Martin v. City of Albuquerque

FILED
Appellate Case: 19-2140 Document: 010110610058 United
Date Filed: States CourtPage:
11/24/2021 of Appeals
1
Tenth Circuit
November 24, 2021
PUBLISH Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
RHONDA BREWER; DAVID MCCOY;
MARY O’GRADY; MARISSA ELYSE
SANCHEZ,
Plaintiffs - Appellees,
and
JOHN MARTIN, No. 19-2140
Plaintiff
v.
CITY OF ALBUQUERQUE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:18-CV-00031-RB-JFR)
Jaime A. Santos, Goodwin Procter LLP, Washington, D.C. (María Martínez
Sánchez and Leon Howard, ACLU of New Mexico, Albuquerque, New Mexico;
Kevin P. Martin, Gerard J. Cedrone, Martin C. Topol, Christopher J.C. Herbert,
Goodwin Procter LLP, Boston, Massachusetts, with her on the briefs), for
Plaintiffs-Appellees.
Timothy J. Atler, Atler Law Firm, P.C., Albuquerque, New Mexico (Jazmine J.
Johnston, Atler Law Firm, P.C., Albuquerque, New Mexico and Esteban A.
Aguilar, Jr., City Attorney, City of Albuquerque, Albuquerque, New Mexico, with
him on the briefs), for Defendant-Appellant.
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Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
When the government restricts the time, place, or manner of expressive
activities in “traditional public for[a],” like streets and sidewalks, it must show
that such restrictions are “narrowly tailored to serve . . . substantial and content-
neutral government interests.” Ward v. Rock Against Racism, 491 U.S. 781, 803
(1989). In this case, we consider—for the third time in as many years—whether a
city has fulfilled its narrow tailoring obligation with regard to such a restriction.
See Evans v. Sandy City, 944 F.3d 847, 852 (10th Cir. 2019) (concluding that
Sandy City, Utah’s ordinance prohibiting pedestrians from occupying unpaved or
narrow medians was narrowly tailored and constituted a “valid time, place, or
manner restriction on speech” under the First Amendment), cert. denied, 141 S.
Ct. 235 (2020); McCraw v. City of Oklahoma City, 973 F.3d 1057, 1080 (10th Cir.
2020) (concluding that Oklahoma City, Oklahoma’s ordinance prohibiting
pedestrian presence on medians was not narrowly tailored and, accordingly, ran
afoul of the First Amendment), cert. denied, 141 S. Ct. 1738 (2021).
The City of Albuquerque, New Mexico (“Albuquerque” or “the City”)
enacted a city-wide ordinance (hereinafter, “the Ordinance”) that, in pertinent
part, prohibits pedestrians from (1) congregating within six feet of a highway
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entrance or exit ramp, (2) occupying any median deemed unsuitable for pedestrian
use, and (3) engaging in any kind of exchange with occupants of a vehicle in a
travel lane.
Plaintiffs-Appellees—residents of Albuquerque who engage in a variety of
expressive activities, like panhandling, protesting, or passing out items to the
needy—sued the City in federal court, alleging that the Ordinance impermissibly
burdens the exercise of their First Amendment rights. The City argued the
Ordinance was necessary to address persistent and troubling pedestrian safety
concerns stemming from high rates of vehicular accidents throughout
Albuquerque—and, in relation to this pressing interest, the Ordinance was
narrowly tailored and did not burden substantially more speech than necessary.
The district court disagreed, finding that those provisions of the Ordinance
described above violated Plaintiffs’ First Amendment rights because they were
not narrowly tailored to the City’s interest in increasing pedestrian safety and,
more specifically, reducing pedestrian-vehicle conflicts (e.g., collisions). On
appeal, the City asserts the district court erred in concluding the Ordinance did
not pass First Amendment muster, and it specifically focuses on the question of
narrow tailoring, arguing that the City did, indeed, appropriately tailor the
Ordinance—and, in any event, it was required to do no more than it did.
We reject the City’s position and, for the reasons explained infra, hold that
the Ordinance is not narrowly tailored and, therefore, violates the First
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Amendment. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we
affirm the judgment of the district court.
I
A
This appeal concerns Albuquerque Code of Ordinances § 8-2-7-2, which
regulates pedestrian presence in and around roadways throughout Albuquerque.
Originally adopted by Albuquerque’s city council in November 2017 in Council
Bill No. O-17-51, the Ordinance amended portions of the City’s Traffic Code
“relating to pedestrian safety and vehicle/pedestrian conflicts.” Aplt.’s App., Vol.
I, at 81 (Council Bill No. O-17-51, dated Nov. 6, 2017) (capitalization omitted). 1
The Ordinance contains six subsections—four of which are at issue in this
appeal—that, together, prohibit pedestrians from “occupying roadways, certain
medians[,] and roadside areas” and proscribe “certain pedestrian interactions with
vehicles.” Albuquerque, N.M., Code of Ordinances § 8-2-7-2 (capitalization
omitted). Subsection (B) 2 of the Ordinance prohibits “any person” from
1
The Council later amended the Ordinance through Council Bill F/S
O-19-66, which “ma[de] certain non-substantive clarifications” to the Ordinance’s
text. Aplt.’s App., Vol. VI, at 1462 (Council Bill No. F/S O-19-66, enacted July
10, 2019). References to the Ordinance throughout this opinion are to the
Ordinance as modified by Council Bill No. F/S O-19-66—in other words, the
Ordinance as currently codified in § 8-2-7-2. Furthermore, when we refer to the
Ordinance in Section III, infra, we only refer to those subsections at issue in this
appeal, i.e., subsections (B), (C), (D), and (E), unless stated otherwise.
2
Subsection (A) makes it “unlawful for any person to stand in any
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“access[ing], us[ing], occupy[ing], congregat[ing,] or assembl[ing] within six feet
of a travel lane of an entrance or exit ramp to Interstate 25, Interstate 40, or to
Paseo del Norte at Coors Boulevard NW, Second Street NW, Jefferson Street NW,
or Interstate 25, except on a grade separated sidewalk or designated pedestrian
way,” and “unless reasonably necessary because of an emergency situation where
such area provides the only opportunity for refuge from vehicle traffic or other
safety hazard.” Id. § 8-2-7-2(B). 3 The Code of Ordinances defines “travel lane”
as “[t]he portion of the roadway dedicated to the movement of motor vehicles
traveling from one destination to another where a motor vehicle may not remain
2
(...continued)
travel lane of a street, highway, or controlled access roadway or in any travel lane
of the exit or entrance ramps thereto.” Albuquerque, N.M., Code of Ordinances §
8-2-7-2(A). The district court concluded that subsection (A) is a reasonable,
content-neutral, and “valid restriction on speech in a nonpublic forum.” Martin v.
City of Albuquerque, 396 F. Supp. 3d 1008, 1023 (D.N.M. 2019) (emphasis
added). Plaintiffs do not challenge this conclusion on appeal. See Aplees.’ Resp.
Br. at 8. Therefore, we deem any such challenge to be “waived (i.e.,
abandoned).” United States v. Yelloweagle, 643 F.3d 1275, 1280 (10th Cir.
2011), cert denied, 556 U.S. 964 (2012); accord Tran v. Trs. of State Colleges,
355 F.3d 1263, 1266 (10th Cir. 2004).
3
The City concedes subsection (B) “covers all controlled-access
roadways in Albuquerque,” such that “there are no exit or entrance ramps in
Albuquerque to which [the subsection] does not apply.” Aplees.’ Resp. Br. at 8;
see Aplt.’s Opening Br. at 49 (insisting that the City “did not select certain
controlled access roadways to be included in the Ordinance,” but rather “included
all three of them”); Aplt.’s App., Vol. VI, at 1448 (Suppl. Br. Regarding Recent
Amendments to the Pedestrian Safety Ordinance, filed July 2, 2019) (noting that
Council Bill No. F/S O-19-66 merely clarified the scope of the Ordinance in its
original form—and that, as it relates to subsection (B), the Council Bill merely
“identifie[d] by name the specific highways and controlled access roadways that
[were] referenced in [subsection (B) as originally written]”).
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stationary indefinitely without eventually obstructing the free flow of traffic, and
not including shoulders, bicycle lanes, or on-street parking.” Id. § 8-1-1-2. 4
Subsection (C) regulates pedestrian presence on medians, 5 specifically
making it:
unlawful for any person to access, use, occupy, congregate, or
assemble within any median not suitable for pedestrian use,
unless reasonably necessary during an otherwise lawful street
crossing at an intersection or designated pedestrian crossing, or
because of an emergency situation where the median provides the
only opportunity for refuge from vehicle traffic or other safety
hazard.
Id. § 8-2-7-2(C).
The subsection articulates three categories of medians “not suitable for
pedestrian use”:
(1) Any portion of a median that is less than six feet in width,
and located within a roadway with a posted speed limit of 30
miles per hour or faster or located within 25 feet of an
intersection with such a roadway; or
(2) Is the landscaped area of the median as defined by this
Traffic Code; or
(3) Is otherwise identified by signage as not suitable for
pedestrian use by the City Traffic Engineer based on identifiable
4
The Code further defines “roadway” as the “portion of a street or
highway improved, designed, or ordinarily used for vehicular travel, exclusive of
the berm or shoulder.” Albuquerque, N.M., Code of Ordinances § 8-1-1-2.
5
“Median” is defined as the “area of raised land that separates
opposing lanes of traffic on divided roadways.” Albuquerque, N.M., Code of
Ordinances § 8-1-1-2.
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safety standards, including but not limited to an unsuitable
gradient or other objectively unsuitable features.
Id. § 8-2-7-2(C)(1)–(3). 6
Lastly, subsections (D) and (E) regulate interactions between pedestrians
and vehicle occupants. Specifically, subsection (D) makes it “unlawful for any
pedestrian to engage in any physical interaction or exchange with the driver or
occupants of any vehicle within a travel lane unless reasonably required because
of an emergency situation.” Id. § 8-2-7-2(D). Subsection (E) effectively
proscribes the mirror image of the physical interaction or exchange addressed by
subsection (D): that is, it prohibits “occupant[s] of a motor vehicle within any
travel lane or intersection [from] engag[ing] in any physical interaction or
exchange with a pedestrian unless reasonably required because of an emergency
situation.” Id. § 8-2-7-2(E). For both subsections, “physical interaction or
exchange” is defined as “conduct by which a pedestrian intentionally makes
6
The Code defines “landscaped area” as the “area located within a
public way where natural ground covers such as decorative gravel, wood chips or
boulders, and living vegetative materials such as trees, grasses, vines, shrubs or
flowers have been installed”; it does not include “concrete, brick or other
equivalent hard surface.” Albuquerque, N.M., Code of Ordinances § 8-1-1-2.
“Public way” is defined as “[t]he entire width between the property lines of every
way publicly maintained (including easements maintained for public use) when
any part thereof is open to the use of the public for purposes of vehicular or
pedestrian travel, notwithstanding that same may be temporarily closed for the
purpose of construction, reconstruction, maintenance, alteration or repair.” Id.;
see also id. (giving the terms “Highway” and “Street” the same definition).
7
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physical contact with a vehicle in a travel lane or with any of its occupants,” or
vice versa, “either directly or with an object.” 7 Id. § 8-2-7-2(D)–(E).
Violations of the Ordinance are petty criminal misdemeanors punishable
“by a fine of not more than $500 or by imprisonment for not more than 90 days or
by both such fine and imprisonment.” Id. § 8-1-3-99(A).
B
Shortly after the Ordinance’s passage, several residents of Albuquerque
(“Plaintiffs”) filed suit in federal district court, alleging that the Ordinance was
“overly broad and unconstitutionally infringe[d]” on their “rights to exercise
freedom of speech and expression in traditional public forums by restricting a
substantial volume of constitutionally protected speech without adequate
justification.” Aplt.’s App., Vol. I, at 35 (Compl., filed Jan. 11, 2018). Plaintiffs
“regularly solicit charitable donations from vehicle occupants, provide charitable
donations from their vehicles to those solicitors, or engage in political speech,
7
Subsection (F), the final subsection of the Ordinance, is not at issue
in this appeal. It states that nothing in the Ordinance:
shall be construed as preventing maintenance or construction
activities within medians or roadside areas by public agencies or
agents thereof, entering or exiting a bus or other form of public
transit at authorized pick up and drop off locations, or as
preventing physical interactions or exchanges between
pedestrians and occupants of vehicles where the vehicle is
lawfully stopped or pulled over outside of a travel lane, or parked
at a location where on-street parking is permitted.
Albuquerque, N.M., Code of Ordinances § 8-2-7-2(F).
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including pamphleteering to motorists”—all in or around “areas affected by the
Ordinance.” Id. at 24. For example, one of the Plaintiffs, Rhonda Brewer,
solicits donations from motorists to pay for everyday needs; to increase her
chances of garnering a donation, she stands on medians and near highway ramps
in heavily-trafficked areas, holding a sign directed at stopped traffic. Two other
Plaintiffs, David McCoy and Mary O’Grady, regularly donate money, food, and
hygiene products to roadside solicitors from their parked cars—including
solicitors on medians and near highway ramps. And Plaintiff Marissa Elyse
Sanchez uses medians near busy intersections to demonstrate for particular
political causes and distribute literature to pedestrians and vehicle occupants.
The Ordinance, however, would force Plaintiffs to engage in their
expressive speech and conduct in alternate locations, which they averred would be
less effective or less safe. See id., Vol. I, at 25–27, 32–34 (noting that Ms.
Brewer’s attempts to panhandle on sidewalks have “prove[n] to be ineffective”
and that Mr. McCoy and Ms. O’Grady would likely be unable “to continue their
expressive conduct if they were permitted to donate to panhandlers only if they
pull off the road and pull into a parking lot or parking spot”); id., Vol. II, at 339
(Pls.’ Mot. for Summ. J., filed Apr. 12, 2019) (summarizing testimony in which
Ms. Brewer and Ms. O’Grady maintain that “they felt safer soliciting and
providing donations from vehicles stopped at a red light than elsewhere, like an
isolated parking lot, particularly in areas affected by crime or violence”; and Ms.
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Sanchez explaining that “medians offer a uniquely effective platform for
speech”); see also id., Vol. I, at 32 (alleging that, “[u]nder the City’s . . .
Ordinance, Plaintiffs will be unable to engage in their constitutionally protected
expressive conduct without fear of citation or criminal prosecution”); id. at 36
(“By depriving individuals of the use of traditional public forums to engage in
expressive activity, the Ordinance forces individuals to take their speech to other
locations that are less effective channels for communicating protected speech.”).
Accordingly, Plaintiffs sought a declaratory judgment “holding that the . . .
Ordinance violates the . . . First and Fourteenth Amendments to the Constitution”
and an injunction “prohibiting the City from enforcing the . . . Ordinance.” Id. at
40. 8
Following discovery, the parties both moved for summary judgment. As is
relevant to this appeal, Plaintiffs argued that the Ordinance was not narrowly
tailored to advance the City’s asserted interest in pedestrian safety. See id., Vol.
8
Plaintiffs originally alleged that the Ordinance was a content-based
restriction on speech and, therefore, was constitutional only if the City established
it met strict scrutiny. See, e.g., Aplt.’s App., Vol. I, at 37–38 (alleging that the
Ordinance “is content-based because it was proposed and adopted not out of true
safety concerns but rather because of the City Council’s desire to significantly
decrease panhandling—a form of expression that falls squarely within the First
Amendment’s protections,” and, thus, “the Ordinance is constitutional only if the
City can demonstrate that it” meets strict scrutiny). However, on appeal Plaintiffs
do not challenge the district court’s conclusion that the Ordinance is content-
neutral; instead, they argue it fails to qualify as a permissible time, place, and
manner restriction under intermediate scrutiny. See, e.g., Aplees.’ Resp. Br. at 1
(setting forth the governing legal standards for this appeal and only citing caselaw
analyzing time, place, and manner restrictions under intermediate scrutiny).
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II, at 335–36 (noting that “the First Amendment does not allow the City to cut off
all expressive activities in traditional public forums merely by invoking . . .
‘safety’ as a talisman,” and arguing that the Ordinance is not narrowly tailored
because “[i]ts prohibitions sweep far more broadly than the City’s putative safety
concerns” by “banning speech in an array of contexts where there is no
conceivable risk to driver or pedestrian safety”).
Specifically, Plaintiffs contended that, while the City “maintained that it
enacted the Ordinance to address safety concerns,” it “collected no empirical data
about accidents involving pedestrians” nor, more specifically, “compiled any data
describing injuries or fatalities involving pedestrians standing on medians or near
highway ramps or interacting with vehicle occupants.” Id. at 343–44; see also id.
at 354, 367 (contending that the City had adduced no evidence “demonstrating a
real and concrete harm—much less a substantial one—that could possibly justify”
the Ordinance’s “broad prohibition[s]”).
Indeed, according to Plaintiffs, scores of accident reports produced by the
City actually belied any assertion that pedestrian presence near highway ramps or
on medians, or pedestrian involvement in physical exchanges with vehicle
occupants, gave rise to significant safety concerns warranting the Ordinance. See
id. at 345, 368 (asserting that, out of 900 accident reports produced, “only four”
involved conduct specifically proscribed by subsections (B) and (C) of the
Ordinance, and “only 20 involved conduct arguably implicating [s]ubsections (D)
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and (E)”). As well, Plaintiffs argued that the Ordinance was not narrowly tailored
to any of the City’s purported interests and they faulted the City in particular for
failing to consider less-speech-restrictive alternatives for promoting traffic safety.
See id. at 360–65, 371 (arguing, inter alia, that the City has an array of laws
already enacted that could ameliorate traffic safety problems; that such laws
would also address the City’s purported issues with pedestrians standing near
ramps, standing on medians, and engaging in physical exchanges with vehicle
occupants; and that, “[e]ven if the City had evidence to demonstrate that its
existing laws [were] insufficient,” its failure to consider or try alternatives that
burdened less speech was indicative of a lack of narrow tailoring).
In response, the City maintained that it had “adduced evidence that the
Ordinance focuses specifically on locations that are not designed for pedestrian
use” and, therefore, the Ordinance was narrowly tailored to its significant
interests. Id., Vol. IV, at 1009 (City of Albuquerque’s Resp. in Opp’n to Pls.’
Mot. for Summ. J., filed May 10, 2019); see also id. at 1013–14 (arguing that the
City has an interest in reducing pedestrian-vehicle conflicts “as a matter of law”
(bold-face font omitted)). In particular, the City leaned heavily on general
“traffic design and engineering principles” in claiming that the Ordinance was
narrowly tailored. Id. at 1014; see also id. at 1016 (citing the expert opinions of
Melissa Lozoya, a City employee and engineer, who stated, broadly, that the
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Ordinance proscribed pedestrian presence in and around areas “not designed for
pedestrian use”).
Because its ambit was “limited to specific locations within the roadway that
are not designed for pedestrian use or for pedestrian-vehicle interactions,” said
the City, the Ordinance was sufficiently tailored to pass constitutional muster. Id.
at 1019. The City further emphasized that the Ordinance was “proactive” and
that, without such a forward-looking approach, the City’s “present interest” in
reducing pedestrian-vehicle conflicts could only be achieved less effectively. Id.
at 1022. Finally, the City objected to the notion that it was required to consider
or to “adopt narrower alternatives” prior to passing the Ordinance. Id. at 1023.
C
In August 2019, the district court granted Plaintiffs’ summary judgment
motion in substantial part, concluding that subsections (B) through (E) of the
Ordinance facially violated the First Amendment. In pertinent part, 9 the court
9
The district court made a number of rulings that are not disputed on
appeal. First, the district court concluded that Plaintiffs’ activities constituted
speech and expressive conduct that the First Amendment protects. See Martin,
396 F. Supp. 3d at 1019 (“Plaintiffs assert that the various types of speech that
they commonly engage in, including passively soliciting donations by holding
signs on medians and exit and entrance ramps, providing donations from a vehicle
while stopped in traffic, and handing out informational leaflets to motorists, ‘fall
within the heartland of constitutionally protected speech.’ The City does not
dispute this assertion, and the [c]ourt agrees that Plaintiffs’ activities constitute
protected speech.” (citation omitted) (quoting Aplt.’s App., Vol. II, at 348)).
