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Brown v. Government of District of Columbia

United States District Court, District of Columbia

June 11, 2019

ELBERT L. BROWN, et al., Plaintiffs,



         In the case of Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015), the Supreme Court of the United States applied strict scrutiny to evaluate whether an ordinance that restricted town members' displays of outdoor signs based on the communicative content of those signs violated the First Amendment of the Constitution of the United States. See Id. at 2231. The Supreme Court held that content-based laws governing speech in public forums “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id. at 2226. According to Plaintiffs in the instant case, Reed compels the conclusion that the District of Columbia's Panhandling Control Act (“the Act”), D.C. Code §§ 22-2301-2306, is constitutionally invalid. Plaintiffs were arrested for asking passersby for money in certain public places in the District of Columbia in contravention of three provisions of the Act (which criminalizes panhandling and no other types of solicitation), and much like the town residents in Reed, Plaintiffs maintain that the Act imposes content-based restrictions on speech that do not survive strict scrutiny. (See Fifth Am. Compl. (“5AC”), ECF No. 61, at ¶¶ 150- 62.)

         Before this Court at present is Defendant District of Columbia's (“the District's”) Motion to Dismiss Plaintiffs' Fifth Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). (See Def.'s Mot. to Dismiss Pls.' Fifth Am. Compl. (“Def.'s Mot.”), ECF No. 63.) The District's primary argument is that Plaintiffs fail to state a claim as a matter of law because the Panhandling Control Act is not a content-based statute, and therefore strict scrutiny does not apply. (See Id. at 18-22; see also Def.'s Reply in Support of Def.'s Mot. (“Def.'s Reply”), ECF No. 65, at 8-10.)[1] The District further maintains that, even if the challenged subsections of the Panhandling Control Act are content-based regulations that have been applied to regulate conduct in a public forum, these statutory provisions are narrowly tailored to serve compelling government interests such that they survive strict scrutiny, and, therefore, comport with the First Amendment. (See Def.'s Mot. at 22-26; Def.'s Reply at 10-13.)

         On March 29, 2019, this Court issued an Order that DENIED Defendant's motion to dismiss. (See Order, ECF No. 69.) This Memorandum Opinion explains the reasons for that Order. In short, the Court has concluded that the District's Rule 12(b)(6) arguments are not viable at the motion-to-dismiss stage of this case, insofar as they attack the merits of Plaintiffs' constitutional challenge rather than the sufficiency of Plaintiffs' complaint. The Court has also found that, when accepted as true, Plaintiffs' allegations are sufficient to state a plausible Section 1983 First Amendment claim. See 42 U.S.C. § 1983. Therefore, the District's motion to dismiss has been denied, and Plaintiffs' claims challenging the constitutionality of sections 22-2302(a), 22-2302(b), and 22-2302(d) of the Panhandling Control Act have been allowed to proceed.

         I. BACKGROUND

         A. Factual History

         The District of Columbia criminalizes panhandling by statute. See D.C. Code §§ 22-2301-2306. The Panhandling Control Act defines panhandling as “ask[ing], beg[ging], or solicit[ing] alms, ” and this definition “includes the spoken, written, or printed word or such other act conducted for the purpose of obtaining an immediate donation of money or thing of value[.]” D.C. Code § 22-2301(2). Notably, the Act expressly prohibits such conduct in eight specified circumstances. See Id. at § 22-2302.

         As relevant here, subsection (a) of section 22-2302 provides that “[n]o person may ask, beg, or solicit alms, including money and other things of value”-that is, panhandle-“in an aggressive manner in any place open to the general public, including sidewalks, streets, alleys, driveways, parking lots, parks, plazas, buildings, doorways and entrances to buildings, and gasoline service stations, and the grounds enclosing buildings.” D.C. Code § 22-2302(a). (See 5AC at ¶¶ 6, 12, 36, 41, 90, 138.)[2]Subsection (b) prohibits panhandling “in any public transportation vehicle[] or at any bus, train, or subway station or stop[, ]” D.C. Code § 22-2302(b), and the D.C. Court of Appeals has held that the “subway station or stop” part of this provision applies to the area within fifteen feet of the escalator entrances to the subway, see McFarlin v. District of Columbia, 681 A.2d 440, 448 (D.C. 1996)-an area that has since become known as the McFarlin zone. (See Id. at ¶¶ 9, 131, 168.) Finally, subsection (d) bars panhandling “from any operator or occupant of a motor vehicle that is in traffic on a public street.” D.C. Code § 22-2302(d). (See ¶¶ 7-8, 32, 41, 51-52, 60-61, 69.)

         Plaintiffs Elbert L. Brown, Michael Lemeul Holland, Reginald Bryant, Marc Gatling, and Jomo Kenyatta Hall (collectively, “Plaintiffs”) were each arrested for violating at least one of these provisions of the Panhandling Control Act. (See Id. at ¶¶ 6-9.)[3] Specifically, Brown, Bryant, and Hall were arrested for violating section 22-2302(a). (See Id. at ¶¶ 6, 12, 36, 41, 90, 138.) Gatling was arrested by Metro Transit Police for panhandling in the McFarlin zone in violation of section 22-2302(b). (See Id. at ¶¶ 9, 131, 168.) And Holland and Brown were arrested in violation of section 22-2302(d). (See Id. at ¶¶ 7-8, 32, 41, 51-52, 60-61, 69.)

