99OAG050

50 [99 Op. Att’y
PUBLIC SAFETY
AUTHORITY OF LAW ENFORCEMENT OFFICIALS TO ESCORT
MOTORCYCLE CHARITY RIDES OUTSIDE OF THEIR
JURISDICTION – CONSTITUTIONALITY OF REQUIREMENT
THAT ORGANIZERS OF SPECIAL EVENTS ON PUBLIC
ROADS OBTAIN INSURANCE TO COVER LOSSES TO THE
GOVERNMENT AND THE PUBLIC

July 18, 2014

Larry L. Klimovitz
Executive Director
Baltimore Metropolitan Council

On behalf of the Baltimore Metropolitan Council, you have
asked a series of questions about the ability of Maryland law
enforcement agencies to provide escorts for large-scale
motorcycle charity rides and to enforce Maryland traffic laws
while doing so. These charity rides typically involve large
numbers of bikers traveling long distances across multiple
jurisdictions within the State, and the organizers of these events
have sometimes requested police escorts to facilitate the safe flow
of traffic around the riders. These requests have given rise to a
number of concerns among local governments. First, when you
posed your questions, it was unclear whether police officers had
the authority to speed, pass through red lights, and otherwise
disregard the rules of the road while conducting escort duty.
Second, because State law limits the authority of local police
officers to act outside of their jurisdictions, several counties have
expressed concern that their officers might not be able to
participate in escort duty for charity rides that leave their home
jurisdictions. Finally, these counties have also asked whether the
State Highway Administration (“SHA”) and local jurisdictions
may require the organizers of charity rides and other special
events on Maryland roads to obtain insurance to cover the events.
More specifically, you have asked our opinion on the
following three questions:
(1) What authority, if any, does a law
enforcement agency have to escort
motorcycle charity rides in an “emergency
Gen. 50] 51

status,” allowing them to disregard the
normal rules of an “open” road?
(2) Does Maryland law regarding the extra-
jurisdictional authority of police officers
prevent law enforcement agencies from
assisting one another with events requiring
escorts or traffic control? If so, would a
specifically drafted mutual aid agreement
between area jurisdictions provide the
necessary authority?
(3) When the SHA or a local jurisdiction
issues a permit for a special event that takes
place on a public roadway, can it require that
the organizer provide proof of liability
insurance to cover the organizer as well as
the government authorities involved in
managing the event?
Your first two questions were addressed by the General
Assembly in legislation enacted during the 2013 session. See
2013 Md. Laws, ch. 66. That legislation answers your first
question; it authorizes police officers to provide escorts when
needed to “[f]acilitat[e] the safe movement of vehicles or
pedestrians,” which would encompass large-scale motorcycle
charity rides. When doing so, police officers may operate in
“emergency status” and disregard the normal rules of an open
road. As to your second question, the same legislation also
authorizes local police officers to escort vehicles through other
jurisdictions and take certain actions, such as blocking and
directing traffic, necessary to perform this extra-jurisdictional
escort duty. The new law does not, however, generally authorize
an officer to enforce the traffic laws, make arrests, or issue
citations for the violation of traffic laws outside of the officer’s
jurisdiction.
As to your third question, we conclude that SHA and local
governments may impose insurance requirements for special
events on roads under their control, but the State agencies and
localities must be aware that such insurance requirements, to the
extent that they apply to activities involving the exercise of free
speech rights, are suspect under the First Amendment. Although
such requirements are not clearly unconstitutional, jurisdictions
should be cognizant of the potential First Amendment
implications for those requirements and, when crafting their
52 [99 Op. Att’y

policies, should consider including certain exceptions that will
reduce the risk of curtailing free expression.
I
Background
Law enforcement agencies frequently provide police escorts
for funeral processions, dignitaries, and over-sized commercial
vehicles. According to the Maryland State Police (“MSP”),
motorcades and escorts are sometimes necessary to ensure the
safety of the escorted vehicles and other drivers on the road as
well as to facilitate the flow of traffic. See Hearing on S.B. 621
Before the Senate Judicial Proceedings Committee, 2013 Leg.,
Reg. Sess. (2013) (hereinafter “Hearing on S.B. 621”). As we
understand it, escort duty includes two primary components: (1)
police vehicles will drive with the escorted vehicles in
“emergency status” (i.e., with their lights flashing and sirens
activated) to warn other drivers on the road; and (2) sometimes
police officers will drive ahead to divert traffic, block entrance
ramps, or block intersections.1 Both of these tasks sometimes
require police officers to travel across jurisdictional boundaries
and disregard the usual rules of the road, such as speed limits,
traffic signals, and stop signs.
Law enforcement agencies usually rely on motorcycle
officers to perform escort duty because motorcycles can move
through traffic more safely and easily than their four-wheeled
counterparts. Id. (written testimony of MSP). However, no
single police agency in Maryland has a sufficient number of
motorcycle officers to safely conduct large-scale escorts that cross
jurisdictional boundaries without assistance from other
jurisdictions. Id. Therefore, escorts typically require cooperation
among several law enforcement agencies.
Recent years have seen an increase in the number of large-
scale motorcycle charity rides. In response, the Baltimore

1
It is not clear from the opinion request whether this second
component of escort duty will always be required for motorcycle
charity rides because—according to your request—many motorcycle
ride organizers have expressed a preference that roads not be closed for
their events. We assume, however, that some form of traffic control
might be necessary to ensure public safety and that the police might
sometimes decide that road closures are required.
Gen. 50] 53

Regional Transportation Board (“BRTB”)2 formed a task force to
consider the issues involved in providing escorts to charity rides
and to create uniform policies and procedures that would govern
responses to escort requests. The task force includes State
transportation officials and law enforcement representatives from
every jurisdiction represented on the BRTB. You indicate that,
during the initial meetings of this task force, some members
raised the concerns that prompted the Baltimore Metropolitan
Council to request this opinion.
II
Analysis
A. Whether Police Officers May Operate in Emergency Status
and Operate Outside Their Jurisdictions While Escorting
Motorcycle Charity Rides
Your primary questions are (1) whether police officers may
operate in “emergency status” and disregard the normal rules of
the road when providing escorts for motorcycle charity rides, and
(2) whether local police officers may participate in escort duty
outside of their home jurisdictions. We will treat these two
questions together because they were both largely resolved by
legislation enacted during the 2013 session. Although police
agencies might already have had the authority to conduct escort
duty for motorcycle charity rides under the law as it existed at the
time of this request, the Legislature’s changes to the law during
the 2013 session clarify that police officers have the necessary
powers to escort these charity rides and operate outside of their
jurisdictions during escort duty.

2
The BRTB is the Metropolitan Planning Organization for the
Baltimore region. Federal law requires each metropolitan region to
have such an organization. See 23 U.S.C. § 134(d). The BRTB
includes 11 members representing the cities of Annapolis and
Baltimore; the counties of Anne Arundel, Baltimore, Carroll, Harford
and Howard; the Maryland Transit Administration; and the Maryland
Departments of Transportation, the Environment, and Planning. See
Baltimore Metropolitan Council, About the BRTB, http://
www.baltometro.org/about-the-brtb/about-the-brtb (last visited April
10, 2014).
54 [99 Op. Att’y

1. Legal Background
When these questions were initially posed to us, no State law
expressly governed police authority to disregard speed limits,
traffic signals, and other rules of the road during escort duty. A
police vehicle only had explicit authorization to exceed the speed
limit, pass through a red signal or stop sign, or disregard a traffic
control device or regulation governing the direction of movement
when “(1) [r]esponding to an emergency call; (2) [p]ursuing a
violator or suspected violator of the law; or (3) [r]esponding to,
but not while returning from, a fire alarm.” See Md. Code Ann.,
Transp. (“TR”) § 21-106 (2012 Repl. Vol.).3 Moreover, police
officers only had explicit authority to provide escorts for certain
oversized vehicles. See COMAR 11.04.04.06. Although MSP
officers have the duty to “maintain the safe and orderly flow of
traffic on public streets and highways,” the law says nothing
about those officers’ powers during escort duty. See Md. Code
Ann., Public Safety (“PS”) § 2-301(a)(2)(vi) (2011 Repl. Vol.).
Similarly, with respect to local jurisdictions, the Maryland
Vehicle Law4 permits “a local authority, in the reasonable
exercise of its police power,” to “[r]egulat[e] traffic by means of
police officers or traffic control devices” and to “[r]egulat[e] or
prohibit[] processions or assemblies on highways,” but it does not
provide any express authority for police to provide escorts and to
disregard the rules of the road when doing so.5 See TR § 25-
102(a)(2), (3).
When we first received this opinion request, local police
officers also had no explicit authority to cross jurisdictional
boundaries during escort duty. MSP officers have broad powers
to enforce Maryland laws—including traffic laws—throughout
the State, see PS § 2-412, but the authority of local police officers
is more limited. The Criminal Procedure Article “does not
authorize a [local] police officer . . . to enforce the Maryland
Vehicle Law beyond the police officer’s sworn jurisdiction,
3
Unless otherwise indicated, all citations to the Transportation
Article are to the 2012 Replacement Volume and the 2013 Supplement.
4
The Maryland Vehicle Law includes “Titles 11 to 27 of the
Transportation Article.” See TR § 11-206.
5
We are aware of two statutory provisions that expressly allow for
the suspension of the requirements of the Motor Vehicle Law, but they
apply only to “an approved motor vehicle or bicycle racing event” or
“foot racing event” and exempt only the “participants” in such races.
See TR §§ 21-1211(c), 21-1211.1(c).
Gen. 50] 55

unless the officer is acting under a mutual aid agreement
authorized under § 2-105 of this subtitle.” Md. Code Ann., Crim.
Proc. (“CP”) § 2-102(b)(2) (2008 Repl. Vol.) (emphasis added).6
Therefore, if a court were to conclude that participating in escort
duty constituted “enforcement” of the Maryland Vehicle Law as
that term is used in CP § 2-102(b)(2), local police officers might
have been prohibited from crossing jurisdictional lines during
escort duty.7
The BRTB and many local jurisdictions were concerned that
the lack of express authority for local officers to act outside of
their jurisdictions would preclude the inter-agency cooperation
necessary for police escorts. Indeed, “many local jurisdictions
[were] hesitant to volunteer their law enforcement personnel for
escort duty that crosse[d] local jurisdictional boundaries because
of a lack of authority and concern over potential liability.”
Hearing on S.B. 621 (written testimony of the Maryland
Association of Counties). During one of President Obama’s trips
through Maryland in 2012, for example, some police agencies
stopped escorting the motorcade as it moved from one jurisdiction
to another. Id. (written testimony of MSP). Uncertainty about the
scope of the officers’ extra-jurisdictional authority thus had the
potential to compromise the safety of such motorcades.
While this opinion request was pending, the General
Assembly enacted legislation to clarify both the general authority
of police officers to provide escorts and the extra-jurisdictional
powers of local officers during such escorts. 2013 Md. Laws, ch.
66. The Maryland Vehicle Law now provides that police officers
are not bound by certain rules of the road and limits on extra-

