1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JOHN BURKE

,

Plaintiff,

v.

PAUL J. WIEDEFELD

, General Manager

, Washington Metropolitan Area Transit

Authority,

Defendant. Case No. 19- cv -3145 (JMC)

MEMORANDUM OPINION

Plaintiff John Burke brings this action against Defendant Paul J. Wiedefeld in his official

capacity as G eneral Manager and Chief Executive Officer of the Washington Metropolitan Area

Transit Authority (WMATA) after Burke was arrested multiple times for panhandling at M etro

stations in the District of Columbia. 1 ECF 23. Burke asks the Court to declare WMATA’s permit

scheme unconstitutional and to enjoin WMATA from enforcing the District of Columbia’s

panhandling statute against him. ECF 23 at 27– 29 ; see D.C. Code § 22-2302(b). Defendant moves

to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that Burke lacks

standing to challenge the permit scheme and has failed to state a claim with regard to his challenge

of WMATA ’s enforcement of the panhandling statute

. ECF 25

.

The Court finds that

, because Plaintiff has a lleged a well -founded fear of punishment under

WMATA ’s Use Regulations for engaging in constitutionally protected activity , he has standing to

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by

omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to

documents filed on t he docket in this case are to the automatically generated ECF Page ID number that appears at

the top of each page.2 bring a pre

- enforcement challenge to WMATA ’ s permit scheme. The Court also finds that Plaintiff

has stated a claim up on which relief can be granted

. Plaintiff has pled sufficient facts to establish

that his panhandling constitutes speech protected by the First Amendment and that police officers

have

, contrary to McFarlin v. District of Columbia

, 681 A.2d 440 (D.C. 1996), acted beyond the

scope of the law by punishing his panhandling outside the fifteen

- foot radius surrounding the

Metro escalators ’ entrance and exit. Therefore, the Court DENIES the m otion to d ismiss.

I. BACKGROUND

Plaintiff is a roughly 30

- year

- old man who has panhandled at WMATA Metro stations

since 2016. ECF 23 ¶¶ 2

, 6

. Over the years, Plaintiff has been arrested three times for panhandling

at the L ’ Enfant Plaza and Smithsonian M etro stops. Id. ¶ 19. Each time, Metropolitan Tr ansit

Police Department (MTP D ) officers stated they were arresting Plaintiff for panhandling in

violation of D.C. Code § 22

- 2302(b) when he sat more than fifteen feet away from the escalator

entrance and held a sign that read, “ Grateful for anything

. ” Id. ¶¶ 2 6

– 30

, 51, 78

– 8 9

. During each

arrest

, MTP D issu ed Plaintiff a citation with a monetary fine and forc ed him to leave the Metro

st ation

. Id. In addition to his own arrests, Plaintiff alleges that other panhandlers have similarly

been arrested by the MTP D for panhandling in the “ above ground ” areas of other Metro stations.

Id. ¶¶ 90

– 104.

Under D .C. law

, “ [ n ] o person may ask, beg, or solicit alms ” at any “ subway station or

stop

, ” D.C. Code § 22

- 2302(b), and the D.C. Court of Appeals has held that this ban on solicitation

applies “ within fifteen feet of a subway escalator ” and i s consistent with the First Amendment

.

McFarlin

, 681 A.2d a t 448

– 49. Supplementing the D.C. Code

, WMATA has implemented its own

“ Use Regulations ” designed “ to ensure that WMATA property is used safely. ” W MATA

,

Regulations Concerning the Use of WMATA Property

, Preamble (2018) (hereinafter, “ Use3 Regulations ” )

. One regulation mirrors Section 22

- 2302(b) by prohibit ing “ Speech or Performance

Activities ” within fifteen feet of any “ escalator, stairwell, fare gate, mezzanine gate, kiosk, or fare

card machine

. ” Id. § 4.1.1. Those who wish to participate in Speech and Performance Activities

outside of this fifteen

- foot radius may do so, but they must first obtain a permit. Id. § 2.1

. Permits

are issued on an activity

- by

- activity basis at the sole discretion of WMATA. Id. § 3.1

. T he Use

Regulations do not explicitly prohibit panhandling

, but “ [c]onsistent with the D.C. panhandling

statute

, ” as understood by Defendant, “ WMATA does not allow panhandling at Metro stations. ”

ECF 2 5 at 14 ; see also Use Regulations § 3.1 (p rohibiting permits fo r illegal activities)

.

