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Davenport v Alexandria, VA 683 F2d 853 (1983), 710 F2d 148 (1983), 748 F2d 208 (1984)


 Davenport v Alexandria, VA 710 F2d 148 (1983)












et al.,




Pursuant to the remand of this action, Davenport v. City of Alexandria, et al., No. 81-1909, (4th Cir., June 22, 1983), an evidentiary hearing, following additional discovery, was held on November 7, 1983.

Commendably counsel have stipulated to many basic facts in the case. While they were presented in the form of the defendantsí proposed findings of fact, counsel for the plaintiff announced at the outset of the hearing that he agreed with most of them, although he questioned the relevancy of some. Those agreed to, with a few exceptions, which the court finds relevant, or arguably relevant from the defendants' viewpoint, are attached as Appendix

A, Agreed Findings of Fact. 1/ Additional findings will be set forth in this opinion.

The ordinance under attack, Ord. No. 2609, applies to the Center Business District (CCBD) of the City of Alexandria, an approximately 61 block area shown on the following diagram:

Responding to the expressed concern of merchants in the 100 and 200 blocks of King Street, 2/ (marked in red on the diagram) and perceiving a need therefore, 3/ the City Manager recommended to the City Council the adoption of the ordinance in question. This ordinance, as indicated in the opinion of the Court of Appeals, bans street performers from the sidewalks of the entire 61 blocks covered by the CBD and not just the affected two blocks 4/ Furthermore, it restricts the performers to certain designated parks and plaza areas, shown by green crosshatches on the above diagram.

While there is testimony that some merchants complained of the blocking of the sidewalks in the affected two block area, and the City Manager testified that on one occasion he had to walk in the street to avoid a gathering for a street performer in that area, the court is unpersuaded that there is any actual safety endangerment, any real impediment of pedestrian traffic or any substantial interference with patrons of businesses in the affected area.

Some pedestrians may have been inconvenienced or even annoyed. But this reason for the total ban is outweighed by the preferred position of plaintiffís First Amendment rights. 5/ The evidence does not attempt to establish the frequency with which any crowds have gathered, and the court must assume it is an infrequent occurrence. The City's evidence as to crowded sidewalk conditions was obtained from observations made on Saturdays during the hours 2:00 p.m. to 4:00 p.m., the "peak" times for pedestrian traffic in the area. Even if the testimony were accepted, this would not justify the total ban for all times imposed by the ordinance. Furthermore, more persuasive testimony satisfies the court that, overall, pedestrian traffic is not congested ñ no more than 2.8 persons per foot per minute of passing pedestrians, a pedestrian "ease" level well below the standard for pedestrian comfort. There are no high-rise office buildings in the affected area creating peaks caused by people leaving and arriving at work. The environment around the two block area is not conducive to undue pedestrian congestion.

It is conceded that, particularly in the peak hours, the vehicular traffic on the streets is substantial and congested. Even if a safety problem arose from a person occasionally having to walk in the street (presumably between parked cars, since parking is permitted on the blocks in question) it is a problem which could adequately be resolved by the less restrictive method of having police direct the infrequent crowd members to move on. 6/ The crowds attracted by the street performers are small, at least there is no evidence of any large crowds, even given the width of the sidewalks. 7/ Nor are the sidewalks so narrow as to create crowded conditions with a small gathering. Crowds of this sort tend to be self-regulatory, that is, people will not stop to become part of the crowd if they cannot see the performer. Persons who do stop tend to do so only for a short time ñ then move on.

There is no evidence that there have been performances by groups of greater than one. The City's position is that even one performer can cause a crowd which impedes pedestrian traffic and interferes with public access to businesses.

The CBD is not a homogeneous district. It embraces businesses, principally along Street corridor, which include restaurants and shops, many of which are concentrated in the two blocks in question. Immediately adjacent to these two blocks is an old Torpedo Factory which, because of its booths and studios, has become a cultural attraction generating pedestrian traffic on the two-block strip. The district also includes, however, many residences, historic landmarks, churches and public buildings, themselves tourist attractions. Thee are not located in the two-block area, but some which are nearby contribute e it the pedestrian traffic in the two blocks. No evidence of pedestrian congestion appears, however, except in the two blocks in question. This congestion is not abnormal, even at the "peak" hours. Furthermore, there is no evidence of street performances near any "quiet" area such as churches, funeral parlors and hospitals. Indeed the noise factor as a basis for the ordinance has no evidentiary basis, nor, in fairness, it is argued as such by the defendants. 8/

The evidence of planned development in or near the CBD is not such as to persuade the court that pedestrian traffic will be increased to an extent justifying the ban of Ordinance 2609. The impact of the soon-to-be-opened Metro stop, located outside the CBD and approximately 14 blocks from the affected area, is too speculative to be considered at this time.