Second, the court found that subsections (B) through (E) of the Ordinance
“implicate traditional public fora.” See id. at 1021. Third, the district court ruled
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concluded that, although the City has a significant interest in promoting
pedestrian safety and, in particular, reducing pedestrian-vehicle conflicts, the
Ordinance was not narrowly tailored to serve or advance that interest. Construing
the facts in the light most favorable to the City, as the non-movant on the issue of
narrow tailoring, see Martin v. City of Albuquerque, 396 F. Supp. 3d 1008, 1028
n.11 (D.N.M. 2019), the court applied what it called the “roadmap for conducting
a narrow tailoring inquiry” outlined in the Supreme Court’s decision in McCullen
v. Coakley, 573 U.S. 464 (2014), id. at 1029. Under that roadmap, “while the
existence of a significant government interest may be adequately supported by
prior caselaw and common sense, the government must present case-specific
evidence that the restriction actually serves the stated goal without burdening too
much speech in order to satisfy the narrow tailoring inquiry.” Id.
However, the court recognized that our precedent had discerned in
McCullen’s text a limitation on this government obligation. See id. at 1030.
Specifically, the district court acknowledged that we had concluded in Evans v.
Sandy City that McCullen “did not ‘create a new evidentiary requirement for
governments to compile data or statistics’” in order to establish the requisite
narrow tailoring. Id. (quoting Evans v. Sandy City, 928 F.3d 1171, 1181 (10th Cir.
2019), amended and superseded on reh’g, 944 F.3d 847 (10th Cir. 2019)).
9
(...continued)
that the Ordinance is content neutral. See id. at 1023–27.
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Although McCullen “did not lay out a ‘new rule’ regarding narrow tailoring, as
the court reasoned, it makes clear that,” to demonstrate such tailoring, the
government “bears the burden of producing concrete evidence”—in “some
form”—“to show that its proposed restriction will actually achieve its asserted
interest without burdening substantially more speech than necessary.” Id. at
1031.
In the district court’s eyes, the City did not carry this burden on any of the
subsections at issue—that is, subsections (B)–(E). As to subsection (B), the court
found that the City’s evidence of narrow tailoring was deficient. To justify this
regulation, the City pointed to the Ordinance’s preamble, which “repeatedly
reference[d] a University of New Mexico Study that focused on the ten
intersections in Albuquerque with the highest numbers of pedestrian and
bicyclist-involved crashes and proposed five categories of ‘countermeasures’ to
improve pedestrian and bicyclist safety at these intersections.” Id. at 1032.
However, that Study “d[id] not recommend a blanket ban on pedestrian presence
in certain areas,” which, to the court, “demonstrate[d] that the Study may be
strong evidence that a pedestrian-vehicle conflict problem exists, but is not strong
evidence that each provision of the Ordinance is narrowly tailored to address that
problem.” Id.
Beyond the Study, the City cited “‘alarming’ [national traffic] statistics
concerning pedestrian fatalities in Albuquerque” and “anecdotal experiences” of
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police officers, city councilors, and constituents. Id. But even giving “great
weight” to the police department’s “observations and perceptions of safety risks”
in the City, according to the court, “these statistics and anecdotes . . . offer[ed] no
concrete evidence that the restrictions the City ultimately chose to enact were
actually tailored to address the issue” of pedestrian safety. Id. Nor was the court
impressed by the City’s expert, Melissa Lozoya, whose “sweeping” opinions
“betray[ed] the lack of narrow tailoring” with respect to subsection (B). Id. at
1032–33. Accordingly, because the City “failed . . . to show that all pedestrian
presence near all the ramps covered by the Ordinance is equally dangerous and
must be completely prohibited in order to successfully minimize pedestrian-
vehicle conflicts,” the court found subsection (B) to be insufficiently tailored to
pass constitutional muster. Id. at 1033.
The court reached the same conclusion regarding subsection (C). As with
its evidence supporting subsection (B), the City’s “evidence that the medians
covered by [s]ubsection (C) are ‘only those medians that pose risks to pedestrian
safety’ [wa]s . . . limited to general traffic safety design principles that highlight
the dangers associated with standing in proximity to moving traffic.” Id. at 1034.
But as the court reasoned, “general design principles” are “simply not strong
enough evidence to show that the City’s decision to apply the median ban to all
those medians narrower than six feet was a narrowly tailored decision to advance
the goal of reducing pedestrian-vehicle accidents.” Id. As well, “the City’s
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proffered anecdotal evidence supporting the Ordinance d[id] not directly address
why banning standing in most medians less than six feet wide [wa]s a narrowly
tailored restriction.” Id. Indeed, according to the court, the analysis of the City’s
accident data by Plaintiffs’ expert “show[ed] generally that the majority of the
vehicle-pedestrian conflicts reported in Albuquerque over a four-year period
would not have been prevented by the prohibitions contained in the Ordinance.”
Id. at 1034–35.
Crucially, the district court also faulted the City for “fail[ing] to mount an
argument as to why other measures with less speech-restrictive impacts would
[not] . . . achieve the goal of reducing pedestrian-vehicle conflicts in
Albuquerque.” Id. at 1035. And the court reasoned that the City’s reliance on an
“attenuated chain of ‘proactive enforcement’ [was] not enough to support such a
broad restriction of First Amendment rights,” nor had the City “offered any
analysis here—even an estimate—of what percentage of medians in the City
would remain available for expressive speech under the Ordinance, beyond an
estimate of what percentage of total roadways would be implicated by Subsection
(C).” Id. (citation omitted). Thus, while it was “quite possible to craft a
narrowly tailored ordinance that addresses a public safety concern related to
pedestrian presence on medians”—as Sandy City did in Evans—the court
reasoned that Albuquerque “must offer evidence that proves ‘alternative measures
that burden substantially less speech would fail to achieve the government’s
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interests, not simply that the chosen route is easier,’” which it did not do with
regard to subsection (C). Id. (quoting McCullen, 573 U.S. at 495).
Finally, the court determined subsections (D) and (E) were not narrowly
tailored for many of the same reasons applicable to subsections (B) and (C). At
bottom, the City “ha[d] not presented sufficient evidence that the physical
exchange ban achieve[d] the goal of reducing pedestrian-vehicle conflicts without
burdening substantially more speech than necessary.” Id. While the court
believed the City had “ample reason” to prohibit certain pedestrian-motorist
exchanges, for example, “[a] motorist who, several travel lanes from the median,
waves money at a pedestrian and encourages him to run across travel lanes,
during which time the light turns green”—it found that the exchange regulation
proscribed a much wider swath of conduct than this. Id. at 1035–36. And, more
broadly, the City proffered virtually no evidence that exchanges prohibited by the
regulation in fact obstructed traffic or endangered pedestrian safety. See id. at
1036.
In sum, then, the district court ruled that “prohibiting all access to” certain
public fora “on the ground that Albuquerque struggles with troublingly high rates
of pedestrian-vehicle conflicts, without presenting any evidence beyond anecdotal
and personal speculation that the [Ordinance] would actually reduce the number
of such conflicts in the City and that less sweeping restrictions would not
suffice,” ran “afoul of the First Amendment.” Id. Consequently, the court
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granted Plaintiff’s motion for summary judgment in relevant part and found
subsections (B) through (E) of the Ordinance unconstitutional. See id. at
1036–37.
II
On appeal, the City challenges the district court’s grant of summary
judgment to Plaintiffs. We review that grant de novo, “applying the same
standard as the district court.” iMatter Utah v. Njord, 774 F.3d 1258, 1262 (10th
Cir. 2014). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” F ED . R. C IV . P. 56(a). “When applying this standard,” we
review “the evidence and draw reasonable inferences therefrom in the light most
favorable to the nonmoving party.” Doe v. City of Albuquerque, 667 F.3d 1111,
1122 (10th Cir. 2012) (quoting Com. Union Ins. Co. v. Sea Harvest Seafood Co.,
251 F.3d 1294, 1298 (10th Cir. 2011)).
Furthermore, “[b]ecause this [case] implicates First Amendment freedoms,
we perform an independent examination of the whole record in order to ensure
that the judgment protects the right of free expression.” Evans, 944 F.3d at 852;
see Aptive Env’t, LLC v. Town of Castle Rock (“Aptive”), 959 F.3d 961, 978
(10th Cir. 2020) (“In a First Amendment case, we have ‘an obligation to make an
independent examination of the whole record in order to make sure that the
judgment does not constitute a forbidden intrusion on the field of free
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expression.’” (quoting Citizens for Peace in Space v. City of Colorado Springs,
477 F.3d 1212, 1219 (10th Cir. 2007))); see also First Unitarian Church of Salt
Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1120 (10th Cir. 2002)
(“Because First Amendment interests are involved, we have an obligation to
conduct an independent review of the record and to examine constitutional facts
and conclusions of law de novo.” (quoting Z.J. Gifts D-2, LLC v. City of Aurora,
136 F.3d 683, 685 (10th Cir. 1998)), cert. denied, 539 U.S. 941 (2003)). 10
The First Amendment provides that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I; see also iMatter Utah,
774 F.3d at 1263 (“At its core, ‘the First Amendment reflects a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open.’” (quoting Boos v. Barry, 485 U.S. 312, 318 (1988)));
Pahls v. Thomas, 718 F.3d 1210, 1229 (10th Cir. 2013) (“At the core of the First
Amendment is the idea that ‘government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.’” (quoting
Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972))). “By incorporation
through the Fourteenth Amendment, this prohibition applies to states and their
political subdivisions.” Aptive, 959 F.3d at 979; accord McCraw, 973 F.3d at
10
This independent obligation to examine the record, however, “does
not excuse the parties from their requirement under Federal Rule of Appellate
Procedure 28 to cite to the ‘parts of the record on which [they] rel[y].’” McCraw,
973 F.3d at 1065 n.4 (alterations in original) (quoting F ED . R. A PP . P. 28(a)(8)(A),
28(b)) .
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1065. As well, the First Amendment “applies not only to legislative enactments,
but also to less formal governmental acts,” including city policies like the
Ordinance at issue. Evans, 944 F.3d at 852 (quoting Hawkins v. City & Cnty. of
Denver, 170 F.3d 1281, 1286 (10th Cir. 1999)); accord Aptive, 959 F.3d at 979.
Thus, here, the burden falls on the City to establish the Ordinance is
constitutional. See, e.g., Ass’n of Cmty. Orgs. for Reform Now (ACORN) v. Mun.
of Golden, 744 F.2d 739, 746 (10th Cir. 1984) (“[W]hen a law infringes on the
exercise of First Amendment rights, its proponent bears the burden of establishing
its constitutionality.”); accord iMatter Utah, 774 F.3d at 1263.
III
A
On appeal, the City’s primary contention is that the district court “erred in
granting summary judgment to Plaintiffs on narrow tailoring grounds,” despite the
City presenting what it characterizes as “ample evidence supporting the
Ordinance’s restrictions.” 11 Aplt.’s Opening Br. at 29; see id. at 4, 30 (describing
11
The City also argues that the district court erred by improperly
resolving genuine disputes of material fact as to the question of narrow tailoring,
and by improperly construing the facts in the light most favorable to Plaintiffs,
the movants. See Aplt.’s Opening Br. at 5, 31–32. Because our review is de
novo, however, we need not separately consider this argument. See, e.g., Rivera
v. City & Cnty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (“Because our
review is de novo, we need not separately address Plaintiff’s argument that the
district court erred by viewing evidence in the light most favorable to the City
and by treating disputed issues of fact as undisputed.”); accord Simmons v. Sykes
Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011); cf. Lincoln v. BNSF Railway
(continued...)
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the City’s first appellate issue as “[w]hether the district court’s narrow tailoring
analysis placed too great an evidentiary burden on the City,” in contravention of
our caselaw, and later asserting that the district court’s narrow tailoring analysis
was “too strict”); see Aplees.’ Resp. Br. at 22 (“The City’s principal argument is
that the district court applied the wrong legal standard; according to the City, ‘the
district court misapplied McCullen’ by adopting a ‘more stringent’
narrow-tailoring inquiry than the one this Court applied in Evans.” (quoting
Aplt.’s Opening Br. at 33)).
Indeed, the parties train nearly all their argumentative firepower on the
narrow tailoring prong of our multi-pronged First Amendment analysis, contesting
not only the type and quantum of evidence our caselaw demands to establish
narrow tailoring, but also whether the City was required to try, or at least
consider, alternate, equally-effective restrictions that burden less speech before
settling on the Ordinance. We agree with the parties that the Ordinance’s fate
turns on our disposition of this prong. And we ultimately conclude that
subsections (B) through (E) of the Ordinance are not narrowly tailored and, thus,
violate the First Amendment.
11
(...continued)
Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (“In reviewing a grant of summary
judgment, ‘we “need not defer to factual findings rendered by the district
court.”’” (quoting Amparan v. Lake Powell Car Rental Cos., 882 F.3d 943, 947
(10th Cir. 2018))).
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To begin, however, we recognize that, in resolving First Amendment claims
like Plaintiffs’, ordinarily we would be obliged to answer a series of antecedent,
predicate questions, such as the following: (1) whether Plaintiffs’ speech and
conduct are protected under the First Amendment; (2) whether the areas impacted
by the Ordinance’s relevant subsections are “traditional public fora,” or are,
instead, nonpublic fora; and (3) whether the Ordinance regulates speech in these
particular fora without regard to its content. More specifically, ordinarily, our
First Amendment analysis would proceed in several steps. First, we would ask
whether Plaintiffs’ activities “constitute[] protected speech under the First
Amendment.” Evans, 944 F.3d at 852; see also Verlo v. Martinez, 820 F.3d 1113,
1128 (10th Cir. 2016). If Plaintiffs demonstrate that their activities fall within the
First Amendment’s ambit, we then would “identify whether the challenged
restrictions affect a public or nonpublic forum”; this identification process reveals
the appropriate standard of review applicable to the Ordinance. McCraw, 973
F.3d at 1065 (quoting Verlo, 820 F.3d at 1128).
However, the parties’ framing of their appellate arguments permit us to
refrain from opining on these otherwise important antecedent questions. See State
v. U.S. Env’t Prot. Agency, 989 F.3d 874, 885 (10th Cir. 2021) (“The principle of
party presentation is a fundamental premise of our adversarial system. That
means ‘we rely on the parties to frame the issues for decision and assign to courts
the role of neutral arbiter of matters the parties present.’” (citation omitted)
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(quoting United States v. Sineneng-Smith, --- U.S. ----, 140 S. Ct. 1575, 1579
(2020))); see also Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“In our
adversary system, in both civil and criminal cases, in the first instance and on
appeal, we follow the principle of party presentation.”); Utah Poultry Producers
Co-op v. Union Pac. R.R. Co., 147 F.2d 975, 977 (10th Cir. 1945) (noting that “it
is not necessary for us to decide this [particular issue], because this is not the
issue as framed by the parties”). More specifically, insofar as the parties do not
dispute the answers to these predicate questions on appeal, they have effectively
“waived (i.e., abandoned)” any arguments that could have put the answers at issue
and obliged us to opine regarding them. United States v. Yelloweagle, 643 F.3d
1275, 1280 (10th Cir. 2011), cert. denied, 556 U.S. 964 (2012); accord Tran v.
Trs. of State Colleges, 355 F.3d 1263, 1266 (10th Cir. 2004); Bronson v. Swensen,
500 F.3d 1099, 1104–05 (10th Cir. 2007). Accordingly, for purposes of resolving
this appeal, we accept the parties’ effective resolution of these questions, without
opining on them ourselves.
Thus, to start, the City does not challenge the district court’s finding that
Plaintiffs carried their threshold burden of showing their speech and conduct are
protected by the First Amendment. In light of our caselaw, this is not surprising.
See McCraw, 973 F.3d at 1064–67 (finding that plaintiffs who, while on medians,
“held campaign signs and t[ook] part in political protests,” “garner[ed] signatures
for petitions,” “panhandle[d],” distributed newspapers, and conversed with
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companions while jogging, all engaged in protected speech); Doe, 667 F.3d at
1118–20 (recognizing that the First Amendment includes “not just a right of free
speech, but also a right to receive information”); see also McCraw, 973 F.3d at
1066–67 (noting that speech is protected by the First Amendment “[e]ven though
[it] . . . may not amount to grand rhetoric or political soapbox oratory,” or where
the speaker “is simultaneously engaged in non-expressive activity,” or where the
government “has deemed [the] speech valueless”); cf. Evans, 944 F.3d at 852–53
(assuming, without deciding, that panhandling is protected under the First
Amendment based on, inter alia, “several of our sister circuits who [have] . . .
determined panhandling is protected” and the Supreme Court’s recognition that
“solicitation of charitable contributions is protected speech” (quoting Riley v.
Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988))).
Likewise, while the City mounted a forum analysis challenge in the district
court, it does not contest on appeal the district court’s conclusion that the
subsections of the Ordinance at issue restrict speech in traditional public fora.
See Aplt.’s Opening Br. at 29 (focusing its appellate argument on whether “the
district court erred in granting summary judgment to plaintiffs on narrow tailoring
grounds”). “Under First Amendment jurisprudence, ‘the extent to which the
Government can control access [to Government property] depends on the nature
of the relevant forum.’” Evans, 944 F.3d at 853 (alteration in original) (quoting
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Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800
(1985)). 12
Traditional public fora, which “occupy a ‘special position in terms of First
Amendment protection,’” “have immemorially been held in trust for the use of the
public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.”
McCullen, 573 U.S. at 476 (first quoting United States v. Grace, 461 U.S. 171,
180 (1983); and then quoting Pleasant Grove City v. Summum, 555 U.S. 460, 469
(2009))); accord Evans, 944 F.3d at 853 (“A traditional public forum is a place
that ‘by long tradition or by government fiat ha[s] been devoted to assembly and
debate.’” (alteration in original) (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983))). “In these traditional public fora, the
government’s right to ‘limit expressive activity [is] sharply circumscribed.’”
Verlo, 820 F.3d at 1129 (alteration in original) (quoting Perry Educ. Ass’n, 460
12
Generally speaking, we recognize “three types of speech fora: the
traditional public forum, the designated public forum, and the nonpublic forum.”
Verlo, 820 F.3d at 1129; see also Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45–46 (1983); Evans, 944 F.3d at 853. We describe a
“traditional public form” in the main text infra. “A designated public forum is
public property, not constituting a traditional public forum, which the government
has intentionally opened to the public for expressive activity”; so long as the
government keeps this property open to expressive activity, “it is bound by the
same standards as apply in a traditional public forum.” Verlo, 820 F.3d at 1129
(quoting Perry Educ. Ass’n, 460 U.S. at 46). All other fora are “nonpublic fora,”
access to which the government can restrict in reasonable, viewpoint-neutral
ways. See id.26
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U.S. at 45); see Grace, 461 U.S. at 177 (noting that, in public fora, “the
government’s ability to permissibly restrict expressive conduct is very limited”);
Perry Educ. Ass’n, 460 U.S. at 45 (noting that, in “quintessential public forums,
the government may not prohibit all communicative activity”); see also Summum,
555 U.S. at 469 (recognizing that “members of the public retain strong free
speech rights when they venture into” traditional public fora).
The magnitude of the burden the government must carry to justify its
regulation depends on whether the regulation’s restriction on speech is deemed
content-based or content-neutral. Content-based regulations of speech—i.e.,
regulations “based upon either the content or the subject matter of the
speech”—must meet strict scrutiny, whereas content-neutral regulations of
speech—i.e., regulations “justified without reference to the content of the
regulated speech”—must meet intermediate scrutiny. Pahls, 718 F.3d at 1229
(first quoting Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447
U.S. 530, 536 (1980); and then quoting Ward, 491 U.S. at 791).
While Plaintiffs initially alleged in the district court that the Ordinance was
a content-based measure aimed at panhandlers, they do not raise such an argument
on appeal, claiming instead that the Ordinance, even if content-neutral, cannot
satisfy intermediate scrutiny. The City, for its part, has maintained throughout
the litigation that the Ordinance’s purpose is to promote pedestrian safety and,
more specifically, to reduce pedestrian-vehicle conflicts, without regard to the
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content of any particular individual’s speech. Thus, without dispute on this point
on appeal, we assume the Ordinance is content-neutral and subject to intermediate
scrutiny.