6
In other contexts beyond the Maryland Vehicle Law, however, “a
police officer may make arrests, conduct investigations, and otherwise
enforce the laws of the State” outside of the officer’s jurisdiction if “an
emergency exists,” or if the police officer is “participating in a joint
investigation” with an officer who has local jurisdiction, “rendering
assistance to another police officer,” or “acting at the request of a
police officer or State Police officer.” CP § 2-102(b)(2). The total
prohibition on the extra-jurisdictional enforcement of the Maryland
Vehicle Law thus operates as an exception to this general rule.
7
Although we have some doubt that merely participating in escort
duty by driving along with the motorcade in emergency status would
constitute “enforcement” of the Motor Vehicle Law, the 2013
legislation made that question moot.
56 [99 Op. Att’y

jurisdictional authority “while performing motorcade or escort
duty if the motorcade or escort duty involves: (i) Homeland
security; (ii) A funeral; (iii) A dignitary; or (iv) Facilitating the
safe movement of vehicles or pedestrians that are or will be near
the motorcade or escort.” TR § 21-106(a)(2). More specifically,
as long as the officer is using the appropriate visual or audible
signals on the emergency vehicle,8 the officer may:
(1) Park or stand without regard to the
other provisions of this title;
(2) Pass a red or stop signal, a stop
sign, or a yield sign, but only after slowing
down as necessary for safety;
(3) Exceed any maximum speed limit,
but only so long as the driver does not
endanger life or property;
(4) Disregard any traffic control
device or regulation governing direction of
movement or turning in a specified direction;
and
(5) Travel through any local
jurisdiction in the State as necessary to
perform and return from motorcade or escort
duty.
Id. § 21-106(b). As explained below, we believe that this new
legislation resolves most of the issues raised by your request.
2. Police Officers’ Power to Perform Escorts in
‘Emergency Status”
First, we conclude that the 2013 legislation authorizes police
agencies to provide escorts to motorcycle charity rides. As we
understand the role of police officers during escort duty, the

8
Although drivers of most “emergency vehicles” must display
their lights and sirens when exercising the special privileges at issue,
police vehicles are usually only required to use their audible signal.
See TR § 21-106(c)(1); see also id. § 11-118 (defining “emergency
vehicle”). But nothing prevents police officers from also using their
visual signal when escorting charity rides. In fact, they must use their
visual signal if they “[p]ark or stand” where they otherwise would be
prohibited from doing so, id. § 21-106(c)(2), as might be necessary to
close entrance ramps along the motorcade route.
Gen. 50] 57

special privileges granted by § 21-106(b) provide police officers
with all the powers necessary to conduct motorcades or escorts in
emergency status. Police officers may speed, ignore traffic
signals, and, if necessary, stop the car in the middle of the road to
block an entrance ramp or direct traffic. See id. § 21-106(b).
Therefore, the only question is whether motorcycle charity rides
fall within the categories of events for which police agencies are
authorized to exercise these special privileges. To resolve that
question, we will look to the plain meaning of the statute, and
resolve any ambiguity by analyzing the text through interpretive
canons and the legislative history.
The first three categories of events in which an officer may
exercise the privileges set forth in § 21-106—homeland security,
funerals, and escorting dignitaries—presumably do not
encompass motorcycle charity rides. However, on its face, the
fourth category—escorts that involve “[f]acilitating the safe
movement of vehicles or pedestrians that are or will be near the
motorcade or escort”—likely would include large-scale charity
rides given that providing escorts for such events would help
facilitate the safe transit of other vehicles and pedestrians near the
charity ride. The use of the disjunctive term “or” in separating the
four items on the list of permissible escorts suggests that the
General Assembly intended this final item in the list to be its own
category of “escort duty” on par with escorts involving homeland
security, dignitaries, and funerals. See, e.g., Enterprise Leasing
Co. v. Allstate Ins. Co., 341 Md. 541, 548 (1996) (relying on the
Legislature’s decision to use disjunctive “or” rather than
conjunctive “and” in interpreting statute); Schlossberg v. Citizens
Bank, 341 Md. 650, 576 (1996) (holding that the use of “or” in a
list of three options “indicates that each of these three options has
a different effect”). Under this reading of the statute, officers
have the authority to escort motorcycle charity rides.
We recognize that this provision could plausibly be read
otherwise. It might mean that police officers may ride alongside a
motorcade for a funeral, a dignitary, or for homeland security
purposes and may also close entrance ramps, block intersections,
and take other measures to “[f]acilitat[e] the safe movement of
vehicles” while doing so. This alternate reading is plausible
because it gives effect to the Legislature’s specific reference to
escorts for homeland security, dignitaries, and funerals. Given
that all three of these specific categories presumably involve
“[f]acilitating the safe movement of vehicles,” granting the fourth
category equal status could arguably render the first three
58 [99 Op. Att’y

categories surplusage—an interpretive outcome that canons of
statutory construction caution us to avoid. See 97 Opinions of the
Attorney General 72, 88 n.11 (2012). And while this inter-
pretation ignores the Legislature’s use of the word “or,” that term
“may be read in the conjunctive when the context reasonably
supports the inference that such a construction is necessary to
effectuate the intent of the Legislature.” Reier v. State Dep’t of
Assessments & Taxation, 397 Md. 2, 32 (2007).
Although these two competing interpretations show that the
text of the statute may be ambiguous, other considerations suggest
that the General Assembly did not intend to limit police authority
to provide escorts to homeland security, funerals, and dignitaries.
First, it would seem unnecessary for the Legislature to clarify that
police officers have the power to facilitate the safe movement of
traffic during one of the specified escorts when the statute already
gives police officers the powers necessary to block traffic, exceed
the speed limit, and take other measures to provide for the safe
transit of the motorcade for those events. See TR § 21-106(b)(1)-
(4). We think it more likely that the General Assembly listed the
three specific categories of escorts to make clear that those three
categories were covered and to provide illustrative examples of
the types of escorts that require “[f]acilitating the safe movement
of vehicles or pedestrians that are or will be near the . . . escort.”
Second, application of the canon of statutory construction
ejusdem generis supports our reading of the statute. Pursuant to
this canon, Maryland courts recognize that the Legislature often
provides specific illustrative examples followed by a general
category to avoid “spelling out in advance every contingency in
which the statute could apply.” In re Wallace W., 333 Md. 186,
190-91 (1993) (internal quotation omitted). Thus, “when a
general word or phrase follows a list of specifics, the general
word or phrase will be interpreted to include only items of the
same class as those listed,” Haile v. State, 431 Md. 448, 468-69
(2013) (quoting Black’s Law Dictionary 594 (9th ed. 2009)), or
things that are “similar in nature” to the specific items, 2A
Sutherland Stat. Const. § 47.17, at 359-60 (7th ed. 2007). The
common denominator for homeland security escorts, funeral
escorts, and dignitary escorts—to the extent that they have one—
is that all of these events can disrupt the safe and free flow of
traffic. Large-scale motorcycle charity rides could also disrupt
the safe and free flow of traffic, and escorts may be needed to
prevent harm to drivers and pedestrians on Maryland roads.
Therefore, we think that escorts for motorcycle charity rides
would fall within the “same class” as those specific examples
Gen. 50] 59

listed in TR § 21-106, see Haile, 431 Md. at 468-69, and the
general category for escorts that involve “[f]acilitating the safe
movement of vehicles or pedestrians that are or will be near” the
escort should be interpreted to include these types of charity rides.
Finally, the legislative history of the 2013 amendments
confirms our interpretation. The testimony on the relevant bills
suggests that the General Assembly intended to cover more than
just escorts for funerals, homeland security, and dignitaries.
Senator Raskin, the sponsor of the legislation, explained during
committee hearings that the amendments would “authorize law
enforcement agencies to perform motorcade and escort services
during dignitary transportation, funeral services, and other kinds
of special motorcade situations” where a traffic detail has been
established. Hearing on S.B. 621 (emphasis added); see also id.
(written statement of MSP) (“[Escorts] range from Homeland
Security events, dignitary escorts, funeral escorts, and any other
escorts that are used to safely and efficiently facilitate the free
flow of traffic.” (emphasis added)). Senator Raskin then asked
MSP Sergeant Brett Canfield to “explain . . . why this [bill] is
necessary.” According to Sergeant Canfield, the bill was
necessary to ensure safety on the roadways and to facilitate the
free flow of traffic during escort duty. He explained that escorts
“at one end of the spectrum” might include motorcades for
dignitaries and funerals, but that police agencies also provide
“countless escorts for charity” and that “[l]arge groups traveling
on Maryland roadways without [police] assistance and guidance
often pose the potential” to disrupt traffic flow and cause
accidents. Hearing on S.B. 621.
As Sergeant Canfield’s testimony makes clear, the problem
the Legislature was trying to address through its 2013 legislation
does not depend on the specific purpose for which an escort is
requested. To ensure the safety of the roads, police need the
authority to provide escorts whenever the relevant event might
disrupt the free flow of vehicular or pedestrian traffic.
Unsurprisingly, therefore, the statute provides that police agencies
have the authority to provide escorts or motorcades when doing
so would involve “[f]acilitating the safe movement of vehicles or
pedestrians that are or will be near the motorcade or escort.” TR
§ 21-106(a)(2)(iv). We found no indication that the General
Assembly intended to withhold this authority from police officers
escorting events such as large-scale motorcycle charity rides.
60 [99 Op. Att’y