         Following these arrests, each plaintiff was allegedly detained, and with respect to some of them, the government also purportedly and permanently confiscated the money on their person. (See Id. at ¶¶ 36-97, 121-48.) For present purposes, the facts pertaining to each plaintiff's post-arrest circumstances are not material; it suffices to note that all of the named plaintiffs were allegedly arrested by District or Metro law enforcement officers and were detained for some period of time, and that Brown, Holland, Bryant, and Gatling were further prosecuted in Superior Court for their panhandling offenses. (See id.) Hall represents that he desires to continue panhandling in the future but fears arrest. (See Id. at ¶ 148.)

         B. Procedural History

         Plaintiffs have filed six iterations of their complaint over the past three and a half years. To understand the evolution of Plaintiffs' claims, and thus this Court's evaluation of the operative complaint that Defendant challenges in the instant motion to dismiss, a relatively comprehensive description of these pleadings is required.

         Plaintiff Brown filed an initial, 12-page “Class Action” complaint on August 25, 2015. (Compl., ECF No. 1.) That complaint consisted of one claim styled as a “facial” First Amendment challenge to the Panhandling Control Act under Section 1983 of Title 42 of the United States Code (“Section 1983”), brought on behalf of Brown and all other individuals who had either been arrested, or been arrested and prosecuted, under the Panhandling Control Act. (See Id. at 6-10.) On October 22, 2015, this Court granted the parties' consent motion to stay Plaintiffs' obligation to file a separate motion for class-action treatment pursuant to Local Rule 23.1(b)-a stay which remains in effect at present. (See Min. Order of Oct. 22, 2015.)

         On December 9, 2015, Plaintiffs filed a 26-page first amended complaint as a matter of right, pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). (See First Am. Compl. (“FAC”), ECF No. 15; see also Min. Order of Oct. 28, 2015 (granting consent motion for extension of time to file an amended complaint).) The first amended complaint added Holland, Louis Sylvester White, Bryant, and Gatling as named plaintiffs, and included a new Section 1983 claim based on Plaintiffs' “Right to Return of Money and Other Property.” (See FAC at 1, 19-20.) As before, Plaintiffs styled this complaint as a “Class Action.” (Id. at 2.) The District filed a motion to dismiss the first amended complaint (see Def.'s Mot. to Dismiss FAC, ECF No. 18), arguing, inter alia, that the Panhandling Control Act is constitutional (see Mem. in Support of Def.'s Mot. to Dismiss FAC, ECF No. 18-1, at 15-27), and that Plaintiffs' new “Right to Return” claim failed to plead municipal liability or an underlying constitutional violation sufficiently (see Id. at 27-31).

         On July 12, 2016, this Court held a lengthy hearing regarding the District's motion to dismiss Plaintiffs' first amended complaint. (See Hr'g Tr., ECF No. 44.) After the hearing, the Court concluded that “amending the complaint would aid the parties and the Court in determining whether the claims here can survive a motion to dismiss, ” and gave Plaintiffs leave to file a second amended complaint. (See Order, ECF No. 24, at 1.) The Court advised Plaintiffs to ensure that claims for relief complied with Federal Rule of Civil Procedure 8's requirements, and to plead sufficient facts to support standing for each form of relief sought. (See id. at 1-2.) In light of this ruling, the Court denied Defendant's motion to dismiss without prejudice as moot. (See Id. at 2.)

         On August 15, 2016, Plaintiffs filed a 44-page second amended class action complaint, which added two claims, purportedly pleaded “in the alternative, ” relating to the named Plaintiffs' arrest and prosecution. (See Second Am. Compl., ECF No. 25, at 24-31.) Defendant again moved to dismiss the complaint, this time adding arguments about Plaintiffs' lack of standing in addition to its prior positions regarding the legality of the Panhandling Control Act and the multiple deficiencies of the “Right to Return” claim. (See generally Def.'s Mot. to Dismiss Second Am. Compl., ECF No. 27.) The Court granted Plaintiffs' subsequent motion for leave to file a third amended complaint, and as a result, denied Defendant's motion as moot. (See Minute Order of October 12, 2016; see also Pls.' Mot. to Amend the Second Am. Compl. and to File Third Am. Compl., ECF No. 29, at 4-6.)

         On October 12, 2016, Plaintiffs filed a 45-page third amended complaint. (See Third Am. Compl., ECF No. 31.)[4] This class action complaint included six claims against the District pursuant to Section 1983: a First Amendment challenge to the Panhandling Control Act; two claims pleaded “in the alternative” challenging Plaintiffs' arrests as violative of the First Amendment; and three claims challenging Plaintiffs' arrests and detention under the Fourth and Fifth Amendments. (See Id. at 23-33.) Defendant filed its third motion to dismiss the complaint, renewing its arguments in opposition to the First Amendment challenge and further arguing that Plaintiffs had failed to state a claim upon which relief could be granted based on the alleged Fourth and Fifth Amendment violations. (See Def.'s Mot. to Dismiss Third Am. Compl., ECF No. 33, at 1-2.)

         On July 20, 2017, the Court held another lengthy hearing, after which it took Defendant's motion under advisement. (See Min. Entry of July 20, 2017.) On August 29, 2017, Plaintiffs filed a motion to dismiss voluntarily one of the claims in the third amended complaint (see Pls.' Mot. to Dismiss Claim 3, ECF No. 41), and because voluntary dismissal of part of a complaint by a plaintiff who seeks to continue pursuing other claims in the case can only be achieved through amendment, the Court construed Plaintiffs' motion for voluntary dismissal of a claim as a motion for leave to amend, and so construed, granted the motion, over the District's objection (see Order, ECF ...

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