390 F. Supp. 3d 114 | D.C. Cir. | 2019
KETANJI BROWN JACKSON, United States District Judge *117In the case of Reed v. Town of Gilbert, Ariz. , --- U.S. ----,
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
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
I. BACKGROUND
A. Factual History
The District of Columbia criminalizes panhandling by statute. See
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."
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
Following these arrests, each plaintiff was allegedly detained, and with respect to some of them, the government also purportedly and permanently confiscated the *119money on their person. (See
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
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
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
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.
*120(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.)
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 No. 43, at 1-2). Having thereby provided Plaintiffs with another opportunity to amend their pleading, the Court then denied the District's motion to dismiss as moot. (See
On September 19, 2017, Plaintiffs filed a 35-page fourth amended class action complaint. (See Fourth Am. Compl., ECF No. 47.) This complaint included one claim challenging the Panhandling Control Act under the First Amendment, and three claims pleaded "in the alternative" challenging Plaintiffs' arrests and detention in violation of the First, Fourth, and Fifth Amendments. (See
Several months later, Plaintiffs filed an opposed motion for leave to amend their complaint once more, this time based on the addition of a new named plaintiff as well as proposed clarification of their claims based on legal issues raised through the first three years of the case. (See Pls.' Mot. for Leave to Amend Fourth Am. Compl. and to File Fifth Am. Compl., ECF
*121No. 57, at 2.) On April 30, 2018, the Court granted Plaintiffs' motion for leave to amend, and denied Defendant's motion to dismiss, as moot, for the fourth and final time. (See Order, ECF No. 60, at 2.) In so ruling, the Court also specifically emphasized that "this will be the final amendment to the complaint that Plaintiffs are permitted to make [.]" (Id. (emphasis in original).)
On April 30, 2018, Plaintiffs filed the 31-page fifth amended class action complaint that is the operative pleading to date, and also the subject of the instant ruling. (See 5AC.) Plaintiffs' fifth amended complaint contains three claims challenging sections 22-2302(a), 22-2302(b), and 22-2302(d) of the Panhandling Control Act as violative of the First Amendment, each of which is brought pursuant to Section 1983, but only two of these claims are relevant here.
The District filed a motion to dismiss Plaintiffs' fifth amended complaint on May 31, 2018. (See Def.'s Mot.) In this motion, the District reasserts its position that the Act comports with the First Amendment, either (1) because strict scrutiny does not apply (see, e.g. ,
The District's motion to dismiss became ripe for the Court's review on June 19, 2018. (See Def.'s Reply.)
II. LEGAL STANDARDS
A. Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(6)
A complaint "serve[s] [the] specific functions of giving notice of 'the general nature of the case and the circumstances or events upon which it is based,' so the parties can prepare and the court can dispose of the case properly." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc. ,
The moving party bears the burden of demonstrating that a complaint is legally insufficient, see Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia ,
In limited circumstances, a Court may be able to resolve a purely legal question at the motion-to-dismiss phase. See, e.g. , *123Marshall Cty. Health Care Auth. v. Shalala ,
B. Plausible Claims That Challenge Government Regulation On First Amendment Grounds
Courts generally approach First Amendment challenges to statutes and regulations by (1) "determining whether the First Amendment protects the speech at issue"; (2) "identifying the nature of the forum"; and (3) "assessing whether the [government's] justifications for restricting [the] speech satisfy the requisite standard." Mahoney v. Doe ,
Thus, courts typically do not reach the merits of a First Amendment challenge at the motion-to-dismiss stage. See, e.g. , Boardley v. U.S. Dep't of the Interior ,
III. ANALYSIS
The operative complaint in the instant action alleges that certain provisions of the D.C. Panhandling Control Act violate the First Amendment. As explained below, this Court concludes that Plaintiffs have sufficiently alleged plausible First Amendment claims upon which relief can be granted, and this is especially so in light of the overwhelming run of authority from across the country striking down similar panhandling regulations since the Supreme Court's decision in Reed . See, e.g. , Norton v. City of Springfield, Ill. ,
A. Plaintiffs Have Plausibly Alleged That The D.C. Panhandling Control Act Violates The First Amendment