In sum, we conclude that the authority provided by the 2013
legislation extends to motorcycle charity rides under the circum-
stances described in § 21-106(a)(2)(iv) of the Transportation
Article.
3. Local Police Officers’ Authority to Participate in
Escorts Outside of Their Jurisdiction
The 2013 legislation also clarifies the powers of police
officers when conducting escort duty outside their jurisdictions.
An officer participating in motorcades and escorts may now
“[t]ravel through any local jurisdiction in the State as necessary to
perform and return from motorcade or escort duty” so long as the
officer’s jurisdiction notifies any other jurisdiction that the officer
will enter. TR § 21-106(b)(5), (c)(4). Although the statute could
be read to authorize only the officer’s “travel” through any local
jurisdiction while on escort duty, we think it must also include the
authority to exercise the privileges in paragraphs (b)(1) through
(b)(4) outside of the officer’s home jurisdiction. We also think
that the Legislature intended to authorize police officers to take
certain other actions involving traffic control “necessary to
perform . . . escort duty,” such as blocking and directing traffic
and otherwise “[f]acilitating the safe movement of vehicles or
pedestrians that are or will be near” the escort. See id. § 21-
106(a)(2)(iv). It would make little sense for the Legislature to
grant police officers extra-jurisdictional authority for the express
purpose of facilitating the safe movement of vehicles but then
withhold from those officers the precise powers needed to achieve
that purpose.
Moreover, the 2013 legislation was intended to assuage
police concerns that motorcades would be impracticable if
officers could not perform the necessary duties outside of their
jurisdictions. To address those concerns, police officers need the
authority to do more than simply drive alongside the escorted
vehicles; escort duty sometimes requires that officers engage in
traffic control or other related tasks. This interpretation is
consistent with views expressed by proponents of the 2013
legislation, who expected that the new law would grant officers
the “power[] to keep the escort moving and to be able to direct the
flow of traffic and pedestrians around the escorts.” Hearing on
S.B. 621 (written testimony of the Maryland Association of
Counties); see also id. (written testimony of Baltimore County
Police Department) (explaining that the bill would allow officers
to “block ramps during the events, and close streets for traffic
control as necessary legally”).
Gen. 50] 61

That said, the statute does not explicitly authorize local
police officers to direct traffic outside of their own jurisdictions.
It is possible, therefore, a court would disagree and conclude that
§ 21-106 only grants local officers the power to ride alongside
escorts and does not additionally permit them to direct traffic
once they have left their home jurisdictions. To the extent that
this possibility raises liability concerns, local police agencies
could consider seeking clarification from the General Assembly
or, as discussed further below, enter into a mutual aid agreement.
We also caution that nothing in the 2013 legislation
explicitly or implicitly grants police officers extra-jurisdictional
authority to issue traffic citations or make arrests for violations of
the Motor Vehicle Law.9 Given the clear prohibition in CP § 2-
102(b)(2) on extra-jurisdictional enforcement of the Motor
Vehicle Law, the General Assembly would likely have expressed
itself more clearly had it intended to exempt escort-duty officers
from that prohibition. In fact, the proponents of the legislation
also did not believe that the legislation would “grant broad arrest
or enforcement powers to a law enforcement officer performing
escort duty outside of the officer’s home jurisdiction.” Hearing
on S.B. 621 (written testimony of the Maryland Association of
Counties).
An officer on escort duty surely may arrest individuals for
other offenses not covered by the Motor Vehicle Law if the
officer is acting in accordance with unit regulations and if “an
emergency exists,” “the police officer is participating in a joint
investigation,” “rendering assistance to another police officer,” or
“acting at the request of a police officer or State Police officer.”
CP § 2-102(b)(3). And the officer may block or direct traffic
outside of the officer’s jurisdiction while on escort duty and take
other similar actions necessary to facilitate the safe movement of
vehicles or pedestrians. However, the officer may not issue

9
An officer may enforce the Motor Vehicle Law outside of the
officer’s jurisdiction when in “fresh pursuit” of a driver who has
violated that law, but only when the underlying violation occurred
within the officer’s jurisdiction. See CP § 2-102(b)(4); see also id. § 2-
301 (defining fresh pursuit); Seip v. State, 153 Md. App. 83 (2003).
62 [99 Op. Att’y

traffic citations or arrest individuals for violations of the Motor
Vehicle Law.10
The amendments to § 21-106, as we have interpreted them,
appear to give local officers sufficient authority to participate in
cross-jurisdictional escorts. We recognize, however, that some of
the limits on police authority to enforce the traffic laws may
create administrative difficulties for police agencies and the
officers who are participating in those escorts. For these reasons,
local jurisdictions may wish to seek clarification from the General
Assembly or, in the alternative, should enter into “mutual-aid
agreements,” as authorized by CP § 2-105, to clarify officers’
powers during escort duty outside of their home jurisdictions.
The prohibition on extra-jurisdictional enforcement of the Motor
Vehicle Law does not apply when “the officer is acting under a
mutual aid agreement authorized under § 2-105.” See CP § 2-
102(b)(2); 89 Opinions of the Attorney General 158, 162-64
(2004). Instead, an officer “coming from one [jurisdiction] to
another within the State under [such] a reciprocal agreement . . . may
enforce the laws of the State to the same extent as authorized law
enforcement officers of the receiving [jurisdiction].” CP § 2-
105(g)(1).
There is no doubt that a local jurisdiction may enter into a
mutual aid agreement addressing its officers’ exercise of extra-
jurisdictional powers during police escorts. The governing board
of a local jurisdiction has broad authority to enter into a
“reciprocal agreement” with other specified jurisdictions to
“establish and carry out a plan to provide mutual aid.” CP § 2-
105(e)(1). And these agreements can cover extended periods of
time; jurisdictions need not enter into a separate mutual aid
agreement for each escort. See 89 Opinions of the Attorney
General 158 (involving a year-long mutual aid agreement that
governed cross-jurisdictional sobriety checkpoints). Although
mutual aid agreements were originally available only for
“emergencies,” the General Assembly has since removed that
requirement. See 2001 Md. Laws, ch. 188; 89 Opinions of the
Attorney General at 164. Therefore, a mutual aid agreement is

10
Given these limits on an officer’s ability to enforce the Motor
Vehicle Law outside of the officer’s jurisdiction, law enforcement
agencies may wish to consider assigning the task of blocking entrance
ramps and intersections to officers with local jurisdiction, who would
have the clear authority to cite drivers who disregard such traffic
restrictions.
Gen. 50] 63

not required, but it may be helpful to define the respective powers
and responsibilities of police agencies while on motorcade and
escort duty as long as the agreement fulfills the requirements of
CP § 2-105.11
B. Whether SHA and Local Governments May Impose
Insurance Requirements for Special Events on Maryland
Roads
Your final question is whether SHA and local authorities
may require the organizer of a special event on Maryland roads,
such as a motorcycle charity ride, to provide insurance that would
cover the organizer and the government authorities involved in
managing the event. Such an insurance requirement would serve
the dual goals of protecting the government from liability and
ensuring that the government and private individuals will have
access to a definite pool of money if injuries or property damage
occur during the event. We have been advised that SHA and
some local jurisdictions already require special event organizers
to obtain liability insurance for at least some special events on
Maryland roads.
As explained below, we see no State law constraints on the
authority of SHA or localities to impose reasonable conditions on
permits for the use of roadways under their control. However,
there are serious questions about whether a blanket insurance
requirement that covers expressive activities, such as parades,
assemblies, and perhaps even certain charity events, would violate
the First Amendment by imposing an impermissible prior restraint
on free speech. At least some form of insurance requirement
would probably be constitutional, but we cannot say that any
particular insurance requirement affecting expressive activity
would withstand judicial scrutiny. An insurance requirement
would be more likely to be found constitutional, however, if it
includes exceptions for groups that are unable to obtain insurance.
Governments may also want to consider whether to narrow the
requirement in other ways by, for example, limiting it to pre-
defined types of events where injuries are more likely to occur or
applying it only to events on major highways.

11
These requirements include that the jurisdiction waive claims
against the other parties to the agreement arising out of the extra-
jurisdictional activities covered by the agreement. CP § 2-105(e)(2)(i).
64 [99 Op. Att’y

1. The Power of SHA and Local Governments to
Require Insurance as a Condition of a Permit
Authorizing the Use of Roads for Special Events
State law does not expressly authorize SHA or local
governments to require insurance for motorcycle charity rides or
for most special events on public roads and highways. One
provision requires certain special event applicants to purchase
com-prehensive liability insurance, but it applies only to motor
vehicle or bicycle racing events. TR § 21-1211(b)(2) (requiring
the sponsors of a motor vehicle or bicycle racing event on a
highway or a highway bridge to “[i]ndemnify the State and local
governments from any loss arising out of or relating to the racing
event” and “[p]rovide comprehensive liability insurance, in an
amount to be determined by the [SHA] or local authority . . . for
the benefit of the State and local governments, spectators, and
other highway [users]”).12 In fact, for the most part, State law
does not explicitly authorize SHA and local governments to
establish permitting schemes for special events on public roads.
Organizers of motor vehicle, bicycle, and foot racing events must
obtain the permission of SHA or a local authority, see TR §§ 21-
1211, 21-1211.1, but, otherwise, we are not aware of any other
express statutory permit requirements for special events.
Nonetheless, we believe that SHA and local jurisdictions
have implied authority to establish permitting schemes for the use
of Maryland roads under their jurisdiction for special events and,
accordingly, the power to impose reasonable conditions—such as
insurance—on that use. This implied authority flows from
different sources for SHA, charter counties, code counties, and
commissioner counties, but, for the reasons explained below, each
source authorizes the establishment of permitting schemes that
would allow the relevant jurisdiction to require insurance as a
reasonable permit condition.

