from the United States District Court for the District of
Utah (D.C. No. 2:17-CV-00408-BSJ)
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.
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.
BRISCOE, BALDOCK, and EID, Circuit Judges.
matter is before the court on the appellant's
Petition for Rehearing En Banc. We also have a
response from the appellees. In addition, also before the
court is a motion from the ACLU Foundation of Colorado and
related entities seeking leave to file a brief amicus curiae
in support of en banc rehearing.
preliminary matter, and upon consideration, we grant the
motion submitted by the ACLU to file a brief amicus curiae.
The brief received originally on August 26, 2019 will be
shown filed on the docket effective the original date of
consideration of the rehearing request, and pursuant to the
panel's inherent authority, the court sua sponte
grants panel rehearing to the extent of the changes made in
the attached revised opinion. A revised dissent is likewise
attached to this order. The clerk is directed to reissue the
revised decision and dissent effective today's date.
Petition, response, and the revised opinion and
dissent were also circulated to all the judges of the court
in regular active service who are not otherwise disqualified.
See Fed. R. App. P. 35(a). As no judge on the
original panel or the en banc court requested that a poll be
called, the Petition for Rehearing En Banc is
BALDOCK, CIRCUIT JUDGE
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. 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.
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.
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).
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.).
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.
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).
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.
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
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, 573 U.S. 464, 479 (2014). The law applies
evenhandedly to all who sit or stand on narrow or unpaved
medians irrespective of the content of their message.
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).
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.
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, 573 U.S. at 480 (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
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.
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.
Narrowly Tailored to Serve a Significant Government
though the [Ordinance] is content neutral, it still must be
'narrowly tailored to serve a significant governmental
interest.'" McCullen, 573 U.S. at 486
(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.
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, 573 U.S. at 486 (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. 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).
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 ...