Nor is the court persuaded that the designation of the parks and places as areas where performances is permitted provides an adequate alternative forum. 9/ The exponent of First Amendment expression is entitled to be ìencounteredî by those he wishes to receive his other message. The sidewalk is a traditional place for such expression. Pedestrian flow and turnover is the ìlife bloodî of the street performer. The pedestrian traffic in the designated parks and plazas is static. While not completely analogous, consider, for example, a leafleteer confined to a designated area in such a park or plaza. He could hardly be said to be accorded an adequate forum for his expression.

In sum the court finds that the total ban of street performers from public sidewalks throughout the CBD and for all hours is much more broad than is necessary to satisfy any interest in public safety the City has. The most that can be said for the ordinance is that for two hours each Saturday afternoon on two City blocks there is substantial pedestrian congestion, but even this could be easily handled by the less restrictive method of law enforcement personnel telling the members of the infrequent obstructing crowds to move on.10/

Moreover, even at those times and places, there has been shown no safety interest substantial enough to outweigh the plaintiff's First Amendment interests. Nor do the parks and plazas offer an adequate alternate forum.



United States District Judge

Alexandria, Virginia

November 16th, 1983



1. The court has kept the numbers used in the proposed findings of fact, not only for convenience in retyping but because certain of the numbers were referred to in the testimony from the witnesses. This results in gaps appearing in the numbers of the findings of fact.

2. While the defendantsí testimony related to conditions in the entire CBD, all of the testimony with regard to actual congestion or impeding of pedestrian traffic by street performers related to these two blocks, although there was testimony from the defendant's expert that in other areas of the CBD, street performers could, if present, cause similar problems.

3. Part of the concern and perceived need for the ordinance, as testified to by the City Manager, was the merchants' expressed belief that street performers ought not to be allowed to display their wares on the sidewalks if the merchants themselves could not. As noted by the Court of Appeals, however, there is a difference ñ the placement of wares on the sidewalks involves no protected speech component. Slip Op. p. 7, n. 6.

4. The sidewalk ban is total, except that on certain designated civic days, estimated to be two or three days a year, a street performer can apply for a permit to perform on the sidewalks in the CBD. The plaintiff attacks the procedure for obtaining such permits, but given the court's resolution of the issue of the ordinance's constitutionality, it is unnecessary to address this attack.

5. Cf. Saia v. New York, 334 U.S. 558, 562 (1948); Schneider v. State, 308 U.S. 147, 162 (1939).

6. During oral argument counsel for the defendants expressed some doubt concerning the constitutionality of an ordinance prohibiting persons from blocking the sidewalks to a point where pedestrians were endangered or impeded. The court entertains no such doubt. The City's charter authorizes it "[[t]o provide for the . . . prevention and quelling of . . . disorderly assemblages . . ." Alexandria, Virginia Code ß 2.04 (1972), 1972 Va. Acts. While members of a crowd who are blocking a sidewalk and who refuse to disburse on request may not fit the traditional view of a disorderly assembly, the provision seems broad enough to permit an ordinance proscribing such conduct.

7. The sidewalk, as indicated in finding of fact paragraph 44, for those two blocks, vary from a narrowest of 5 feet on the north side of the 200 block of King Street to a widest of 15 feet on both sides of the 100 block.

8. Defendants did proffer the testimony that the noise level of bagpipes exceeded that permitted by the noise ordinance of the City. This was offered to attack the plaintiffís standing, on the ground that if he was prohibited from playing his bagpipes anyway he had suffered no injury from the ordinance here under attack. The court ruled the testimony inadmissible given the low threshold for standing in First Amendment cases and the plaintiff's testimony that he also played the harp, itself an activity which is encompassed by the ban of Ordinance 2609. Moreover, if plaintiff's activities violated the noise ordinance, not here challenged, the court felt that it was a matter outside the issues raised in this action.

9. One of the designated areas, King Street Park, located at the east end of king Street, extending to the river, is under construction and of no present use as an alternate forum.

10. Additional law enforcement foot patrolmen are on duty in the affected area during Civic Days. There is no showing of an undue burden in having them on duty during the "peak" hours.












et al.,






For the reason set forth in the Memorandum Opinion this day filed, it is hereby


ORDERED and DECLARED that that part of the City of Alexandria Ordinance No. 2609, enacted on July 8, 1981, reading as follows: "In addition, no business licensed pursuant to section 20-82 of this Code or similar non-business activity shall be conducted on the sidewalks or other public property located in the central business district as defined in section 42-29 of this Code, except as permitted subject to the following," is unconstitutional.