12
The General Assembly’s decision to impose an explicit insurance
requirement for motor vehicle racing events does not mean that the
Legislature intended to foreclose SHA or local jurisdictions from
requiring insurance for other special events on State roads. The
legislative history of § 21-1211 makes clear that the relevant provisions
of the statute were enacted in response to a specific request by a group
of private citizens for a motor vehicle race in Allegany County. See
Fiscal & Policy Note, S.B. 984 (2007). When considering that bill,
therefore, the General Assembly had no reason to decide whether
similar insurance requirements were permitted in other contexts.
Gen. 50] 65

SHA’s authority to require a permit for special events on
State roads emanates from several sources of law. In addition to
its express statutory authority over foot races and motor vehicle
races, SHA may prohibit the use of controlled access highways
“by parades, low speed vehicles, funeral processions, bicycles, or
other nonmotorized traffic or by any person operating a
motorcycle.” TR § 21-313(a). Because the power to prohibit
includes the power to regulate, see Cahen v. Jarrett, 42 Md. 571,
576-77 (1875), the agency may establish a permitting scheme to
govern the circumstances under which such uses might be
allowed.13
Moreover, with respect to other roads, SHA has been
“vested [by the Legislature] with powers of control and regulation
over the public highways,” Goldsborough v. Postal Tel. Cable
Co., 123 Md. 73, 76 (1914), and has “plenary power” to maintain
the State’s system of highways, Contino v. Baltimore &
Annapolis R. Co., 178 F.2d 521, 523 (4th Cir. 1949).14 Where, as
here, “the General Assembly has bestowed upon an agency a
broad delegation of power, [courts] liberally construe the scope of
that agency’s implied powers.” Thanner Enters., LLC v.
Baltimore County, 414 Md. 265, 279 (2010). This plenary power
over State roads, therefore, includes the implied power to regulate
the use of the roads for special events. And, as a practical matter,
participants in special events will often need permission from
SHA because they might otherwise be violating provisions of the
Maryland Vehicle Law that require drivers to obey all traffic
control devices, TR § 21-201(a), and forbid pedestrians from
walking on the roadway, TR § 21-506.

13
See also Nollan v. California Coastal Comm’n, 483 U.S. 825, 836
(1987) (stating that the power to forbid construction “must surely
include the power to condition construction”); Ticonderoga Farms, Inc.
v. County of Loudoun, 242 Va. 170, 174, 409 S.E.2d 446 (1991)
(stating that “the power to prohibit includes the power to regulate”).
14
Although Goldsborough and Contino dealt with the State Roads
Commission and not SHA, the State Roads Commission became part of
the Department of Transportation in 1971 and most Commission duties
were assumed by the State Highway Administration at that time. 1970
Md. Laws, ch. 526 (Art. 41, § 207F); see Maryland Manual,
“Department of Transportation,” available at http://msa.maryland.gov/
msa/mdmanual/24dot/html/dot.html#highway (last visited Apr. 28,
2014).
66 [99 Op. Att’y

Having concluded that SHA has the authority to establish a
permitting scheme, we have little doubt that it may also require
insurance as a reasonable condition on the grant of such a permit.
See County Council for Montgomery County v. Lee, 219 Md. 209,
215 (1959) (stating that the right to withhold permission to pave
roadway “carries with it the right to prescribe reasonable terms
and conditions upon which the permit would issue”). SHA,
therefore, may require insurance for special events on State
roads.15
A similar analysis applies to local governments, which also
have “implied authority to exercise ‘such powers as are necessary
in the performance of a duty imposed or the accomplishment of a
stated purpose . . . .’” 98 Opinions of the Attorney General 60, 74
(2013) (quoting Barlow v. Friendship Heights Citizens’ Comm.,
276 Md. 89, 95 (1975)); see also County Comm’rs v. Supervisors
of Elections, 192 Md. 196, 211 (1949) (counties have “implied
authority to exercise all such powers as may be necessary or fairly
implied in or incident to the enjoyment and exercise of their
express powers”). Like SHA, local governments that have the
authority to adopt traffic regulations, see TR § 11-130, may
regulate races on their roads as well as prohibit parades and
nonmotorized traffic on controlled access highways, see
TR §§ 21-313, 21-1211, 21-1211.1. And, with respect to other
types of events on other types of local roads, the Motor Vehicle
Law explicitly recognizes that “a local authority, in the reasonable
exercise of its police power,” may “[r]egulat[e] or prohibit[]
processions or assemblies on highways.” TR § 25-102(a)(3).
Although this recognition is part of a provision that exempts
certain local police powers from preemption by the Maryland

15
The Maryland Declaration of Rights provides that “no aid,
charge, tax, burthen or fees ought to be rated or levied, under any
pretense, without the consent of the Legislature.” Md. Decl. of Rights
Art. 14. We recognize that an insurance requirement could be viewed,
in the abstract, as a “burthen” because it places a state-imposed burden
on a permit application to acquire insurance. See Benson v. State, 389
Md. 615, 634 (2005) (explaining that “burthen” in Article 14 should be
read synonymously with the current definition of burden). However,
we doubt that Article 14 is targeted at regulatory measures—like an
insurance requirement—which may incidentally require a group to pay
money to someone other than the government. The Court of Appeals
has characterized Article 14 as “encompass[ing] a wide variety of
payments to the government,” id. at 635 (emphasis added), and we are
not aware of any instance where the rule has been applied to regulatory
measures of this type.
Gen. 50] 67

Vehicle Law, it strongly implies that the General Assembly
believed localities already had the power to regulate the use of
highways for special events.16
Indeed, counties have long had control and jurisdiction over
their roads, see, e.g., Queen Anne’s Conservation, Inc. v. County
Comm’rs, 382 Md. 306, 323 (2004) (explaining that county
commissioners can, among other powers, “control county
property and roads”); Jenkins v. Riggs, 100 Md. 427 (1905);
Gaither v. Watkins, 66 Md. 576 (1887), and the Express Powers
Act provides the counties with significant regulatory powers over
the roads within their jurisdictions.17 Both charter and code
counties, for example, have explicit authority to enact laws
“relating to” the “use of streets and highways.” LG § 10-
317(a)(1).18 And, although commissioner counties do not have
comprehensive police powers, the General Assembly has
expressly provided that “[t]he governing body of a county has
control over county roads.” LG § 12-503(b). The county
commissioners, therefore, have a “duty . . . to keep the public
roads in a safe condition” and are liable for “the existence of
dangerous obstructions upon them.” Godwin v. County Comm’rs

16
Although the Motor Vehicle Law prohibits local governments
from “[i]mpos[ing] on the owner or driver of any vehicle any tax,
registration fee, license fee, assessment, or charge of any kind for the
use of a vehicle on any highway in this State,” TR § 25-101.1(b)(2), we
do not think that this prohibition would prevent a local government
from imposing an insurance requirement on a special event. Special
event insurance is not imposed on particular drivers or particular
vehicles but, rather, for the event as a whole. And, in any case, the
Motor Vehicle Law excludes from its preemptive reach any law
“[r]egulating or prohibiting processions or assemblies on highways.”
TR § 25-102(a)(3).
17
Because the requesters of this opinion are counties, we focus here
on county powers. But we note that municipalities have broad police
powers to “preserve peace and good order,” “secure persons and
property from danger and destruction,” and “protect the health,
comfort, and convenience of the residents of the municipality.” Md.
Code Ann., Local Gov’t (“LG”) § 5-202. These police powers would
seem to encompass the authority to regulate the use of roads for special
events.
18
The Baltimore City Charter similarly grants the City the power
“[t]o regulate the use of streets and public ways by persons, animals
and vehicles.” See Baltimore City Charter Art. 1, § 34(d).
68 [99 Op. Att’y

of St. Mary’s County, 256 Md. 326, 335-36 (1970) (quoting
County Comm’rs of Baltimore County v. Wilson, 97 Md. 207, 210
(1903)). In light of the commissioners’ control over county roads
in general and their specific duty to prevent injuries on public
roads, we suspect that the General Assembly also intended to
confer on commissioner counties the implied power to exercise
control over when, and under what circumstances, special events
could create an “obstruction” on county roads. While
clarification from the Legislature on this point might be useful, it
appears that all localities have the power to regulate special
events on roads under their control.19 And, as explained above,
these powers also carry with them the right to prescribe
reasonable terms and conditions on the use of their roads,
including a requirement that event sponsors provide proof of
liability insurance for the event. See Lee, 219 Md. at 215.
2. The Constitutionality of Insurance Requirements
Under the First Amendment
The more difficult question is whether an insurance
requirement would violate the First Amendment by placing an
impermissible burden on groups seeking to hold special events on
State roadways.20 Although many motorcycle charity rides might
19
In crafting insurance requirements, localities should be aware that
the Court of Appeals has placed certain limits on the authority of
counties to enact laws that have significant effect outside the county
and, hence, are not “local.” See 96 Opinions of the Attorney General
139, 159-60 (2011) (gathering and explaining Court of Appeals
decisions on this issue). We recognize that someone could argue that
an insurance requirement covering multi-jurisdictional events (like a
motorcycle charity ride) could exceed a local government’s authority to
take measures that are “local.” However, the control of county roads
has long been viewed as a local matter. See, e.g., LG § 12-503(b);
Jenkins, 100 Md. at 436. We doubt that a court would question a
county’s authority to impose reasonable conditions on permits for the
use of roads under their control or conclude that the extra-territorial
effect of such a restriction is significant enough to invalidate the law.
See Holiday Universal v. Montgomery County, 377 Md. 305, 308, 315
(2003) (invaliding law only where the extra-territorial effect was
“significant” and “substantial”).
20
The Maryland Declaration of Rights similarly prevents the State
from placing impermissible burdens on free speech. Md. Decl. of
Rights, Art. 40. The Court of Appeals has instructed that, while Article
40 is generally treated as in pari materia with the First Amendment, the
two provisions are capable of independent interpretation. See Pack
Shack v. Howard County, 377 Md. 55, 64 n.3 (2003). Because we do
Gen. 50] 69

not involve expressive activity protected by the First Amendment,
some probably will. And, in any case, you asked more broadly
about insurance requirements for “special events” on Maryland
roads, which could encompass parades, marches, and other
conduct that is clearly protected by the First Amendment. In
considering this issue, therefore, we assume that your
hypothetical insurance requirement will cover at least some
special events that involve expressive activities and that the
requirement will apply to at least some roads that constitute
“traditional public forums” where the Supreme Court has found
that First Amendment protections are at their strongest. See Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983) (explaining that the state’s right to limit expressive
activities in “streets and parks” is “sharply circumscribed”).
As we explained in an earlier opinion, insurance
requirements for special events in traditional public forums are
constitutionally suspect because speakers with controversial
views might find it more difficult and expensive to obtain
insurance, and these obstacles could deter (or effectively bar)
some speakers from holding events involving controversial
speech. See 78 Opinions of the Attorney General 75, 83-84
(1993). According to the Supreme Court, permit requirements for
special events that involve protected speech are considered “prior
restraints,” which are presumptively unconstitutional under most
circumstances. Forsyth County v. Nationalist Movement, 505
U.S. 123, 130 (1992).
Permit schemes, however, are permissible so long as they
constitute valid time, place, and manner regulations. See, e.g., id.;
Cox v. New Hampshire, 312 U.S. 569, 574-76 (1941). This is true
even where a permit scheme imposes some sort of monetary
condition (like an application fee) on the issuance of the permit.
See, e.g., Forsyth County, 505 U.S. at 130; Sullivan v. City of
Augusta, 511 F.3d 16 (1st Cir. 2007); Stonewall Union v. City of
Columbus, 931 F.2d 1130 (6th Cir. 1991). A law or policy
regulating speech in a public forum constitutes a valid time, place,
and manner regulation if it (1) is content-neutral; (2) is “narrowly
tailored to serve a significant government interest”; (3) “leave[s]
open ample alternatives for communication”; and (4) does not

not see a textual or precedential basis for an independent interpretation
of Article 40 in this context, and because the First Amendment case law
is much more developed, our analysis will follow the federal model.
70 [99 Op. Att’y

