Martin v. City of Albuquerque

FILED
Appellate Case: 19-2140 Document: 010110610058 United
Date Filed: States CourtPage:
11/24/2021 of Appeals
1
Tenth Circuit

November 24, 2021
PUBLISH Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RHONDA BREWER; DAVID MCCOY;
MARY O’GRADY; MARISSA ELYSE
SANCHEZ,

Plaintiffs - Appellees,

and

JOHN MARTIN, No. 19-2140

Plaintiff

v.

CITY OF ALBUQUERQUE,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:18-CV-00031-RB-JFR)

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

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

HOLMES, Circuit Judge.

When the government restricts the time, place, or manner of expressive

activities in “traditional public for[a],” like streets and sidewalks, it must show

that such restrictions are “narrowly tailored to serve . . . substantial and content-

neutral government interests.” Ward v. Rock Against Racism, 491 U.S. 781, 803

(1989). In this case, we consider—for the third time in as many years—whether a

city has fulfilled its narrow tailoring obligation with regard to such a restriction.

See Evans v. Sandy City, 944 F.3d 847, 852 (10th Cir. 2019) (concluding that

Sandy City, Utah’s ordinance prohibiting pedestrians from occupying unpaved or

narrow medians was narrowly tailored and constituted a “valid time, place, or

manner restriction on speech” under the First Amendment), cert. denied, 141 S.

Ct. 235 (2020); McCraw v. City of Oklahoma City, 973 F.3d 1057, 1080 (10th Cir.

2020) (concluding that Oklahoma City, Oklahoma’s ordinance prohibiting

pedestrian presence on medians was not narrowly tailored and, accordingly, ran

afoul of the First Amendment), cert. denied, 141 S. Ct. 1738 (2021).

The City of Albuquerque, New Mexico (“Albuquerque” or “the City”)

enacted a city-wide ordinance (hereinafter, “the Ordinance”) that, in pertinent

part, prohibits pedestrians from (1) congregating within six feet of a highway

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entrance or exit ramp, (2) occupying any median deemed unsuitable for pedestrian

use, and (3) engaging in any kind of exchange with occupants of a vehicle in a

travel lane.

Plaintiffs-Appellees—residents of Albuquerque who engage in a variety of

expressive activities, like panhandling, protesting, or passing out items to the

needy—sued the City in federal court, alleging that the Ordinance impermissibly

burdens the exercise of their First Amendment rights. The City argued the

Ordinance was necessary to address persistent and troubling pedestrian safety

concerns stemming from high rates of vehicular accidents throughout

Albuquerque—and, in relation to this pressing interest, the Ordinance was

narrowly tailored and did not burden substantially more speech than necessary.

The district court disagreed, finding that those provisions of the Ordinance

described above violated Plaintiffs’ First Amendment rights because they were

not narrowly tailored to the City’s interest in increasing pedestrian safety and,

more specifically, reducing pedestrian-vehicle conflicts (e.g., collisions). On

appeal, the City asserts the district court erred in concluding the Ordinance did

not pass First Amendment muster, and it specifically focuses on the question of

narrow tailoring, arguing that the City did, indeed, appropriately tailor the

Ordinance—and, in any event, it was required to do no more than it did.

We reject the City’s position and, for the reasons explained infra, hold that

the Ordinance is not narrowly tailored and, therefore, violates the First

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Amendment. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the judgment of the district court.

I

A

This appeal concerns Albuquerque Code of Ordinances § 8-2-7-2, which

regulates pedestrian presence in and around roadways throughout Albuquerque.

Originally adopted by Albuquerque’s city council in November 2017 in Council

Bill No. O-17-51, the Ordinance amended portions of the City’s Traffic Code

“relating to pedestrian safety and vehicle/pedestrian conflicts.” Aplt.’s App., Vol.

I, at 81 (Council Bill No. O-17-51, dated Nov. 6, 2017) (capitalization omitted). 1

The Ordinance contains six subsections—four of which are at issue in this

appeal—that, together, prohibit pedestrians from “occupying roadways, certain

medians[,] and roadside areas” and proscribe “certain pedestrian interactions with

vehicles.” Albuquerque, N.M., Code of Ordinances § 8-2-7-2 (capitalization

omitted). Subsection (B) 2 of the Ordinance prohibits “any person” from

1
The Council later amended the Ordinance through Council Bill F/S
O-19-66, which “ma[de] certain non-substantive clarifications” to the Ordinance’s
text. Aplt.’s App., Vol. VI, at 1462 (Council Bill No. F/S O-19-66, enacted July
10, 2019). References to the Ordinance throughout this opinion are to the
Ordinance as modified by Council Bill No. F/S O-19-66—in other words, the
Ordinance as currently codified in § 8-2-7-2. Furthermore, when we refer to the
Ordinance in Section III, infra, we only refer to those subsections at issue in this
appeal, i.e., subsections (B), (C), (D), and (E), unless stated otherwise.
2
Subsection (A) makes it “unlawful for any person to stand in any
(continued...)

