Brewer v. City of Albuquerque

18 F.4th 1205

Rhonda BREWER; David McCoy; Mary O'Grady; Marissa Elyse Sanchez, Plaintiffs - Appellees,andJohn Martin, Plaintiff

v.CITY OF ALBUQUERQUE, Defendant - Appellant.

No. 19-2140

United States Court of Appeals, Tenth Circuit.

FILED November 24, 2021

Jaime A. Santos, Goodwin Procter LLP, Washington, D.C. (María Martínez Sánchez and Leon Howard, ACLU of New Mexico, Albuquerque, New Mexico; Kevin P. Martin, Gerard J. Cedrone, Martin C. Topol, Christopher J.C. Herbert, Goodwin Procter LLP, Boston, Massachusetts, with her on the briefs), for Plaintiffs-Appellees.

Timothy J. Atler, Atler Law Firm, P.C., Albuquerque, New Mexico (Jazmine J. Johnston, Atler Law Firm, P.C., Albuquerque, New Mexico and Esteban A. Aguilar, Jr., City Attorney, City of Albuquerque, Albuquerque, New Mexico, with him on the briefs), for Defendant-Appellant.

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.

HOLMES, Circuit Judge.

When the government restricts the time, place, or manner of expressive activities in "traditional public for[a]," like streets and sidewalks, it must show that such restrictions are "narrowly tailored to serve ... substantial and content-neutral government interests." Ward v. Rock Against Racism , 491 U.S. 781, 803, 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 affirm the judgment of the district court.

I

A

This appeal concerns Albuquerque Code of Ordinances § 8-2-7-2, which regulates pedestrian presence in and around roadways throughout Albuquerque. Originally adopted by Albuquerque's city council in November 2017 in Council Bill No. O-17-51, the Ordinance amended portions of the City's Traffic Code "relating to pedestrian safety and vehicle/pedestrian conflicts." Aplt.’s App., Vol. I, at 81 (Council Bill No. O-17-51, dated Nov. 6, 2017) (capitalization omitted).¹

The Ordinance contains six subsections—four of which are at issue in this appeal—that, together, prohibit pedestrians from "occupying roadways, certain medians[,] and roadside areas" and proscribe "certain pedestrian interactions with vehicles." Albuquerque, N.M., Code of Ordinances § 8-2-7-2 (capitalization omitted). Subsection (B)² of the Ordinance prohibits "any person" from "access[ing], us[ing], occupy[ing], congregat[ing,] or assembl[ing] within six feet of a travel lane of an entrance or exit ramp to Interstate 25, Interstate 40, or to Paseo del Norte at Coors Boulevard NW, Second Street NW, Jefferson Street NW, or Interstate 25, except on a grade separated sidewalk or designated pedestrian way," and "unless reasonably necessary because of an emergency situation where such area provides the only opportunity for refuge from vehicle traffic or other safety hazard." Id. § 8-2-7-2(B).³ The Code of Ordinances defines "travel lane" as "[t]he portion of the roadway dedicated to the movement of motor vehicles traveling from one destination to another where a motor vehicle may not remain stationary indefinitely without eventually obstructing the free flow of traffic, and not including shoulders, bicycle lanes, or on-street parking." Id. § 8-1-1-2.⁴

Subsection (C) regulates pedestrian presence on medians,⁵ specifically making it:

unlawful for any person to access, use, occupy, congregate, or assemble within any median not suitable for pedestrian use, unless reasonably necessary during an otherwise lawful street crossing at an intersection or designated pedestrian crossing, or because of an emergency situation where the median provides the only opportunity for refuge from vehicle traffic or other safety hazard.

Id. § 8-2-7-2(C).

The subsection articulates three categories of medians "not suitable for pedestrian use":

(1) Any portion of a median that is less than six feet in width, and located within a roadway with a posted speed limit of 30 miles per hour or faster or located within 25 feet of an intersection with such a roadway; or

(2) Is the landscaped area of the median as defined by this Traffic Code; or

(3) Is otherwise identified by signage as not suitable for pedestrian use by the City Traffic Engineer based on identifiable safety standards, including but not limited to an unsuitable gradient or other objectively unsuitable features.

Id. § 8-2-7-2(C)(1)–(3).⁶

Lastly, subsections (D) and (E) regulate interactions between pedestrians and vehicle occupants. Specifically, subsection (D) makes it "unlawful for any pedestrian to engage in any physical interaction or exchange with the driver or occupants of any vehicle within a travel lane unless reasonably required because of an emergency situation." Id. § 8-2-7-2(D). Subsection (E) effectively proscribes the mirror image of the physical interaction or exchange addressed by subsection (D): that is, it prohibits "occupant[s] of a motor vehicle within any travel lane or intersection [from] engag[ing] in any physical interaction or exchange with a pedestrian unless reasonably required because of an emergency situation." Id. § 8-2-7-2(E). For both subsections, "physical interaction or exchange" is defined as "conduct by which a pedestrian intentionally makes physical contact with a vehicle in a travel lane or with any of its occupants," or vice versa, "either directly or with an object."⁷ Id. § 8-2-7-2(D)–(E).

Violations of the Ordinance are petty criminal misdemeanors punishable "by a fine of not more than $500 or by imprisonment for not more than 90 days or by both such fine and imprisonment." Id. § 8-1-3-99(A).

B

Shortly after the Ordinance's passage, several residents of Albuquerque ("Plaintiffs") filed suit in federal district court, alleging that the Ordinance was "overly broad and unconstitutionally infringe[d]" on their "rights to exercise freedom of speech and expression in traditional public forums by restricting a substantial volume of constitutionally protected speech without adequate justification." Aplt.’s App., Vol. I, at 35 (Compl., filed Jan. 11, 2018). Plaintiffs "regularly solicit charitable donations from vehicle occupants, provide charitable donations from their vehicles to those solicitors, or engage in political speech, 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...