In sum, taking into account how the parties’ appellate arguments have
framed this dispute, we may assume for purposes of our decision the following
answers to the aforementioned predicate questions: (1) Plaintiffs’ speech and
conduct enjoy First Amendment protection; (2) subsections (B) through (E)
impact traditional public fora; and (3) the Ordinance is content neutral. These
answers, together, provide the appropriate standard of review, which we apply
here—that is, intermediate scrutiny. Under that standard, to establish that its
content-neutral Ordinance is constitutional, the City must show that the Ordinance
is narrowly tailored to achieving significant government interests, and that the
Ordinance leaves open ample alternative channels of communication. See Verlo,
820 F.3d at 1134 (“[I]n a public forum, the government can restrict speech
through ‘content-neutral time, place, and manner restrictions that: (a) serve a
significant government interest; (b) are narrowly tailored to advance that interest;
and (c) leave open ample alternative channels of communication.’” (quoting Doe,
667 F.3d at 1130–31)); see also McCraw, 973 F.3d at 1070 (applying
“intermediate scrutiny” to an analogous city restriction of speech); Am. Target
Advert., Inc. v. Giani, 199 F.3d 1241, 1247 (10th Cir. 2000) (noting that where
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“the Act is content neutral . . we accordingly subject it to intermediate scrutiny”),
cert. denied, 531 U.S. 811 (2000).
B
With these predicate questions answered, we turn our attention to the “hotly
contested question” in this case: whether Albuquerque’s Ordinance is narrowly
tailored to serve a significant government interest. Evans, 944 F.3d at 856. As
noted, the City bears the burden of making the requisite narrow tailoring showing.
See Doe, 667 F.3d at 1133. As detailed below, we conclude that the City has not
successfully carried this burden.
In brief, we reach that conclusion for two principal reasons. First, the
evidence that the City relies on to make its narrow tailoring showing does not
indicate that the Ordinance alleviates in a direct and material way a real,
non-speculative harm; relatedly, the City is unable to establish that the Ordinance
does not burden substantially more speech than necessary to further its interest in
pedestrian safety. Second, the City has almost completely failed to even consider
alternative measures that restrict or burden the speech at issue less severely than
does the Ordinance—which underscores its failure to demonstrate that the
Ordinance is narrowly tailored to achieve its professed significant governmental
interests in pedestrian safety. In explaining this second reason, we address and
harmonize a possible tension between our two recent decisions examining
content-neutral time, place, or manner regulations in public fora—Evans and
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McCraw—and, in particular, between their respective discussions of what role, if
any, a less-restrictive (i.e., less-burdensome) means analysis plays in the narrow
tailoring inquiry. 13 We turn to that detailed examination now.
1
“For a content-neutral time, place, or manner regulation to be narrowly
tailored, it must not burden substantially more speech than is necessary to further
the government’s legitimate interests.” McCraw, 973 F.3d at 1071 (quoting
McCullen, 573 U.S. at 486); accord Ward, 491 U.S. at 799; Evans, 944 F.3d at
856; cf. Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002) (“If the First
Amendment means anything, it means that regulating speech must be a last—not
first—resort.”). “In other words, the government ‘may not regulate expression in
such a manner that a substantial portion of the burden on speech does not serve to
13
For purposes of our discussion of the “less-restrictive means”
analysis, we discern no material, conceptual distinction between this term and
related terms, such as “less-restrictive alternatives” or “less-burdensome
alternatives” or “less-burdensome means,” or “less-intrusive means.” See, e.g.,
McCullen, 573 U.S. at 492, 496 (discussing the government’s “failure to look to
less intrusive means” and “less restrictive measures”); McCraw, 973 F.3d at
1074–76 (using the term “less burdensome alternatives” but relying on authority,
like McCullen, which, as noted, uses other terminology); Evans, 944 F.3d at
859–60 (discussing “less restrictive means analysis” and appearing to use the term
“less restrictive alternatives” synonymously); see also McCullen, 573 U.S. at 495
(“To meet the requirement of narrow tailoring, the government must demonstrate
that alternative measures that burden substantially less speech would fail to
achieve the government’s interests, not simply that the chosen route is easier.”
(emphasis added)). Such terms are used synonymously in this opinion.
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advance its goals.’” Evans, 944 F.3d at 856 (quoting McCullen, 573 U.S. at 486).
This narrow tailoring requirement not only “guard[s] against an[y]
impermissible desire to censor,” but, more significantly, “prevents the
government from too readily ‘sacrific[ing] speech for efficiency’” by “demanding
a close fit between ends and means.” McCullen, 573 U.S. at 486 (third alteration
in original) (quoting Riley, 487 U.S. at 795); accord Evans, 944 F.3d at 856; see
also McCraw, 973 F.3d at 1071 (explaining that the narrow tailoring burden
“ensures that restrictions on speech are not permitted when either the harms or the
remedial effects of the government’s restrictions are supported only by
speculation or conjecture, or when the regulation burdens substantially more
speech than is necessary to further the government’s legitimate interests”
(emphases added)). 14
14
In McCraw, we stated that, “[f]or a content-neutral time, place, or
manner regulation to be narrowly tailored, it must not burden substantially more
speech than is necessary to further the government’s legitimate interests.”
McCraw, 973 F.3d at 1071 (quoting McCullen, 573 U.S. at 486). We explained
further that the narrow tailoring requirement “ensures that restrictions on speech
are not permitted when either [1] the harms or the remedial effects of the
government’s restrictions are supported only by speculation or conjecture,
or”—as already stated—“[2] when the regulation burdens substantially more
speech than is necessary to further the government’s legitimate interests.” Id.
(emphases added). The second portion of this explanation is drawn directly from
McCullen and other cases examining content-neutral time, place, or manner
restrictions on private speech in public fora; the first portion, though, is drawn
from caselaw examining restrictions on commercial speech—which, to be sure,
we have recognized as closely analogous to cases grappling with time, place, and
manner restrictions. See id. at 1071 n.9 (recognizing that “we have applied
commercial speech precedent when analyzing time, place, and manner
(continued...)
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14
(...continued)
restrictions” because the “validity of [such] . . . restrictions is determined under a
standard essentially identical to that governing the regulation of commercial
speech” (quoting Citizens for Peace in Space, 477 F.3d at 1220 n.3)); cf. United
States v. Edge Broad. Co., 509 U.S. 418, 430–31 (1993) (noting that “[t]he Ward
holding is applicable” in the commercial speech context because “we have
observed that the validity of time, place, or manner restrictions is determined
under standards very similar to those applicable in the commercial speech context
and that it would be incompatible with the subordinate position of commercial
speech in the scale of First Amendment values to apply a more rigid standard to
commercial speech than is applied to fully protected speech”).
That said, our articulation of the standard governing commercial speech
restrictions differs slightly from the traditional articulation of the standard
governing content-neutral time, place, and manner restrictions. Compare Aptive,
959 F.3d at 987 (noting that the test governing restrictions on commercial speech
is “a form of ‘intermediate standard of review’” and “provides that in determining
whether commercial speech may be proscribed, we must ask [1] whether the
State’s interests in proscribing it are substantial, [2] whether the challenged
regulation advances these interests in a direct and material way, and [3] whether
the extent of the restriction on protected speech is in reasonable proportion to the
interests served.” (brackets in original) (block quote formatting omitted) (quoting
Edenfield v. Fane, 507 U.S. 761, 767 (1993))), with Evans, 944 F.3d at 854 (“It is
well-settled ‘that even in a public forum the government may impose reasonable
restrictions on the time, place, [or] manner of protected speech, provided the
restrictions “are justified without reference to the content of the regulated speech,
that they are narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication of [the]
information.”’” (quoting Ward, 491 U.S. at 791)), and Citizens for Peace in
Space, 477 F.3d at 1219–20 (“The government may impose reasonable time,
place, and manner restrictions on speech in public forums provided the
restrictions are (1) content neutral, (2) that they are ‘narrowly tailored to serve a
significant governmental interest,’ and (3) that they ‘leave open ample alternative
channels for communication.’” (quoting Ward, 491 U.S. at 791)); see also iMatter
Utah, 774 F.3d at 1266 (articulating the constitutional test for time, place, and
matter regulations as requiring that such regulations “(1) are content neutral; (2)
are ‘narrowly tailored to serve a significant governmental interest;’ (3) ‘leave
open ample alternative channels for communication;’ and (4) ‘do not delegate
overly broad licensing discretion to a government official’” (first quoting
(continued...)
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14
(...continued)
McCullen, 573 U.S. at 477; and then quoting Forsyth Cnty. v. Nationalist
Movement, 505 U.S. 123, 130 (1992))).
In McCraw we incorporated the second prong of the commercial speech
framework as a facet of our “narrow tailoring” analysis. See McCraw, 973 F.3d
at 1071–74 (explaining that the narrow tailoring burden is not met when, inter
alia, “the harms or the remedial effects of the government’s restrictions are
supported only by speculation or conjecture,” concluding that Oklahoma City’s
“evidence [was] insufficient to demonstrate that the [c]ity’s ‘recited harms are
real’ or that the . . . [o]rdinance ‘will in fact alleviate these harms in a direct and
material way,’” and further concluding that the regulation burdened substantially
more speech than necessary based on “many of the same weaknesses . . .
identified when analyzing whether the [c]ity’s evidence met its burden to show
the existence of a real, non-conjectural harm” (quoting Citizens for Peace in
Space, 477 F.3d at 1221)); see also id. at 1073–74 (noting that Oklahoma City’s
failure to present evidence “of concrete harm arising from the presence of
pedestrians on its medians”—which the ordinance at issue was intended to
impact—“infect[ed] our analysis of both the ‘ends’ and the ‘means’”). McCraw
drew on our prior decision in Citizens for Peace in Space, where we similarly
utilized the second prong of the commercial speech framework to assess whether
a content-neutral regulation of speech or expressive conduct in a public forum
was narrowly tailored. See 477 F.3d at 1220–21 (“‘Government may not regulate
expression in such a manner that a substantial portion of the burden on speech
does not serve to advance its goals.’ Thus, in order to demonstrate that a
challenged restriction is narrowly tailored, the government must demonstrate that
the restriction ‘serve[s] a substantial state interest in a direct and effective way.’.
. . [A] regulation is not narrowly tailored when it ‘does not sufficiently serve
those public interests that are urged as its justification.’ . . . [T]he burden falls on
the [c]ity to show that its ‘recited harms are real . . . and that the regulation will
in fact alleviate these harms in a direct and material way.’” (first alteration and
third omission in original) (emphasis added) (citations omitted) (first quoting
Ward, 491 U.S. at 799; then quoting Edenfield, 507 U.S. at 773; then quoting
Grace, 461 U.S. at 181; and then quoting Turner Broad. Sys. Inc. v. FCC, 512
U.S. 622, 664 (1994))).
While McCraw and Citizens for Peace in Space quite explicitly incorporate
this second prong of the commercial speech framework into our narrow tailoring
inquiry for time, place, and manner restrictions, such an incorporation of this
(continued...)
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14
(...continued)
prong (and especially its emphasis on whether the harm is concrete or real, and
whether the government regulation addresses it in a direct and effective or
material way) is at least implicit in other cases from this court and the Supreme
Court. See Evans, 944 F.3d at 856, 858 (concluding that the ordinance at issue
was narrowly tailored based in part on the “direct relationship” between “the
[c]ity’s goal of promoting public safety,” the significance of which was
uncontested, and “the restriction on speech [the city] selected,” and finding that
the restriction promoted this goal in “a direct and effective way”); iMatter Utah,
774 F.3d at 1266–67 (accepting “the general proposition that promoting public
order and safety is a significant government interest,” but finding that the state
“failed to present any evidence that its [regulations] . . . actually address that
interest,” and, consequently, stating that, “[s]imply put, a regulation that has no
discernible effect on an objective is not narrowly tailored to achieve that
objective”); cf. Doe, 667 F.3d at 1130–33 (citing caselaw articulating the second
prong of the commercial speech framework as a facet of the government’s larger
burden to establish a time, place, and manner regulation’s constitutionality, and
noting that the government’s “invitation . . . to imagine hypothetical
justifications” for its regulation on a public forum, rather than presenting
evidence of the “interests to be served” by the regulation, “obfuscate[d] our
ability to determine” what those interests were); cf. also McCullen, 573 U.S. at
493 (expressing skepticism about the state’s asserted significant interest in
“preventing congestion in front of abortion clinics” because the state’s record
evidence “cite[d] to support th[is] anticongestion interest pertain[ed] mainly to
one place at one time,” and “[f]or a problem shown to arise only once a week in
one city at one clinic, creating a 35-foot buffer zones at every clinic across
[Massachusetts] [wa]s hardly a narrowly tailored solution”); Ward, 491 U.S. at
800 (“It is undeniable that the city’s substantial interest in limiting sound volume
is served in a direct and effective way by the [regulation] . . . .” (emphasis
added)).
Ultimately, we need not determine, as a formal matter, the degree of
analytical overlap between the second prong of the commercial speech framework
and the narrow tailoring prong of the time, place, and manner framework. Suffice
to say, we recognize, in light of our precedent, that the government, as a function
of its overarching burden to establish that a content-neutral regulation of speech
or expressive conduct in a public forum is narrowly tailored, must demonstrate
not only that the regulation does not sweep too broadly, but also that the interests
advanced as justifying the regulation are real, and not speculative—and that the
(continued...)
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In applying this requirement, “[w]e look ‘to the amount of speech covered
by the ordinance and whether there is an appropriate balance between the affected
speech and the governmental interests that the ordinance purports to serve.’”
Evans, 944 F.3d at 856 (quoting Watchtower Bible & Tract Soc’y of N.Y., Inc. v.
Vill. of Stratton, 536 U.S. 150, 165 (2002)); see McCraw, 973 F.3d at 1071 (“In
order to assess whether [an] . . . [o]rdinance is narrowly tailored, we must
measure it against the [government’s] asserted interest.”); see also iMatter Utah,
774 F.3d at 1266 (“To meet the requirement of narrow tailoring, the government
must demonstrate that alternative measures that burden substantially less speech
would fail to achieve the government’s interests.” (quoting McCullen, 573 U.S. at
495)); cf. Edenfield v. Fane, 507 U.S. 761, 773 (1993) (“Where a restriction on
speech lacks [a] close and substantial relation to the governmental interests
14
(...continued)
regulation addresses or ameliorates those interests in a direct manner.
Here, as explicated further infra—especially, in Part III.B.2.a—we
conclude that Albuquerque lacks adequate record support for the notion that it
faces real, concrete harms arising from pedestrian presence near highway ramps
and on medians, or from pedestrian involvement in physical exchanges with
vehicle occupants in travel lanes; relatedly, Albuquerque also fails to show that
its Ordinance avoids burdening substantially more speech than necessary to
achieve its interests in public safety and, more specifically, pedestrian safety—a
conclusion that flows in part from the lack of record support just noted.
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asserted, it cannot be, by definition, a reasonable time, place, or manner
restriction.”). 15
But while “fit matters” when it comes to content-neutral regulations of
speech, iMatter Utah, 774 F.3d at 1266 (quoting McCutcheon v. Fed. Election
Comm’n, 572 U.S. 185, 218 (2014) (plurality op.)), such regulations “‘need not be
the least restrictive or least intrusive means of’ serving the government’s
interests,” McCullen, 573 U.S. at 486 (quoting Ward, 491 U.S. at 798). Rather,
“‘the requirement of narrow tailoring is satisfied so long as the . . . regulation
promotes a substantial government interest that would be achieved less effectively
absent the regulation’ without ‘burden[ing] substantially more speech than is
necessary to further the government’s legitimate interests.’” Doe, 667 F.3d at
15
Moreover, we have stressed that governmental interests must not be
defined too generally. See, e.g., McCraw, 973 F.3d at 1071 n.10 (acknowledging
that, while “a government’s interest in public safety is clearly significant,” “it is
not enough for the [government] to use broad safety justifications” as the impetus
for a speech regulation); Citizens for Peace in Space, 477 F.3d at 1223 (“The
narrowly tailored analysis proceeds from the specific security interest articulated
by the [c]ity. Indeed, to assess whether a restriction is an appropriate ‘fit’ to
some important government interest, it is necessary that the government interest
be specifically defined. Otherwise, the narrowly tailored analysis more closely
resembles the ‘reasonably necessary’ standard used in reviewing restrictions on
speech in areas that are not public forums.” (citations omitted)); cf. Bl(a)ck Tea
Soc’y v. City of Boston, 378 F.3d 8, 13 (1st Cir. 2004) (opining, in the context of
a time, place, and manner restriction the city claimed was intended to “maintain
security” around the Democratic National Convention, that “security simpliciter is
too broad a rubric to be useful” in the narrow tailoring analysis; that “[s]ecurity is
not a talisman that the government may invoke to justify any burden on speech
(no matter how oppressive)”; and that the ultimate “question of narrow tailoring
must be decided against the backdrop of the harms that a particular set of
[responsive] measures are designed to forfend”).
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1133 (alteration and omission in original) (emphasis added) (quoting Ward, 491
U.S. at 799); see Evans, 944 F.3d at 856–57 (“So long as the means chosen are
not substantially broader than necessary to achieve the government’s interest, . . .
the regulation will not be invalid simply because a court concludes that the
government’s interest could be adequately served by some less-speech-restrictive
alternative.” (omission in original) (quoting Ward, 491 U.S. at 800)); iMatter
Utah, 774 F.3d at 1266 (observing that, under the narrow tailoring framework,
“the scope of the restriction on speech must be reasonably, though it need not be
perfectly, targeted to address the harm intended to be regulated” (quoting 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 529 (1996) (O’Connor, J.,
concurring))).
“In other words, ‘restrictions on the time, place, or manner of protected
speech are not invalid simply because there is some imaginable alternative that
might be less burdensome on speech.’” iMatter Utah, 774 F.3d at 1266 (quoting
Ward, 491 U.S. at 797); cf. Evans, 944 F.3d at 857 (“‘The validity of [time, place,
or manner] regulations does not turn on a judge’s agreement with the responsible
decisionmaker concerning the most appropriate method for promoting significant
government interests’ or the degree to which those interests should be promoted.”
(alteration in original) (quoting Ward, 491 U.S. at 800)).
2
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The City, drawing heavily on our decision in Evans v. Sandy City, asserts
that it “produced sufficient evidence to show that the Ordinance is narrowly
tailored.” Aplt.’s Opening Br. at 30. The City maintains that the Ordinance
imposes a slight burden on speech and is limited in focus because it applies only
to “areas in the roadway that are not designed for pedestrian use or for
pedestrian-vehicle interactions and which are in close proximity to high-speed
and high-volume traffic.” Id. at 30–31; see also id. at 38–39 (arguing that the
Ordinance, like the regulation in Evans, “does not impose a substantial burden on
speech because” of its “limited application” to “locations within the roadway that
are” not designed for pedestrian presence or that are near “high-speed and
high-volume traffic”). Moreover, the City claims it has “introduced substantial
evidence of safety risks arising from pedestrian activities in these locations.” Id.
at 31; see also id. at 45 (characterizing the Ordinance as the product of a
“preventive approach based both on: (1) traffic engineering and roadway design
concepts that focus on minimizing conflicts between pedestrians and vehicles by
separating them, and (2) anecdotal evidence of real safety problems arising within
the scope of the Ordinance’s prohibitions”).
The City also contends that the district court “imposed a much higher
evidentiary burden on the City than [we] imposed on Sandy City in Evans.” Id. at
45. In the City’s eyes, it produced enough evidence to show that the Ordinance
was “actually tailored to address” pedestrian safety, notwithstanding the district
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court’s alleged insistence on “concrete evidence” that showed such tailoring. Id.
at 42 (quoting Martin, 396 F. Supp. 3d at 1032). Lastly, the City objects to the
district court’s conclusion that the “Ordinance was not narrowly tailored due to
the City’s alleged failure to ‘offer evidence . . . prov[ing] “alternative measures
that burden substantially less speech would fail to achieve [its] interests”’”—a
conclusion that, according to the City, runs counter to our holding in Evans. Id.
at 44 (quoting Martin, 396 F. Supp. 3d at 1035).