“delegate overly broad . . . discretion to a government official” in
determining whether to grant a license or impose a monetary
condition. Forsyth County, 505 U.S. at 130; see also Thomas v.
Chicago Park Dist., 534 U.S. 316, 323 (2002).
We are not aware of any Supreme Court case, Fourth Circuit
case, or Maryland case applying this test to insurance
requirements for special events on roads, parks, or other public
property. This lack of binding authority makes it difficult to
definitively conclude that a particular insurance requirement will
pass constitutional muster or, alternatively, will fail to meet the
necessary standards. However, a number of opinions from other
courts provide helpful guidance about how to analyze the
constitutionality of insurance requirements. As a whole, these
opinions illustrate that insurance requirements are suspect but are
probably constitutional in at least some form. These opinions also
show that taking certain steps to limit the requirement’s scope—
such as providing exceptions for indigents, other groups unable to
obtain insurance, and events unlikely to pose a risk of injury or
property damage—make it more likely that such a requirement
will be upheld.
a. Content Neutrality
The threshold question under the time, place, and manner
test is whether an insurance requirement is content-neutral. See
Forsyth County, 505 U.S. at 130. Most laws mandating insurance
for special events are facially content-neutral. They do not
require different amounts of insurance coverage depending on the
speaker or the subject matter of the event or draw other explicit
distinctions based on content. As a result, some courts have
concluded, on the facts before them, that government-imposed
insurance requirements are content-neutral. See, e.g., Camp Legal
Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1282 (11th
Cir. 2006) (upholding insurance requirement for festivals with
over 10,000 attendees); Thomas v. Chicago Park Dist., 227 F.3d
921, 925 (7th Cir. 2000) (finding liability insurance requirement
constitutional when “[t]he required amount and the cost of the
insurance depend only on the size of the event and the nature of
the facilities involved”), aff’d on other grounds by, 534 U.S. 316
(2002); Gerristen v. City of Los Angeles, 994 F.2d 570, 578-79
(9th Cir. 1993) (upholding insurance requirement for use of
government-owned bandstand and sound system).
Other courts, however, have concluded that insurance
requirements might in practice impose greater burdens on certain
speakers based on the content of their message because private
Gen. 50] 71

insurers “inevitably evaluate the content of a group’s speech when
setting the rate for an insurance policy.” iMatter Utah v. Njord,
___ F. Supp. 2d ___, 2013 U.S. Dist. LEXIS 158371, at *22 (D.
Utah 2013) (evaluating Utah’s policy requiring insurance for all
special events on state roads), appeal docketed, No. 13-4173
(10th Cir. Dec. 5, 2013). These courts point out that “private
insurers are likely to apply content-, speaker-, and viewpoint-
based criteria when determining whether to offer event liability
insurance and, if so, how much to charge.” Id. at *23; see also
Eastern Conn. Citizens Action Grp. v. Powers, 723 F.2d 1050,
1056 n.2 (2d Cir. 1983) (observing that, in deciding whether to
provide insurance for special events, “brokers or underwriters
often consider political beliefs of those who have applied”); Van
Arnam v. Gen. Servs. Admin., 332 F. Supp. 2d 376, 396-97 (D.
Mass. 2004);21 Eric Neisser, Charging for Free Speech: User
Fees and Insurance in the Marketplace of Ideas, 74 Geo. L.J. 257,
272-78 (1985) (explaining the insurance market in this context).
As a result, “courts have commonly acknowledged that insurance
requirements can indirectly restrict speech on the basis of its
content.” Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1050 (9th Cir. 2005) (Berzon, J.,
dissenting).
The fact that the cost of insurance might depend on the
content of the speech necessarily raises questions about whether
an insurance requirement can ever be content neutral. Courts are
split on this question. Ordinarily, “a facially content-neutral
regulation . . . cannot be deemed constructively content-based on
the basis of its effects.” Van Arnam, 332 F. Supp. 2d at 399. The
“touchstone” for determining content-neutrality is instead the
government’s purpose in enacting the restriction. Id. Along these
lines, “[a] regulation that serves purposes unrelated to the content

21
Van Arnam did not involve an insurance requirement, but a
requirement that permittees agree to indemnify the government from
damages arising out of the event. Nevertheless, the court effectively
treated the indemnification requirement as an insurance requirement,
reasoning that it forced any rational permittee to purchase insurance.
See 332 F. Supp. 2d at 392-93. Other courts, however, have not treated
the two issues as identical. Although we focus solely on insurance in
this opinion, governments should note that some courts have found that
indemnification requirements—depending on how they are
structured—may also pose problems under the First Amendment. See,
e.g., id. at 401-03.
72 [99 Op. Att’y

of expression is deemed neutral, even if it has an incidental effect
on some speakers or messages but not others.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989); see also Norton v.
Ashcroft, 298 F.3d 547, 553 (6th Cir. 2002) (“[T]here is no
disparate impact theory under the First Amendment.”). Because
the primary purposes of an insurance requirement are to protect
the government from financial liability and to provide a pool from
which injured participants and spectators can obtain
compensation—neither of which has anything to do with
content—numerous courts have concluded that such a
requirement is content-neutral.22 See, e.g., Long Beach Area
Peace Network v. City of Long Beach, 522 F.3d 1010, 1030 (9th
Cir. 2008); Food Not Bombs, 450 F.3d at 1057 (Kleinfeld, J.,
writing for the majority); iMatter Utah, 2013 U.S. Dist. LEXIS
158371 at *22-28; Van Arnam, 332 F. Supp. 2d at 396-400.
Nonetheless, a number of other courts have relied on the
Supreme Court’s decision in Forsyth County to reach the opposite
conclusion that an insurance requirement is inherently content-
based. See, e.g., Nationalist Movement v. City of York, 481 F.3d
178, 185 (3d Cir. 2007) (striking down a requirement that special
event applicants reimburse the costs of policing an event because
the provision was the “flip side” of an insurance requirement,
which would also be unconstitutionally content-based); Steele v.
City of Bemidji, 257 F.3d 902, 908 (8th Cir. 2001) (invalidating
an insurance requirement for solicitation on public property);
Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14
Cal. App. 4th 312, 340 (Ct. App. 1993); see also Food Not
Bombs, 450 F.3d at 1050-51 (Berzon, J., dissenting). In Forsyth
County, the Supreme Court held that a facially content-neutral
ordinance requiring permit holders to pay a fee for police
protection was effectively content-based because the government
“must necessarily examine the content of the message” to
22
Of course, if the plaintiff can demonstrate an “ulterior content-
based purpose,” the result would probably be different. See Van
Arnam, 332 F. Supp. 2d at 399; see also Collin v. Smith, 578 F.2d
1197, 1208 & n. 20 (7th Cir. 1978) (holding that insurance requirement
was content-based where the Ku Klux Klan was unable to obtain
insurance and noting that the government had exempted from the
requirement parades that it had regarded as “acceptable”); Invisible
Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont, 700
F. Supp. 281, 284-85 (D. Md. 1988) (noting the town had imposed an
insurance requirement and other permit conditions on the KKK but not
on the volunteer firefighters and the Catoctin High School homecoming
parade).
Gen. 50] 73

determine “the amount of hostility likely to be created” and
“assess accurately the cost of security.” 505 U.S. at 134 (internal
quotation marks omitted). Although the government argued that
the regulation had a content-neutral purpose of recouping costs
for maintaining public order, the Court explained that, “in this
case, it cannot be said that the fee’s justification ‘has nothing to
do with content.’” Id. (quoting Ward, 491 U.S. at 792). The
Court found that the purportedly content-neutral purpose was
instead “associated with the public’s reaction to the speech,” and
held that “[l]isteners’ reaction to speech is not a content-neutral
basis for regulation.” Id.; see also id. at 134-35 (“Speech cannot
be financially burdened any more than it can be punished or
banned, simply because it might offend a hostile mob.”).
An insurance requirement arguably creates the same risk of
imposing an impermissible “heckler’s veto” based on the
expected reaction of a “hostile mob.” As one court has observed,
the “delegation of the amount of insurance charges to the market .
. . appears inescapably to create a system of charges subject to
impact and adjustment based on ‘content,’” including whether
there is likely to be a hostile reaction to the applicant’s speech.
Long Beach Lesbian & Gay Pride, 14 Cal. App. 4th at 340; see
also Food Not Bombs, 450 F.3d at 1050-52 (Berzon, J.,
dissenting). Indeed, in an earlier opinion, we explicitly concluded
that Forsyth County “would prohibit application of a bonding or
insurance requirement that applies to damages caused by hostile
crowds.” 78 Opinions of the Attorney General at 83-84.
However, cases decided after our earlier opinion highlight
important distinctions between the security fee in Forsyth County
and an insurance requirement. The security fee in Forsyth was
imposed “[a]s a direct result” of two demonstrations involving
controversial issues where counter-demonstrators threw rocks and
beer bottles. Forsyth County, 505 U.S. at 126 (internal quotation
marks omitted). It was therefore clear that the fee was
specifically intended to fluctuate based on the content of—and
likelihood of a hostile reaction to—an applicant’s speech. With
an insurance requirement, however, it is not clear that the
government intends content to be a driving factor. Rather, the
government is “merely” attempting to “protect[] [itself] from
liability in the conventional manner of any property owner.”
Food Not Bombs, 450 F.3d at 1058 (Kleinfeld, J., writing for the
majority). Moreover, Forsyth County’s ordinance required
government officials to assess the content of the speaker’s
message and charge a different fee based on that assessment,
74 [99 Op. Att’y

