United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
September 2016, Krista McClellan ("plaintiff"), an
opera singer who often performs on public sidewalks in
Alexandria, Virginia ("Alexandria" or the
"City"), was arrested for violating the City's
noise ordinance. In response, she filed a five-count
complaint against the City and her arresting officer, Michael
Dunkwu ("Dunkwu"). Plaintiff claims that the noise
ordinance, on its face and as applied to her, violates the
First Amendment (Count I); that the ordinance is
unconstitutionally vague (Count II) and overbroad (Count
III); and that her arrest violated her rights under the Equal
Protection Clause (Count IV) and the Fourth Amendment (Count
V). Counts I through III are asserted against the City only;
Counts IV and V are brought against the City and Dunkwu
have moved to dismiss the complaint for failure to state a
claim. After oral argument on defendants' motion, the
Court ruled as to Counts IV and V and took Counts I through
III under advisement [Dkt. No. 32]. For the reasons stated
below, defendants' motion to dismiss will be denied as to
Counts I and II and granted as to Count III.
is an opera singer who has a music degree from Boston
University, is a member of the Wagner Society of Washington,
D.C., and has performed at the First Lady's Luncheon at
the Congressional Club and in several countries around the
world. Compl. [Dkt. No. 1 ] ("Compl.") ¶
More locally, she often performs on public sidewalks in Old
Town, Alexandria, with the aid of a small, portable Bluetooth
speaker from which she plays accompaniment music.
Id. ¶ 7.
September 2, 2016, at about 7:00 PM, plaintiff began to
perform on a public sidewalk near the intersection of King
and Lee Streets in Alexandria. Compl. ¶ 15. She was not
alone: Other musicians performing in the area that evening
included a glass harpist, a guitarist, a saxophonist, a
bongoist, and a dulcimerist. Id. ¶ 16.
Plaintiff placed her portable speaker inside the small wicker
basket she uses to collect tips and set the basket a few feet
in front of her on the sidewalk. Id. ¶¶ 17
plaintiff had been performing in downtown Alexandria for
years, she was aware that a City ordinance prohibits anyone
from generating noise louder than 75 decibels
("dB") as measured from at least 10 feet away. See
Compl. ¶¶ 7, 19. She took several precautions to
ensure that her singing, together with the accompaniment
music played through her speaker, would not exceed that
threshold. The night before, her husband had adjusted the
levels of the accompaniment tracks such that they would
remain under 75 dB, as measured from approximately 10 feet
away, when played at maximum volume. Id. ¶ 22.
Once she began singing that evening, her husband also used a
cellphone software application ("app") to measure
her sound output from 10 to 15 feet away and confirmed that
she was below 75 db. Id. ¶¶ 19-21.
performance on the night of September 2 started out well. Her
husband as well as her mother and young daughter were in
attendance, and many people stopped to listen or leave a tip.
Compl. ¶¶ 18, 23. Allison Silberberg,
Alexandria's former mayor, even stopped to listen at one
point; between songs, she complimented plaintiff on her
singing and promised to put her in touch with people
Silberberg knew at the Washington National Opera.
Id. ¶ 24. Silberberg gave plaintiff her
business card, which plaintiff deposited in her tip basket.
changed around 9:30 PM, when Dunkwu and another City police
officer approached plaintiff and demanded that she turn off
her speaker. The officers claimed that the City prohibited
people from performing on public sidewalks with noise
amplification devices. Compl. ¶ 25. Plaintiff declined
to turn off the speaker, explaining that she had been
performing in Alexandria that way for years and that a week
earlier, a different police officer had told her she could
perform there. Id. ¶ 26. Dunkwu asked whether
plaintiff had a permit to use the speaker; she did not.
Id. Plaintiffs husband tried to show Dunkwu that the
noise generated by the speaker and plaintiffs singing fell
below 75 dB, but Dunkwu refused to look at the app, instead
claiming "that if he could hear [plaintiffs] performance
from ten to fifteen feet away, then the performance must be
in violation" of the City's noise ordinance.