The City’s efforts to show narrow tailoring, however, are unavailing. We
summarize our reasons as follows. Fundamentally, the fit between the “means”
chosen by the City—subsections (B) through (E) of the Ordinance—and its
“ends”—reducing pedestrian-vehicle conflicts and otherwise keeping pedestrians
safe—is impermissibly poor because, as the record evidence reflects, the
Ordinance neither alleviates any real, non-speculative harms in a direct and
material (i.e., effective) way, nor otherwise advances the City’s more abstract
safety rationales. More specifically, the fact that the Ordinance burdens
substantially more speech than necessary to achieve the City’s interest in
pedestrian safety is unmistakable when the Ordinance’s expansive restrictions on
speech and expressive conduct are juxtaposed against the paltry record evidence
of real, non-speculative harms ameliorated by the Ordinance. That the City
barely considered less-restrictive means—if it considered them at all—merely
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underscores the fact that the City did not meaningfully tailor the Ordinance to
address the interests or harms it identified.
Thus, because the Ordinance “regulate[s] expression in such a manner that
a substantial portion of the burden on speech does not serve to advance [the
City’s] goals,” it is not narrowly tailored and, consequently, violates the First
Amendment. Evans, 944 F.3d at 856 (quoting McCullen, 573 U.S. at 486); see
McCraw, 973 F.3d at 1071 (“In order to assess whether the [regulation] is
narrowly tailored, we must measure it against the [government’s] asserted
interest.”); see also iMatter Utah, 774 F.3d at 1266 (“[T]he scope of the
restriction on speech must be reasonably, though it need not be perfectly, targeted
to address the harm intended to be regulated.” (quoting 44 Liquormart, 517 U.S.
at 529 (O’Connor, J., concurring)).
a
To assess whether the Ordinance is narrowly tailored, “we must measure it
against the City’s asserted interest[s].” McCraw, 973 F.3d at 1071; see Doe, 667
F.3d at 1132 (“[O]nly by discerning the interest to be served by a restriction can a
court proceed to determine whether the restriction is sufficiently tailored to
advance that interest.”). Throughout the litigation, the City has claimed it
enacted the Ordinance to promote pedestrian safety and, more specifically, to
minimize pedestrian-vehicle conflicts. See Aplt.’s App., Vol. IV, at 997; Aplt.’s
Opening Br. at 1. And Plaintiffs concede that Albuquerque “ha[s] an issue with
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traffic safety” generally and that, in the abstract, the City has “a legitimate
interest in protecting pedestrians and motorists from the hazards incident to
vehicular traffic.” Aplees.’ Resp. Br. at 5–6.
But while the City’s “interest in public safety is clearly significant,” it is
“not enough for the City to use broad safety justifications” to establish the
Ordinance’s necessity. McCraw, 973 F.3d at 1071 n.10. Rather, for our
assessment of “whether [the Ordinance] is an appropriate ‘fit’ to some important
government interest,” the City must “specifically define[]” that interest, lest our
narrow tailoring analysis “more closely resemble[] the ‘reasonably necessary’
standard used in reviewing restrictions on speech” in nonpublic fora. Citizens for
Peace in Space, 477 F.3d at 1223; see McCraw, 973 F.3d at 1071 n.10 (noting
that this specificity requirement is “critical to prevent restrictions on speech
designed to advance other interests that would not on their own justify the burden
on expression”); see also supra note 15.
Thus, “the burden falls on the City to show that its ‘recited harms,’”
specifically defined, “are real . . . and that the [Ordinance] will in fact alleviate
the[m] . . . in a direct and material way”—and if the City is unable to demonstrate
that the Ordinance provides more than “ineffective or remote support for [the
City’s stated] purpose,” or “sufficiently serve[s] those public interests” in a
“direct and effective [i.e., material] way,” then we are constrained to conclude
that the Ordinance is not narrowly tailored and, consequently, contravenes the
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First Amendment. Citizens for Peace in Space, 477 F.3d at 1220–21 (first
omission in original) (first quoting Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622,
664 (1994); then quoting Edenfield, 507 U.S. at 770; then quoting Grace, 461
U.S. at 181; and then quoting Edenfield, 507 U.S. at 773).
Independently examining the record before us under “our special standard
of de novo review,” we find little evidence of non-speculative harms or interests
that the Ordinance’s restrictions alleviate in a direct and material way. McCraw,
973 F.3d at 1071 (quoting Citizens for Peace in Space, 477 F.3d at 1219–20).
Broadly speaking, the City relies on three categories of evidence to argue that the
Ordinance materially alleviates significant traffic safety problems in
Albuquerque:
• the opinions of Melissa Lozoya, P.E., a “registered
Professional Civil Engineer” and Deputy Director of the
City’s Department of Municipal Development, whom the
City disclosed as its F ED . R. Civ. P. 26(a)(2)(C) expert to
testify regarding general traffic engineering and roadway
design principles, see Aplt.’s App., Vol. I, at 217 (City of
Albuquerque Expert Disclosure, dated Feb. 11, 2019)
(disclosing Ms. Lozoya and averring that she may “testify
regarding roadway design considerations that aim to
minimize pedestrian-vehicle conflicts and how [the]
Ordinance . . . specifically furthers that goal”); see id.,Vol. IV, at 1128 (Tr. Melissa Lozoya Dep., dated Mar. 18,
2019) (Ms. Lozoya testifying that she authored the
disclosure herself);
• a series of accident reports the City produced in response
to Plaintiffs’ discovery requests in district court, see
Aplt.’s Opening Br. at 40–41 (discussing “police reports
that provided examples of pedestrians being harmed by
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vehicles while standing on medians and of vehicles driving
onto medians,” along with “evidence of unsafe situations,
including collisions, resulting from physical interactions
between pedestrians and motorists in travel lanes”); and
• general statistical information, primarily compiled in the
Ordinance’s preamble, along with anecdotes from city
councilors, police officers, and constituents, see Aplt.’s
Opening Br. at 41.
None of this evidence, however, points to significant safety problems
arising from pedestrian presence near ramps or on medians, or from exchanges
between pedestrians and vehicle occupants—and, further, those safety problems
to which the evidence does point are not likely to be ameliorated by the relevant
subsections of the Ordinance. Thus, the City does not meet its burden of showing
either that its recited harms relating to pedestrian presence nears ramps and on
medians or pedestrian exchanges with vehicle occupants are real and non-
speculative, or that the Ordinance alleviates these or any other harms invoked by
the City in a direct and material way. Cf. McCraw, 973 F.3d at 1073–74 (noting
that Oklahoma City’s failure to “present[] . . . evidence of concrete harm arising
from the presence of pedestrians on its medians” infected “our analysis of both
the ‘ends’ and the ‘means’” chosen by the city).
i
To start, arguably the central piece of evidence in the City’s narrow
tailoring argument is expert testimony offered by Ms. Lozoya. See Aplt.’s
Opening Br. at 12–17, 39–40 (contending that “the City’s safety rationale”
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undergirding the Ordinance “is rooted in roadway design and traffic engineering
concepts that call for separating pedestrian and motor vehicle traffic,” and
describing Ms. Lozoya’s expert opinions on such concepts in detail); see also
generally Aplt.’s App., Vol. IV, at 1013–24 (City of Albuquerque’s Resp. to Pls.’
Mot. for Summ. J., filed May 10, 2019). The City presented Ms. Lozoya to
testify about how the Ordinance “specifically furthers” the goal of “minimiz[ing]
pedestrian-vehicle conflicts.” Aplt.’s App., Vol. I, at 217 (City of Albuquerque’s
Expert Disclosure, filed Feb. 11, 2019). In particular, Ms. Lozoya averred in her
expert disclosure that she would offer the following opinions at trial:
• “roadways are designed in an effort to minimize conflicts
or interaction between vehicles, pedestrians, and
bicyclists,” such that “various users” of the roadways “are
to remain within their designated zone”
and—crucially—“pedestrian[s] and motor vehicles should
not interact or share space within the roadway corridor”;
• regarding subsection (C)’s median regulation, “medians in
the City of Albuquerque generally are not designed to
accommodate pedestrians for any purpose, whether it is to
cross the street or to remain on the median for an extended
time”; medians “that are designed to accommodate
pedestrians” should be at least six feet wide, and
preferably eight to ten feet wide, to “provide a comfortable
and safer space for pedestrians . . . to wait for gaps in
traffic”—but even medians at least six feet in width “are
not designed to accommodate pedestrians . . . for long
periods of time; and “medians that are off limits to
pedestrians” under the Ordinance “are not designed to
accommodate pedestrians” at all;
• regarding subsection (B)’s ramp regulation, the
Ordinance’s prohibition “against standing or congregating
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on or near . . . the entrance or exit ramps of . . .
[high-speed] roadways furthers the goal of avoiding
dangerous pedestrian-vehicle conflicts”; and
• regarding subsection (D) and (E)’s exchange regulation,
the Ordinance’s prohibitions “against physical exchanges
between pedestrians and vehicle occupants in a travel lane
further[] the goal of avoiding dangerous pedestrian-vehicle
conflicts,” and “[a]llowing such physical exchanges to
occur in travel lanes . . . would be contrary to the goal of
minimizing [such] conflicts because it encourages
pedestrians to leave the areas that are designed for
pedestrian use and to venture into areas that are not.”
Id. at 218–21.
In forming her opinions, Ms. Lozoya relied on “several nationally-accepted
roadway design manuals and guidelines,” such as guidelines from the National
Association of City Transportation Officials (“NACTO”). Aplt.’s Opening Br. at
13–14; see Aplt.’s App., Vol. III, at 718–19 (Tr. Melissa Lozoya Dep., dated Mar.
18, 2019). The City cites her opinions as support for the ultimate goal it hopes to
achieve through the Ordinance: “minimiz[ing], [or] pretty much eliminat[ing],
conflicts between pedestrians and vehicles.” Aplt.’s Opening Br. at 16 (quoting
Aplt.’s App., Vol. IV, at 1130 (Tr. Melissa Lozoya Dep., dated Mar. 18, 2019));
see also Aplt.’s Reply Br. at 8 (“The Ordinance seeks to reduce
pedestrian-vehicle conflicts by focusing on roadway design and traffic
engineering concepts that call for separating pedestrian and motor vehicle traffic
into areas designed for those modes of travel.”).
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But while the City frames much of its narrow tailoring argument around
Ms. Lozoya’s opinions, these opinions lend minimal support to the notion that the
Ordinance does not burden substantially more speech than necessary, or that it
alleviates non-speculative harms in a direct and material way. Crucially, Ms.
Lozoya’s opinions are theoretical, and largely unmoored from any on-the-ground
data regarding Albuquerque’s traffic safety problems. Notably, the City concedes
that Ms. Lozoya’s opinions are based on her “engineering experience” and
“roadway design manuals and guidelines”—but not, for example, on the accident
reports the City proffered in support of the Ordinance. Aplt.’s Opening Br. at 13,
17. And Ms. Lozoya herself confirmed during her deposition that she relied on
little, if any, data in formulating her opinions. See Aplt.’s App., Vol. II, at 325
(Tr. Melissa Lozoya Dep., dated Mar. 18, 2019) (Counsel: “So is it safe to say
you didn’t review any collision reports in order to come to the conclusions in
your Expert Disclosure . . .?” Ms. Lozoya: “Correct.”); id., Vol. III, at 590 (Tr.
Melissa Lozoya Dep., dated Mar. 18, 2019) (Counsel: “Did you rely on any
specific collision data from the City of Albuquerque to come to [your]
conclusion[s]?” Ms. Lozoya: “I did not.”).
Indeed, when asked whether she could point to any connections between
accidents in Albuquerque and the conduct proscribed by subsections (B) through
(E) of the Ordinance, Ms. Lozoya answered in the negative:
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[Counsel]: And can you point to any links between
Albuquerque’s high rate of accidents and people occupying
medians? . . .
[Ms. Lozoya]: I can’t.
[Counsel]: Can you point to any links between Albuquerque’s
high rate of accidents and people standing on on- and off-ramps?
...
[Ms. Lozoya]: I can’t.
[Counsel]: And can you point to any links between
Albuquerque’s . . . high rates of accidents between pedestrians
and vehicles to physical exchanges between vehicle occupants
and people in the travel lane? . . .
[Ms. Lozoya]: I have no information to base anything on.
Id., Vol. III, at 592; see also id., Vol. IV, at 854 (Tr. Melissa Lozoya Dep., dated
Mar. 18, 2019) (indicating that Ms. Lozoya was not aware of “accidents that have
occurred on medians because of somebody standing or sitting or just being on a
median” or “accidents that have occurred because somebody is standing or sitting
or being on a [freeway] on- or off-ramp”).
As Plaintiffs’ rebuttal expert, Dr. Ragland, noted in his report, while Ms.
Lozoya’s statements “contain[] high-level, theoretical opinions about roadway
design and vehicle/pedestrian facility design generally,” they “do[] not address . .
. actual data reflecting vehicle-pedestrian conflicts in Albuquerque” and,
therefore, only marginally bolster the City’s claim that the Ordinance is necessary
to address pedestrian safety concerns. Id., Vol. I, at 228 (Expert Report of Dr.
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David Ragland, dated Mar. 4, 2019). Thus, while Ms. Lozoya’s opinions could
conceivably aid Albuquerque’s city council as it considered and crafted
ordinances addressing traffic safety issues generally, they shed little light on the
central inquiry of our narrow tailoring analysis in these circumstances: whether
the Ordinance alleviates real, non-speculative harms in a direct and material way,
and avoids burdening substantially more speech than necessary in doing so?
Indeed, we conclude that Ms. Lozoya’s testimony exposes, rather than
bolsters, the lack of tailoring at the heart of the Ordinance. That is, Ms. Lozoya’s
exposition on general design guidelines—which she admits is not informed by
empirical data—does nothing to indicate whether the Ordinance is aimed at real
and non-speculative harms—relating to pedestrian presence near ramps or on
medians, or pedestrian interactions with vehicle occupants in travel lanes—or
whether the Ordinance alleviates such harms in a direct and material way. Yet
Ms. Lozoya nonetheless recommends wide-ranging bans on pedestrian usage of
entire categories of traditional public fora, predicated solely on theoretical safety
concerns.
This “ends justify the means”-style thinking, decoupled from an accurate
picture of the extant pedestrian safety problems the City actually faces—is
anathema to the narrow tailoring required here, and resembles efficiency and
ease-of-application arguments that the Supreme Court, and this court, have
rejected before. Cf. e.g., McCullen, 573 U.S. at 495 (noting that “the prime
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objective of the First Amendment is not efficiency,” and that, “[t]o meet the
requirement of narrow tailoring, the government must demonstrate that alternative
measures that burden substantially less speech would fail to achieve the
government’s interests, not simply that the chosen route is easier”); McCraw, 973
F.3d at 1077–78 (concluding that Oklahoma City’s median ordinance was “not
narrowly tailored to the problem it purport[ed] to address,” and therefore
“sacrificed [speech] for efficiency,” by “tak[ing] ‘the extreme step of closing a
substantial portion of a traditional public forum to all speakers . . . without
seriously addressing the problem through alternatives that leave the forum open
for its time-honored purposes,” which was a course of conduct that the city could
not pursue “consistent with the First Amendment” (omission in original) (first
quoting Evans, 944 F.3d at 856; and then quoting McCullen, 573 U.S. at 497)).
Thus, Ms. Lozoya’s generic and theoretical opinions do not aid the City’s cause.
Indeed, in relying so heavily on Ms. Lozoya’s abstract opinions concerning
roadway design principles to assert that the Ordinance is narrowly tailored, the
City sometimes verges on arguing—inadvertently or otherwise—that the areas
regulated by the Ordinance are not public fora. That is, the City claims the
Ordinance displays a permissible “fit between means and ends” because it “only
targets pedestrian use of roadway features (such as travel lanes, freeway ramps
and certain portions of medians) that put[] pedestrians in unsafe proximity to
vehicle traffic,” while leaving open to pedestrian use “other roadway features.”
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Aplt.’s Reply Br. at 8–9; see also Aplt.’s Opening Br. at 41 (arguing the
Ordinance is narrowly tailored because its scope is “limited . . . to only those
locations that are not designed to accommodate pedestrians and for which there is
objective evidence of safety concerns”). 16 In other words, in highlighting Ms.
16
In other words, while couched in terms of “narrow tailoring,” the
City’s invocation of Ms. Lozoya’s opinions bears more directly on the
antecedent—but uncontested—question of whether the areas regulated by the
Ordinance are themselves public fora—that is, areas that, by their very character,
are amenable to hosting expressive conduct. As the City states, it aims to
proscribe, not simply regulate or restrict, pedestrian presence in these areas
because they are inherently dangerous—i.e., they are not designed to
accommodate pedestrians for any sustained period. See Aplt.’s Opening Br. at
1–2 (asserting that the Ordinance “furthers” the City’s goals of “promot[ing]
public safety” by “prohibiting . . . . pedestrians from standing in areas of
roadways that are not designed to accommodate pedestrians and which pose a
safety risk” and “prohibit[ing] . . . physical interactions between pedestrians and
vehicle occupants when the vehicle is in a travel lane” (emphases added)); cf.
Aplt.’s App., Vol. IV, at 1128 (Tr. Melissa Lozoya Dep., dated Mar. 18, 2019)
(Ms. Lozoya opining that “medians should never be a place where people stand or
sit” for longer than “[o]ne cycle length of a traffic signal”—and, even for that
length, it would only be “reasonable or safe for people to be in medians” if they
are “designed to accommodate someone standing there”). But this would seem to
conflict with the very notion that these areas are traditional public fora—i.e.,
“places that by long tradition have been open to public assembly and debate,”
Verlo, 820 F.3d at 1129, and that the City has “immemorially . . . held in trust”
for the public to use for such expressive purposes, McCullen, 573 U.S. at 476
(quoting Summum, 555 U.S. at 469). Cf. Cutting v. City of Portland, 802 F.3d 79,
91 (1st Cir. 2015) (rejecting a city’s claim “that it [was] obvious that all medians
are unsafe” where the city “d[id] not contest that [its] median strips, as a group,
are traditional public fora” and, thus, the city’s “medians would seem to be—as a
class—presumptively fit for the very activities that the [c]ity now contend[ed] are
obviously dangerous”).
Indeed, Appellees raise a similar point, claiming that, under its narrow
tailoring argument, as viewed through the lens of Ms. Lozoya’s design guidelines
testimony, the City could “convert . . . paradigmatic public spaces into nonpublic
(continued...)
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Lozoya’s opinions, the City appears to argue that the Ordinance is narrowly
tailored because “the specific areas” that it “cordon[s] off . . . are inherently
dangerous locations for pedestrians—so dangerous in fact that restrictions on
pedestrian presence and pedestrian activity are necessary to reduce and prevent
the occurrence of injurious vehicle-pedestrian conflicts.” Aplt.’s App., Vol. I, at
230.
However, the City has given up the right on appeal to make this argument.
As noted, the City has not challenged on appeal the district court’s determination
that the areas at issue here are traditional public fora. And, having effectively
agreed that these areas have this First Amendment status, the City “may not by its
own ipse dixit destroy the . . . status.” U.S. Postal Serv. v. Council of
Greenburgh Civic Ass’ns, 453 U.S. 114, 133 (1981); see First Unitarian Church,
16
(...continued)
fora through its design and landscaping choices,” which would “flip[] the
narrow-tailoring inquiry on its head.” Aplees.’ Resp. Br. at 33–34; see id. at 3
(“Taken to their logical conclusion, the City’s arguments would effectively allow
the government to eliminate streets as traditional public fora simply by stating a
subjective preference for vehicular traffic over speech by pedestrians.”); see also
Oral Arg. at 16:57–17:37 (conceding that, while it is not “mounting a forum
analysis challenge” on appeal, “as it did in the district court,” the City, “by
invoking the[] design guidelines [relied on by Ms. Lozoya],” is “essentially”
arguing that it can “altogether prohibit pedestrians from being in” “particular
part[s] of the roadway,” even if it “know[s]” and does not contest that such parts
are “traditional public for[a],” so long as those parts are “not designed for
pedestrians to stand in or . . . use [for] . . . physical exchanges”—and that the
“impact” of this argument would be “essentially the same as allowing the City to
de-designate a traditional public forum by government fiat”).