whereas the government “does not provide insurance and thus has
no influence on the cost of insurance required for any particular
event.” ASU Students for Life v. Crow, 2008 U.S. Dist. LEXIS
18698, *43-44 n.2 (D. Ariz. 2008), vacated in part on other
grounds, 357 Fed. Appx. 156 (9th Cir. 2009). To the extent that
private insurers take content into account when setting rates, it is
not clear that such a downstream, unintended consequence can be
attributed to the government. See iMatter Utah, 2013 U.S. Dist.
LEXIS 158371 at *27 (citing Ward, 491 U.S. at 791); Van Arnam,
332 F. Supp. 2d at 399.
Given the distinctions between Forsyth County and your
hypothetical insurance requirement, we tend to agree with the
court in iMatter Utah that “there is insufficient precedent for
holding that a regulation that is content-neutral on its face can
become content-based by indirectly importing unidentified third-
party insurers’ decisions to place a greater burden on
controversial speech.” 2013 U.S. Dist. LEXIS 158371 at *26.
But it is certainly possible that a court could apply Forsyth
County to this context and classify an insurance requirement as
content-based. See 78 Opinions of the Attorney General at 83-84
(explaining that “some courts have held . . . insurance
requirements generally invalid” because of their effect on
controversial speech).
There are, however, ways in which a government might craft
an insurance requirement to reduce the possibility that a
reviewing court would find it content-based. For example, it
might be prudent to include an exception to an insurance
requirement for entities that can demonstrate that, because of their
views, they are unable to obtain insurance. At least one court has
held—and a few more have implied—that insurance requirements
are sufficiently content-based that they may be unconstitutional as
applied to applicants who are unable to obtain insurance because
of their controversial views. See Collin v. Smith, 578 F.2d at
1208-09 (holding that insurance requirement was content-based
where KKK unable to obtain insurance); Mayor of Thurmont, 700
F. Supp. at 285 (finding insurance requirement unconstitutional
for numerous reasons, including fact that KKK could not obtain
insurance); iMatter Utah, 2013 U.S. Dist. LEXIS 158371 at *28
(noting that an insurance requirement “risks a future legal
challenge from a group with a controversial message whose First
Amendment activity is totally prohibited because no third-party
insurer is willing to provide the group with the required special
event insurance coverage”). Inclusion of this type of waiver,
Gen. 50] 75

therefore, would likely improve the chances that an insurance
requirement withstands constitutional scrutiny.
Limiting the insurance requirement to losses caused by the
acts of the permittee and persons acting under the permittee’s
authority, and not for the acts of bystanders and counter-
demonstrators, might be another option, if such coverage is
available in the private insurance market. Such a change may not
be necessary—and it would have the adverse effect of
diminishing the protection afforded to the government by the
insurance requirement—but it could increase the likelihood that
the policy would be upheld.23
b. Narrow Tailoring
Under the second prong of the time, place, and manner test,
an insurance requirement must be “narrowly tailored to serve a
significant government interest.” Forsyth County, 505 U.S. at
130. “[T]he requirement of narrow tailoring is satisfied ‘so long
as the . . . regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation,’”
and the government does “not regulate expression in such a
manner that a substantial portion of the burden on speech does not
serve to advance its goals.” Ward, 491 U.S. at 799 (quoting
United States v. Albertini, 472 U.S. 675, 689 (1985)). Although a
regulation “need not be the least restrictive or least intrusive
means” of serving the government’s significant interest, it must
not “burden substantially more speech than is necessary to further
the government’s legitimate interests.” Id. at 798-99.
23
This change might also be helpful for another reason. In NAACP
v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Supreme Court
held that nonviolent protestors could not be held liable under tort law
for the violent actions of persons over which they had no control
merely because they were part of the same organization. In other
words, “[c]ivil liability may not be imposed merely because an
individual belonged to a group, some members of which committed
acts of violence.” Id. at 920. Although it does not appear that any
court has applied this rule to invalidate an insurance requirement that
covered actions by third parties, see, e.g., iMatter Utah, 2013 U.S. Dist.
LEXIS 158371, at *38-39 (declining to decide whether Claiborne
should be extended to insurance), some courts have applied the rule to
invalidate indemnification clauses that required permittees to pay for all
injuries caused by opponents and bystanders. See Long Beach Area
Peace Network, 522 F.3d at 1039-40.
76 [99 Op. Att’y

A majority of the cases to consider this issue have done so
only with respect to as-applied challenges by indigent groups that
could not afford insurance. E.g., E. Conn. Citizens Action Grp.,
723 F.2d at 1053, 1056-57; Coe v. Town of Blooming Grove, 567
F. Supp. 2d 543, 564-66 (S.D.N.Y. 2008); Wilson v. Castle, 1993
U.S. Dist. LEXIS 9726, at *4 (E.D. Pa. 1993); Mayor of
Thurmont, 700 F. Supp. at 285-86. In that context—where the
insurance requirement effectively precludes the plaintiff from
receiving a permit—courts have held that “[w]hatever marginal
benefit the [government] might derive from choosing not to
exempt indigent persons from its insurance requirement does not
justify the very substantial burden” on the free speech rights of
people with limited financial means.24 Coe, 567 F. Supp. 2d at
566.
We recognize that there are reasonable arguments against
requiring indigence waivers for insurance requirements. In a
similar context, for example, the First and Sixth Circuits have
held that indigence waivers for parade application fees are not
required if permit applicants have other alternatives for
expressing their views, including marching on sidewalks.
Sullivan, 511 F.3d at 42; Stonewall Union, 931 F.2d at 1137. And
indigence waivers appear to undermine at least one of the
significant governmental interests advanced by an insurance
requirement, which is to ensure that a definite pool of money
exists from which a victim can recover when a defendant does not
have the means to pay tort damages. See Long Beach Lesbian &
Gay Pride, 14 Cal. App. 4th at 341. Exempting indigent groups
from such a requirement would thus make the provision more
narrowly tailored in one way but less narrowly tailored in another.
However, no court has extended Sullivan and Stonewall to the
insurance context, see, e.g., iMatter Utah, 2013 U.S. Dist. LEXIS
158371 at *42 (declining to do so), and it does not appear that any
court has discussed the latter issue. The safest route to ensure the
24
Some of these courts applied the incorrect standard by requiring
the government to show that the insurance requirements were
“necessary” or constituted the “least restrictive means” of achieving the
government’s goals. See E. Conn. Citizens Action Grp., 723 F.2d at
1053, 1055-57; Mayor of Thurmont, 700 F. Supp. at 285 (stating that
the town had “made no showing that insurance or a hold harmless
agreement is even necessary”). As the Supreme Court made clear in
Ward, this is not the test. See 491 U.S. at 798-99. However, given the
substantial burden on indigents’ First Amendment rights, we suspect
these courts probably would have come to the same conclusion under
the correct standard.
Gen. 50] 77

constitutionality of an insurance requirement, therefore, may be to
include a waiver for indigent applicants.
Determining whether an insurance requirement could
survive a facial challenge from a group that can afford insurance
is more complicated. The Second Circuit in Eastern Connecticut
Citizens Action Group took care to clarify that an insurance
requirement might “be valid when reasonably applied.” 723 F.2d
at 1057; see also Houston Peace Coalition v. Houston City
Council, 310 F. Supp. 457, 462-63 (S.D. Tex. 1970) (invalidating
insurance requirement on other grounds but noting that “it is
certain” the city could impose one). And, in fact, some insurance
requirements have been upheld as narrowly tailored when there
appears to be some special need for insurance. See Camp Legal
Defense Fund, 451 F.3d at 1282-83 (festivals over 10,000
people); Gerristen, 994 F.2d at 578-79 (government-owned
electronic equipment). But, as we explain below, broad insurance
requirements akin to your hypothetical requirement for all
“special events on State roads” have not fared very well even
when the court has not expressly relied on a determination that the
plaintiff was indigent. See iMatter Utah, 2013 U.S. Dist. LEXIS
158371 at *32-56 (invalidating requirement without determining
whether the plaintiff was indigent); Long Beach Lesbian & Gay
Pride, 14 Cal. App. 4th at 342 (invalidating requirement as
applied to all parades). Although such insurance requirements are
not clearly unconstitutional, governments must tread carefully
and—if they desire safer constitutional ground—may want to
consider crafting more limited requirements that apply only when
there is a particular need for insurance.
In reaching this conclusion, we first consider whether an
insurance requirement advances any “significant government
interest[s].” The government has a significant interest in
protecting itself from potential liability, e.g., E. Conn. Citizens
Action Grp., 723 F.2d at 1056, protecting its property, e.g., Van
Arnam, 332 F. Supp. 2d at 401, ensuring public safety, e.g., id.,
and “furnish[ing] a pool of financial coverage for injuries” to
individual participants and spectators, e.g., Long Beach Lesbian
& Gay Pride, 14 Cal. App. 4th at 341. With respect to the
government’s purported interest in public safety, however, it is
not obvious that an insurance requirement will “have any effect
on the likelihood that some sort of accident will occur during the
event.” iMatter Utah, 2013 U.S. Dist. LEXIS 158371 at *31; see
also Van Arnam, 332 F. Supp. 2d at 401 (reaching a similar
conclusion); but see Urlaub v. Village of Belport, 498 F. Supp. 2d
78 [99 Op. Att’y