After his arrests

, Plaintiff filed this lawsuit under 42 U.S.C. § 1983

, raising two challenges

.

First, Plaintiff claims that MTP D officers wrongfully arrested him beyond the so

- called “ McFarlin

zone ”

— i.e., the fifteen

- foot radius surrounding the escalators beyond which the panhandling

statute allegedly does not apply

— and thus unconstitutionally infringed on his speech protected by

the First Amendment. ECF 23 ¶ 14 2

. Second, Plaintiff claims that the permit scheme mandated by

WMATA ’ s Use Regulations is unconstitutional either as an unlawful prior restraint on speech or

as a bare registration scheme with insufficient protection against viewpoint discrimination given,

for example

, WMATA ’ s broad discretion to deny permits and therefore restrict speech

. Id. ¶¶ 155

–

56, 1 6 4

– 65

, 17 3

– 7 4

. To remedy his arrest record and inability to panhandle due to fear of future

legal consequences

, Plaintiff asks the Court to declare WMATA ’ s permit scheme unconstitutional

and enjoin WMA TA from enforcing Section 22

- 2302(b) outside of the McFarlin zones. ECF 23

at 28

– 29

.

Defendant move s to dismiss Plaintiff ’ s complaint under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). ECF 25 at 1. First, Defendant argues that Plaintiff lacks s tanding under

12(b)(1) because he has failed to demonstrate that the permit scheme, rather than the statute, caused4 his injuries. ECF 25 at 12

– 14

. Second, Defendant argues that Plaintiff has failed to state a claim

under 12(b)(6) because panhandling is not protected speech and WMATA properly applied

Section 22

- 2302(b) to Burke ’ s conduct. ECF 25 at 1 5

– 16

.

II. LEGAL STANDARD

When f acing a 12(b)(1) moti on to dismiss for lack of subject matter jurisdiction, a court

must “ treat the complaint ’ s factual allegations as true ” and afford the plaintiff “ the benefit of all

inferences that can be derived from the facts alleged. ” Sparrow v. United Air Lines, Inc.

, 216 F.3d

1111, 1113 (D.C. Cir. 2000). Standing is an “ irreducible constitutional minimum ” required for

subject matter jurisdiction derived from Article III ’ s “ case or controversy ” requirement. Lujan v.

Defs. of Wildlife

, 504 U.S. 555, 56 0 (1992). A plainti ff has standing where they have suffered an

“ injury in fact, ” there is a “ causal connection between the injury and the conduct complained of, ”

and it is likely that the “ injury will be redressed by a favorable decision. ” Id. at 560

– 61. An “ injury

in fact ” is an “ invasion of a legally protected interest ” that is “ concrete and particularized ” and

“ actual or imminent. ” Id. at 560. The remaining two prongs known as causation and redressability

are “ closely related like two sides of a coin

. ” West v. Lynch

, 845 F.3d 1228, 1235 (D.C. Cir. 2017 ).

A “ causal connection ” exists where the injury is “ fairly traceable to the challenged action of the

defendant, ” and an injury is “ redressable ” where the relief requested from the defendant is likely

to remedy the injury suffered

. Lujan

, 504 U.S. at 560

– 61.

To survive a motion to dismiss under Rule 12(b)(6), “ a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face. ” Ashcroft v.

Iqbal

, 556 U.S. 66 2, 678 (2009). As with a 12(b)(1) motion, the Court “ must accept as true all of

the allegations contained in a complaint, ” but need not do the same for legal conclusions. Harris

v. D.C. Water & Sewer Auth.

, 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting Iqbal

, 556 U.S. at 6 78).5 At bottom, the complaint must contain allegations sufficient to permit a “ reasonable inference that

the defendant is liable for the misconduct alleged. ” Matrixx Initiatives, Inc. v. Siracusano

, 563 U.S.

27, 46 (2011) (quoting Iqbal

, 556 U .S. at 678).

III. ANALYSIS

A. Burke Has Standing to Challenge the Permit Scheme

The P arties do not dispute that Plaintiff has standing for his claim that WMATA unlawfully

arrested him for panhandling outside of the McFarlin zone. See ECF 25 at 7

. The Court agrees that

Plaintiff was injured by his arrests at ( and exclusion from ) the Metro stations

, that t hese injuries

are “ fairly traceable ” to WMATA ’ s enforcement of Section 22

- 2302(b) outside of the McFarlin

zone

, and that they may be redressed by

, among other things, enjoining WMATA from enforcing

the statute outside of the McFarlin zone moving forward.