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308 F.3d at 1124 (“The government cannot simply declare the First Amendment
status of property regardless of its nature and its public use.”); cf. Grace, 461
U.S. at 180 (recognizing that the government may not “transform the character of
the property by the expedient of including it within the statutory definition of
what might be considered a non-public forum parcel of property”); McCraw, 973
F.3d at 1069 (concluding that, “[b]ecause the proximity, speed, and volume of
passing cars does not deprive streets of their status as public fora, they similarly
fail to strip medians of that status”).
ii
Beyond Ms. Lozoya’s expert opinions, the City cites, as “concrete evidence
demonstrating the danger of standing in areas that are prohibited under the
Ordinance,” a series of accident reports it produced in response to Plaintiffs’
discovery requests in the district court. Aplt.’s Opening Br. at 40–41 (discussing
“police reports that provided examples of pedestrians being harmed by vehicles
while standing on medians and of vehicles driving onto medians,” along with
“evidence of unsafe situations, including collisions, resulting from physical
interactions between pedestrians and motorists in travel lanes”); see also Aplt.’s
App., Vol. I, at 227–28 (describing these accident reports as spanning a
“four-plus-year timeframe” and as proffered in response to Plaintiffs’ request for
all documents relating to safety concerns the City considered when it adopted the
Ordinance and pedestrian injuries caused by vehicle conflicts since 2014).
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The City admits that it did not rely on these reports during the drafting of
the Ordinance—and, more broadly, that it undertook little, if any, empirical or
data-driven research prior to the Ordinance’s passage. See, e.g., Aplt.’s App.,
Vol. III, at 582–83 (City of Albuquerque’s Objs. & Resps. to Pls.’ First Set of
Reqs. for Admission, dated March 15, 2019) (admitting that the city council “did
not examine” the accident reports produced to support the City’s safety
justification for the Ordinance, while contending the City “did examine events,
facts, and circumstances analogous to those [accident reports],” including
“personal accounts of pedestrian-vehicle collisions and/or near collisions from
constituents, observations of safety concerns relating to pedestrian-vehicle
conflicts by Albuquerque Police Department staff and by City Councilors
themselves”); id. at 583–84 (admitting that the City did not “commission” studies
examining ramp-, median-, or exchange-related safety hazards prior to the
Ordinance’s passage, but instead relied on “constituent concerns, independent
observations of safety concerns relating to pedestrian-vehicle conflicts by
Albuquerque Police Department staff, and by City Councilors themselves”).
Nonetheless, the City avers these reports evince troubling public safety concerns
that the Ordinance addresses.
But as the Plaintiffs’ expert, Dr. David Ragland, explained in his expert
report, the accident reports—to the contrary— actually rebut any inference of
narrow tailoring and reveal that the Ordinance broadly restricts speech rights in
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Albuquerque’s public fora in service of alleviating largely non-existent,
speculative harms. See Aplt.’s App., Vol. I, at 228 (Dr. Ragland concluding that
the “actual data”—as represented by the accident reports—“d[id] not support the
City’s position . . . that the challenged Ordinance is a needed public-safety
measure”); id. at 229 (concluding that “[t]he median, ramp, and
physical-interaction prohibitions in the Ordinance would therefore . . . likely . . .
have a minimal impact on the overall vehicle-pedestrian conflicts identified in the
[accident reports]”).
In reaching his ultimate conclusions, Dr. Ragland reviewed and organized
the 900 accident reports provided by the City, concluding that 606 of the 900
were “unique (i.e., non-duplicate) reports” and that “only 401” of the 900
“included some level of pedestrian involvement.” Id. at 231. Dr. Ragland
“coded” these 401 pedestrian-involved reports “for multiple variables, such as
lighting conditions, pedestrian injury, vehicle-occupant injury, relationship to an
activity prohibited by the Ordinance, and contributing factors identified by the
reporting officer in the Collision Reports (such as ‘Driver Inattention[,]’
‘Alcohol[,]’ and ‘Pedestrian Error’).” Id.
Dr. Ragland’s analysis of the data revealed that “[o]ver 50% (203 of 401)”
of the relevant accident reports “involved a vehicle colliding with a pedestrian
who was making a lawful street crossing (such as walking in a crosswalk, or
walking with the traffic light, for example)”—i.e., “proper pedestrian behavior”
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that is not proscribed by the Ordinance. Id. at 232 (emphasis omitted).
Moreover, roughly “43% (173 of 401) of the reports involved pedestrians who
engaged in conduct—such as jaywalking or darting into the road—not addressed
by the Ordinance’s median restrictions, ramp restrictions, or prohibitions on
physical interactions/exchanges between pedestrians and vehicle occupants”—i.e.,
conduct that, while unlawful, does not fall within the Ordinance’s ambit. Id.
Thus, “[o]nly approximately 6% (25 of 401) of” the accident reports related
to “behavior specific to the median, ramp, and physical interaction restrictions in
the Ordinance”—or, stated differently, “nearly 94% (376 of 401)” of the relevant
reports “involved [either] lawful behaviors or behaviors that the Ordinance’s
median restrictions, ramp restrictions, and physical-exchange restrictions do not
address.” Id. at 233 (emphasis added); see also id. at 233 & nn.16–17 (explaining
that accident reports involving pedestrian presence near highway ramps did not
indicate whether the pedestrian was within six feet of the ramp, and that accident
reports involving pedestrian presence on medians did not indicate the width,
location, or landscaping status of the particular median, such that Dr. Ragland’s
categorization of the 25 accident reports as involving pedestrian conduct
proscribed by the Ordinance “may be over-inclusive, and include pedestrians that
are in locations that the City itself may deem suitable for pedestrians under”
subsections (B) and (C) of the Ordinance).
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Additionally, Dr. Ragland’s “further analysis of these 25 reports indicate[d]
that most of the[m] . . . involve[d] circumstances such as substance abuse, mental
illness, or driver error, and many did not involve conduct that would violate”
subsections (B) through (E) of the Ordinance. Id.; see also id. at 233–35
(summarizing the scenarios described in each accident report, which included,
inter alia, (1) “[a] vehicle driver who reported being shot at by the driver of
another vehicle”; (2) “[a] pedestrian who was struck by a vehicle” during a
potential domestic dispute; (3) a pedestrian who ran into an intersection
screaming and jumped onto a vehicle; and (4) various instances of intoxicated,
mentally ill, or simply disoriented pedestrians who sustained injuries from
stepping into oncoming traffic). In Dr. Ragland’s estimate, “only four (4)
[accident reports] clearly involved someone standing on a median or ramp, not
otherwise likely violating an existing law”—and none “involved
fatalities”—indicating an “extraordinary low accident rate” given the “likely
hundreds of millions of instances of vehicles driving by persons in these
locations” over the timeframe of the reports. Id. at 236.
The reports also indicated the rate of pedestrian injuries and fatalities was
quite low: “28% (112 of 401)” of the relevant reports involved “no pedestrian
injury,” while “23% (94 of 401) exhibited the lowest injury rating, complaint of
pain,” such that “over 51% (206 of 401) of the vehicle-pedestrian conflicts
identified by the City [in the reports] resulted in either no or minor pedestrian
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injury.” Id. (emphasis omitted). Of the 401 relevant accident reports, “fewer
than 4% (15 of 401)” involved a pedestrian fatality—and a “further analysis of
these 15 reports indicate[d] that most of these [fatality] incidents involved
pedestrians who attempted to make illegal road crossings (such as jaywalking,
crossing against the light, etc.).” Id.; see also id. at 236–37 (explaining that the
reports “include[d] pedestrians who were struck by vehicles” when, inter alia,
“jaywalking”; walking “against the light”; or walking outside the crosswalk).
And injuries to vehicle occupants were even less common: more than 85% of the
401 relevant accident reports involved no vehicle occupant injury, 7.5% involved
only minor injuries, and less than 3% of reports (11 of 401) “involved more
significant injuries (with no reported fatalities).” Id. at 237–38. Viewed
alongside Dr. Ragland’s expert analysis, then, the accident reports do not
support—and, indeed, rebut—the City’s position that “the Ordinance is needed in
order to reduce the incidence of vehicle-pedestrian conflicts.” Id. at 230.
The City, for its part, pushes back on this conclusion—but only weakly so.
See, e.g., Aplt.’s Opening Br. at 18 & n.76, 19–22 (generically complaining about
district court’s denial of its motion to exclude Dr. Ragland as untimely disclosed
without adequately challenging this denial on appeal, as well as noting that Dr.
Ragland often agreed with Ms. Lozoya’s opinions concerning theoretical traffic
safety guidelines). Specifically, the City’s most substantive objection is that the
district court improperly resolved disputed inferences from Dr. Ragland’s analysis
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in Plaintiffs’ favor. See, e.g., Aplt.’s Reply Br. at 29–30 (“emphatically
disput[ing] the accuracy of Dr. Ragland’s report” based on, inter alia, the limited
number of accident reports produced, the fact that the reports that were produced
“could not possibly include every accident or near-accident involving pedestrians
engaging in the conduct limited by the Ordinance,” and Dr. Ragland’s
“acknowledg[ment] that it was possible that his team missed accident reports that
included conduct that was prohibited by the Ordinance”). We, of course, review
the record de novo, so even if the district court had improperly resolved disputed
facts or factual inferences—and we offer no opinion on this matter—that would
not invariably require remand, much less reversal outright. See supra note 11.
More particularly, the City’s attempt to cast doubt on Dr. Ragland’s
conclusions based on the data it produced to support the Ordinance is
unconvincing. If the City has further “concrete data” supporting the necessity of
the Ordinance’s restrictions, then it should have presented that data to the district
court. The City, not Plaintiffs, bears the burden of establishing the relevant
provisions of the Ordinance are narrowly tailored, and it cannot bear that burden
by positing, on the one hand, that its own evidence is too incomplete or unreliable
to allow for reliable analysis, yet on the other hand, that the evidence is robust
enough to carry its legal burden. Cf. Aplt.’s App., Vol. V, at 1268–72 (Pls.’ Br.
Regarding the Rebuttal Expert Report of Dr. David Ragland, filed June 7, 2019)
(arguing that the “City’s criticism of its own data set and data collection,” along
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with its “speculation” about “additional data regarding ‘close calls’” that “may
not even exist” provides “no reason to doubt the reliability of Dr. Ragland’s
opinions, or to think that the Ordinance passes constitutional muster,” especially
given “that the City has the burden of showing that the law is . . . narrowly
tailored to . . . addressing a significant . . . government interest”); cf. also Doe,
667 F.3d at 1133–34 (holding that a city failed to show its ban on registered sex
offenders in public libraries was narrowly tailored where the city “did not present
any evidence” and “provided nothing in the record” showing such tailoring).
Stated otherwise, the City cannot render these accident reports more probative of
real harms arising from pedestrian presence in the areas that the Ordinance covers
through sheer speculation—especially concerning the quality or completeness of
the evidence that it itself produced. And, more generally, these reports do not aid
the City’s efforts to show that the Ordinance’s restrictions are adequately tailored
to advance real and non-speculative government interests.
iii
Lastly, the City cites general statistical information, primarily compiled in
the Ordinance’s preamble, along with anecdotes from city councilors, police
officers, and constituents, as evincing both the existence of real or anticipated
harms arising from pedestrian presence in the areas addressed by the Ordinance
and the concomitant need for the Ordinance’s restrictions to remedy those harms.
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See Aplt.’s Opening Br. at 41. But these statistics and anecdotes are simply too
generic or isolated to offer support for the notion that the Ordinance “serve[s] a
substantial state interest in a direct and effective way” and, more specifically, that
the City’s “recited harms are real,” or “that the [Ordinance] will in fact alleviate”
any identified interests or harms “in a direct and material way.” Citizens for
Peace in Space, 477 F.3d at 1220–21 (first alteration in original) (first quoting
Edenfield, 507 U.S. at 773; and then quoting Turner, 512 U.S. at 664).
(A)
The Ordinance’s preamble recites a variety of general traffic statistics the
City contends justify the Ordinance’s restrictions. See Aplt.’s App., Vol. I, at
81–83. Among other things, these statistics indicate that, nationally, “more than
4,000 pedestrians die and 70,000 get injured by encounters with vehicle traffic
annually,” and that Albuquerque, and New Mexico more generally, have
particularly extreme rates of pedestrian fatalities. Id. at 81. More specifically,
the preamble references a University of New Mexico Study commissioned by the
City in 2015 “to study the occurrences and possible causes of pedestrian and
bicyclist involved crashes in Albuquerque.” Id.; see generally id., Vol. I, at
88–158 (Pedestrian & Bicycle-Involved Crash Analysis & Safety Performance
Enhancement at High-Traffic Intersections (“UNM Study”), dated Jan. 2016).
The Study, according to the preamble, “revealed that among the 10 intersections
in the City with the highest number of pedestrian injuries and fatalities,
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pedestrian error and driver inattention were frequently among the top contributing
factors”—and that, at those intersections, the Study identifies as a “contributing
factor” the “existence of pedestrians entering traffic outside of crosswalks for
such purposes as interacting with motorists to solicit donations.” Id. at 82; see
also id. (reciting, generally, that interactions between pedestrians on medians and
motorists “foster scenarios for greater driver distraction and pedestrian-vehicle
conflicts”). The preamble goes on to state that, “absent special safety
accommodations specifically for pedestrians such as pedestrian refuges, roadway
medians are not designed for use by pedestrians”; moreover, national guidelines
“recommend a minimum median width of 6 feet,” with a preference for a width of
8-to-10 feet, for medians “contemplated to accommodate a pedestrian-refuge from
traffic.” Id. at 82–83; see also id. at 83 (listing “potential physical, capital
improvements” that the UNM Study recommends to “help improve intersection
safety”).
These statistics are of limited value, however. Broadly speaking, the injury
and fatality numbers recited in the preamble, on their face, do not specify how
many of these injuries or deaths—if any—were related to pedestrian presence
near ramps or on medians, or to exchanges between pedestrians and vehicle
occupants in Albuquerque. Nor has the City included evidence in the record
further elucidating such generic numbers.
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Quite the contrary, in fact: various portions of the record—such as the
deposition testimony of one-time city council president Ken Sanchez, excerpted
below—suggest a lack of understanding by at least some of the city councilors as
to whether the statistics bore on traffic and safety problems in Albuquerque
related to ramps, medians, and physical exchanges:
[Counsel]: Did you personally review any studies by the National
Highway Traffic Safety Administration in considering this
ordinance?
[Mr. Sanchez]: No. . . .
[Counsel]: Do you know what percentage of [the] 4,000
pedestrian fatalities [referenced in the Ordinance’s preamble]
relate to pedestrians standing in medians?
[Mr. Sanchez]: No.
[Counsel]: Do you know what percentage of those 4,000 fatalities
relate to pedestrian interactions with vehicles from roadsides?
[Mr. Sanchez]: No.
[Counsel]: Do you know what percentage . . . of the 70,000
injuries [referenced in the Ordinance’s preamble] relate to
pedestrians standing in medians?
[Mr. Sanchez]: No.
[Counsel]: Do you know what percentage of the 70,000 injuries
relate to pedestrians interacting with vehicles from roadsides?
[Mr. Sanchez]: No. . . .
[Counsel]: Do you know what percentage of [New Mexico’s
pedestrian] fatalities relate to pedestrians standing in medians?
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[Mr. Sanchez]: No.
[Counsel]: Do you know what percentage of those fatalities relate
to pedestrians interacting with vehicles from roadsides?
[Mr. Sanchez]: No. . . .
[Counsel]: And with respect to [the] data [relating to
Albuquerque’s pedestrian fatalities], do you know what
percentage of those fatalities relate to pedestrians standing in
medians?
[Mr. Sanchez]: No.
[Counsel]: Do you know what percentage of those fatalities relate
to pedestrians interacting with vehicle occupants from a
roadside?
[Mr. Sanchez]: No.
Id., Vol. II, at 414 (Tr. Ken Sanchez Dep., dated Sept. 12, 2018); see also id. at
415–16.
Indeed, the UNM Study, which was “one of the [City’s] principal bases of
evidentiary support” for the Ordinance, id., Vol. II, at 441 (Tr. Chris Melendrez
Dep., dated Jan. 30, 2019), is largely beside the point, as it includes virtually no
data relevant to subsection (B) through (E)’s restrictions, see Aplees.’ Resp. Br.
at 29, 32, 39–40 (asserting that (1) regarding subsection (B), “[t]he UNM Study .
. . did not analyze highway exit or entrance ramps at all”; (2) regarding
subsection (C), “[t]he UNM Study . . . did not identify a single accident involving
a pedestrian simply standing on a median”; and (3) regarding subsections (D) &
(E), “the UNM Study does not identify a single accident or injury caused by
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physical exchanges between pedestrians and motorists”—and, what’s more, “the
only physical interaction the Study affirmatively identifies as a factor
contributing to crashes—‘catching a connected bus’—is expressly exempt from
the Ordinance’s prohibitions” (quoting Aplt.’s App., Vol. III, at 640–41)); see
also Aplt.’s App., Vol. III, at 583 (City: admitting that “none of the ten
intersections identified in” the UNM Study are located at a highway exit or
entrance ramp, as described in subsection (B) of the Ordinance); id., Vol. II, at
438 (the City’s Rule 30(b)(6) deponent testifying that (1) none of the intersections
discussed in the UNM Study are “located at an entrance or exit ramp”; (2) the
Study does not “mention entrance or exit ramps even once”; (3) the Study does
not “report any examples of people standing on medians being hit by vehicles”;
and (4) the Study does not “talk about people on on-ramps being hit by any
vehicles”); cf. id., Vol. III, at 640–41, 643–45 (UNM Study) (discussing
pedestrian solicitation of donations from motorists in the context of roadway
accidents, but failing to specify whether this solicitation involved the “physical
exchanges” proscribed by subsections (D) and (E) of the Ordinance and,
furthermore, opining that such accidents could be reduced not by banning all such
exchanges or solicitation attempts, but rather by, inter alia, increasing crosswalk
times, installing median barriers, and strategically placing warning signs).
The statistical evidence the City relies on, then, is not sufficiently
particularized to the interests the City claims the Ordinance directly addresses,
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and, therefore, does little to show that the Ordinance—as a means of addressing
those interests—is narrowly tailored.
(B)
The City’s anecdotal evidence fares no better. As with the statistical
evidence discussed above, the anecdotes the City cites either are too generic to
support the Ordinance’s restrictions, or involve incidents where the nexus
between the injuries described and the conduct that the Ordinance proscribes is
simply too tenuous to bolster any conclusion that the City narrowly tailored the
Ordinance to address real, non-speculative harms or to alleviate such harms in a
direct and material way. See Aplt.’s Opening Br. at 41 (claiming that the City, in
“enacting the Ordinance, . . . relied on . . . the observations of the Albuquerque
Police Department and its officers’ safety concerns for pedestrians standing on
medians and for unsafe pedestrian-vehicle interactions” and “City Councilors’ and
their constituents’ own observations and experiences regarding pedestrian safety
in these areas,” but citing in support of this claim only two excerpts from the
deposition of the City’s Senior Policy Analyst, Chris Melendrez); Aplt.’s App.,
Vol. IV, at 1107–13 (Tr. Chris Melendrez Dep., dated Jan. 30, 2019) (generically
discussing traffic safety issues in Albuquerque; relating vague, second-hand
accounts of pedestrian-vehicle conflicts; or recounting others’ descriptions of
incidents involving pedestrians “r[unning] in front of . . . car[s]”); see also id.,
Vol. II, at 400 (Tr. Trudy Jones Dep., dated Jan. 31, 2019) (testifying that she did
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not need empirical data to demonstrate the necessity of the Ordinance because she
felt it was adequately justified by “good common sense”).
Indeed, in many respects the situations described by the anecdotes are
largely divorced from the central thrust of the Ordinance—which is to ameliorate
the purported harms caused by pedestrian presence near ramps and on medians, or
pedestrian involvement in physical exchanges with vehicle occupants. Cf.
Aplees.’ Resp. Br. at 33 (arguing, with regard to subsection (C), that “[t]he City’s
anecdotal evidence . . . focuse[s] on conduct entirely outside the scope of” the
median regulation or lacks the requisite modicum of detail to adequately support
the necessity of this regulation); Aplt.’s App., Vol. II, at 402 (Tr. Trudy Jones
Dep., dated Jan. 31, 2019) (city councilor, Trudy Jones, initially claiming,
generally, that she had seen “[d]ozens” of pedestrians fall off medians but, when
pressed for details, being able to describe only one, six-month-old incident
involving an individual crossing the street and tripping when he reached the
median, while additionally testifying that she could not recall any panhandlers
standing on medians who had fallen off); id. at 415 (Tr. Ken Sanchez Dep., dated
Sept. 12, 2018) (when asked what “personal experiences . . . inform[ed his] view
that pedestrians . . . within . . . street medians can distract drivers,” describing an
“occurrence” relating to solicitation of donations where an individual “on the
sidewalk . . . picked up [a] bat” and damaged a vehicle near him).
