708 F.3d 549 (4th Cir. 2013), 12-1149, Clatterbuck v. City of Charlottesville

Docket Nº:12-1149, 12-1215.
Citation:708 F.3d 549
Opinion Judge:DUNCAN, Circuit Judge:
Party Name:Albert CLATTERBUCK; Christopher Martin; Earl Mccraw; John Jordan; Michael Sloan, Plaintiffs-Appellants, v. CITY OF CHARLOTTESVILLE, Defendant-Appellee. The Thomas Jefferson Center for The Protection of Free Expression, Amicus Supporting Appellants. Albert Clatterbuck; Christopher Martin; Earl McCraw; John Jordan; Michael Sloan, Plaintiffs-Appellees
Attorney:Jeffrey Edward Fogel, Charlottesville, Virginia, for Appellants/Cross-Appellees. Richard Hustis Milnor, Taylor Zunka Milnor & Carter, Ltd., Charlottesville, Virginia, for Appellee/Cross-Appellant. Steven D. Rosenfield, ACLU of Virginia, Charlottesville, Virginia; Rebecca K. Glenberg, Thomas O. Fi...
Judge Panel:Before DUNCAN, AGEE, and DAVIS, Circuit Judges. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge DAVIS joined.
Case Date:February 21, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 549

708 F.3d 549 (4th Cir. 2013)

Albert CLATTERBUCK; Christopher Martin; Earl Mccraw; John Jordan; Michael Sloan, Plaintiffs-Appellants,

v.

CITY OF CHARLOTTESVILLE, Defendant-Appellee.

The Thomas Jefferson Center for The Protection of Free Expression, Amicus Supporting Appellants.

Albert Clatterbuck; Christopher Martin; Earl McCraw; John Jordan; Michael Sloan, Plaintiffs-Appellees,

v.

City of Charlottesville, Defendant-Appellant.

The Thomas Jefferson Center for The Protection of Free Expression, Amicus Supporting Appellees.

Nos. 12-1149, 12-1215.

United States Court of Appeals, Fourth Circuit.

February 21, 2013

Argued: Dec. 5, 2012.

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[Copyrighted Material Omitted]

Page 551

ARGUED:

Jeffrey Edward Fogel, Charlottesville, Virginia, for Appellants/Cross-Appellees.

Richard Hustis Milnor, Taylor Zunka Milnor & Carter, Ltd., Charlottesville, Virginia, for Appellee/Cross-Appellant.

ON BRIEF:

Steven D. Rosenfield, ACLU of Virginia, Charlottesville, Virginia; Rebecca K. Glenberg, Thomas O. Fitzpatrick, American Civil Liberties Union of Virginia Foundation, Inc., Richmond, Virginia, for Appellants/Cross-Appellees.

J. Joshua Wheeler, Clayton N. Hansen, The Thomas Jefferson Center For The Protection of Free Expression, Charlottesville, Virginia, for Amicus Supporting Appellants/Cross-Appellees.

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Reversed and remanded by published opinion.

Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge DAVIS joined.

OPINION

DUNCAN, Circuit Judge:

This case presents the question of whether a municipal ordinance, which prohibits individuals from soliciting immediate donations near two streets that run through the Downtown Mall in Charlottesville, Virginia, unconstitutionally restricts the free speech of individuals who regularly beg on the Downtown Mall. We hold that the district court erred by resolving this issue at the pleadings stage, and reverse and remand for further proceedings.

I.

A.

The City of Charlottesville (the " City" ) has adopted an ordinance that proscribes " soliciting" in certain areas of the City. Section 28-31 of the Charlottesville City Code (the " Ordinance" ) reads in relevant part 1 as follows:

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(a) It shall be unlawful for any person to solicit money or other things of value, or to solicit the sale of goods or services:

...

(9) On the Downtown Mall within fifty (50) feet (in any direction) of 2nd Street West and 4th Street East, when those streets are open to vehicular traffic.

...