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“access[ing], us[ing], occupy[ing], congregat[ing,] or assembl[ing] within six feet

of a travel lane of an entrance or exit ramp to Interstate 25, Interstate 40, or to

Paseo del Norte at Coors Boulevard NW, Second Street NW, Jefferson Street NW,

or Interstate 25, except on a grade separated sidewalk or designated pedestrian

way,” and “unless reasonably necessary because of an emergency situation where

such area provides the only opportunity for refuge from vehicle traffic or other

safety hazard.” Id. § 8-2-7-2(B). 3 The Code of Ordinances defines “travel lane”

as “[t]he portion of the roadway dedicated to the movement of motor vehicles

traveling from one destination to another where a motor vehicle may not remain

2
(...continued)
travel lane of a street, highway, or controlled access roadway or in any travel lane
of the exit or entrance ramps thereto.” Albuquerque, N.M., Code of Ordinances §
8-2-7-2(A). The district court concluded that subsection (A) is a reasonable,
content-neutral, and “valid restriction on speech in a nonpublic forum.” Martin v.
City of Albuquerque, 396 F. Supp. 3d 1008, 1023 (D.N.M. 2019) (emphasis
added). Plaintiffs do not challenge this conclusion on appeal. See Aplees.’ Resp.
Br. at 8. Therefore, we deem any such challenge to be “waived (i.e.,
abandoned).” United States v. Yelloweagle, 643 F.3d 1275, 1280 (10th Cir.
2011), cert denied, 556 U.S. 964 (2012); accord Tran v. Trs. of State Colleges,
355 F.3d 1263, 1266 (10th Cir. 2004).
3
The City concedes subsection (B) “covers all controlled-access
roadways in Albuquerque,” such that “there are no exit or entrance ramps in
Albuquerque to which [the subsection] does not apply.” Aplees.’ Resp. Br. at 8;
see Aplt.’s Opening Br. at 49 (insisting that the City “did not select certain
controlled access roadways to be included in the Ordinance,” but rather “included
all three of them”); Aplt.’s App., Vol. VI, at 1448 (Suppl. Br. Regarding Recent
Amendments to the Pedestrian Safety Ordinance, filed July 2, 2019) (noting that
Council Bill No. F/S O-19-66 merely clarified the scope of the Ordinance in its
original form—and that, as it relates to subsection (B), the Council Bill merely
“identifie[d] by name the specific highways and controlled access roadways that
[were] referenced in [subsection (B) as originally written]”).

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stationary indefinitely without eventually obstructing the free flow of traffic, and

not including shoulders, bicycle lanes, or on-street parking.” Id. § 8-1-1-2. 4

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

making it:

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

Id. § 8-2-7-2(C).

The subsection articulates three categories of medians “not suitable for

pedestrian use”:

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

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

(3) Is otherwise identified by signage as not suitable for
pedestrian use by the City Traffic Engineer based on identifiable

4
The Code further defines “roadway” as the “portion of a street or
highway improved, designed, or ordinarily used for vehicular travel, exclusive of
the berm or shoulder.” Albuquerque, N.M., Code of Ordinances § 8-1-1-2.
5
“Median” is defined as the “area of raised land that separates
opposing lanes of traffic on divided roadways.” Albuquerque, N.M., Code of
Ordinances § 8-1-1-2.

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safety standards, including but not limited to an unsuitable
gradient or other objectively unsuitable features.

