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Evans v. Sandy City

United States Court of Appeals, Tenth Circuit

July 5, 2019

STEVE RAY EVANS, Plaintiff - Appellant,
v.
SANDY CITY, a municipal corporation; TIM DOLAN, Mayor of Sandy City; KEVIN THACKER, Sandy City Police Chief; ROBERT WALL, Sandy City Attorney; DOUGLAS JOHNSON, Sandy City Prosecutor; R. MACKAY HANKS, Sandy City Prosecutor; SCOTT COWDELL, Sandy City Council Member; MAREN BARKER, Sandy City Council Member; KRISTIN COLEMAN-NICHOLL, Sandy City Council Member; CHRIS MCCANDLESS, Sandy City Council Member; STEVE FAIRBANKS, Sandy City Council Member; LINDA MARTINEZ SAVILLE, Sandy City Council Member; STEPHEN P. SMITH, Sandy City Council Member; C. TYSON, Sandy City Police Department; C. PINGREE, Sandy City Police Department; J.E. BURNS, Sandy City Police Department; JOHN DOE I-XX, Sandy City Police Department, Defendants - Appellees.

          Appeal from the United States District Court for the District of Utah D.C. No. 2:17-CV-00408-BSJ

          Angela H. Elmore, Utah Legal Clinic Foundation (John Robinson, Jr., The Law Office of John Robinson, Jr., with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellant.

          Troy L. Booher, Zimmerman Booher (Freyja R. Johnson, Zimmerman Booher; Michael D. Black, Parr Brown Gee & Loveless; David C. Reymann, Parr Brown Gee & Loveless, with him on the brief), Salt Lake City, Utah, for Defendants-Appellees.

          Before BRISCOE, BALDOCK, and EID, Circuit Judges.

          Baldock, Circuit Judge.

         In 2016, the Sandy City, Utah city council adopted an ordinance making it illegal for any person "to sit or stand, in or on any unpaved median, or any median of less than 36 inches for any period of time." Sandy City Traffic Code, Article 16, Section 299.1 (the Ordinance). After the Sandy City council adopted the Ordinance, Plaintiff-Appellant Steve Ray Evans received four citations for violating the Ordinance when he stood on narrow or unpaved medians. Evans filed suit against the City and many of its officials under 42 U.S.C. § 1983 in the district court of Utah, alleging the Ordinance is facially invalid because it violates the First Amendment right to free speech. Evans also asked the district court to grant his request for a preliminary injunction. The City filed a motion for summary judgment and the court allowed discovery. After a hearing on the motion, the district court denied Evans' preliminary injunction and granted summary judgment in favor of the City because the Ordinance was a valid time, place, or manner restriction on speech.[1] Evans appealed, arguing the district court incorrectly applied the time, place, or manner standard and wrongly granted summary judgment because the City did not satisfy its evidentiary burden. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I.

         We review a district court's summary judgment ruling 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." Fed.R.Civ.P. 56(a). In reviewing a motion for summary judgment, "we review the facts and all reasonable inferences those facts support, in the light most favorable to the nonmoving party." iMatter, 774 F.3d at 1262 (citation omitted). Because this decision 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. Faustin v. City and Cty. of Denver, 423 F.3d 1192, 1196 (10th Cir. 2005). Here, the City carries the burden to justify the Ordinance with uncontested facts. See iMatter, 774 F.3d at 1263.

         II.

         Today, we confront whether the Ordinance, which prohibits the sitting or standing on medians that are unpaved or less than 36 inches wide (hereinafter "affected medians"), violates the First Amendment. The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." U.S. Const. amend. I. The First Amendment "applies not only to legislative enactments, but also to less formal governmental acts, including city policies," such as the Ordinance at issue. Hawkins v. City and Cty. of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999).

         A.

         As a threshold matter, we must first consider whether the activity in question constitutes protected speech under the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788, 797 (1985) ("[I]f [the speech] is not [protected], we need go no further."). Here, Evans contends the Ordinance restricts his ability to panhandle and solicit financial support. According to the Supreme Court, "the solicitation of charitable contributions is protected speech." Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988). Neither the Supreme Court nor this Circuit has directly addressed whether panhandling is protected speech under the First Amendment but several of our sister circuits who reached the question determined panhandling is protected. See Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir. 2015); Speet v. Schuette, 726 F.3d 867, 870 (6th Cir. 2013); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999); Loper v. N.Y.C. Police Dep't, 999 F.2d 699, 704 (2d Cir. 1993). Assuming without deciding panhandling is protected under the First Amendment, as we will explain later, the Ordinance is a valid time, place, or manner restriction. See Gresham v. Peterson, 225 F.3d 899, 904-05 (7th Cir. 2000) (after "assuming . . . some panhandler speech would be protected by the First Amendment," the Seventh Circuit applied the First Amendment "time, place, and manner" framework.).