T he P arties ’ only standing dispute lies in P laintiff ’ s challenge to WMATA ’ s permit

scheme. Defendant claims that Plaintiff does not have standing because his injuries are neither

“ fairly traceable ” to the permit scheme nor redressable by prohibiting enforcement of the permit

scheme in light of the “ independent operation of the [panhandling] stat ute

. ” ECF 2 5 at 13

– 14

.

Plaintiff counters that his past arrests are fairly traceable to WMATA ’ s permit policy because both

the permit scheme and WMATA ’ s enforcement of the panhandling statute “ are interdependent

causes [and] not mutually exclusive policies

. ” ECF 27 at 2 0

. But Plaintiff admits that he neither

requested nor was denied a permit

, ECF 23 ¶ 8

, and that MTP D officers ’ stated basis for arrest ing

Plaintiff was Section 22

- 2302(b)

, not the Use Regulations

, id. ¶¶ 30, 80, 85

. As such, the Court

agrees with Defendant that these arrests are not traceable to WMATA ’ s permit scheme.

In the alternative, Plaintiff argues that his fear of returning to panhandle at the Metro is an

independent injury that is traceable to the permit sche me

. ECF 27 at 19

– 20. F ear of future6 punishment may be a cognizable “ injury in fact

, ” but the absence of any prior arrests under the

permit scheme here renders Burke ’ s challenge to the Use Regulations on this basis

, in essence, a

pre

- enforcement challenge

. See, e.g.

, Susan B. Anthony List v. Driehaus

, 573 U.S. 149, 15 8

– 61

(2014). The Court therefore must analyze Burke ’ s standing argument und er that framework.

To establish standing for a pre

- enforcement challenge

, Burke must demonstrate that he has

“ an intention to engage in a course of conduct arguably affected with a constitutional interest, but

proscribed by [law], and there exists a credible threat of prosecution thereunder

. ” Susan B. Anthony

List

, 573 U.S. at 159 (2 014); Green v. DOJ

, 54 F.4th 738, 744 (D.C. Cir. 2022)

. To meet his

burden, Burke must “ demonstrate a realistic danger of sustaining a direct injury as a result of the

[law ’ s] operation or enforcement

. ” Babbitt v. United Farm Workers Nat ’ l Union

, 442 U.S. 289,

298 (1979)

. In some contexts, “ [e]vidence that the challenged law is rarely if ever enforced

. . .

may be enough to defeat an assertion that a credible threat exists. ” Seegars v. Gonzalez

, 396 F.3d

1248, 1252 (D.C. Cir. 2005). Similarly, plaintiff s may fail to establish a credible threat of

prosecution where they “ do not claim that they have ever been threatened with prosecution, that a

prosecution is likely, or even that a prosecution is remotely po ssible. ” Babbitt

, 442 U.S. at 298

–

99. For this reason, allegations that the g overnment has already brought enforcement actions

against others or has directly threatened the plaintiff with prosecution under the challenged statute

bolster a finding that the threat of prosecution is credible. See, e.g.

, Holder v. Humanitarian Law

Project

, 561 U.S. 1, 1 6 (2010) ( “ The Government tells us that it has charged about 150 persons

with violating § 2339B, and that several of those prosecution s involved the enforcement of the

statutory terms at issue here. ” ) ; Steffel v. Thompson

, 415 U.S. 452, 459 (1974) ( “ The prosecution

of petitioner ’ s handbilling companion is ample demonstration that petitioner ’ s concern with arrest

has not been ‘ chimerical. ’” ).7 Nonetheless, “ it is not necessary that petitioner first expose himself to actual arrest or

prosecution to be entitled to challenge a statute that he claims deters the exercise of his

constitutional rights. ” Steffel

, 415 U.S. at 459. Particularly in the First Amendment context, where

the harm of self

- censorship “ can be realized even without an actual prosecution, ” Virginia v. Am.