Id. § 8-2-7-2(C)(1)–(3). 6

Lastly, subsections (D) and (E) regulate interactions between pedestrians

and vehicle occupants. Specifically, subsection (D) makes it “unlawful for any

pedestrian to engage in any physical interaction or exchange with the driver or

occupants of any vehicle within a travel lane unless reasonably required because

of an emergency situation.” Id. § 8-2-7-2(D). Subsection (E) effectively

proscribes the mirror image of the physical interaction or exchange addressed by

subsection (D): that is, it prohibits “occupant[s] of a motor vehicle within any

travel lane or intersection [from] engag[ing] in any physical interaction or

exchange with a pedestrian unless reasonably required because of an emergency

situation.” Id. § 8-2-7-2(E). For both subsections, “physical interaction or

exchange” is defined as “conduct by which a pedestrian intentionally makes

6
The Code defines “landscaped area” as the “area located within a
public way where natural ground covers such as decorative gravel, wood chips or
boulders, and living vegetative materials such as trees, grasses, vines, shrubs or
flowers have been installed”; it does not include “concrete, brick or other
equivalent hard surface.” Albuquerque, N.M., Code of Ordinances § 8-1-1-2.
“Public way” is defined as “[t]he entire width between the property lines of every
way publicly maintained (including easements maintained for public use) when
any part thereof is open to the use of the public for purposes of vehicular or
pedestrian travel, notwithstanding that same may be temporarily closed for the
purpose of construction, reconstruction, maintenance, alteration or repair.” Id.;
see also id. (giving the terms “Highway” and “Street” the same definition).

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physical contact with a vehicle in a travel lane or with any of its occupants,” or

vice versa, “either directly or with an object.” 7 Id. § 8-2-7-2(D)–(E).

Violations of the Ordinance are petty criminal misdemeanors punishable

“by a fine of not more than $500 or by imprisonment for not more than 90 days or

by both such fine and imprisonment.” Id. § 8-1-3-99(A).

B

Shortly after the Ordinance’s passage, several residents of Albuquerque

(“Plaintiffs”) filed suit in federal district court, alleging that the Ordinance was

“overly broad and unconstitutionally infringe[d]” on their “rights to exercise

freedom of speech and expression in traditional public forums by restricting a

substantial volume of constitutionally protected speech without adequate

justification.” Aplt.’s App., Vol. I, at 35 (Compl., filed Jan. 11, 2018). Plaintiffs

“regularly solicit charitable donations from vehicle occupants, provide charitable

donations from their vehicles to those solicitors, or engage in political speech,

7
Subsection (F), the final subsection of the Ordinance, is not at issue
in this appeal. It states that nothing in the Ordinance:

shall be construed as preventing maintenance or construction
activities within medians or roadside areas by public agencies or
agents thereof, entering or exiting a bus or other form of public
transit at authorized pick up and drop off locations, or as
preventing physical interactions or exchanges between
pedestrians and occupants of vehicles where the vehicle is
lawfully stopped or pulled over outside of a travel lane, or parked
at a location where on-street parking is permitted.

Albuquerque, N.M., Code of Ordinances § 8-2-7-2(F).

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including pamphleteering to motorists”—all in or around “areas affected by the

Ordinance.” Id. at 24. For example, one of the Plaintiffs, Rhonda Brewer,

solicits donations from motorists to pay for everyday needs; to increase her

chances of garnering a donation, she stands on medians and near highway ramps

in heavily-trafficked areas, holding a sign directed at stopped traffic. Two other

Plaintiffs, David McCoy and Mary O’Grady, regularly donate money, food, and

hygiene products to roadside solicitors from their parked cars—including

solicitors on medians and near highway ramps. And Plaintiff Marissa Elyse

Sanchez uses medians near busy intersections to demonstrate for particular

political causes and distribute literature to pedestrians and vehicle occupants.

The Ordinance, however, would force Plaintiffs to engage in their

expressive speech and conduct in alternate locations, which they averred would be

less effective or less safe. See id., Vol. I, at 25–27, 32–34 (noting that Ms.

Brewer’s attempts to panhandle on sidewalks have “prove[n] to be ineffective”

and that Mr. McCoy and Ms. O’Grady would likely be unable “to continue their

expressive conduct if they were permitted to donate to panhandlers only if they

pull off the road and pull into a parking lot or parking spot”); id., Vol. II, at 339

(Pls.’ Mot. for Summ. J., filed Apr. 12, 2019) (summarizing testimony in which

Ms. Brewer and Ms. O’Grady maintain that “they felt safer soliciting and

providing donations from vehicles stopped at a red light than elsewhere, like an

isolated parking lot, particularly in areas affected by crime or violence”; and Ms.

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Sanchez explaining that “medians offer a uniquely effective platform for

speech”); see also id., Vol. I, at 32 (alleging that, “[u]nder the City’s . . .