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Thus, as with its statistical evidence, the City’s anecdotal evidence simply
misses the mark. While these statistics and anecdotes—like the accident reports
and Ms. Lozoya’s opinions discussed above—might be relevant factors in an
overarching policymaking process by Albuquerque’s city council, they have little
bearing, in this case, on the question of whether the Ordinance is narrowly
tailored to achieving significant government interests that are real and not
speculative.
b
In light of the paucity of evidence proffered by the City showing that “the
harms or the remedial effects of” the Ordinance “are supported” by more than
“speculation [and] conjecture,” the Ordinance’s breadth merely reinforces our
ultimate conclusion that the Ordinance “burdens substantially more speech than is
necessary to further [the City’s] legitimate interests” and is, therefore, not
narrowly tailored. McCraw, 973 F.3d at 1071; see id. at 1073–74 (noting that,
“[f]or a regulation to be narrowly tailored, it must not only promote ‘a substantial
government interest,’ but that interest must ‘be achieved less effectively absent
the regulation, and . . . not burden substantially more speech than is necessary to
further the government’s legitimate interests,’” and that a government’s failure to
present “evidence of concrete harm arising from” the activities it seeks to restrict
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“infects our analysis of both the ‘ends’ and the ‘means’” chosen by the
government (omission in original) (emphasis added) (quoting Verlo, 820 F.3d at
1134)).
By their plain terms, subsections (B) through (E) of the Ordinance sweep
broadly and substantially burden private speech, “prohibit[ing] all expressive
activity in a wide variety of spaces where Albuquerque’s citizens have
historically . . . exercised their” First Amendment rights. Aplees.’ Resp. Br. at 2.
Subsection (B) erects a six-foot buffer zone around all of Albuquerque’s highway
entrance and exit ramps, subject only to limited exceptions. The City concedes
there are no ramps in Albuquerque that fall outside Subsection (B)’s ambit. See
Aplt.’s Opening Br. at 49 (acknowledging that the City “did not select certain
controlled access roadways to be included in the Ordinance,” but rather “included
all three of them” (emphasis added)). Likewise, subsections (D) and (E) bar all
exchanges between pedestrians and vehicle occupants where the vehicle is in a
travel lane or at an intersection, absent extenuating circumstances; the subsections
“contain[] no geographic or temporal limitations” and “appl[y] through
Albuquerque’s 190 square miles, in any neighborhood, at any time of day and no
matter the traffic volume.” Aplees.’ Resp. Br. at 10. As well, Subsection
(C)—the median regulation—proscribes expressive conduct across numerous
categories of medians throughout the City.
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Thus, the Ordinance’s text alone makes clear that numerous public fora
throughout Albuquerque are effectively rendered off-limits for speech and
expressive conduct through these regulations. Cf. Edenfield, 507 U.S. at 777(“Broad prophylactic rules in the area of free expression are suspect. Precision of
regulation must be the touchstone in an area so closely touching our most
precious freedoms.” (quoting NAACP v. Button, 371 U.S. 415, 438 (1963))); cf.
also McCullen, 573 U.S. at 492 (noting the “First Amendment virtues of targeted
injunctions[,] as alternatives to broad, prophylactic measures”). While the City
objects to this characterization, its objections are unpersuasive. Broadly, the City
claims the Ordinance “does not impose a substantial burden on speech because it
has a limited application,” but what the City means by “limited application” is
telling. Aplt.’s Opening Br. at 38. That is, the City contends the Ordinance’s
application is “limited” because it “applies only to locations within the roadway
that are: (1) not designed for pedestrian use or for pedestrian-vehicle interactions,
and (2) in close proximity to high-speed and high-volume traffic.” Id. at 38–39.
However, the City is not permitted to claim the Ordinance has a limited
ambit or imposes a light burden on First Amendment rights by effectively
“downgrading” the public fora it restricts through the invocation of roadway
design guidelines. First Unitarian Church, 308 F.3d at 1129 n.11 (“The Supreme
Court has made clear that once an ‘archetype’ of a public forum has been
identified, it is not appropriate to examine whether special circumstances would
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support downgrading the property to a less protected forum.”). Nor can the City
narrow the Ordinance’s scope by observing that its restrictions leave “[o]ther
portions of the roadway that are either designed for pedestrian use or which
provide a greater refuge from the dangers of high-speed traffic . . . available for
speech activities,” as this argument effectively conflates the narrow tailoring
inquiry with an alternative channels analysis. See, e.g., iMatter Utah, 774 F.3d at
1267 (“[The government] contends that if a regulation leaves open ample
alternative forums for communication, then that regulation is narrowly tailored.
The district court rejected [this] position, concluding that it ‘improperly conflated
the government’s need to narrowly tailor its regulations with its need to
demonstrate ample alternatives for free speech.’ ‘Even if ample alternatives for
speech exist,’ the district court explained, ‘the [government] cannot simply
prohibit a group from speaking in a traditional public forum without
demonstrating how the [government’s] restriction on speech is narrowly tailored
to serve a significant interest.’ We agree. Although a narrowly tailored
regulation may tend to leave open ample alternatives for communication, there is
no basis for substituting one requirement for the other.” (citations omitted)
(quoting iMatter Utah v. Njord, 980 F. Supp. 2d 1356, 1372 (D. Utah 2013)));
Cutting v. City of Portland, 802 F.3d 79, 88 (1st Cir. 2015) (noting that “the fact
that there are other places where plaintiffs may engage in their expressive activity
‘misses the point’” of the narrow tailoring inquiry, and a “flat ban on speech in a
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particular forum . . . can fail narrow tailoring even if it leaves open other channels
for plaintiffs to engage in their expressive activity” (quoting McCullen, 573 U.S.
at 489)).
Beyond these arguments, the City also specifically asserts that subsection
(C) is sufficiently tailored in scope to pass constitutional muster because it
“would apply [only] to 20% of the roadways in Albuquerque.” Aplt.’s Opening
Br. at 53; see Aplt.’s Reply Br. at 14; see also Aplt.’s App., Vol. IV, at 1135–36
(Ms. Lozoya testifying that “20 percent” of Albuquerque’s “4600 lane miles of
[city] roadway” would be subject to the Ordinance’s prohibitions). But this
roadway estimation tells us little about how many of Albuquerque’s medians
come under subsection (C)’s restrictions, and the City itself concedes that it never
specifically counted how many medians would be covered by the median
regulation. See Aplt.’s Opening Br. at 53 (admitting that the City “did not
provide a precise figure for the number of medians affected” to the district court);
Aplt.’s Reply Br. at 14 (“Plaintiffs are correct that the City never did a
median-by-median count to determine how many would come within the scope of
the Ordinance.”).
More broadly, testimony from Albuquerque’s Senior Policy Analyst, Chris
Melendrez, indicates that the City’s efforts to measure the median regulation’s
overall breadth were cursory at best:
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[Counsel]: Did [the City] undertake any analysis to determine
how many medians would be available to people who wanted to
solicit donations?
[Mr. Melendrez]: Only in the sense that we reviewed the map of
the city and which roadways would be impacted. And it was easy
to identify large swaths of the city that wouldn’t be impacted.
[Counsel]: Do you know about how many medians would still be
available that wouldn’t be impacted by the ordinance?
[Mr. Melendrez]: We didn’t—I never did a numeric count.
[Counsel]: Did you ever ask for data or information from another
City department on how many medians would be left open for
individuals soliciting donations?
[Mr. Melendrez]: No. . . .
[Counsel]: Did you or any other policy analyst or anyone else
working on the ordinance [conduct observational activities to
assess the number of unaffected medians]?
[Mr. Melendrez]: You know, I don’t know that we went out and
did, like, a data gather, you know, a visual survey of where
people are standing or anything like that.
Aplt.’s App., Vol. III, at 815 (Tr. Chris Melendrez Dep., dated Jan. 30, 2019).
Moreover, Ms. Lozoya’s testimony with regard to subsection (C)(2), which
restricts pedestrians from being present on landscaped medians, reinforces the
breadth of subsection (C)’s median regulation because she testified that the City’s
policy “is to landscape most medians as long as they are about 10 to 12 feet in
width or wider.” Id., Vol. III, at 589. And last, but not necessarily least on the
breadth scale, subsection (C)(3) would appear to vest near-unbridled discretion in
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the “City Traffic Engineer” to deem specific medians unsafe and, consequently,
bar pedestrians from using them. See id., Vol. VI, at 1440 (allowing the City
Traffic Engineer to “identif[y] by signage as not suitable for pedestrian use” any
median in Albuquerque “based on identifiable safety standards” or “objectively
unsuitable features”).
Thus, the median regulation could conceivably leave virtually no medians
available to Albuquerque residents for speech or expressive conduct. More to the
point, the City has failed to provide us with concrete, adequate evidence that
would permit us to draw contrary inferences.
c
In contending that the Ordinance is narrowly tailored, and that it has
proffered sufficient evidence of such tailoring, the City relies almost exclusively
on our decision in Evans v. Sandy City. See Aplt.’s Reply Br. at 3 (“Ultimately,
this appeal requires the Court to decide how Evans applies to the facts of this
case.”). The City asserts that its approach—i.e., “limit[ing] the Ordinance’s
application to only those locations that are not designed to accommodate
pedestrians and for which there is objective evidence of safety concerns”—is
“exactly in line with, and arguably more comprehensive, than what Sandy City
did in Evans.” Aplt.’s Opening Br. at 41; see also Aplt.’s Suppl. Br. at 4
(claiming the City “produced more comprehensive evidence in support of” its
interest in reducing pedestrian-vehicle conflicts “than Sandy City produced in
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Evans” and emphasizing that “the Ordinance was created in the context of a
severe pedestrian safety problem,” which “created a heightened incentive for the
City to reduce pedestrian-vehicle conflicts through a variety of measures”).
As well, the City argues that the evidence it has proffered to support the
Ordinance is comparable to, and even more substantial than, the evidence
presented in Evans. See id. at 42 (comparing the City’s reliance on “observations
of [Albuquerque police officers],” “traffic engineering principles, nationally
accepted traffic design guides, pedestrian fatalities statistics, the observations of
the City Councilors and of their constituents, and . . . police reports” to our
determination in Evans that “subjective observations of a police captain and
prosecutor regarding the dangerousness of medians were sufficient to show that
the ordinance” at issue was narrowly tailored).
By brushing off its evidence, says the City, the district court “imposed a
much higher [narrow tailoring] burden” than the one we explicated in Evans,
which consequently warrants reversal in this case. Id. at 45. But Evans is not the
panacea that the City believes it to be. To start, that case’s facts are plainly
distinguishable. Briefly, in Evans we considered whether Sandy City, Utah’s
ordinance—which prohibited persons from sitting or standing on unpaved
medians or medians less than three feet wide—was narrowly tailored. See Evans,
944 F.3d at 851–52. We ultimately concluded that the ordinance was narrowly
tailored for several reasons. Among these reasons, we concluded that the
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ordinance did not impose a substantial burden on the plaintiff’s speech. While
the Evans plaintiff had “received two citations for standing on a paved 17-inch
median,” it was uncontested that “[a] mere ten feet away from where he was
cited, the median [in question was] wider than 36 inches and [was] therefore
unaffected by the [o]rdinance”—and we “simply [could not] accept th[at] ten-foot
difference on the same median as a substantial burden on speech.” Id. at 857.
As well, we held a “direct relationship exist[ed] between the City’s goal of
promoting public safety and the restriction on speech it selected.” Id. at 858.
Sandy City’s police captain, “a[n] . . . official who had years of experience
dealing with unsafe situations involving pedestrians on medians[,] . . . conducted
a survey of the medians” in the city; based on these observations, “the [c]ity
drafted the [o]rdinance limiting it only to those medians where it would be
dangerous to sit or stand at any time of day, at any traffic speed or volume.” Id.
The city’s prosecutor, who had also surveyed the medians, explained that unpaved
medians were included because of the “tripping hazard” they presented. Id. We
found such evidence “sufficient to satisfy the [c]ity’s burden to show the
[o]rdinance” was narrowly tailored. Id.; see id. (“The [o]rdinance only prohibits
sitting or standing on narrow or unpaved medians where it would be dangerous to
do so. This is the sort of close fit the narrow tailoring requires.”). Additionally,
we rejected the plaintiff’s argument that the city “failed to satisfy its evidentiary
burden because it did not provide accident reports or complaints regarding
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medians in all parts of the [c]ity,” holding that the city was “not require[d] . . . to
wait for accidents to justify safety regulations.” Id.
The City’s Ordinance at issue here is plainly more burdensome and less
tailored than the one at issue in Evans—even putting aside the fact that the City’s
Ordinance targets more categories of fora and types of conduct than did the
ordinance in Evans. The relevant regulation for comparison with
Evans—subsection (C)’s median regulation—is substantially broader in scope
than was the regulation in Evans. In Evans, Sandy City prohibited persons from
standing or sitting on medians slimmer than three feet, and on unpaved medians
that presented tripping hazards. Here, Albuquerque sets its minimum width
requirement at six feet—double the width in Sandy City’s ban—provided such a
median is in a roadway with a speed limit of thirty miles per hour or higher, or is
within twenty-feet feet of an intersection with such a roadway. Moreover,
Albuquerque also bars pedestrians from being present on all landscaped medians,
and it delegates broad, largely unchecked power to a City official to deem
medians “unsafe” and concomitantly cordon them off from pedestrian usage.
More significantly, the City points to no evidence indicating how many
medians are covered by the restrictions in subsection (C); indeed, while the City
claims this subsection is narrowly tailored because it, conceivably, applies only to
those portions of medians that the City has deemed unsafe, rather than entire
medians, see Aplt.’s Reply Br. at 14–16; Aplts.’ Suppl. Br. at 10–11, the City
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cites no evidence in the record that large portions of regulated medians are left
open to expressive conduct—and it offers nothing resembling the uncontested fact
in Evans that the plaintiff could simply move ten feet down the same median and
continue his conduct, which (as Plaintiffs correctly assert) was “central” to our
reasoning in that case, see Aplees.’ Resp. Br. at 43–44 (arguing the contrast with
Evans “could not be more stark” because, unlike in Evans, where the plaintiff’s
ability to avail himself of the same median was “central” to our narrow tailoring
finding, in this case, “speakers in Albuquerque do not enjoy the freedom to move”
to “another median—much less ten feet down the same median”—or to “a
virtually identical location to engage in the same speech,” as the City has barred
pedestrians from “all entrance and exit ramps” and “all medians that are
commonly used for communication,” along with barring qualifying physical
exchanges “in every street in every part of the City”).
Indeed, any attempt by the City to create a favorable comparison between
the scope of the Ordinance here and the scope of the ordinance in Evans is largely
undercut by the fact—established by Ms. Lozoya’s testimony—that the
landscaping restriction in subsection (C)(2) likely sweeps in most of
Albuquerque’s widest medians. See Aplt.’s App., Vol. III, at 589 (testifying that
the City’s policy “is to landscape most medians as long as they are about 10 to 12
feet in width or wider”). And unlike Albuquerque’s Ordinance, Sandy City’s
ordinance had no provision allowing for a municipal officer to deem medians
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unsafe based on undefined “safety standards.” Thus, the City cannot argue that
the Ordinance’s median regulation imposes only a slight burden based on a
comparison with the regulation at issue in Evans.
Yet, more particularly, the City also argues that subsection (C)(2), by itself,
is a lawful regulation, given that we upheld Sandy City’s similar prohibition on
persons standing or sitting on “unpaved medians” in Evans. See Aplt.’s Reply Br.
at 17 (claiming that subsection (C)(2) is “clearly narrowly tailored under Evans,”
and that the City need not present “evidence of ‘accidents or incidents stemming
from pedestrian presence in the landscaped areas of medians’” because “the First
Amendment ‘does not require [it] to wait for accidents to justify safety
regulations’” (first quoting Aplees.’ Resp. Br. at 36; and then quoting Evans, 944
F.3d at 858)). But this argument fails for numerous reasons.
At the outset, the City cannot justify this particular provision simply by
citing to Evans; rather, it is required to come forward with some evidence
demonstrating that the provision ameliorates real, not speculative, harms, in a
direct and material way. Cf. Doe, 667 F.3d at 1133–34 (rejecting a city’s bare
citation to “other cases in which courts have found challenged restrictions” like
the one at issue “to be narrowly tailored” because the question of “whether the
restrictions at issue in those cases were narrowly tailored in the respective
contexts of those cases d[id] not compel any conclusion as to the [c]ity’s ban in
this case,” and stating more broadly that “[g]eneral reference to other cases
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involving other cities, other restrictions, other interests to be served, and other
constitutional challenges do not relieve” the city of its narrow tailoring obligation
“in this case”). Nor is it clear that subsection (C)(2) is readily analogous to the
“unpaved median” provision in Evans, at least not without further factual
elaboration on the contours of that subsection by the City. This is especially true
given that the scope of subsection (C)(2) seems much broader than that of the
regulation in Evans, in light of Ms. Lozoya’s testimony on the breadth of the
City’s landscaping policy. See Aplt.’s App., Vol. III, at 589.
More to the point, the City has presented no anecdotes or data indicating
the existence of a real or concrete safety issue arising from pedestrian presence on
landscaped medians. By contrast, in justifying its “unpaved medians” restriction,
Sandy City presented testimony from its police captain that “sitting or standing on
. . . unpaved medians [was] a public safety hazard” in light of “several close
calls” between pedestrians and vehicles that could have led to “devastating”
accidents. Evans, 944 F.3d 854; cf. id. (noting that the city’s prosecutor was
notified by police of “safety issues” relating to people “falling into traffic”).
Moreover, Sandy City “further confirmed” its “public safety justification”
through the drafting procedure employed by its prosecutor, who “gathered
information by surveying the [c]ity’s medians” and subsequently concluded that
“unpaved medians, which were typically covered in rocks, boulders, and in some
cases shrubs, were dangerous because pedestrians could easily lose their footing
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or trip on uneven surfaces.” Id. at 854–55; see id. at 858 (“The [c]ity prosecutor
explained he included unpaved medians where the ‘footing isn’t uniform,’ which
posed a tripping hazard.”). Thus, we concluded that such evidence was
“sufficient to satisfy” the city’s narrow tailoring burden. See id. at 858. We have
no such evidentiary showing here.
To be sure, Albuquerque counters that, under Evans, it need not present
much, if any, evidence in support of this subsection. Rather, it reasons that it can
simply rely on its own common sense and a desire to proactively prevent
accidents before they occur. See Aplt.’s Reply Br. at 17 (“Plaintiffs attack
[subsection (C)(2)] as lacking evidence of ‘accidents or incidents stemming from
pedestrian presence in the landscaped areas of medians.’ But, such evidence is
not necessary; the First Amendment ‘does not require the government to wait for
accidents to justify safety regulations.’” (first quoting Aplees.’ Resp. Br. at 36;
and then quoting Evans, 944 F.3d at 858). True, we have recognized that the
government may act proactively, see Evans, 944 F.3d at 858—and that, more
broadly, the government is “permitted . . . to justify speech restrictions by
reference to studies and anecdotes pertaining to different locales altogether, or
even . . . based solely on history, consensus, and ‘simple common sense,’” and it
need not proffer either “empirical data . . . accompanied by a surfeit of
background information” or a “double-blind empirical study[ ] or a linear
regression analysis” to bear its First Amendment burden, Aptive, 959 F.3d at 989,
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992 n.11 (first quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001);
and then quoting Luce v. Town of Campbell, 872 F.3d 512, 517 (7th Cir. 2017)).
But “the City’s prerogative to determine how to support a regulation does
not extinguish its burden to ‘show that its recited harms are real,’” McCraw, 973
F.3d at 1073 (quoting Citizens for Peace in Space, 477 F.3d at 1221)—and here,
not only has the City put forward inadequate evidence of real, non-speculative
harms arising from pedestrian presence on landscaped medians, but, more
significantly, the evidence it has put forward belies any notion that the City, in
reality, faces such harms. Most prominently, the City points to not one accident
report among the 900 it produced that relates to some kind of pedestrian accident
or danger involving a landscaped median, and it cites to nothing else in the record
bolstering the idea that its common-sense rationale for this particular provision is
grounded in anything more than speculation. In other words, while we approved
of Sandy City’s use of common sense and anecdotes to justify its regulation in
Evans, what was absent there—and present here—is concrete data that undercuts
such anecdotal and common sense evidence. Cf. id. at 1083 (Hartz, J.,
concurring) (“The purported government interest is public safety. But a number
of years of relevant data [regarding Oklahoma City] failed to support the claimed
danger. I am not saying that such data are necessary to support a claim of danger.
