Albert CLATTERBUCK; Christopher Martin; Earl Mccraw; John Jordan; Michael Sloan, Plaintiffs-Appellants,
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,
City of Charlottesville, Defendant-Appellant. The Thomas Jefferson Center for The Protection of Free Expression, Amicus Supporting Appellees.
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)
[Copyrighted Material Omitted]
Edward Fogel, Charlottesville, Virginia, for
Hustis Milnor, Taylor Zunka Milnor & Carter, Ltd.,
Charlottesville, Virginia, for Appellee/Cross-Appellant.
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.
Joshua Wheeler, Clayton N. Hansen, The Thomas Jefferson
Center For The Protection of Free Expression,
Charlottesville, Virginia, for Amicus Supporting
DUNCAN, AGEE, and DAVIS, Circuit Judges.
and remanded by published opinion.
DUNCAN wrote the opinion, in which Judge AGEE and Judge DAVIS
DUNCAN, Circuit Judge:
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.
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  as follows:
(a) It shall be unlawful for any person to solicit money or
other things of value, or to solicit the sale of goods or
(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.
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 ...