Albert Clatterbuck v. City of Charlottesville

708 F.3d 549, 2013 WL 632950
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 21, 2013
Docket12-1149, 12-1215
StatusPublished
Cited by468 cases

This text of 708 F.3d 549 (Albert Clatterbuck v. City of Charlottesville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albert Clatterbuck v. City of Charlottesville, 708 F.3d 549, 2013 WL 632950 (4th Cir. 2013).

Opinion

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 Charlottes-ville, 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:

*552 (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.

*553 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.

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708 F.3d 549, 2013 WL 632950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-clatterbuck-v-city-of-charlottesville-ca4-2013.