United States District Court, W.D. Virginia, Charlottesville Division
For Albert Clatterbuck, Christopher Martin, Plaintiffs: Jeffrey Edward Fogel, LEAD ATTORNEY, JEFFREY E. FOGEL LAW OFFICE, CHARLOTTESVILLE, VA; Rebecca Kim Glenberg, Thomas Okuda Fitzpatrick, LEAD ATTORNEYS, American Civil Liberties Union of Virginia Foundation, Richmond, VA; Steven David Rosenfield, LEAD ATTORNEY, Rosenfield & Wayland, Charlottesville, VA.
For City of Charlottesville, Defendant: Richard Hustis Milnor, LEAD ATTORNEY, Taylor Zunka Milnor & Carter LTD, Chartlottesville, VA.
NORMAN K. MOON, UNITED STATES DISTRICT JUDGE.
Plaintiffs, individuals described in their complaint as " impecunious and reliant to a certain extent on begging" for sustenance, challenge the constitutionality of a subsection of the City Code of Charlottesville, Virginia that prohibits individuals from soliciting immediate donations near two streets running through the Downtown Mall. The matter is now before me upon consideration of the parties' cross-motions for summary judgment, which have been fully briefed and heard and supplemented. For the reasons stated herein, I find that the City of Charlottesville (the " City," or " Defendant" ) has failed to carry its burden of showing the content-neutrality of the ordinance, which " plainly distinguishes between types of solicitations on its face." Clatterbuck v. City of Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013). Indeed, the record before me compels me to conclude that " the City 'has distinguished [speech] because of its content,'" and the ordinance " is consequently content-based." Id. (quoting Brown v. Town of Cary, 706 F.3d 294, 301 (4th Cir. 2013)). Accordingly, the City's motion for summary judgment will be denied, Plaintiffs' motion for summary judgment will be granted, and Plaintiffs' request for relief will be granted as set forth in the order accompanying this memorandum opinion.
The complaint originally challenged the following provisions of the Charlottesville City Code:
Sec. 28-31. - Soliciting.
(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:
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(5) From or to any person seated within an outdoor café area, during the hours of operation of such outdoor café ;
(6) From or to any person who is conducting business at any vendor table or cart;
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(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.
(b) For the purposes of this section the following words and phrases shall have the meanings ascribed to them below, unless a different meaning is plainly required by the context:
* * *
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).
The City moved " 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." Clatterbuck, 708 F.3d at 552. I found that Plaintiffs " had standing, but dismissed the action for failing to allege a cognizable First Amendment violation," reasoning that the ordinance " constitutes a content-neutral, permissible time, place, and manner restriction" on Plaintiffs' free speech rights under the First Amendment. Id.
Plaintiffs appealed my " decision to dismiss the action, and the City cross-appealed to challenge [my] determination that [Plaintiffs had] standing to bring their claim." Id. As the Court of Appeals noted, Plaintiffs " initially challenged several provisions of the Ordinance," but they limited " their argument on appeal to a facial challenge of subsection (a)(9)," i.e., the subsection prohibiting individuals from soliciting immediate donations near two streets running through the Mall. Id. at 551 n. 1.
The Court found that Plaintiffs had standing, id. at 552-54, but reversed and remanded on the merits, disagreeing, id. at 556, with my conclusion
that the Ordinance is content-neutral because it " does not distinguish between favored and disfavored solicitation," Clatterbuck v. City of Charlottesville, 841 F.Supp.2d 943, 953 (W.D. Va. 2012), but rather " applies to all forms of solicitations, regardless of the solicitor's purpose or the content of the solicitor's speech," id. at 950.
The Court of Appeals determined that
[t]he Ordinance plainly distinguishes between types of solicitations on its face. Whether the Ordinance is violated turns solely on the nature or content of the solicitor's speech: it prohibits solicitations that request immediate donations of things of value, while allowing other types of solicitations, such as those that request future donations, or those that request things which may have no " value" --a signature or a kind word, perhaps.
708 F.3d at 556. Thus, " [h]aving determined that the Ordinance's speech restriction
is based on a content distinction," the Court observed that the " pragmatic . . . approach to evaluating content neutrality" that it has adopted " [i]n evaluating challenges to municipal sign ordinances" turns next to the question " whether the City 'has distinguished [speech] because of its content,' and [the Ordinance] is consequently content-based." Id. (quoting Brown, 706 F.3d at 301; other citations omitted). The Court stated that it was
bound--like the district court--to evaluate Appellants' claims based on the sufficiency of their pleadings, not based on the government's asserted evidence or our own independent judgment of likely purposes. We find ourselves ill-equipped to reach a conclusion as to censorial purpose, based on the record before us, at this juncture. We are compelled to conclude that the district court erred in finding the Ordinance content-neutral as a matter of law and dismissing the case on a Rule 12(b)(6) motion to dismiss.
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment (or partial summary judgment) " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." " As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to preclude summary judgment, the dispute about a material fact must be " 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine issue of material fact " is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
When faced with cross-motions for summary judgment, the standard is the same. The court must consider " each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quotations omitted). If the court finds that there is a genuine issue of material fact, both motions must be denied, " [b]ut if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment." Trigo v. Travelers Commercial Ins. Co., 755 F.Supp.2d 749, 752 (W.D. Va. 2010). The mere existence of " some " factual disputes will not defeat summary judgment; the dispute must be " genuine" and concern " material" facts. Anderson, 477 U.S. at 247-248; see also Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Only legitimate disputes over facts that might affect the outcome of the suit under the governing law fall within that category. Id.; see also Fields v. Verizon Servs. Corp., 493 F.App'x 371, 374 (4th Cir. 2012).
The Court of Appeals was concerned that " no evidence is properly before us to indicate the City's reason or reasons for enacting the Ordinance." C ...