United States District Judge


Alexandria, Virginia

November 16th, 1983


Davenport v Alexandria, VA 748 F2d 208 (1984)





No. 83-2222


Lee Davenport,





City of Alexandria, Virginia,

Charles Strobel, Chief of Police

Douglas Harman, City Manager,




Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., District Judge. (C/A 81-709)



Argued: August 29, 1984

Decided: November 6, 1984



Before WINTER, Chief Judge SPROUSE, Circuit Judge, and BUTZNER, senior Circuit Judge.



Barbara P. Breach, Assistant City Attorney of the City of Alexandria (Abbe David Lowell, Stanley M. Brand, Brand, Lowell & Dole on brief) for Appellants; Victor M. Glasberg; Kenneth E. Labowitz (Alan L. Cohen on brief) for Appellee.


SPROUSE, circuit Judge:

This appeal brings before this court for the third time Lee Davenportís guest to perform and exhibit his bagpipes on the sidewalks of the central business district of Alexandria, Virginia. The City of Alexandria now appeals the district court's ruling on remand for particularized fact-finding that the ordinance Davenport challenges violates the first amendment. We affirm. The facts of the case are set out at length in the en banc opinion of this court, Davenport v. City of Alexandria, 710 F. 2d 148 (4th Cir. 1983), which remanded the case to the district court for further findings, and in the district court's opinion on remand, Davenport v. City of Alexandria, No. 81-709-A (E.D. Va. Nov. 16, 1983). A brief review of the procedural history and summary of the district court's findings on remand will suffice for purposes of this appeal.

Davenport filed his complaint in the district court for the Eastern District of Virginia attacking Ordinance No. 2609 of the City of Alexandria, which prohibits performances and exhibitions on the sidewalks, walkways, or other public property of the central business district of Alexandria and which created a scheme requiring city permits prior to performances in eight parks and plazas of the central business district. He contended that these restrictions on the first amendment right to free expression were facially unconstitutional and unconstitutional as applied to his efforts to perform, exhibit, and lecture on the bagpipes. The district court, after the first bench trial, enjoined the City from enforcing the ordinance, holding that the ban on sidewalk performances was an overbroad speech restriction, and that the permit scheme was a prior restraint that gave unbounded discretion to city officials. On appeal by the City a panel of this court reversed, holding the sidewalk ban to be a reasonable time, place, and manner restriction, and the permit scheme to be constitutional because its first-come, first-served issuance provision denies City officials and discretion. Davenport successfully petitioned for rehearing en banc, and this court upheld the permit scheme but remanded to the district court with instructions to make specific factual findings on whether the sidewalk ban was drawn so as to place the narrowest possible restriction on free expression consistent with effectuating the City's compelling interest in public safety.

On remand, the district court permitted additional discovery and held an evidentiary hearing to consider "whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). The court heard the specific blocks covered by the ordinance: the rate of pedestrian traffic, the working population of office buildings, the volume of vehicular traffic, the availability of vehicular parking, the typical characteristics and historical pattern of audiences for street performances, the composition of the areas as to businesses, residences, and public buildings, the width of sidewalks, the incidence of pedestrian congestion at various times, the projected development of the district, and the availability of alternative forums for expression or alternative means of regulating traffic flow. See Hickory Fire Fighters Assn v. City of Hickory, 656 F. 2d 917, 924 (4th Cir. 1981). On the basis of these findings, the court concluded that "total ban of street performers from public sidewalks throughout the [central business district] and for all hours is much more broad than is necessary to satisfy any interest in public safety the City has" and that "there has been shown no safety interest substantial enough to outweigh the plaintiffís First Amendment interests." Davenport, No. 81-709-A (E.D. Va. No. 16, 1983). Because of the impermissible overbreadth of the restriction and the lack of acceptable alternative forums for expression, the district court again found the challenged part of the ordinance No. 2609 unconstitutional.

On this appeal, the City contends that the district court's legal conclusions were erroneous; that it erred in evidentiary rulings and in factual findings; and that the court abused its discretion in awarding attorney fees against the City. In our opinion, the district court was not clearly erroneous in its findings of facts and committed no reversible error in the rulings objected to or in determining the unconstitutionality of the ordinance. Davenport, 710 F. 2d at 151; see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68-71 (1981); Grayned, 408 U.S. at 116. Likewise, we find that the district court did not abuse its discretion in its award of attorney fees. Blum v. Stenson, 79 L.Ed. 2d 891, 900 (1984); Hensley v. Eckerhardt, 103 S.Ct 1933, 1940-42 (1983).


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