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McClellan v. City of Alexandria

United States District Court, E.D. Virginia, Alexandria Division

January 28, 2019

CITY OF ALEXANDRIA, et al, Defendants.



         In 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 (together, "defendants").

         Defendants 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[1] 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.



         Plaintiff 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.") ¶ 6.[2] More locally, she often performs on public sidewalks in Old Town, Alexandria, with the aid of a small, portable Bluetooth speaker[3] from which she plays accompaniment music. Id. ¶ 7.

         On 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 19.

         Because 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.

         Plaintiffs 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. Id.

         Things 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.

         Dunkwu 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.

         Around 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, [4] and placed her in the back of the car. Id. ¶¶ 39-40. Officers seized her speaker, cellphone, and tip basket. W. ¶ 43.

         Plaintiff 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.

         Around 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.[5] 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.

         On 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.

         Plaintiff 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.


         In 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, respectively.

         Defendants 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.


         Title 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.


         The 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).

         Another 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 ...

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