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United States District Court for the District of Columbia
June 11, 2019, Decided; June 11, 2019, Filed
Civil No. 15-cv-1380 (KBJ)
[*117] MEMORANDUM OPINION
In the case of Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 192 L. Ed. 2d 236 (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 [**2] 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, [**3] 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 [*118] 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.
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390 F. Supp. 3d 114 *; 2019 U.S. Dist. LEXIS 97579 **; 2019 WL 2437546
ELBERT L. BROWN, et al., Plaintiffs, v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, Defendant.
Panhandling, arrested, motion to dismiss, Control Act, strict scrutiny, content-based, regulations, amended complaint, public forum, allegations, governmental interest, challenged provision, challenging, survive, motion-to-dismiss, restrictions, prohibits, protected speech, named plaintiff, class action, duplicative, quotation, stations, pleaded, marks, narrowly tailored, provisions, violating, merits, notice