         We note that while solicitation and panhandling laws are on the books in cities across the United States and challenges to such laws have been similarly widespread, an astute reader will recognize the Ordinance challenged here is not a ban on panhandling or solicitation like many other ordinances. Instead, the Ordinance is a restriction on sitting or standing on narrow and unpaved medians. This distinction will become important later, but for now we assume Evans' form of speech, panhandling, is protected speech.

         B.

         We turn next to the nature of the forum affected by the Ordinance. Under First Amendment jurisprudence, "the extent to which the Government can control access [to Government property] depends on the nature of the relevant forum." Cornelius, 473 U.S. at 800. The Supreme Court has identified three categories of Government property subject to First Amendment analysis: (1) traditional public fora; (2) designated public fora; and (3) nonpublic fora. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983). A traditional public forum is a place that "by long tradition or by government fiat ha[s] been devoted to assembly and debate." Id. at 45. "Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius, 473 U.S. at 800 (citing Perry, 460 U.S. at 45). In contrast, designated public fora are places that are not generally open to the public for First Amendment activity and "are created by purposeful governmental action" to allow speech activity. Arkansas Educ. Television Com'n v. Forbes, 523 U.S. 666, 677 (1998). A nonpublic forum is anything that does not qualify as a traditional or designated public forum. Access to a nonpublic forum "can be restricted as long as the restrictions are 'reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'" Cornelius, 473 U.S. at 800 (quoting Perry, 460 U.S. at 46) (alteration in original).

         Evans contends "[m]edians are widely considered [traditional] public fora" whereas the City contends the affected medians are nonpublic fora. The district court did not decide the issue, concluding the forum designation was not dispositive since the Ordinance was valid even under the stricter standard for traditional public fora. We agree with the district court. As we will explain, the Ordinance is a valid time, place, or manner regulation; thus, we need not decide if the affected medians are more appropriately classified as nonpublic fora.[2]

         C.

         Assuming without deciding the affected medians are traditional public fora, we turn to whether the Ordinance is a valid restriction of protected speech. It is well-settled "that even in a public forum the government may impose reasonable restrictions on the time, place, and 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 information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). We address each of the three requirements in turn.

         1. Content Neutrality

         Recall, the Ordinance proscribes any person "to sit or stand, in or on any unpaved median, or any median of less than 36 inches for any period of time." Sandy City Traffic Code, Article 16, Section 299.1. No one disputes the Ordinance is facially content neutral because it "does not draw content-based distinctions on its face." McCullen v. Coakley, 134 S.Ct. 2518, 2531 (2014). The law applies evenhandedly to all who sit or stand on narrow or unpaved medians irrespective of the content of their message.

         Even though the Ordinance is content-neutral on its face, the Ordinance may nevertheless be content-based if the government adopted the Ordinance "because of disagreement with the message it conveys." Ward, 491 U.S. at 791. "The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. (emphasis added). "Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.'" Id. (quoting Cmty. for Creative Non-Violence, 468 U.S. at 293).

         The record indicates the City justified the Ordinance without reference to the content of the regulated speech. Specifically, the City police captain explained during a City council meeting that people sitting or standing on narrow or unpaved medians are a public safety hazard. The police captain explained the Ordinance sought to limit that danger because there had been "several close calls" where accidents involving pedestrians and vehicles "could [have] be[en] devastating." The City's public safety justification is further confirmed by the process the City prosecutor used to draft the Ordinance. First, the City prosecutor received notice the police "were having some problems with safety issues" with people falling into traffic. To deal with this problem, the City prosecutor set out to draft the Ordinance. He gathered information by surveying the City's medians. Then, he drafted the Ordinance to exclusively target medians where it was dangerous to sit or stand for any length of time, regardless of the speech that might occur. In his judgment, paved medians less than 36-inches wide were dangerous to sit or stand on because they were too narrow to provide refuge from passing cars. He also concluded unpaved medians, which were typically covered in rocks, boulders, and in some cases shrubs, were dangerous because pedestrians could easily lose their footing or trip on uneven surfaces. At all times, the City has maintained its sole justification for the Ordinance is to promote public safety.