614, 621 (E.D.N.Y. 2007) (stating, without explanation, that
insurance provision was “relevant” to public safety). The focus of
an insurance requirement is instead on guaranteeing that someone
other than the taxpayers will provide a pool of money to pay any
claims should accidents occur. See iMatter Utah, 2013 U.S. Dist.
LEXIS 158371 at *31.
An insurance requirement certainly promotes these primary
government interests. There is no doubt that an insurance
requirement protects the government from liability and provides a
pool of money to compensate victims for injuries. Special
events—particularly ones that involve large crowds or dangerous
activities—can subject participants to considerable risk of injury
and, accordingly, subject governments to considerable risk of
liability for those injuries.
Despite these legitimate governmental interests, courts have
been reluctant to uphold insurance requirements against First
Amendment challenges when the government has other options
for limiting its liability exposure. Many governments already
have general liability insurance or enjoy caps on their liability, as
provided by tort claims legislation. See, e.g., Mayor of Thurmont,
700 F. Supp. at 285; Long Beach Lesbian & Gay Pride, 14 Cal.
App. 4th at 340. Similarly, if an event involves motor vehicles,
those vehicles may already be covered by private insurance. Long
Beach Lesbian & Gay Pride, 14 Cal. App. 4th at 341; see also
Neisser, 74 Geo. L.J. at 305. And the government can also
significantly reduce the probability of any injuries or property
damage by ensuring that the event takes place in a safe location
with an adequate police presence, working with the applicant to
minimize risks to public safety, and enforcing laws that
criminalize dangerous conduct. See, e.g., Coe, 567 F. Supp. 2d at
567; Long Beach Lesbian & Gay Pride, 14 Cal. App. 4th at 341.
These alternative methods to avoid liability may be particularly
useful where the event itself involves little risk or there is no
history of injury from similar events. See E. Conn. Citizens
Action Grp., 723 F.2d at 1056-57 (explaining that the burden on
indigent groups was particularly overbroad because there was no
evidence that the type of special event at issue posed a serious
risk of injury or that anyone had previously been injured during
an event); Wilson, 1993 U.S. Dist. LEXIS 9726, at *10 (same).
With this background in mind, a court could reasonably find
that an insurance requirement “burden[s] substantially more
speech than is necessary to further the government’s legitimate
interests” in protecting itself and its citizens, Ward, 491 U.S. at
798-99, especially where the type of event at issue does not pose a
Gen. 50] 79

significant risk of harm or the government can protect itself from
liability in other ways, see iMatter Utah, 2013 U.S. Dist. LEXIS
158371 at *32-56; Long Beach Lesbian & Gay Pride, 14 Cal.
App. 4th at 340-41. In iMatter Utah, for example, the court
emphasized that Utah’s policy applied across the board even
when the event posed few risks and that Utah simply “assume[d]
that the ordinary mechanisms for protecting itself from liability
will fail” without considering alternative means of achieving its
goals. 2013 U.S. Dist. LEXIS 158371 at *56; see also id. at *33-
36.
That said, a court would not be compelled to accept this
rationale or hold that any broad insurance requirement is
unconstitutional. A regulation “need not be the least restrictive or
least intrusive means” of serving the government’s significant
interest. Ward, 491 U.S. at 798. Moreover, the cases invalidating
insurance requirements arguably fail to give sufficient weight to
the government’s interest in ensuring that a definite pool of
money exists to compensate the government or private individuals
for their injuries. (In fact, it does not appear that iMatter Utah
discussed this interest at all, focusing only on the government’s
interest in protecting itself from financial liability.) And the cases
perhaps place too much faith in the government’s ability to
prevent accidents through policing, site selection, and other
means. In 1985, for example, a Marylander was paralyzed in an
Annapolis charity “bed race” when her bed hit a curb, makeshift
wheels broke off, and she flew into a light pole. See Associated
Press, Rider in Bed Race Injured, N.Y. Times, Aug. 27, 1985,
available at http://www.nytimes.com/1985/08/27/us/rider-in-bed-
race-injured.html (last visited May 22, 2014). We doubt that
additional police coverage could have prevented her injuries. But
the fact remains that there is a significant risk that a court would
invalidate a broad insurance requirement unless the government
demonstrates that it has considered alternatives to insurance
where possible and has placed some limits on the scope of the
requirement.25 A government must be aware of this risk when it
25
We do not, however, think that this analysis raises any serious
questions about the constitutionality of TR § 21-1211(b)(2), which
requires insurance for motor vehicle and bicycle races on Maryland
roads. We doubt that many—if any—such races will include
expressive activity that implicates the First Amendment. And, even if
they do, races involve clear risks of injury for which insurance may be
necessary, but which may not be covered by a standard motor vehicle
insurance policy.
80 [99 Op. Att’y

crafts a broad insurance requirement that covers all, or
substantially all, special events.
Conversely, an insurance requirement is likely to be upheld
as narrowly tailored where it is targeted toward specific risks or
more dangerous events. The Ninth Circuit, for example, upheld
an ordinance that required applicants to post an insurance bond
for the use of an expensive government-owned bandstand and
sound system for a special event. Gerristen, 994 F.2d at 578-79.
And the Eleventh Circuit upheld an insurance requirement that
applied to all festivals with over 10,000 estimated attendees.
Camp Legal Defense Fund, 451 F.3d at 1282-83. In light of these
cases, insurance requirements will likely be treated more
favorably when there is a specific risk of harm to government
property or event participants, or (as with very large groups) the
events might pose significant risks even with adequate safety
precautions. Governments interested in employing mandatory
insurance requirements, therefore, should at least consider
providing exceptions for events that do not pose significant risks
of liability or limiting their insurance requirement to a narrower
class of special event where the need for insurance is more
clear.26
Another solution might be to craft an insurance provision
that gives permit applicants a choice about how to avoid liability
for injuries and property damage. For example, the Ninth Circuit
has upheld an ordinance that required insurance for non-
expressive events but, for expressive events, gave permit
applicants the choice to (1) purchase insurance, (2) agree to
indemnify the government, or (3) “agree to redesign or reschedule
the permitted event to respond to specific risks, hazards and
dangers to the public health and safety identified by the city
manager as being reasonably foreseeable consequences of the
permitted [event].” Long Beach Area Peace Network, 522 F.3d at
1029; see also Food Not Bombs, 450 F.3d at 1057 (Kleinfeld, J.)
(upholding similar insurance policy). Although the court did not
explicitly discuss whether these ordinances were narrowly
tailored, the availability of an option to redesign or reschedule the
event in light of “specific risks” alleviates most of the concerns
expressed by courts that have rejected insurance requirements as

26
As discussed below, however, these exceptions must have
adequate content-neutral criteria to ensure that administrators do not
have overly broad discretion in determining when the insurance
requirement will apply.
Gen. 50] 81

overly broad, and we suspect that an insurance plan like this one
would satisfy this element of the time, place, and manner test.
See iMatter Utah, 2013 U.S. Dist. LEXIS 158371, at *45-46
(distinguishing Long Beach Area Peace Network and Food Not
Bombs as non-mandatory). To be sure, giving applicants the
option of obtaining insurance does not provide the government
with as much protection as a mandatory insurance requirement,
but a government could consider this approach if it wishes to steer
more clearly around the constitutional pitfalls we discuss above.
c. Alternatives for Communication
The third element of the time, place, and manner test is
whether the relevant restriction “leave[s] open ample alternatives
for communication.” Forsyth County, 505 U.S. at 130. “In order
to satisfy this standard, the available alternatives need not ‘be the
speaker’s first or best choice’ or ‘provide[] the same audience or
impact for the speech.’” Ross v. Early, __ F.3d __, 2014 U.S.
App. LEXIS 4161, *30-31 (4th Cir. 2014) (quoting Gresham v.
Peterson, 225 F.3d 899, 906 (7th Cir. 2000)). “Rather, the
relevant inquiry is simply whether the challenged regulation
‘provides avenues for the more general dissemination of a
message.’” Id. at *31 (quoting Green v. City of Raleigh, 523 F.3d
293, 305 (4th Cir. 2008)) (internal quotation and citation omitted).
As far as we can tell, no court has invalidated an insurance
requirement on this ground. Even for speakers who cannot afford
the insurance, a restriction on the use of State roads still leaves
open numerous alternative locations for similar speech activity,
including parks, sidewalks, and medians. See, e.g., Sullivan, 511
F.3d at 42 (finding ample alternatives in context of permit
application fee for events on city streets); Stonewall, 931 F.2d at
1137 (same). We recognize that a park or sidewalk does not
provide all the same advantages as a street; parks do not allow for
mobile events (like parades), and sidewalks accommodate “fewer
marchers,” reducing the impact of the speech and the number of
people who can participate. Sullivan, 511 F.3d at 51 (Lipez, J.,
dissenting); see also iMatter Utah, 2013 U.S. Dist. LEXIS
158371, at *66-69. But, as the First Circuit explained in Sullivan,
sidewalks and parks are adequate alternatives to street marches
even if they reduce the “potential audience” because they still
allow for “the general dissemination of [the speaker’s] message.”
511 F.3d at 42-44 (internal quotation marks omitted); see also
Ross, 2014 U.S. App. LEXIS 4161, *30-31 (holding that an
82 [99 Op. Att’y

alternative is adequate even if it does not “provide[] the same
audience or impact for the speech”).
Therefore, assuming that insurance is not required for
speakers to use one of these other avenues for expression, an
insurance requirement likely satisfies this element. Although a
plaintiff could theoretically raise an as-applied challenge where,
for some reason, use of State roads would be “an essential part of
the message sought to be conveyed” or “essential to
communicating with the intended audience,” Van Arnam, 332 F.
Supp. 2d at 395 (quoting Nationalist Movement v. City of Boston,
12 F. Supp. 2d 182, 192 (D. Mass. 1998)), we doubt that many
messages would require the use of State roads. At least under
most circumstances, therefore, an insurance requirement for
special events on public roads would leave ample alternatives for
communication.
d. Standards for Exercise of Official Discretion
Finally, a valid insurance requirement cannot “delegate
overly broad . . . discretion to a government official.” Forsyth
County, 505 U.S. at 130. Otherwise, there is a risk that the
official could use that broad discretion to “favor or disfavor
speech based on its content.” Thomas, 534 U.S. at 323. A time,
place, and manner regulation must therefore contain “adequate
standards to guide the official’s discretion.” Id. These standards
need not be “rigid[],” see id. at 325, but they also cannot leave the
decision “to the whim of the [official],” Forsyth County, 505 U.S.
at 133. For instance, in Forsyth County, the Court rejected an
administrative fee provision where there were “no articulated
standards” about “how much to charge . . . or even whether to
charge at all,” see id., whereas in Thomas, the Court approved an
ordinance that set forth specific grounds on which a permit
application could be denied, see 534 U.S. at 324.
In the insurance context, courts have invariably rejected
policies that gave public officials “unfettered discretion” over
how much insurance coverage to require. See, e.g., Coe, 567 F.
Supp. 2d at 563; Nationalist Movement v. City of York, 425 F.
Supp. 2d 574, 583-85 (M.D. Pa. 2006), overturned on other
grounds, 481 F.3d 178 (3d Cir. 2007); Houston Peace Coalition,
310 F. Supp. at 462; Long Beach Lesbian & Gay Pride, 14 Cal.
App. 4th at 339. A policy that gives significant, unguided
discretion over whether to require insurance in the first place will
also run afoul of the First Amendment. See Long Beach Lesbian
& Gay Pride, 14 Cal. App. 4th at 339 (explaining that a provision
allowing the city manager to waive the insurance requirement if
Gen. 50] 83