Booksellers Ass ’ n

, 484 U.S. 383, 393 (1988), a law that “ on its face proscribes ” the speaker ’ s

intended conduct bolsters a finding that the fear of prosecution is not “ imaginary or wholly

speculative

, ” Babbitt

, 442 U.S. at 302

. The clearer the law, the more reasonable it is to fear it

. This

principle hold s true even when the government asserts that the law “ has not yet been applied and

may never be applied ” to the plaintiff

. Id. Indeed, courts often consider whether government

defendants are actually willing to “ disavow[] any intention of invoking the [law] ”

— a position that

often speaks volumes about whether there is a genuine risk of prosecution. Id. ; see also Am.

Booksellers Ass ’ n

, 484 U.S. at 393 (finding a “ well

- founded fear that the law will be enforced

against [plaintiffs] ” where “ [t]he State has not suggested that the newly enacted law will not be

enforced, and [there is] no reason to assume otherwise ” ); Am. Library Ass ’ n v. Barr

, 956 F.2d

1178, 1196 (D.C. Cir. 1992) (finding no credible threat of prosecution in light of “ the Justice

Department ’ s disclaimer [of enforcing the statute against plain tiffs ’ conduct] and plaintiffs ’

unwavering claim that the statutes in no [way] apply to their activities ” ).

The Court finds that Plaintiff has standing for his pre

- enforcement challenge

. P anhandling

,

as discussed more below, is at least “ arguably ” constitutionally protected speech

. See infra

Section I I I.B.1. Yet i t is beyond arguable that Burke ’ s panhandling violates WMATA ’ s Use

Regulations. As a non

- passenger, the Use Regulations require Burke to get a permit if he wishes

to engage in any speech or performance activity at Metro stations, but Burke cannot obtain one

.

WMATA does not grant permits “ for uses that are illegal

, ” and it considers panhandling anywhere8 at a Metro station to be illegal. Use Regulations § 3.1 ; ECF 25 at 8. Yet even if Burke could obtain

a permit

— setting aside the fact that he has never sought one and has expressed no intention to do

so, ECF 23 ¶ 8

— that would neither “ provide him the complete relief he seeks ” nor “ moot[] his

First Amendment claim. ” Enten v. District of Columbia

, 675 F. Supp. 2d 42, 48 (D.D.C. 2009).

Burke challenges the permit scheme in and of itself as an unlawful prior restraint that intimidates

individuals like himself into self

- censorship. ECF 23 ¶¶ 15 5

– 78. According to Burke, it is not only

the d enial of a permit

, but also the mere requirement that he obtain a permit at all that presents

constitutional concerns. At bottom, Burke ’ s desired course of conduct unambiguously violate s

WMATA polic y

, the plain text of which expose s him to a credible risk of “ arrest, fines, or

imprisonment

. ” Use Regulations §§ 3.2.12

– 13

.

Contrary to Defendant ’ s arguments, Plaintiff ’ s fear of adverse consequences for violating

WMATA ’ s permit scheme is not “ baseless speculation. ” ECF 29 at 7

. To reiterate

, the Court agrees

with Defendant that

, because Burke was arrested “ for violation of the panhandling statute and not

for failure to obtain a permit, ” he has not “ establish[ed] a causal connection

. . . between the permit

scheme and his arrests. ” I d. ; ECF 25 at 13. But Burke ’ s fear of returning to panhandle at the Metro

is a distinct cognizable injury that is fairly traceable to WMATA ’ s Use Regulations. On their face,

the Use Regulations at a minimum prohibit Burke from panhandling without a permit

, which is

part and parcel of his well

- founded fear of being punished for panhandling at Metro station s

. T hese

regulations leave no discretion to WMATA as to whether or how they are enforced : when someone

engages in unauthorized conduct

, WMATA “ shall so no tify the violator, ” the activity “ shall be

stopped

, ” the offender “ shall immediately leave WMATA property, ” or else their conduct “ shall

constitute a trespass ” and they “ shall be subject to arrest, fines, or imprisonment. ” Use Regulations

§§ 3.2.12

– 13. Def endant does not contest that the Use Regulations prohibit Burke ’ s conduct

, nor9 does Defendant suggest that the Use Regulations would allow Burke ’ s conduct if WMATA were

wrong about the applicability of the panhandling statute.