. . . But when there are data available, and they contradict what common sense
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and expert opinion may tell us, courts must be cautious before endorsing a
governmental claim of danger.” (emphasis added)).
Thus, for this reason, the City’s reliance on Evans is misplaced and, more
importantly, its reliance on scattered anecdotes in the record and its generic
invocation of “common sense” are simply not enough to demonstrate that
subsection (C)(2) is directed at remediating real harms in a manner that does not
burden substantially more speech than necessary. Cf. id. at 1072–73 (conceding
that “municipalities remain free to determine what type of evidence they will use
to support proposed remedial regulations,” and that “a government need not wait
for accidents or fatalities to address its interest through safety regulations,” but
concluding that Oklahoma City’s proffered evidence “d[id] not meet [its]
burden,” and admitting that we were “baffled as to why” there was not more
objective evidence of pedestrian injuries if “medians present[ed] the danger that
the [c]ity argue[d] they d[id]”); Aptive, 959 F.3d at 989, 993 (finding Castle
Rock’s “anecdotal and common-sense showing . . . woefully insufficient, when
viewed through the ‘helpful’ prism” of cases in which “anecdotes, history, or
common sense” had “previously been invoked,” because, inter alia, the
“common-sense and anecdotal evidence that” was presented was “contradicted by
the police chief’s testimony that there was no evidence that [the regulated
conduct] posed a threat to public safety and the accompanying data
demonstrat[ed] that there ha[d] not been any complaints about [such conduct
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during the time period that was regulated]” (emphasis added) (quoting Pac.
Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 n.12 (10 th Cir. 2005)).
***
In sum, the City’s largely evidence-free approach to establishing subsection
(C)(2)’s constitutionality—an approach that is unavailing—is emblematic of its
efforts, more broadly, to demonstrate the Ordinance’s constitutionality—efforts
that are also unavailing. With regard to subsection (B), the City all but admitted
at oral argument that it lacks concrete evidence that such a sweeping prohibition
on pedestrian presence near highway ramps is necessary to ameliorate, in a direct
and material way, real, non-speculative safety concerns. See Oral Arg. at
2:43–3:01 (The court: “In the summary judgment record that was presented to the
district judge and that’s on review here, was there any evidence of any . . .
accidents associated with an entrance or exit of a highway ramp?” City counsel:
“Not any that involved pedestrians.”).
And while the City strives to rely on accident reports to justify subsections
(C) through (E), those reports actually belie any notion that these subsections
alleviate a real, non-speculative government public-safety concern in a direct and
material way. The City’s attempt to bolster its showing by citing Ms. Loyoza’s
theoretical opinions, scattered and factually inapposite anecdotes, and its
“common sense” are simply not enough to tighten the impermissibly “loose fit
between [the City’s chosen] means”—the Ordinance—“and [its] safety interest.”
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McCraw, 973 F.3d at 1077. Thus, the City fails to carry its burden of showing
that the Ordinance does not substantially burden more speech than necessary to
advance its real, significant interests in pedestrian safety.
3
In addition to its evidentiary arguments discussed supra, the City also
contends that the district court erred in “improperly concluding that the
Ordinance”—and, in particular, subsections (C), (D), and (E)—“was not narrowly
tailored due to the City’s alleged failure to ‘offer evidence that prove[d]
“alternative measures that burden substantially less speech would fail to achieve
the government’s interests.”’” Aplt.’s Opening Br. at 44 (quoting Martin, F.
Supp. 3d at 1035). Under Evans, says the City, it was not required to prove the
inadequacy of less-restrictive means unless the district court “first . . .
determin[ed] that the [Ordinance] burdens substantially more speech than
necessary.” Id.; see also Aplt.’s Reply Br. at 2–3 (arguing that the Plaintiffs’
insistence on a “strict application of the less restrictive means inquiry” would
“distort[] the deferential ‘substantially broader than necessary’ inquiry and . . . is
contrary to . . . Evans”).
Plaintiffs counter by citing McCraw, which we issued during the pendency
of this appeal; under McCraw, argue Plaintiffs, the City is required to prove that
less-restrictive means would fail to achieve its stated interests as effectively. See
Aplees.’ Suppl. Br. at 2; see also Aplees.’ Resp. Br. at 19 (arguing that, under our
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pre-McCraw precedent—along with the Supreme Court’s decision in McCullen v.
Coakley—the City must demonstrate “why obvious, less-burdensome measures
were insufficient to address its stated concerns” in order to establish narrow
tailoring). But cf. Aplt.’s Suppl. Br. at 14–15 (maintaining that the less-
restrictive-means inquiry does not arise until the court has made a predicate
determination that the regulation is “substantially broader than necessary,” and
that McCraw did not change this, but nevertheless claiming that the City did, in
fact, “introduce evidence of alternative measures it considered before enacting the
Ordinance” that would satisfy any less-restrictive-means burden).
In framing their less-restrictive-means arguments in this manner, the parties
broach a potential tension between our two most recent cases analyzing content-
neutral time, place, and manner restrictions in public fora. As a general matter,
“we must endeavor to interpret our cases in a manner that permits them to coexist
harmoniously . . . with each other.” United States v. Hansen, 929 F.3d 1238,
1254 (10th Cir. 2019) (collecting cases); accord United States v. Miers-Garces,
967 F.3d 1003, 1018 (10th Cir. 2020), cert. denied, 141 S. Ct. 1431 (2021). In
undertaking this endeavor, we discover that what might, at first blush, appear to
be a substantive tension between Evans and McCraw is, by and large, illusory,
and—perhaps, more to the point—these two cases may “coexist harmoniously”
without difficulty. Hansen, 929 F.3d at 1254. That is to say, when read
alongside controlling Supreme Court authority and our prior precedents, Evans
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and McCraw are best interpreted (as relevant here) as stating the following
principle: in carrying its burden of proving that a content-neutral time, place, and
manner regulation of speech or expressive conduct in a traditional public forum is
narrowly tailored, the government will ordinarily need to show that it seriously
considered alternative regulatory options that burden less protected speech or
expressive conduct, yet also have the potential of achieving its real and
significant interests. Such a principle fits squarely with McCraw, among other
cases, and, as we explain below, nothing in Evans is to the contrary.
We begin below by discussing our decisions in Evans and McCraw, along
with other caselaw from the Supreme Court and this court. Upon identifying the
operative principles running through these cases, we apply those principles to the
instant matter. Here, Albuquerque has failed to establish that it seriously
considered less-restrictive means to the Ordinance, which also have the potential
of achieving its real and significant interests. This failing by the City has the
effect of underscoring and reinforcing our overarching conclusion: the City has
not shown that the Ordinance is narrowly tailored to advance real, non-
speculative interests.
a
i
(A)
In addressing the question of whether the government must consider less-
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restrictive means as a facet of its narrow tailoring analysis, Evans and McCraw
grapple with the implications of the Supreme Court’s decision in McCullen v.
Coakley, which in turn applied the Court’s seminal First Amendment decision,
Ward v. Rock Against Racism. Accordingly, we start our analysis with Ward,
working our way forward in time to McCraw.
Ward dealt with a New York City regulation requiring performers in
Central Park’s Naumberg Acoustic Bandshell “to use sound-amplification
equipment and a sound technician provided by the city.” Ward, 491 U.S. at 784.
The Court held that the regulation was a permissible, content-neutral time, place,
and manner restriction and, more particularly, that the regulation was narrowly
tailored to serving the city’s significant interest in “ensuring the ability of its
citizens to enjoy whatever benefits the city parks have to offer, from amplified
music to silent meditation.” Id. at 796–97. In reaching this narrow-tailoring
conclusion, the Court disapproved of the appellate court’s contrary analysis,
which turned on New York City’s failure to show that the sound-amplification
regulation was the least-restrictive means to achieving the city’s substantial
interests. Id. at 797. In “sifting through all the available or imagined alternative
means of regulating sound volume in order to determine whether the city’s
solution was ‘the least intrusive means’ of achieving the desired end,” the
appellate court erred, as the “less-restrictive-alternative analysis . . . has never
been a part of the inquiry into the validity of a time, place, and manner
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regulation.” Id. (omission in original) (quoting Regan v. Time, Inc., 468 U.S.
641, 657 (1984) (opinion of White, J.)).
Rather, “restrictions on the time, place, or manner of protected speech are
not invalid ‘simply because there is some imaginable alternative that might be
less burdensome on speech.’” Id. (quoting United States v. Albertini, 472 U.S.
675, 689 (1985)). Thus, the Court “reaffirm[ed] . . . that a regulation of the time,
place, or manner of protected speech must be narrowly tailored to serve the
government’s legitimate, content-neutral interests but that it need not be the least
restrictive or least intrusive means of doing so.” Id. at 798 (emphases added); see
id. at 800 (“So long as the means chosen are not substantially broader than
necessary to achieve the government’s interest, however, the regulation will not
be invalid simply because a court concludes that the government’s interests could
be adequately served by some less-speech-restrictive alternative.”).
Yet, twenty-five years later, the Court decided McCullen v. Coakley.
McCullen invalidated a Massachusetts statute that enacted a “buffer zone” around
certain medical facilities; specifically, the statute criminalized standing on a
public way or sidewalk within thirty-five feet of any non-hospital facility that
performed abortions. McCullen, 573 U.S. at 469, 496–97. The Court found that
the statute “burden[ed] substantially more speech than necessary to achieve
[Massachusetts’s] asserted interests,” and in making this finding, the Court
discussed a number of alternative, regulatory options that could address the
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state’s significant interests while burdening substantially less speech in the
process. Id. at 490–94. The state replied that it had tried alternative approaches,
but that they had been ineffectual. Id. at 494. The Court was unmoved,
observing that the state failed to identify “a single prosecution brought under
th[ese alternative] laws within at least the last 17 years.” Id.
Given this failure, the Court concluded the state “ha[d] not shown that it
seriously undertook to address the problem[s it cited as justifying the buffer zone
statute] with less intrusive tools readily available to it,” nor had it “shown that it
considered different methods that other jurisdictions ha[d] found effective.” Id.
Moreover, in response to Massachusetts’s argument that enforcing the buffer zone
law was easier than enforcing alternative measures, the Court opined that, “[t]o
meet the requirement of narrow tailoring, the government must demonstrate that
alternative measures that burden substantially less speech would fail to achieve
the government’s interests, not simply that the chosen route is easier.” Id. at 495.
Notably, in performing its analysis and reaching its holding, the Court did not shy
away from Ward. Quite the contrary: McCullen liberally cited Ward throughout.
See, e.g., id. at 477–78, 486.
Against this backdrop we first decided Evans v. Sandy City. As noted
supra, Evans affirmed that Sandy City’s median ordinance was narrowly tailored
to achieve the significant interest of public safety. See Evans, 944 F.3d at
851–52, 860. In reaching this conclusion, we rejected two arguments made by the
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plaintiff. First, the plaintiff “contend[ed] [Sandy] City did not meet its burden to
justify the fit between the ends [i.e., public safety] and the means [i.e., the
ordinance] when it failed to ‘compile any data, statistics, or accident reports’”;
according to the plaintiff, “th[is was] the grit of McCullen: governments must
provide real evidence to justify their public safety concerns.” Id. at 857; see id.
(the plaintiff claiming that Sandy City’s “failure to conduct research and analysis
[was] dispositive” as to the narrow tailoring question). We recognized that, in
McCullen, the Supreme Court “explained [that] evidence of a problem at one
abortion clinic at one time did not justify the burden [that Massachusetts’s buffer
zone statute placed] on other clinics at other times,” but from this explanation we
did not glean a “new evidentiary requirement for governments to compile data or
statistics” in order to carry their narrow tailoring burden. Id. at 857–58. Instead,
“governments bear the same burden” after McCullen as they did before, under
Ward: i.e., they must “show a regulation does not ‘burden substantially more
speech than is necessary to further [their] legitimate interests.’” Id. at 858
(quoting McCullen, 573 U.S. at 486).
Second, and more relevant for our purposes here, the Evans plaintiff
“argue[d] the [o]rdinance [was] not narrowly tailored because [Sandy] City did
not demonstrate alternative measures that burden substantially less speech would
fail to promote public safety.” Id. at 858. More particularly—and crucially—the
plaintiff argued as follows: “since the City did not ‘prove that it actually tried
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other methods to address the problem,’ . . . [the court] should strike down the
[o]rdinance as not narrow tailored.” Id. at 858–59 (quoting Evans Aplt.’s
Opening Br. at 31, which in turn quotes Reynolds v. Middleton, 779 F.3d 222, 231
(4th Cir. 2015)). We rejected this argument, holding that, while McCullen
“taught us [that] a less restrictive means analysis might be helpful in the narrow
tailoring inquiry, . . . it did not modify Ward’s clear rule”: i.e., that a time, place,
and manner regulation must be “narrowly tailored to serve the government’s
legitimate, content-neutral interests,” but that it “need not be the least restrictive
or least intrusive means of doing so.” Id. at 859 (emphasis added) (quoting Ward,
491 U.S. at 798). “So long as the means chosen are not substantially broader than
necessary to achieve the government’s interest,” a regulation “will not be invalid
simply because a court concludes that the government’s interest could be
adequately served by some less-speech-restrictive alternative.” Id. at 859(emphasis omitted) (quoting Ward, 491 U.S. at 800).
Less than a year later, we decided McCraw, striking down Oklahoma City’s
median ordinance: we concluded that it was insufficiently tailored, and supported
by only speculative interests. See McCraw, 973 F.3d at 1071–73, 1077–78. As
McCullen did with Ward, we cited Evans liberally throughout our opinion. But
we reached a slightly different resolution with the McCraw plaintiffs’ less-
restrictive-means argument than we did with the Evans plaintiff’s argument.
After concluding that Oklahoma City “ha[d] not met its burden to demonstrate
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that its interest [was] based on a concrete, non-speculative harm” and that,
instead, the city’s ordinance actually “place[d] a severe burden on plaintiffs’
speech,” we also determined, “[i]n light of the severity of [the ordinance’s]
burden,” that the city “ha[d] failed to demonstrate that less burdensome
alternatives would not achieve its interest in median safety.” Id. at 1073–74
(emphasis added). We noted that the city “acknowledge[d] in its brief” that,
“under McCullen, ‘[it needed to] . . . demonstrate that alternative measures that
burden substantially less speech would fail to achieve the government’s interests,
not simply that the chosen route is easier.’” Id. at 1074 (quoting McCullen, 573
U.S. at 495). Nonetheless, the city “assert[ed] that ‘narrow tailoring d[id] not
require [it] to undertake the futile task of identifying, reviewing[,] and rejecting
alternatives that could not possibly protect pedestrians on medians from vehicles,
or drivers of vehicles from distractions caused by pedestrians.’” Id. at 1075 (third
and fourth alterations in original).
However, we determined that this argument of the city was implausible;
indeed, the “only way for the [c]ity to evaluate alternatives,” and subsequently
opine on their utility, was “to consider them” in the first place—“precisely the
burden articulated in McCullen.” Id. And because the city “present[ed] no
evidence that it contemplated the relative efficacy or burden on speech of any
alternatives,” we concluded the city “ha[d] not met [that] burden.” Id.; see also
id. at 1075–76 (“Given that the [c]ity ha[d] at its disposal information regarding
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the relative safety of its medians at different times and in different locations, its
failure to consider [less restrictive] alternatives is especially harmful to its
argument. The data supports numerous alternatives to a total ban on presence on
affected medians . . . .” (emphasis added)).
And we elaborated on our reasoning:
[T]he [c]ity’s summary dismissal of alternatives is insufficient.
“[G]iven the vital First Amendment interests at stake, it is not
enough for [the city] simply to say that other approaches have not
worked.” This is particularly so when there is no evidence that
the [c]ity has tried, or even considered, any less-burdensome
alternatives. Instead, the [c]ity relies on unsupported statements
that hypothetically these alternatives could not possibly work.
The [c]ity “has not shown that it seriously undertook to address
the problem with less intrusive tools readily available to it[, n]or
has it shown that it considered different methods that other
jurisdictions have found effective.”
Id. at 1076 (third, fourth, and eighth alterations in original) (first, second and
fourth emphases added) (citations omitted) (quoting McCullen, 573 U.S. at 494,
496)).
(B)
At the outset, it is important to highlight the arguments made and rejected
in Evans and McCraw. As to Evans, we rejected the plaintiff’s argument that,
unless the government established that it had affirmatively tried to address the
problems it identified as justifying a given regulation through less-burdensome
means, it could not demonstrate that the regulation was narrowly tailored. See
Evans, 944 F.3d at 858–59. In doing so, we recognized that, based on McCullen,
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a “less restrictive means analysis might be helpful in the narrow tailoring
inquiry,” but that “Ward’s clear rule”—that the government’s regulatory choice
need not be the least restrictive or intrusive one—lives on and controls. Id. at 859
(emphasis added).
By contrast, in McCraw, the government effectively asserted that it need
not “undertake the futile task” of considering less-restrictive means that would be
ineffectual at addressing the government’s significant interests. McCraw, 973
F.3d at 1075. This argument was a non-starter because the city “present[ed] . . .
no evidence that it contemplated the relative efficacy or burden on speech of any
alternatives.” Id. (emphasis added). In other words, we stated that “the only way
for [a c]ity to evaluate alternatives is to consider them”—and we went further and
recognized that this need, relative to narrow tailoring, of a serious engagement
with and consideration of less-restrictive means by the government was “precisely
the [government] burden articulated in McCullen.” Id.; see also id. at 1075–76.
Thus, the argument we rebuffed in Evans was an expansive one: i.e., that,
in order to establish that a regulation is narrowly tailored, a city must
affirmatively prove that it tried less-restrictive alternative measures and that those
trials demonstrated that these measures were ineffectual in addressing the
significant interests cited by the city. But in McCraw, we were not faced with
such a proposed broad rule. There, Oklahoma City offered little more than
general statements that less-restrictive means were unworkable—but these
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statements were entirely unpersuasive given the lack of evidence that the city had
even considered, let alone tried, such means. And it was this baseline lack of
consideration that we stressed was dispositive in McCraw.
Stepping back, and reading Evans and McCraw in the context of Ward and
McCullen, we discern the following operative principles, which weave these cases
into a cohesive and coherent whole. Broadly speaking, it is clear from McCullen,
Evans, and McCraw that Ward’s fundamental narrow-tailoring test is still
controlling and provides the overarching foundation for our analysis. Under this
test, content-neutral restrictions on the time, place, or manner of speech in
traditional public fora need not be the least restrictive means for achieving the
government’s significant interests. See, e.g., McCraw, 973 F.3d at 1073; Evans,
944 F.3d at 859; see also iMatter Utah, 774 F.3d at 1266; Doe, 667 F.3d at 1133.
However, in conducting this narrow-tailoring inquiry under Ward and its
decisional progeny, a less-restrictive-means analysis is invariably helpful—and
ordinarily necessary. To be sure, McCraw arguably suggests that such an analysis
is a required component of the government’s narrow tailoring burden of proof.
See, e.g., McCraw, 973 F.3d at 1074, 1076 (in its narrow tailoring analysis,
quoting McCullen’s language that “the government must demonstrate that
alternative measures that burden substantially less speech would fail to achieve
the government’s interests,” and “conclud[ing] that the [c]ity’s summary
dismissal of alternatives is insufficient” (quoting McCullen, 573 U.S. at 495)).
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But Evans does not go so far; it merely holds that such an analysis is helpful in a
typical narrow-tailoring showing by the government. Evans, 944 F.3d at 859. We
of course read these two cases—in the light of Ward and McCullen—with an eye
towards harmonizing them. See, e.g., Hansen, 929 F.3d at 1254. And, in doing
so, it can be reasonably inferred from Evans’s acknowledgment of the helpfulness
of a less-restrictive-means inquiry in the narrow tailoring analysis and from the
importance that McCraw accords to this inquiry that the less-restrictive-means
inquiry should almost always be a part of the government’s narrow tailoring
showing—even though it is not a standalone, required element of that showing.