Id. ¶ 27.
told plaintiff that if she failed to turn off the speaker, he
would issue her a citation. Compl. ¶¶ 29-30.
Plaintiff replied that "she understood, and would accept
the citation." Compl. ¶ 30. Dunkwu backed off but
returned a few minutes later, this time stating that if
plaintiff continued to perform, he would forgo the citation
and arrest her. Id. ¶¶ 31-32. Plaintiff
responded, "I understand," and continued to
perform. Id. ¶ 32. Her husband again attempted
to come to her aid, telling Dunkwu that arresting plaintiff
would constitute a violation of the First Amendment.
Id. ¶ 33. Dunkwu responded that plaintiffs
husband "better back up" or face an arrest
"for obstruction of justice." Id.
Plaintiffs husband complied. Id.
9:45 PM-while plaintiff was performing Schubert's Ave
Maria-three additional officers arrived, and plaintiff
was handcuffed and placed under arrest. Compl. ¶¶
36-37. When asked why plaintiff had been arrested, Dunkwu
responded, "disorderly conduct." Id.
¶ 37. The officers walked plaintiff across the street to
where a squad car was parked, patted her down,  and placed her in
the back of the car. Id. ¶¶ 39-40.
Officers seized her speaker, cellphone, and tip basket. W.
was taken to a municipal detention center, subject to a
second pat-down search, and forced to change into
"prison garb." Compl. ¶¶ 46-48. Plaintiff
objects that other than a "long-term, convicted
inmate," no other individual held in police custody had
been forced to change clothes. Id. ¶ 48.
Plaintiff also protests that she was forced to change in
front of detention staff officers, id 149, and that the shoes
she was forced to wear were too tight and caused her
significant pain, id ¶ 50.
10:50 PM-roughly an hour after she had been
arrested-plaintiff was brought before a magistrate. Compl.
¶ 51. Her hearing lasted about three minutes. See
id ¶ 55. Dunkwu appeared at the hearing and
testified that he had booked plaintiff for violating section
11-5-4(b)(2) of the City Code. Plaintiff also testified that she
had never had an issue with performing in that area of
downtown Alexandria before, that spectators (including the
mayor) had enjoyed her performance, and that she felt her
arrest was in violation of the Constitution. Id.
¶ 53. The magistrate ordered that plaintiff be
released on her own recognizance; however, officers at the
detention center "had difficulty entering the requisite
arrest codes into their electronic system, as they had never
before seen or used" them, and consequently plaintiff
was not actually released until 1:00 AM. Id.
¶¶ 56-58. Detention center officials gave plaintiff
back her cellphone but held her basket and speaker overnight.
Id. ¶ 60. When plaintiff returned to collect
those items the next day, Mayor Silberberg's business
card and approximately $60 in tips were missing. Id.
September 7, 2016, Assistant Commonwealth Attorney Sean
Sherlock called plaintiff and left a voicemail stating that
the charges against her would be dropped. Id. ¶
61. The charges were dismissed later that day. Id.
Also on September 7, the City issued a press release stating
that plaintiff "should have first been [issued] a civil
notice" and quoting the city manager as saying, "I
would like to publicly apologize to [plaintiff] for the way
this situation was handled .... While we are obligated to
enforce certain restrictions, we did not follow the correct
procedure in this case." Id. Ex. B. The press
release also stated that the City would review plaintiffs
arrest as well as "the general application of noise
ordinances to street performers, so that performers,
enforcement staff, and the community have a clear
understanding of the rules." Id. Ultimately,
the City produced a memorandum to the chief of the Alexandria
Police Department providing detailed guidance on the City
Code's noise control provisions. Compl. Ex. C.
alleges that her arrest caused her a wide range of physical,
psychological, emotional, and personal harms. She had a
miscarriage in late September or early October 2016 safety,
or welfare and environment of the neighboring
inhabitants." Alexandria, Va., City Code § 1
l-5-4(b)(2). The City's noise ordinance is discussed in
greater detail below.and suffered heavy uterine bleeding that
required surgery to correct. Compl. ¶ 64. She was
bedridden with anxiety and depression, was prescribed Xanax,
and was referred to a psychiatrist, who "provided her
with educational materials concerning post-traumatic stress
disorder and severe anxiety." Id. ffl[ 66-67.