Plaintiffs' complaint plausibly alleges a viable First Amendment claim, for several reasons. First and foremost, with respect to the First Amendment's application to the speech at issue, Plaintiffs have alleged that "[p]anhandling is expressive conduct that is protected [First] Amendment activity." (5AC at ¶ 152.) Not only is it plausible that this is so, see, e.g. , Norton ,
In regard to the nature of the forum, Plaintiffs allege that all three of the challenged provisions of the D.C. Panhandling Control Act apply to public forums. (See 5AC at ¶¶ 41, 51-52, 56, 60-61, 69, 74, 82-83, 123, 163-64.) To the extent that there is a disagreement regarding this characterization as it relates to the McFarlin zones regulated by section 22-2302(b) (compare Def.'s Mot. at 17 (citing McFarlin ,
As for the nature of the government's statutory prohibitions and its justifications for limiting speech in this manner, Plaintiffs allege that strict scrutiny applies, because the Panhandling Control Act is a content-based regulation insofar as it prohibits certain speech-i.e., immediate requests for money or things of value-in public areas, based on the message communicated. (See 5AC at ¶¶ 153-156.) Plaintiffs further allege that the Act cannot survive strict scrutiny, because the statutory restrictions are not narrowly tailored to promote a compelling governmental interest. (See id. at ¶¶ 158-62.) Specifically, the complaint contends that there are less restrictive alternatives available to the government, such as "enforcing existing generic criminal laws already on the books in this jurisdiction or enacting new criminal laws that directly target conduct that threatens the District's asserted interests rather than employing regulations that indirectly support those interests by directly burdening protected speech." (Id. at ¶ 161; see also id. at ¶¶ 160-62.)
It is by now well established that government regulations are content-based if they "appl[y] to particular speech because of the topic discussed or the idea or message expressed[,]" Reed ,
This conclusion should not be taken to suggest that Plaintiffs have always clearly claimed that the Panhandling Control Act is unconstitutional. To put it mildly, the complaint in this case has developed in a haphazard manner, and the opaqueness of Plaintiffs' intentions with respect to having organized the allegations into "arrest" and "prosecution" class action claims makes the instant (sixth) pleading attempt far from a model of clarity. But the Court is satisfied that Plaintiffs have provided sufficient notice to the District, by plausibly alleging that all three of the challenged sections of the Panhandling Control Act are content-based regulations that limit protected speech in public forums, and that these regulations cannot survive strict scrutiny because there are less restrictive alternatives available to the D.C. government. (See, e.g. , 5AC at ¶¶ 150-62.)
*126B. The District's Arguments For Dismissal Are Not Relevant To The Applicable Legal Inquiry At The Motion-To-Dismiss Stage
The District's arguments in support of its motion to dismiss relate primarily, if not exclusively, to its belief that Plaintiffs are mistaken because the Panhandling Control Act does satisfy the First Amendment as a matter of law. Indeed, the motion squarely rejects the basic factual premises of Plaintiffs' First Amendment claims-that the challenged provisions are content-based restrictions of speech in a public forum and do not survive strict scrutiny because they are not narrowly tailored to serve a compelling governmental interest-and it does so by arguing, explicitly, that the statutory provisions are constitutional (see, e.g. , Def.'s Mot. at 10), given that, inter alia , public transportation vehicles and Metro stations (which section 22-2302(b) covers) are "nonpublic forums" (see id. at 16-18); sections 22-2302(a) and (d) are "content neutral" restrictions (see id. at 18-22); and all three challenged provisions are "narrowly tailored to serve compelling government interests" (see id. at 22-26). Thus, rather than adhering to the cardinal characteristic of motions that properly test the sufficiency of the allegations of a complaint under Rule 12(b)(6), see, e.g. , Democracy Partners v. Project Veritas Action Fund ,
This Court must decline the District's invitation. It is clear beyond cavil that a defendant cannot ignore, or contradict, a complaint's factual allegations in a bid to seek its dismissal, no matter how strong the defendant's merits arguments might be. See Fletcher v. U.S. Dep't of Justice ,
Put another way, as "a governmental body seeking to sustain a restriction on ... speech[,]" the District must ultimately "demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edwards v. District of Columbia ,
*127claims only by challenging the legal sufficiency of Plaintiffs' pleading, as opposed to its accuracy. Yet, the District's arguments for dismissal of Plaintiffs' complaint are plainly and persistently aimed at the latter. (See, e.g. , Def.'s Mot. at 10; see also id. at 14-26; Def.'s Reply at 5-13.)