Cf. Evans, F.3d at 858 (noting that McCullen did not announce “new evidentiary
requirement[s]”). And our examination infra of our precedent in analogous
contexts and commercial speech precedent from the Supreme Court and this court
only serves to validate the reasonableness of our inference.
ii
Specifically, our conclusion is bolstered by our prior precedent, which
highlights the significance of a less-restrictive-means inquiry within our narrow-
tailoring analysis. Notably, our decision in Verlo v. Martinez reinforces the
notion that the government’s consideration of—or, more precisely, failure to
consider—less restrictive means is relevant to the question of whether the chosen
regulation is narrowly tailored to achieving the government’s interests. In Verlo,
we evaluated whether a federal district court erred in preliminarily enjoining an
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order issued by a local judicial district prohibiting expressive activities in a
courthouse plaza. See Verlo, 820 F.3d at 1118. We found no error in the federal
district court’s ruling. And, in doing so, we rejected the argument that the district
court applied the wrong legal standard for assessing whether the judicial district’s
order—a content-neutral time, place, and manner restriction on speech in a public
forum—was narrowly tailored. See id. at 1133–35. Specifically, as appellant, the
local judicial district faulted the federal district court for “consider[ing]
alternatives to the Order that might have been employed to achieve the . . .
[d]istrict’s objectives”; such consideration, said the local judicial district,
“prove[d] [that] the district court [improperly] applied the ‘least restrictive
means’ standard” to a content-neutral measure subject only to intermediate
scrutiny. Id. at 1134. “In the Judicial District’s view,” then, “any inquiry into
alternative means of achieving the government objective is inappropriate where,
like here, the restrictions are content-neutral, rather than content-based, and thus
not subject to the least restrictive alternative form of narrow tailoring.” Id. at
1134–35.
“We disagree[d].” Id. at 1135. After setting out the overarching, narrow-
tailoring standard—i.e., “the requirement of narrow tailoring is satisfied so long
as the regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation, and does not burden substantially
more speech than is necessary to further the government’s legitimate
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interests”—we highlighted that the Supreme Court “has not discouraged courts
from considering alternate approaches to achieving the government’s goals when
determining whether a content-neutral regulation is narrowly tailored to advance a
significant government interest.” Id. at 1134–35 (quoting Wells v. City & Cnty. of
Denver, 257 F.3d 1132, 1148 (10th Cir. 2001)). Citing McCullen, we observed
that, while the Court “has held that a content-neutral regulation ‘need not be the
least restrictive or least intrusive means of serving the government’s interests,’ it
has also explained that ‘the government still may not regulate expression in such
a manner that a substantial portion of the burden on speech does not serve to
advance its goals.’” Id. at 1135 (quoting McCullen, 573 U.S. at 486). Moreover,
“when considering content-neutral regulations, the Court itself . . . examined
possible alternative approaches to achieving the government’s objective to
determine whether the government’s chosen approach burdens substantially more
speech than necessary.” Id.
Likewise, we recounted the Court’s observation that the government “may
not [simply] ‘forgo[ ] options that could serve its interests just as well,’ if those
options would avoid ‘substantially burdening the kind of speech in which
[plaintiffs] wish to engage.’” Id. (second alteration in original) (emphasis added)
(quoting McCullen, 573 U.S. at 490). Thus, “[t]o meet the requirement of narrow
tailoring [in the context of content-neutral regulations], the government must
demonstrate that alternative measures that burden substantially less speech would
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fail to achieve the government’s interests, not simply that the chosen route is
easier.” Id. (alterations in original) (quoting McCullen, 573 U.S. at 495).
Consequently, in light of McCullen, we concluded in Verlo that the district court
did not apply “the wrong legal standard merely because it considered whether the
Judicial District had options other than the complete ban on speech [it chose] . . .
that would equally serve its interests.” Id.
Similarly, iMatter Utah provides support for the regular and ordinary
incorporation of a less-restrictive-means analysis into the narrow-tailoring
inquiry. There, we expressly quoted the language from McCullen that we also
quote in McCraw: i.e., “[t]o meet the requirement of narrow tailoring, the
government must demonstrate that alternative measures that burden substantially
less speech would fail to achieve the government’s interests.” iMatter Utah, 774
F.3d at 1266 (quoting McCullen, 573 U.S. at 495). We went on to fault the
government for its failure to show that less-burdensome means would be
ineffectual in achieving its stated interests. See id. at 1269 (stating that the
government “must offer some evidence that [its chosen regulatory means], and not
some less[ restrictive alternative], is necessary [to achieve its interests]”); id. at
1270–71 (acknowledging that one of the government’s regulations is “narrower in
scope” than another, but concluding that the regulation was, nevertheless, not
narrowly tailored because the government “ha[d] offered no evidence that its
existing . . . law [was] insufficient to [achieve its interests]”).
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Finally, in Doe v. City of Albuquerque, the city “did not present any
evidence that its ban” on registered sex offenders in public libraries “was
narrowly tailored to serve its interest in providing a safe environment for library
patrons,” instead simply citing and relying on other cases “in which courts have
found challenged restrictions on sex offenders to be narrowly tailored.” Doe, 667
F.3d at 1133–34. Stressing that the city had the burden to show the regulation
was narrowly tailored, we noted that “whether the restrictions at issue in [other]
cases were narrowly tailored in the respective contexts of those cases d[id] not
compel any conclusion as to the [c]ity’s ban” in Doe. Id. at 1134; see id.
(“General reference to other cases involving other cities, other restrictions, other
interests to be served, and other constitutional challenges do not relieve the
[c]ity’s burden in this case.”). Moreover, the city “provided nothing in the record
that could satisfy its obligation of proving that the ban is narrowly tailored.” Id.
And, most significantly, the city’s failure to satisfy its burden of proof was
brought into sharp relief, we reasoned, by the fact that “possible, less restrictive
approaches . . . suggest[ed] themselves.” Id. By invoking potential less
restrictive means, at least tacitly, we suggested in Doe that we viewed a less-
restrictive-means analysis ordinarily as being part and parcel of the broader,
narrow-tailoring inquiry.
iii
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Furthermore, commercial speech precedent from the Supreme Court and
this court—which we have recognized is closely analogous to time, place, and
manner caselaw—confirms the salience of a less-restrictive-means analysis to the
overarching narrow tailoring inquiry. See Bd. of Trs. of State Univ. of N.Y. v.
Fox, 492 U.S. 469, 477 (1989) (recognizing that the test governing the validity of
restrictions on commercial speech is “‘substantially similar’ to the application of
the test for validity of time, place, and manner restrictions on protected speech”
(quoting S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 537
n.16 (1987)); see also supra note 14. For example, in U.S. West, Inc. v. FCC, we
made the following remarks regarding narrow tailoring in the context of a
commercial speech regulation:
Even assuming, arguendo, that the state interests in privacy and
competition are substantial and that the regulations directly and
materially advance those interests, we do not find, on this record,
the FCC rules regarding customer approval properly tailored.
The . . . regulations must be “no more extensive than necessary
to serve [the stated] interest[s].” In order for a regulation to
satisfy this final . . . prong [of the commercial speech
framework], there must be a fit between the legislature’s means
and its desired objective—“a fit that is not necessarily perfect,
but reasonable; that represents not necessarily the single best
disposition but one whose scope is in proportion to the interest
served.” While clearly the government need not employ the least
restrictive means to accomplish its goal, it must utilize a means
that is “narrowly tailored” to its desired objective. Narrow
tailoring means that the government’s speech restriction must
signify a “carefu[l] calculat[ion of] the costs and benefits
associated with the burden on speech imposed by its prohibition.”
“The availability of less burdensome alternatives to reach the
stated goal signals that the fit between the legislature’s ends and
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the means chosen to accomplish those ends may be too imprecise
to withstand First Amendment scrutiny.” This is particularly
true when such alternatives are obvious and restrict substantially
less speech.
182 F.3d 1224, 1238 (10th Cir. 1999) (third alteration added) (emphasis added)
(citations omitted) (first quoting Rubin v. Coors Brewing Co., 514 U.S. 476, 486
(1995); then quoting Fox, 492 U.S. at 480; then quoting City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 417 (1993); and then quoting 44
Liquormart, 517 U.S. at 529 (O’Connor, J., concurring)), cert. denied, 530 U.S.
1213 (2000).
We went on to note, in footnote 11 of that opinion, that, while the passage
quoted above “in effect[] imposes a burden on the government to consider certain
less restrictive means—those that are obvious and restrict substantially less
speech—it does not amount to a least restrictive means test.” Id. at 1238 n.11
(emphasis added). That is, “[w]e do not require the government to consider every
conceivable means that may restrict less speech and strike down regulations when
any less restrictive means would sufficiently serve the state interest.” Id. Rather,
“[w]e merely recognize[d] the reality that the existence of an obvious and
substantially less restrictive means for advancing the desired government
objective indicates a lack of narrow tailoring.” 17 Id.17
Additional cases accord with West in acknowledging the significance
of a meaningful consideration by the government of less restrictive means to the
narrow tailoring inquiry. See, e.g., Discovery Network, Inc., 507 U.S. at 417 n.13
(continued...)
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***
These cases, read together, then, make clear that a less-restrictive-means
analysis is ordinarily part and parcel of the narrow tailoring inquiry itself. And,
as we have stated above, we think that the government, which bears the burden of
establishing that its time, place, and manner regulations are narrowly tailored to
achieving its significant interests, should ordinarily undertake a less-restrictive-
means analysis as a facet of this narrow tailoring showing.
17
(...continued)
(“We reject the city’s argument that the lower courts’ and our consideration of
alternative, less drastic measures by which the city could effectuate its interests
. . . somehow violates [our prior] holding that regulations on commercial speech
are not subject to ‘least-restrictive-means’ analysis. To repeat, while we have
rejected the ‘least-restrictive-means’ test for judging restrictions on commercial
speech, so too have we rejected mere rational-basis review. A regulation need not
be ‘absolutely the least severe that will achieve the desired end,’ but if there are
numerous and obvious less-burdensome alternatives to the restriction on
commercial speech, that is certainly a relevant consideration in determining
whether the ‘fit’ between ends and means is reasonable.” (citations omitted)
(quoting Fox, 492 U.S. at 480)); Rubin, 514 U.S. at 491 (suggesting that “the
availability of alternatives that would prove less intrusive to the First
Amendment’s protections for commercial speech” and “could [still] advance the
Government’s asserted interest” indicates that a particular regulation “is more
extensive than necessary”); Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d
1228, 1242 (10th Cir. 2004) (“Whether or not there are ‘numerous and obvious
less-burdensome alternatives’ is a relevant consideration in our narrow tailoring
analysis.” (quoting Fla. Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995))); cf.
Thompson, 535 U.S. at 371–73 (stating that the Court “ha[s] made clear [in prior
commercial speech cases] that if the Government could achieve its interests in a
manner that does not restrict speech, or that restricts less speech, the Government
must do so,” then proceeding to consider alternative approaches that would
restrict less speech, and concluding the government had failed to carry its burden
by “not offer[ing] any reason why these [alternatives], alone or in combination,
would be insufficient to [advance its interests]”—or indicating in the record that
it had even considered the relative efficacy of any of these alternatives).
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b
As for what this analysis should look like in practice, our decision in Evans
bars making actual testing of less-restrictive means dispositive to our narrow-
tailoring assessment; in other words, it effectively concluded that it was improper
to impose a new, evidentiary burden on the government to affirmatively
demonstrate that it tried alternative, less-restrictive approaches before enacting a
particular regulation. See Evans, 944 F.3d at 858–59 (rebuffing the argument that
the government must prove it tried less-restrictive means in order to establish
narrow tailoring); cf. McCraw, 973 F.3d at 1076–78 (citing the Fourth Circuit’s
Reynolds decision, which articulates this burden on the government to prove that
it tried less-restrictive means, but ultimately resting its holding as to narrow
tailoring in part on the city’s failure to demonstrate that it considered less-
restrictive means). Nothing in Evans, however, prevents us from inquiring into
whether the government tried or tested less-restrictive means as part of our
overarching narrow tailoring assessment, even if such testing is not a requirement.
More significantly, we do think McCraw (along with other cases discussed
supra) makes clear that the government’s less-restrictive-means analysis must
involve at least a serious consideration of less-restrictive means. That is, the
government may not simply wave at such an analysis superficially. Instead, in
weighing whether to enact a particular regulation that burdens protected speech,
the government should seriously consider the relative efficacy of means
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that impose lesser burdens on speech, while having the potential of achieving its
real and significant interests.
This principle is a direct fit with McCraw’s holding, and it comports as
well with the Supreme Court’s analysis in McCullen. Nor is such a principle at
odds with our decision in Evans, as we had no occasion to opine in that case on
whether serious consideration of means ordinarily should be part and parcel of
any less-restrictive-means analysis, given the expansive argument that was made
by the Evans plaintiff. Indeed, far from being at odds with Evans, this principle
is arguably implicit in it. That is, we expressly recognized that a less-restrictive-
means analysis is helpful to the narrow tailoring inquiry—and if such an analysis
is helpful, we should expect the government to do more than gesture at it, or
ignore it altogether. Rather, if the government undertakes such an analysis, it
should do so seriously.
In sum, we believe that Evans and McCraw, along with numerous other
cases that we have discussed supra, stand for the principle that a less-restrictive-
means analysis is ordinarily a necessary part of a government’s narrow tailoring
showing. Moreover, while such a less-restrictive-means analysis need not entail
the government affirmatively proving that it tried less-restrictive means that have
the potential of achieving its real and significant interests, it does entail the
government giving serious consideration to such less-restrictive means before
opting for a particular regulation. With these principles in place, we assess
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whether the City’s less-restrictive-means analysis is sufficient here to demonstrate
that the Ordinance is narrowly tailored. We conclude that it is not.
4
The City’s less-restrictive-means analysis is insufficient to demonstrate that
the Ordinance is narrowly tailored, and this insufficiency bolsters our
conclusions, outlined supra, that the Ordinance is not meaningfully directed at
alleviating non-speculative harms, and burdens substantially more speech than
necessary to achieve the City’s aims. To start, the City argues that it need not
“show that it considered . . . less burdensome alternatives” because the Ordinance
“[is] not substantially broader than necessary to achieve the City’s interest.”
Aplt.’s Suppl. Br. at 14. But as our precedents suggest—along with the foregoing
analysis in this opinion—we typically cannot reach an informed conclusion
regarding whether an ordinance is substantially broader than necessary without an
inquiry into less-burdensome alternatives. Consequently, a bald assertion by the
government that an ordinance is not substantially broader than necessary will not
ordinarily be sufficient to satisfy the narrow-tailoring inquiry or render
unnecessary an inquiry into less-burdensome alternatives. And, as shown supra,
the City’s not-substantially-broader-than-necessary assertion does not have
sufficient grounding in the record evidence to be labeled anything other than
“bald.”
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Alternatively, the City insists that it did undertake a less-restrictive-means
analysis, and that such analysis revealed the Ordinance to be “the most
appropriate way to address its interest in preventing pedestrian-vehicle conflicts.”
Id. at 14–15; see also Aplt.’s Reply Br. at 12–13, 17–19, 23–24 (asserting, in
relatively conclusory fashion, that the alternatives proffered by Plaintiffs and the
district court would not be equally as effective at promoting pedestrian safety as
the Ordinance). The record does not support the City’s position. To be sure, the
City is correct that it was not required to show that it actually tried less-restrictive
means. But as explained supra, the City was obligated to show that it seriously
considered less-restrictive means. The City’s purported analysis, as outlined in
its briefing, however, does not evince such serious consideration.
Specifically, the City attempts to show consideration of alternative
approaches by noting that it “considered ordinances prohibiting pedestrians and
vehicles from obstructing streets and prohibiting jaywalking,” but that “those
ordinances d[id] not address the dangers the City identified.” Aplt.’s Suppl. Br.
at 14. As well, the City claims it “considered certain state statutes, but th[ese
statutes] similarly d[id] not regulate conduct on medians or pedestrian-vehicle
conflicts.” Id. But these references to facially-inapposite ordinances and statutes
do not demonstrate that the City seriously undertook a less-restrictive-means
analysis. These laws are not a close fit with the problems and interests the City
identifies as justifying the Ordinance. Identifying laws clearly not directed at
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these problems and simply declaring them to be ineffectual does not provide a
proper predicate for imposing the Ordinance and does not satisfy the City’s
narrow-tailoring burden, as such an approach gives us little insight into whether
the Ordinance is, in fact, substantially broader than necessary. See Aplt.’s App.,
Vol. II, at 426–34 (Mr. Melendrez likening his review of other ordinances or laws
to “checking a box” and testifying that he felt other regulatory options would not
address the City’s interests because of, inter alia, difficulties with enforcement);
cf. McCullen, 573 U.S. at 494–97 (rejecting the state’s argument that alternative
approaches were ineffectual because they would be harder to enforce than the
more burdensome regulation chosen because “the prime objective of the First
Amendment is not efficiency,” and concluding that the state could not, “consistent
with the First Amendment,” “close[] a substantial portion of a traditional public
forum to all speakers” without “seriously addressing [its identified] problem
through alternatives that leave the forum open for its time-honored purposes”).
The City also claims that it “considered limiting the Ordinance only to
certain intersections, but found that it could not distinguish those intersections
from similar dangerous roadway locations throughout the City.” Aplt.’s Suppl.
Br. at 14–15. Here, though, the record indicates that any consideration of a
narrower Ordinance was cursory at best. See Aplt.’s App., Vol. IV, at 1115
(Counsel: “At any point did the City consider limiting the ordinance only to
intersections that were determined to be particularly dangerous?” Mr. Melendrez:
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“Briefly, at best”). Likewise, the City’s attempt to show that less-restrictive
means proposed by Plaintiffs would be ineffectual is far too underdeveloped to
advance the City’s cause. See Aplt.’s Suppl. Br. at 15 n.3 (claiming that the City
“addressed . . . Plaintiffs’ comments concerning potential less restrictive means in
its Reply Brief,” but citing portions of its Reply Brief that contain, at best, a
superficial engagement with the efficacy of these potential less-restrictive
alternatives); cf. Aplees.’ Resp. Br. at 37–39, 41–42 (proposing alternative
measures to the Ordinance that arguably would burden less speech while
addressing as effectively the City’s stated interests); Aplees.’ Suppl. Br. at 13–14
(same).
In any event, given that the City did not meaningfully engage in a less-
restrictive-means analysis here, we need not speculate as to whether Plaintiffs’
proposed less-restrictive means would address the City’s interests as efficaciously
as the Ordinance. After all, the narrow tailoring burden is on the City—not
Plaintiffs. Thus, even if Plaintiffs’ proposals turned out to be less efficacious, the
City would still fail to demonstrate that the Ordinance is narrowly tailored for the
reasons already discussed. Cf. Doe, 667 F.3d at 1134 (noting that “[o]ther
possible, less restrictive approaches [than the ban chosen by the government]
potentially suggest themselves,” but declining to engage in “speculation upon
speculation” given that the city “provided nothing in the record that could satisfy
its obligation of proving that the ban is narrowly tailored”). Thus, the City’s
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deficient, largely non-existent less-restrictive-means analysis bespeaks and
emphasizes what we have already concluded: the Ordinance is not narrowly
tailored to serve the City’s significant and non-speculative interests.
IV
For the reasons stated supra, we conclude that Albuquerque’s Ordinance is
not narrowly tailored to serve its identified significant governmental interests. In
light of this conclusion, we need not consider whether the Ordinance leaves open
ample alternative channels of communication. See McCullen, 667 F.3d at 496
n.9. Accordingly, we AFFIRM the district court’s judgment. 18
18
As noted supra, the parties do not appeal the district court’s ruling
regarding the validity of subsection (A) of the Ordinance. See supra note 2.
Neither do the parties appeal the district court’s conclusions regarding
severability of the Ordinance’s subsections. See Martin, 396 F. Supp. 3d at 1023
n.10 (concluding that the Ordinance’s severability clause is valid and that
subsection (A) of the Ordinance can be severed from any remaining, invalid
portions). Thus, in affirming the district court’s judgment as to the invalidity of
subsections (B), (C), (D), and (E) of the Ordinance, we make no ruling
concerning the other subsections of the Ordinance.
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