Plaintiff suffered from preexisting foot conditions,
including "plantar fasciitis, bursitis, and ligamentous
laxity," which she claims were aggravated by being
forced to wear shoes that were too tight while she was held
in the municipal detention center. Id. 1fl[ 68-69.
Plaintiff also avers that her arrest caused her reputational
and stigmatic harm, reducing the frequency with which she has
been hired to sing at private events and causing her
considerable anxiety anytime she performs in public.
Id. 170. She also claims that for months after her
arrest, police officers would constantly "hover near
her" whenever she performed in downtown Alexandria,
scaring away pedestrians and reducing her tips. Id.
171. As a result, plaintiff claims her income was reduced to
such an extent that she and her family were homeless for over
a month and had to rely on emergency food providers and
personal loans. Id. ffl[ 72-73.
Count I of her five-count complaint, plaintiff alleges that
the City's noise ordinance, both on its face and as
applied to her, violates her rights under the Free Speech
Clause of the First Amendment. Counts II and III allege that
the City's noise ordinance is void for vagueness and
overbroad, respectively. Counts IV and V, asserted against
both defendants, allege that plaintiffs arrest violated the
Equal Protection Clause and the Fourth Amendment,
moved to dismiss all five counts of the complaint under
Federal Rule of Civil Procedure 12(b)(6). After oral argument
on defendants' motion, Count IV was dismissed because
plaintiff had failed to allege adequate facts to support her
"class of one" equal protection claim. Count V was
dismissed as to the City because plaintiff had failed to
state a claim for failure to train under City of Canton
v. Harris, 489 U.S. 378 (1989), but was allowed to
proceed against Dunkwu. Finally, Counts I through III were
taken under advisement.
11, Chapter 5 of the City Code is known as the "Noise
Control Code." As relevant here, the Noise Control Code
contains two sets of regulations: One general set of
provisions applies to the entire city, and a more specific
set of provisions applies only in an area known as the
"central business district." The parties disagree
about which provisions governed plaintiffs conduct on the
night she was arrested, a fundamental issue that affects the
analysis of defendants' motion to dismiss. Accordingly,
the precise nature and interaction of the city-wide and
central business district-specific provisions must be
analyzed before defendants' motion as to Counts I through
III may be addressed.
city-wide provisions declare it "unlawful for any person
to make, continue, or cause to be made any excessive,
unnecessary or unusually loud noise or any noise which
unreasonably annoys, disturbs, injures or endangers the
comfort, health, safety, welfare, or environment of
others." Alexandria, Va., City Code ("Code")
§ 1 l-5-4(a). Section 11-5-4 contains a nonexhaustive
list of acts "declared to be unlawful" in the city.
Id. § 1 l-5-4(b). Among these are "[t]he
using or operating of any ... machine or device for the
producing or reproducing of sound ... in such manner as to
disturb unreasonably the comfort, health, peace, safety, or
welfare and environment of the neighboring inhabitants."
Id. § 11-5-4(b)(2).
of the city-wide sections provides a list of standards that
"shall be considered in determining whether a violation
of this chapter exists." Code § 11-5-3. These
include the "level of noise"; "whether the
nature of the noise is usual or unusual"; "whether
the origin of the noise is natural or unnatural"; how
close the noise is "to residential sleeping
facilities"; the nature, zoning, and density of the area
within which the noise emanates; the time of day the noise
occurs; the duration, intensity, and frequency of the noise;
and "whether the noise is produced by a commercial or