he perceives no significant liability exposure was “suspect”
because there were no objective criteria cabining the discretionary
judgment).
Unlike some of the other issues we have discussed, however,
this problem is relatively simple to solve. A hypothetical
insurance requirement could pass this hurdle by requiring the
same amount of insurance for all speakers (with waiver provisions
for indigents or other specific categories of permit applicants as
needed) or by implementing a set of objective, content-neutral
criteria for determining when insurance is needed or how much
coverage is necessary. Although we are reluctant to suggest
specific criteria because we lack the requisite expertise in gauging
risk for events on public roads, such criteria might reasonably
include, for instance, the size of the event or the facilities required
for the event. See Thomas, 227 F.3d at 925.
The government must also make sure that any waiver
provisions are based on adequate and content-neutral standards.
We recognize that there is some tension between our suggestion
that certain exceptions and waiver provisions may help an
insurance requirement survive review and our advice that too
much discretion will doom an insurance requirement. Providing
an exception to an insurance requirement where there is a limited
risk of injury, for example, makes it more likely that the
requirement will be narrowly tailored, but it might also vest too
much discretion in the official charged with making that risk
assessment. Nonetheless, we think it is possible to craft standards
with objective criteria that would pass muster while allowing for
waivers and exceptions as necessary. See iMatter Utah, 2013
U.S. Dist. LEXIS 158371, at *69-70 (concluding that Utah could
formulate an exception for indigent applicants “without
delegating too much discretion to the permitting officials”).
Although such individualized determinations obviously create a
risk that government officials will “waive the permit requirements
for some favored speakers, while insisting upon them for
others . . . this abuse must be dealt with if and when a pattern of
unlawful favoritism appears, rather than by insisting upon a
degree of rigidity that is found in few legal arrangements.”
Thomas, 534 U.S. at 325. Therefore, while governments must be
careful to avoid unbridled discretion, this element should not be
an obstacle to a successful insurance requirement.
84 [99 Op. Att’y

e. Summary
In sum, insurance requirements are not clearly
unconstitutional, but we cannot say that any particular insurance
requirement that burdens expressive activity will be upheld. If a
court finds that all insurance requirements are inherently content-
based, for example, relatively little can be done to ensure that the
policy is constitutional; there are no safe harbors here. A policy
could theoretically exempt all expressive activity in an effort to
survive a facial challenge to its constitutionality, but that would
render the insurance requirement largely ineffective and could
create new challenges for governments in deciding which events
involve expressive activity. There are a number of steps,
however, that would increase the probability that such a
requirement will survive constitutional scrutiny. A government
should probably include waiver provisions for indigents and other
groups that have been unable to obtain insurance in the private
market. And a government may also want to consider creating an
exception for events with limited risks or crafting an insurance
requirement that applies only to events when there are significant
risks and a greater need for insurance. If a government takes
either approach, however, it must ensure that the criteria for
making those determinations are content-neutral and contain
adequate standards to guide the administrator’s discretion.
Finally, SHA or a local government could adopt a non-mandatory
insurance policy along the lines of the ones upheld by the Ninth
Circuit in Long Beach Area Peace Network and Food Not Bombs.
These suggestions are not exhaustive, and, ultimately, a court
might well uphold an insurance requirement without them. But,
in light of existing precedent that views insurance requirements
somewhat skeptically, governments would be wise to take these
issues into consideration when developing a policy.
f. Constitutionality of Insurance Requirements
That Apply Only to Major Highways
As a final note, an insurance requirement for special events
on Maryland roadways might also stand a better chance of
success if it applied only to major highways (such as interstates,
expressways, and large controlled access highways) rather than all
roads. As the Supreme Court has explained, the standard of
review under the First Amendment depends in part on the nature
of the public property to which a restriction on speech applies.
See, e.g., Perry, 460 U.S. at 44. The Court has divided public
property into three classes: (1) traditional public forums, which
are places that “by long tradition or by government fiat have been
devoted to assembly and debate,” such as streets, sidewalks, and
Gen. 50] 85

parks; (2) designated public forums, which the government
creates by “intentionally opening a nontraditional forum for
public discourse”; and (3) non-public forums, which include other
types of government property. Child Evangelism Fellowship of
Md. v. Montgomery County Pub. Sch., 457 F.3d 376, 381-82 (4th
Cir. 2006) (internal quotations omitted).27
Non-public forums are typically characterized by “selective
access” policies in which “individual, non-ministerial judgments”
determine whether speech activities are permitted. Id. at 381
(quoting Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666,
680 (1998)). Examples include military installations and prisons.
See Greer v. Spock, 424 U.S. 828, 836 (1976); Adderley v.
Florida, 385 U.S. 39, 47-48 (1966). In general, a forum will be
classified as non-public where “opening [it] to expressive conduct
will somehow interfere with the objective use and purpose to
which the property has been dedicated.” Warren v. Fairfax
County, 196 F.3d 186, 192-93 (1999) (en banc).
Unlike in public forums, a restriction on speech in a non-
public forum is permissible so long as it is reasonable in light of
the purpose of the forum, does not discriminate based on the
speaker’s viewpoint, and does not provide administrators with
unbridled discretion. Child Evangelism, 457 F.3d at 383, 386-87.
Although an insurance requirement in a non-public forum would
still have to be viewpoint neutral and include adequate standards
to cabin administrator discretion, it need only be “reasonable”
rather than “narrowly tailored to a significant government
interest.” Id. at 383. Therefore, if a court classified a major
highway as a non-public forum, an insurance requirement
applying only to major highways would be reviewed under a
more deferential standard.

27
The Fourth Circuit in Child Evangelism recognized a fourth
category, which it called a “limited public forum.” 457 F.3d at 382.
Like a designated public forum, a limited forum has been intentionally
opened to the public. Id. But, while a designated forum has been made
“generally accessible” to all speakers, a limited forum has only been
opened for “a specific or limited type of expression.” Id. In a limited
forum the government “may be justified in reserving [its forum] for
certain groups or for the discussion of certain topics,” but in a
designated forum, the government is subject to the same limitations as
those in a traditional public forum. Id. (internal quotations and
citations omitted).
86 [99 Op. Att’y

As far as we can tell, no court has definitively determined
whether a major highway is a public or non-public forum. The
Supreme Court has explained that “all public streets are held in
the public trust and are properly considered traditional public
fora” and that “[n]o particularized inquiry into the precise nature
of a specific street is necessary.” Frisby v. Schultz, 487 U.S. 474,
481 (1988) (rejecting contention that residential city streets were
entitled to less protection than main city streets). But, although
major highways are similar to streets in many ways, they are not
necessarily “streets” in the same way as the Court used the term
in Frisby. Unlike other traditional public forums, for example,
major highways have not “by long tradition” been “devoted to
assembly and debate.” Perry, 460 U.S. at 45.
Rather, interstate highways and the like are “relatively
modern creations” intended to allow “traffic to flow over long
distances without the many interruptions occasioned by speed
reductions through towns, villages and smaller cities.” Sentinel
Communications Co. v. Watts, 936 F.2d 1189, 1203 (11th Cir.
1991) (concluding that rest stops on interstate highways are not
public forums). Opening them to expressive conduct would
significantly interfere with the objective use and purpose to which
these thoroughfares have been dedicated. See Warren, 196 F.3d
at 192-93. Indeed, the General Assembly has apparently
recognized that opening controlled access highways to “parades”
and similar events would undermine the purposes of those
highways. See TR § 21-313(a) (allowing SHA and localities to
“prohibit the use of any controlled access highway in its
jurisdiction by parades, low speed vehicles, funeral processions,
bicycles, or other nonmotorized traffic or by any person operating
a motorcycle”); see also TR §§ 21-509 (generally prohibiting
pedestrians on controlled access highways); 21-1205.1 (restricting
the operation of bicycles on expressways, signed controlled
access highways, and other high speed roadways); 21-1405
(prohibiting pedestrians and bicycles on toll highways and other
toll facilities administered by the Maryland Transportation
Authority).
For these reasons, “while Main Street in a small town may
be a traditional public forum, an interstate highway might not be
one.” Warren, 196 F.3d at 201 (Niemeyer, J., dissenting); see
also Ronald J. Krotoszynski, Jr., Celebrating Selma: The
Importance of Context in Public Forum Analysis, 104 Yale L.J.
1411, 1421 (1995) (reasoning that “[u]nder the existing analytical
framework, a major highway would undoubtedly be classified as
a ‘nonpublic forum’” because “[h]eavily trafficked highways exist
Gen. 50] 87

principally to facilitate travel and commerce, not speech
activities”). It is therefore possible that a court would classify a
major highway as a non-public forum and subject any applicable
speech restrictions to a less strict reasonableness test.
Accordingly, limiting an insurance requirement to major
highways—though certainly not required—might also increase
the likelihood that such a requirement would be upheld.
III
Conclusion
For the reasons discussed above, we conclude that police
officers can operate in “emergency status” and disregard the
normal rules of an open road when providing escorts for large-
scale motorcycle charity rides. We also find that local police
officers can participate in motorcades that cross jurisdictional
boundaries and, when doing so, can take certain actions necessary
to perform and return from the escort duty, but they cannot make
arrests or issue citations for violations of the traffic laws. Finally,
SHA and local governments can impose insurance requirements
for special events on roads under their control, but the State and
localities must be aware that such insurance requirements—to the
extent that they apply to expressive activities—are suspect under
the First Amendment. Governments should therefore consider
crafting policies that are less likely to restrict constitutionally-
protected expressive rights.
Douglas F. Gansler
Attorney General of Maryland
Patrick B. Hughes
Assistant Attorney General
Adam D. Snyder
Chief Counsel, Opinions & Advice

* Mark H. Bowen, Assistant Attorney General, contributed
significantly to the preparation of this opinion.