Yet Defendant further protests that Burke cannot rely on the mere possibility “ that if the

panhandling statute were deemed inapplicable

. . . then WMATA would apply its permit

requirements

, ” c haracterizing this as a “ purely hypothetical scenario. ” ECF 29 at 7

. In effect,

Defendant argues that, in light of WMATA ’ s interpretation of the panhandling statute, WMATA

has no need to apply the permit requirements

— at least not yet

. See ECF 25

- 1 ¶ 9 ( “ WM ATA does

not issue permits for panhandling because it does not allow panhandling at Metro stations in

accordance with D.C. Code § 22

- 2302(b)

. ” ) ; Use Regulations §§ 3.2.12

– 13 (prohibit ing

unauthorized activity “ in accordance with local criminal laws and ordinances ” ). But WMATA ’ s

choice to rely on one enforcement tactic while saving an alternative strategy up its sleeve for later

does not render the permit requirements any less clear or Burke ’ s fear any less credible.

Defendant is perhaps in the best posi tion to offer a different interpretation of the Use

Regulations or to disclaim prosecutorial intent under the same

, but WMATA has done nothing of

the sort. As a result, Defendant fails to rebut Plaintiff ’ s straightforward assertion that his fear of

being p unished for panhandling relates to both the “ enforcement of the panhandling statute ” and

“ the permit requirement. ” ECF 27 at 23 ; see Babbitt

, 442 U.S. at 302. After all

, if Burke were to

succeed on one challenge and not the other

, that would surely constitute “ a hollow victory. ” Cf.

Reyes v. Sessions

, 342 F. Supp. 3d 141, 146 (D.D.C. 2018) ( holding that convicted felon had

standing to challenge two statut ory provisions prohibiting firearm possession by and firearm

transfer to felons

, as it was “ common sense ” that the two laws “ together prevent him from

acquiring a firearm ” ). Defendant ’ s nesting doll objection to standing

, without more, does not

demonstrate that Burke ’ s fear is too conjectural or speculative

. As is often the case in c hallenges10 to

, for example, newly enacted laws that arguably restrict free speech

, the Court “ [is] not troubled

by the pre

- enforcement nature of this suit. ” Am. Booksellers Ass ’ n

, 484 U.S. at 393

.

The Use Regulations are unambiguous, Burke intends to engage in conduct prohibited by

the regulations (as he has done before)

, and the only thing stopping WMATA from enforcing those

regulations is

— according to WMATA itself

— its own enforcement of a different st atute

, which

Burke is also challenging

. Far from baseless, Burke ’ s fear of punishment under the permit scheme

i s well founded

. Discovery may reveal additional facts pertinent to this jurisdictional inquiry that

compel a different result

. A t this early stage, however, Plaintiff has establish ed standing for his

pre

- enforcement challenge to WMATA ’ s Use Regulations

.

B. Burke Has Stated a Plausible Claim Under the First Amendment

Defendant raises two arguments as to why Plaintiff has failed to sta te a claim on which

relief can be granted in his challenge to WMATA ’ s enforcement of the D.C. panhandling statute

.

First, Defendant claims that panhandling is conduct, not protected speech under the First

Amendment. ECF 25 at 15

. Second, Defendant claims t hat the D.C. Court of Appeals ’ decision in

McFarlin v. District of Columbia does not foreclose WMATA ’ s enforcement of Section 22

-

2302(b) outside of the fifteen

- foot zone surrounding th e Metro escalator entrance

. Id. at 16

. The

Court finds n either argument persuasive.

1. Panhandling i s Protected Speech

“ Speech ” under the First Amendment exists where words or conduct “ possess [] sufficient

communicative elements ” and the speaker intends to “ convey a particularized message ” that is

likely to be un derstood by others. Texas v. Johnson

, 491 U.S. 397, 404 (1989). Amongst the many

subcategories of speech, “ charitable solicitations ” have long received constitutional protection as

expressive conduct “ intertwined with informative and perhaps persuasive spe ech seeking support11 for particular causes. ” Village of Schaumburg v. Citizens for a Better Env ’ t

, 444 U.S. 620, 632

(1980) ; see also Riley v. Nat ’ l Fed ’ n of the Blind, Inc.

, 487 U.S. 781, 789 (1988)

. According to at

least seven federal circuits

, panhandlin g fits these definitions and thus warrants constitutional

protection

. See, e.g.

, Loper v. New York City Police Dep ’ t

, 999 F.2d 699, 704 (2d Cir. 1993);

Clatterbuck v. City of Charlottesville

, 708 F.3d 549, 553 (4th Cir. 2013); Speet v. Schuette

,

726 F.3d 867, 878 (6th Cir. 2013); Gresham v. Peterson

, 225 F.3d 899, 90 4

– 0 5 (7th Cir. 2000);

Rodgers v. Bryant

, 942 F.3d 451, 456 (8th Cir. 2019); McCraw v. City of Oklahoma City

, 973 F.3d

1057, 1066 (10th Cir. 2020); Smith v. City of Fort Lauderdale

, 1 7 7 F.3d 9 54

, 956 (11th Cir. 1999).

