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Clatterbuck v. City of Charlottesville

United States Court of Appeals, Fourth Circuit

February 21, 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.

         Argued: Dec. 5, 2012.

         Appeals from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:11-cv-00043-NKM-BWC)

Page 550

[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:

Page 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.

         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 ...


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