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, 109 S.Ct. 2746, 105 L.Ed.2d 661 (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, ___ U.S. ___, 141 S.Ct. 235, 208 L.Ed.2d 15 (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, ___ U.S. ___, 141 S.Ct. 1738, 209 L.Ed.2d 505 (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 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 Amendment. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we
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
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)
Subsection (C) regulates pedestrian presence on medians,
Id. § 8-2-7-2(C).
The subsection articulates three categories of medians "not suitable for pedestrian use":
Id. § 8-2-7-2(C)(1)-(3).
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 physical contact with a vehicle in a travel lane or with any of its occupants," or vice versa, "either directly or with an object."
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, 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. 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.
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) 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 Ordinance
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.
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,
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)). 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
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 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 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
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 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.
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." FED. R. CIV. 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. 2001)).
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
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, 108 S.Ct. 1157, 99 L.Ed.2d 333 (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, 92 S.Ct. 2286, 33 L.Ed.2d 212 (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 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.
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."
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.
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) (quoting United States v. Sineneng-Smith, ___ U.S. ___, 140 S.Ct. 1575, 1579, 206 L.Ed.2d 866 (2020))); see also Greenlaw v. United States, 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (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, 566 U.S. 964, 132 S.Ct. 1969, 182 L.Ed.2d 821 (2012); accord Tran v. Trs. of State
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 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, 108 S.Ct. 2667, 101 L.Ed.2d 669 (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 Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).
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, 134 S.Ct. 2518 (first quoting United States v. Grace, 461 U.S. 171, 180, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); and then quoting Pleasant Grove City v.
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, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); and then quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746).
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 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 "the Act is content neutral ..
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 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.
"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, 134 S.Ct. 2518); accord Ward, 491 U.S. at 799, 109 S.Ct. 2746; Evans, 944 F.3d at 856; cf. Thompson v. W. States Med. Ctr., 535 U.S. 357, 373, 122 S.Ct. 1497, 152 L.Ed.2d 563 (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 advance its goals.'" Evans, 944 F.3d at 856 (quoting McCullen, 573 U.S. at 486, 134 S.Ct. 2518).
This narrow tailoring requirement not only "guard[s] against an[y] impermissible desire to censor," but, more significantly, "prevents the government
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, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014) (plurality op.)), such regulations "`need not be the least restrictive or least intrusive means of' serving the government's interests,"
"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, 109 S.Ct. 2746); 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, 109 S.Ct. 2746)).
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 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
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 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, 134 S.Ct. 2518); 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, 116 S.Ct. 1495 (O'Connor, J., concurring)).
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 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
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 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, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); then quoting Edenfield, 507 U.S. at 770, 113 S.Ct. 1792; then quoting Grace, 461 U.S. at 181, 103 S.Ct. 1702; and then quoting Edenfield, 507 U.S. at 773, 113 S.Ct. 1792).
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:
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
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" 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:
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]
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:
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. 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
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, 134 S.Ct. 2518 (noting that "the prime 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, 134 S.Ct. 2518)). 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." 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").
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, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981); see First Unitarian Church, 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, 103 S.Ct. 1702 (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").
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).
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 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.
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).
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 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]
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 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 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
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. 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, 113 S.Ct. 1792; and then quoting Turner, 512 U.S. at 664, 114 S.Ct. 2445).
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, 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.
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 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
The statistical evidence the City relies on, then, is not sufficiently particularized to the interests the City claims the Ordinance directly addresses, and, therefore, does little to show that the Ordinance—as a means of addressing those interests—is narrowly tailored.
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 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
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.
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 "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.
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, 113 S.Ct. 1792 ("Broad prophylactic rules in the area of free expression are suspect. Precision of
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 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 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, 134 S.Ct. 2518)).
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
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:
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 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.
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
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 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 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.
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 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 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
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 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 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
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 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 during the time period that was regulated]") (emphasis added) (quoting Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 n.12 (10th Cir. 2005)).
* * *
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." 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.
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 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
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.
In addressing the question of whether the government must consider less-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, 109 S.Ct. 2746. 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, 109 S.Ct. 2746. 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, 109 S.Ct. 2746. In "sifting through all the available or imagined alternative means of regulating
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, 105 S.Ct. 2897, 86 L.Ed.2d 536 (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, 109 S.Ct. 2746 (emphases added); see id. at 800, 109 S.Ct. 2746 ("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, 134 S.Ct. 2518. 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 state's significant interests while burdening substantially less speech in the process. Id. at 490-94, 134 S.Ct. 2518. The state replied that it had tried alternative approaches, but that they had been ineffectual. Id. at 494, 134 S.Ct. 2518. 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, 134 S.Ct. 2518. 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, 134 S.Ct. 2518.
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 plaintiff. First, the plaintiff "contend[ed] [Sandy] City did not
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 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, 109 S.Ct. 2746). "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, 109 S.Ct. 2746).
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 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
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 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:
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, 134 S.Ct. 2518)).
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, 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
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 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, 134 S.Ct. 2518)). 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.
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.
"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 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, 134 S.Ct. 2518). 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, 134 S.Ct. 2518). 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 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, 134 S.Ct. 2518). Consequently, in light of McCullen, we concluded in Verlo that
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, 134 S.Ct. 2518). 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]").
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.
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, 109 S.Ct. 3028, 106 L.Ed.2d 388 (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, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987)); see also supra note 14. For example, in U.S. West, Inc. v. FCC, we made the following remarks regarding narrow
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, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995); then quoting Fox, 492 U.S. at 480, 109 S.Ct. 3028; then quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); and then quoting 44 Liquormart, 517 U.S. at 529, 116 S.Ct. 1495 (O'Connor, J., concurring)), cert. denied, 530 U.S. 1213, 120 S.Ct. 2215, 147 L.Ed.2d 248 (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."
* * *
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.
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 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
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 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.
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."
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
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: "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 deficient, largely non-existent less-restrictive-means analysis bespeaks and emphasizes what we have already concluded: the Ordinance is not narrowly tailored to serve
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
Albuquerque, N.M., Code of Ordinances § 8-2-7-2(F).
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  whether the State's interests in proscribing it are substantial,  whether the challenged regulation advances these interests in a direct and material way, and  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, 113 S.Ct. 1792, 123 L.Ed.2d 543 (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, 109 S.Ct. 2746)), 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, 109 S.Ct. 2746)); 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 McCullen, 573 U.S. at 477, 134 S.Ct. 2518; and then quoting Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (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, 109 S.Ct. 2746; then quoting Edenfield, 507 U.S. at 773, 113 S.Ct. 1792; then quoting Grace, 461 U.S. at 181, 103 S.Ct. 1702; and then quoting Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (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 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, 134 S.Ct. 2518 (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, 109 S.Ct. 2746 ("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 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.
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 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").