         In spite of this clear public safety purpose, Evans contends the Ordinance is not content neutral because the City acted, in part, because it disagreed with panhandling. Evans suggests the City's public safety justification is a façade for its improper motive to suppress panhandlers' speech. In support, Evans points to one question and one statement made by two councilmembers at the City council meeting where the police captain presented the proposed Ordinance. One councilmember asked, "we're going to give homeless people citations?" No reasonable factfinder could conclude this question provides evidence the City adopted the Ordinance "because of a disagreement with the content" of panhandlers' speech. At most, the question reveals one councilmember acknowledged the Ordinance would have an incidental effect on panhandling. But it is well-settled such an incidental effect on some speakers or messages does not make a regulation content-based. See Ward, 491 U.S. at 791 ("A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others."); see also City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 49 (1986) (classifying a restriction on the location of adult movie theaters as content neutral because the ordinance was aimed not at the content of the films shown, but rather at the secondary effects of such theaters on the surrounding community); McCullen, 134 S.Ct. at 2531 (classifying an ordinance that exclusively restricted speech at abortion clinics as content neutral because the ordinance was aimed at public safety, even though it had an incidental effect on abortion-related speech). Therefore, this question most certainly does not turn the Ordinance into a content-based restriction.

         Additionally, Evans contends a councilmember's statement, "And I don't even know who stops there to give them anything in the middle of traffic as it's going," shows the City adopted the Ordinance because it disagreed with panhandling. Like the councilmember's question, no reasonable factfinder could conclude the statement provides evidence the City adopted the Ordinance because of a disagreement with the content of panhandler's speech. This is especially true when the statement is read in context. The councilmember's entire statement and the City police captain's response indicates the councilmember endorsed the Ordinance to promote public safety:

I drove 106th the other day at about noon and there were four people standing on [a] median and they were talking, you know, this group of guys were just talking there and, boy, if one of them would have stepped backwards a foot-'cause they were on [a median] narrower than three feet-[Police Captain: "Correct"]-they would've been just wiped out- [Police Captain: "I believe it is approximately 16 inches"]-Really it was scarey [sic] for me and it's for their own safety, you know. And I don't even know who stops there to give them anything in the middle of traffic as it's going.

         This statement supports the City's public safety justification for passing the Ordinance. Conspicuously, the statement says nothing about the content of panhandlers' speech, let alone provides evidence the City passed the Ordinance because it disagreed with their message. Accordingly, the Ordinance is content neutral.[3]

          2. Narrowly Tailored to Serve a Significant Government Interest

         "Even though the [Ordinance] is content neutral, it still must be 'narrowly tailored to serve a significant governmental interest.'" McCullen, 134 S.Ct. at 2534 (quoting Ward, 491 U.S. at 796). No one disputes the Ordinance serves a significant governmental interest in promoting public safety. In fact, even Evans acknowledges "[t]here's no real dispute about whether keeping cars and pedestrians away from each other would, at least in some way, make Sandy City a safer place." Op. Br. at 25 (citing Int'l Soc'y for Krishna Consciousness v. City of Baton Rouge, 668 F.Supp. 527, 530 (M.D. La. 1987) ("It requires neither towering intellect nor an expensive 'expert' study to conclude that mixing pedestrians and temporarily stopped motor vehicles in the same space at the same time is dangerous.")). With both parties in agreement, we need not belabor the point: the Ordinance promotes public safety in a direct and effective way by keeping pedestrians off thin slices of pavement and unpaved traffic dividers where pedestrians could be injured by passing traffic.

         We turn, instead, to the hotly contested question: whether the Ordinance is narrowly tailored to serve that interest. To be narrowly tailored, the Ordinance must not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward, 491 U.S. at 799. 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 advance its goals." McCullen, 134 S.Ct. at 2535 (quoting Ward, 491 U.S. at 799). This requirement demands a "close fit between ends and means" to ensure speech is not sacrificed for efficiency. Id. at 2534. We 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." Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 165 (2002).

         At the same time, such regulation "need not be the least restrictive or least intrusive means of doing so. 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.'" Ward, 491 U.S. at 798-99 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). "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." Id. at 800. "'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 interest should be promoted." Id. at 800 (quoting Albertini, 472 U.S. at 689).

         Here, the City adopted the Ordinance to promote "public health, safety and [the] welfare of the City" after there had been several "close calls" where individuals reported pedestrians on medians in dangerous situations. Evans nevertheless contends the Ordinance is not narrowly tailored. To ...


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