Solicit means to request an immediate donation of money or other thing of value from another person, regardless of the solicitor's purpose or intended use of the money or other thing of value. A solicitation may take the form of, without limitation, the spoken, written, or printed word, or by other means of communication (for example: an outstretched hand, an extended cup or hat, etc.).

(c) Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

Charlottesville City Code, § 28-31 (as amended Aug. 16, 2010); J.A. 14. Albert Clatterbuck, Christopher Martin, Earl McCraw, John Jordan, and Michael Sloan (collectively, " Appellants" ) are " impecunious and reliant to a certain extent on begging to sustain [themselves.]" J.A. 7. One of the locations where each Appellant begs is " East Main Street in the City, commonly known as the Downtown Mall." Id. The complaint alleges few facts about the Downtown Mall, other than that it " has numerous restaurants and cafes with outdoor seating, and [Appellants] regularly beg within view of those restaurants and cafes." Id.

B.

Appellants brought this action under 42 U.S.C. § 1983 against the City to challenge the constitutionality of the Ordinance, asserting that it violates their First Amendment right to beg, impermissibly restraining their protected speech activities and livelihood. The complaint alleges that the City adopted the Ordinance " in order to restrict the right of the impoverished to solicit funds for their own well-being," and challenges the Ordinance as a content-based regulation that criminalizes speech based on the content of the communication. J.A. 9. Further, the complaint states that " [a]s a direct and proximate result of the conduct of [the City] in enacting the ordinance, [Appellants] have and will continue to suffer harm, including, but not limited to damages to the right to communicate to the general public as well as emotional distress." Id. at 9-10. Appellants seek declaratory and injunctive relief, damages, and attorneys' fees and costs.

The City filed a motion to dismiss the action for lack of standing and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The district court found Appellants had standing, but dismissed the action for failing to allege a cognizable First Amendment violation. The court reasoned that the Ordinance constitutes a content-neutral, permissible time, place, and manner restriction. Appellants timely appealed the district court's decision to dismiss the action, and the City cross-appealed to challenge the district court's determination that Appellants have standing to bring their claim.

II.

We first address the City's argument that Appellants do not have standing to bring this First Amendment challenge to the Ordinance. Finding that they do, we next turn to Appellants' claim itself, and conclude that it was improperly dismissed at the pleadings stage.

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A.

The threshold issue of standing is a legal question that we examine de novo. See Benham v. City of Charlotte, 635 F.3d 129, 134 (4th Cir.2011). As the party asserting federal jurisdiction, Appellants bear the burden of establishing they have standing to invoke the authority of a federal court— a burden which tracks the manner and degree of evidence required at each successive stage of litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Accordingly, at the present pre-discovery pleadings stage, " general factual allegations of injury resulting from the [City's] conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Id. (internal quotation marks and alterations omitted); see also Bishop v. Bartlett, 575 F.3d 419, 424 (4th Cir.2009).

In order to possess standing to bring this action in federal court, Appellants must show the three familiar elements of constitutional standing: injury-in-fact, causation, and redressability. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The essence of the standing inquiry is whether the party seeking to invoke federal jurisdiction has " alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). We agree with the district court that Appellants have done so here for the purposes of the motion to dismiss.

As a preliminary matter, we note that the speech and expressive conduct that comprise begging merit First Amendment protection. The Supreme Court has held that the solicitation of " charitable contributions" is protected speech. Riley v. Nat'l Fed'n of the Blind of N.C., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). Several of our sister circuits have extended that holding to begging, which is simply solicitation on behalf of the speaker. See, e.g., Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir.1999) (" Like other charitable solicitation, begging is speech entitled to First Amendment protection." ); Loper v. New York City Police Dep't, 999 F.2d 699, 704 (2d Cir.1993) (" We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not significant for First Amendment purposes." ). We agree that begging is communicative activity within the protection of the First Amendment.

The City argues on cross-appeal that Appellants lack standing because they...

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