While neither the D.C. Circuit nor the Supreme Court have addressed the issue, th is Court agrees

with the holdings of the se sister circuits.

Panhandling is speech. It is defined by the use of words or conduct intended to persuade

others to help fulfill a “ need for food, shelter, clothing, medical care, or transportation. ” See, e.g.

,

Loper

, 999 F.2d at 704. It communicates a specific

, particularized message about the panhandler ’ s

need for support. See id. It also tends to convey social and political messages

, often raising issues

of “ veteran status, homelessness, unemployment, and disability

. ” Gresham

, 225 F.3d at 904. True

enough, the phrase “ charit able solicitations ” may evoke the idea of advocacy on behalf of a n

organized group

, while “ panhandling ” suggests advocacy for oneself

, but this difference strikes

the Court as immaterial. See Speet

, 726 F.3d at 87 7

. The Court fails to understand why the First

Amendment would shield charitable solicitations only if the charitable cause is external, rather

than personal, to the speaker. If that were the case

, an identical request for donations to “ help the

homeless ” would be cons titutionally protected when uttered by a volunteer working for the

National Coalition for the Homeless, but unprotected when uttered by a homeless man himself.

That cannot be correct.12 Contrary to Defendant ’ s suggestions

, the Supreme Court ’ s opinion in City of Austin v.

Reagan National Advertising of Austin

, LLC does not stand for the proposition that panhandling

,

or even pure solicitation itself, is un protected speech. See ECF 32 at 1 (citing 596 U.S. 61 (2022) )

.

In Reagan

, the Court held t hat the City of Austin ’ s off

- premises sign regulation was content

neutral and not subject to strict scrutiny because i ts application depended on a sign ’ s location, not

its message

. 596 U.S. at 71. The Court relied on precedent indicating that “ restrictions on

solicitation are not content based and do not inherently present ‘ the potential for becoming a means

of suppressing a particular point of view, ’ so long as they do not discriminate based on topic,

subject matter, or viewpoint. ” Id. at 72. Justice Breyer concurred, suggesting that many regulatory

laws

— including those for panhandling

— may be “ entirely reasonable ” because they do not

disproportionatel y harm First Amendment interests “ in light of the relevant regulatory objectives. ”

See i d. at 79

– 81

.

Defendant argues that “ [t]he opinion of the Court and Justice Breyer ’ s concurrence further

refute Plaintiff ’ s contention that [WMATA ’ s] enforcement of the District of Columbia

panhandling statute constitutes a content

- based restriction of speech subject to strict scrutiny, ”

ECF 32 at 1

– 2

, but this argument is both incorrect and misses the point. For starters, nothing in

the majority opinion defeats the noti on that panhandling is speech deserving of at least some

constitutional protection. Quite the opposite. The majority opinion held that the City of Austin ’ s

billboard regulation was still subject to intermediate scrutiny. Reagan

, 596 U.S. at 76. T he

concurrence echoed that sentiment, suggesting that various regulatory laws ( including those for

“ panhandling ” ) might not automatically be subject to strict scrutiny but should still be subject to

some “ weigh[ing] [of]

. . . harms and interests. ” Id. at 83

. At bottom, neither opinion indicate s that

panhandling deserves no protection and therefore may be subject to whatever restrictions the13 government desires. Defendant ’ s submissions do not persuade the Court that it should hold,

contrar y to the wisdom of seven other circuits, that panhandling “ is not protected speech. ” ECF 25

at 15.

A t the motion to dismiss stage, the Court need not and does not decide w hether restrictions

on panhandling are reviewed with strict

, intermediate

, or some other degree of scrutiny. It is

sufficient that panhandling is speech protected by the First Amendment at some level

. Moreover

,

Plaintiff does not even ask this Court to invalidate Section 22

- 2302(b) as an unconstitutional ban

on panh andlin g ; he claims only that WMATA was acting outside the scope of the statute and

therefore unlawfully

. ECF 23 ¶¶ 141

– 42

. With that in mind, the Court next turns to Defendant ’ s

statutory arguments as to why Plaintiff ’ s claim must fail.

