Jeffrey Fogel, attorney for the five homeless men who filed a lawsuit that challenged the constitutionality of the City of Charlottesville’s panhandling ordinance, was not surprised about the suit’s dismissal. Rather, Fogel was surprised about how District Court Judge Norman K. Moon dismissed it.
“The normal course is that the defendant files an answer and you proceed to a period of the case called ‘discovery,’ in which each side is allowed to get information from the other side in writing, documents, depositions in order to establish the proof necessary in a trial,” said Fogel. “By granting the motion to dismiss this case, he precluded us from gathering any evidence and demonstrating to him what we alleged in the complaint.”
According to Fogel, in a lawsuit one side has the burden to prove its argument and “it cannot solve it in a motion to dismiss,” he said. “How does the city satisfy the burden?”
However, City Attorney Craig Brown doesn’t believe the outcome would have been different had the case moved to the discovery stage.
“The stage in which the case was dismissed was on a motion to dismiss, which means that the judge assumes the truth of everything they have alleged. And even doing that, he found that they have not alleged a constitutional violation,” he told C-VILLE.
Shortly after the suit was filed last June, the city responded with a motion to dismiss, arguing that the plaintiffs lacked standing because “they failed to allege a plausible claim of ‘injury in fact.’” Although Judge Moon disagreed with the City and argued the five men had standing, he granted the motion to dismiss “for failure to state a claim upon which relief can be granted.”
“The ordinance actually leaves intact the right to solicit on most of the [Downtown] Mall, and it does not impose an outright ban on begging or panhandling on the mall,” wrote Judge Moon.
The suit claimed that the soliciting (formerly “panhandling”) ordinance approved by City Council in August of last year violated the plantiffs’ First and Fourteenth Amendment rights. Officially, the city’s ordinance restricts soliciting within 15′ of an entrance or exit of a bank or ATM machine during business hours; within 50′ in any direction of the two vehicular crossings on the Mall, at Second and Fourth streets; and “from or to” anyone seated at an outdoor café or “from or to” anyone doing business at a vendor table or cart during the hours of operation. The ordinance also prohibits aggressive panhandling, an element Fogel and his clients are not challenging.
“We are pleased,” said Brown, referring to the dismissal. “I think City Council tried very hard to strike the appropriate balance between those who wish to solicit funds on the Downtown Mall and those who would be the objects of that solicitation.”
As for the next step, Fogel is tight-lipped. “I don’t know yet. We are definitely going to do something,” he said.
Brown, meanwhile, is ready for any action. “If they appeal, we’ll defend it,” he said. “The judge’s opinion is very defensible on appeal.”