This Court need go no further. As the proponent of dismissal under Rule 12(b)(6), the District must demonstrate that Plaintiffs have failed to state a claim upon which relief can be granted, and its vigorous contention that Plaintiffs are wrong when they assert that the challenged provisions of the Panhandling Control Act regulate speech in public fora in a content-based fashion and are not narrowly tailored to achieve compelling government interests does no such thing.
C. At Present, It Does Not Appear That Claim 1 And Claim 3 Are Duplicative
The District also suggests that, at the very least, Claim 3 should be dismissed as duplicative of Claim 1. (See Def.'s Mot. at 26-27; Def.s' Reply at 13-14.) This argument is not entirely baseless, because for reasons that have not yet been fully disclosed, Plaintiffs have opted to bifurcate their core constitutional claims for damages brought against the District into one claim brought by the named plaintiffs who were arrested pursuant to subsections 22-2302(a), (b), and (d) of Chapter 22 of the D.C. Code, (see 5AC at ¶¶ 172-83 (Claim 1)), and another claim brought by the named plaintiffs who were not only arrested but were also prosecuted for panhandling pursuant to those same sections of the D.C. Code (see id. at ¶¶ 196-201 (Claim 3)).
To be sure, the District is correct that a district court may exercise its discretion to dismiss claims "that stem from identical allegations, that are decided under identical legal standards, and for which identical relief is available." Wultz v. Islamic Rep. of Iran ,
*128IV. CONCLUSION
The District would have this Court decide now , at the motion-to-dismiss stage, whether or not Plaintiffs are correct that the challenged provisions of the D.C. Panhandling Control Act are content-based restrictions that are subject to strict scrutiny and cannot be sustained as narrowly tailored to further compelling government interests. For the reasons explained above, the District asks too much too early in the process of this litigation. Plaintiffs have plausibly alleged that the panhandling provisions at issue are content-based laws that restrict protected speech in public forums, and they maintain that the District had less restrictive, alternative means of achieving its stated objectives. This is enough to state a First Amendment claim for which various forms of relief could be granted.
Accordingly, as set forth in the March 29, 2019 Order (see ECF No. 69), Defendant's motion to dismiss is DENIED .
Page-number citations to documents that the parties have filed refer to the page numbers that the Court's electronic filing system automatically assigns.
The statute further defines "aggressive manner" as "[a]pproaching, speaking to, or following a person in a manner as would cause a reasonable person to fear bodily harm or the commission of a criminal act upon the person, or upon property in the person's immediate possession[,]" "[t]ouching another person without that person's consent in the course of asking for alms[,]" "[c]ontinuously asking, begging, or soliciting alms from a person after the person has made a negative response[,]" or "[i]ntentionally blocking or interfering with the safe or free passage of a person by any means, including unreasonably causing a person to take evasive action to avoid physical contact."
The facts recited in this opinion are gleaned from Plaintiffs' Fifth Amended Complaint, and this Court has treated the complaint's allegations as true for the purpose of resolving the instant motion to dismiss. See Bell Atlantic Corp. v. Twombly ,
Plaintiffs styled this iteration of their pleading as a "Second Amended Class Action Complaint" (Third Am. Compl. at 2), but it was properly docketed as the "Third Amended Complaint" (Dkt. Entry Text for ECF No. 31).
The Court notes that the District no longer challenges Plaintiffs' standing to maintain a facial attack on the statute. (Compare, e.g. , Def.'s Mot. to Dismiss Second Am. Compl., ECF No. 27-1, at 18-19 with Def.'s Mot.) Nothing in the instant ruling should be construed as a determination that the allegations in Plaintiffs' complaint will be construed as a facial challenge. See Six Star Holdings, LLC v. City of Milwaukee ,
Plaintiffs filed a notice informing the Court that they did not seek another hearing on Defendant's motion. (See Pls.' Notice, ECF No. 66.)
Plaintiffs also seek to press these same two claims on behalf of two plaintiff classes: one consisting of individuals who were arrested for engaging in panhandling and the other consisting of individuals who were prosecuted for that same infraction. (See id. at ¶¶ 202-15.)