2. McFarlin Precludes Enforcement of Section 22

- 2302(b) Outside of the Fifteen

Foot Escalator Radius.

Defendant argues that

, even though t he D.C. Court of Appeals ’ decision in McFarlin held

that Section 22

- 2302(b) is constitutional when applied within the fifteen

- foo t zone around

escalator entrance s

, McFarlin did not address the statute ’ s “ full scope ” or whether it “ might also

constitutionally cover other scenarios like the one presented in this case. ” ECF 25 at 17

. In other

words

, Defendant views McFarlin as strictly limited to the specific facts of the case and not a case

that announced a generally applicable rule

. Plaintiff reads the case differently, arguing that the

D.C. Court of Appeals addressed the statutory issue head on, holding that “ D.C. Code § 22

- 2 302(b)

simply does not apply outside the McFarlin zones ” and thus MTPD was “ not acting pursuant to a

statute authorizing their conduct ” when its officers arrested him

. ECF 27 at 17. The Court

concludes that Plaintiff has the better reading of the case

.

In McFarlin

, the District of Columbia Court of Appeals defined the term “ subway station

or stop ” in Section 22

- 2302(b). 681 A.2d at 448. The court was charged with determining whether14 a panhandler, who had solicited money from Metro riders while standing ( at most) six feet away

from the top of a Metro station ’ s escalator, could be prosecuted under Section 22

- 2302(b) in a

manner consistent with the U.S. Constitution. See id. at 449

– 50. The court first delineated the

scope of the panhandling statute. After ex amining the statute ’ s text, legislative history

, and relation

to WMATA ’ s Use Regulations, the court concluded that “ subway station or stop ” in Section 22

-

2302(b) covers only the areas “ within fifteen feet of the top of a subway escalator. ” Id. at 44 7

– 49

.

T he court next addressed whether applying a ban on panhandling within that fifteen

- foot zone was

compatible with the First Amendment and answered in the affirmative. Id. (acknowledging the

“ significant governmental interest [of] ensuring an orderly flow of pedestrian traffic on and off the

escalator ” ). Thus, because the panhandler in McFarlin was within that zone, the statute applied to

him, and the Constitution did not preclude his prosecution. Id. at 450.

Defendant is correct that the D.C. Court of App eals used some “ limiting language ” when

describing the scope of the statute

, but this language is not as “ limiting ” as Defendant suggests.

ECF 25 at 19

. The holding in McFarlin is plain as day : “ we therefore construe [Section 22

-

2302(b)]

, insofar as releva nt here, as prohibiting all panhandling (whether ‘ aggressive ’ or

nonaggressive) within fifteen feet of the escalator entrance. ” 681 A.2d at 448. WMATA hangs its

hat on the phrase “ insofar as relevant here

. ” ECF 25 at 19

. But any ambiguity that may flow from

those four word s is all but eliminated by the court ’ s later statement that the statute was “ designed

to ensure public safety by prohibiting conduct that may be reasonably expected to disrupt or

impede the smooth flow of pedestrian subway traf fic within fifteen feet of a subway escalator

. ” Id.

at 449 (emphasis added)

. And if that were not enough, the court further observed that “ had [ the

panhandler ] moved several feet into space away from the top of the escalator and engaged in

peaceful begging

. . . his activity would have been lawful

. ” Id. (emphasis added). This language15 leaves no doubt as to how the highest court in D.C. construed this D.C. statute. As such, the Court

finds that Plaintiff has stated a claim for which relief can be granted by alleging that WMATA

acted beyond its lawful authority by punish ing his panhandling outside of the fifteen

- foot radius

surrounding the Metro escalator entrance and exit.

IV. CONCLUSION

Plaintiff ’ s allegations, taken as true, establish that the Court has subject matter jurisdiction

over his case and that he has stated a clai m for which relief can be granted. Of course, d iscovery

may reveal additional facts pertinent to the merits or jurisdiction ( particularly with regard to

Plaintiff ’ s pre

- enforcement challenge to the permit scheme ) that push in the opposite direction.

However, Defendant has not demonstrated that Plaintiff ’ s claims must be dismissed at this stage

of litigation. The m otion to d ismiss is therefore DENIED. A separate order accompanies this

memorandum opinion.

SO ORDERED.

_________ ___ ______________ JIA M. COBB

United States District Judge

Date: July 1 8

, 2024