Ordinance, Plaintiffs will be unable to engage in their constitutionally protected

expressive conduct without fear of citation or criminal prosecution”); id. at 36

(“By depriving individuals of the use of traditional public forums to engage in

expressive activity, the Ordinance forces individuals to take their speech to other

locations that are less effective channels for communicating protected speech.”).

Accordingly, Plaintiffs sought a declaratory judgment “holding that the . . .

Ordinance violates the . . . First and Fourteenth Amendments to the Constitution”

and an injunction “prohibiting the City from enforcing the . . . Ordinance.” Id. at

40. 8

Following discovery, the parties both moved for summary judgment. As is

relevant to this appeal, Plaintiffs argued that the Ordinance was not narrowly

tailored to advance the City’s asserted interest in pedestrian safety. See id., Vol.

8
Plaintiffs originally alleged that the Ordinance was a content-based
restriction on speech and, therefore, was constitutional only if the City established
it met strict scrutiny. See, e.g., Aplt.’s App., Vol. I, at 37–38 (alleging that the
Ordinance “is content-based because it was proposed and adopted not out of true
safety concerns but rather because of the City Council’s desire to significantly
decrease panhandling—a form of expression that falls squarely within the First
Amendment’s protections,” and, thus, “the Ordinance is constitutional only if the
City can demonstrate that it” meets strict scrutiny). However, on appeal Plaintiffs
do not challenge the district court’s conclusion that the Ordinance is content-
neutral; instead, they argue it fails to qualify as a permissible time, place, and
manner restriction under intermediate scrutiny. See, e.g., Aplees.’ Resp. Br. at 1
(setting forth the governing legal standards for this appeal and only citing caselaw
analyzing time, place, and manner restrictions under intermediate scrutiny).

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II, at 335–36 (noting that “the First Amendment does not allow the City to cut off

all expressive activities in traditional public forums merely by invoking . . .

‘safety’ as a talisman,” and arguing that the Ordinance is not narrowly tailored

because “[i]ts prohibitions sweep far more broadly than the City’s putative safety

concerns” by “banning speech in an array of contexts where there is no

conceivable risk to driver or pedestrian safety”).

Specifically, Plaintiffs contended that, while the City “maintained that it

enacted the Ordinance to address safety concerns,” it “collected no empirical data

about accidents involving pedestrians” nor, more specifically, “compiled any data

describing injuries or fatalities involving pedestrians standing on medians or near

highway ramps or interacting with vehicle occupants.” Id. at 343–44; see also id.

at 354, 367 (contending that the City had adduced no evidence “demonstrating a

real and concrete harm—much less a substantial one—that could possibly justify”

the Ordinance’s “broad prohibition[s]”).

Indeed, according to Plaintiffs, scores of accident reports produced by the

City actually belied any assertion that pedestrian presence near highway ramps or

on medians, or pedestrian involvement in physical exchanges with vehicle

occupants, gave rise to significant safety concerns warranting the Ordinance. See

id. at 345, 368 (asserting that, out of 900 accident reports produced, “only four”

involved conduct specifically proscribed by subsections (B) and (C) of the

Ordinance, and “only 20 involved conduct arguably implicating [s]ubsections (D)

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and (E)”). As well, Plaintiffs argued that the Ordinance was not narrowly tailored

to any of the City’s purported interests and they faulted the City in particular for

failing to consider less-speech-restrictive alternatives for promoting traffic safety.

See id. at 360–65, 371 (arguing, inter alia, that the City has an array of laws

already enacted that could ameliorate traffic safety problems; that such laws

would also address the City’s purported issues with pedestrians standing near

ramps, standing on medians, and engaging in physical exchanges with vehicle

occupants; and that, “[e]ven if the City had evidence to demonstrate that its

existing laws [were] insufficient,” its failure to consider or try alternatives that

burdened less speech was indicative of a lack of narrow tailoring).

In response, the City maintained that it had “adduced evidence that the

Ordinance focuses specifically on locations that are not designed for pedestrian

use” and, therefore, the Ordinance was narrowly tailored to its significant

interests. Id., Vol. IV, at 1009 (City of Albuquerque’s Resp. in Opp’n to Pls.’

Mot. for Summ. J., filed May 10, 2019); see also id. at 1013–14 (arguing that the

City has an interest in reducing pedestrian-vehicle conflicts “as a matter of law”

(bold-face font omitted)). In particular, the City leaned heavily on general

“traffic design and engineering principles” in claiming that the Ordinance was

narrowly tailored. Id. at 1014; see also id. at 1016 (citing the expert opinions of

Melissa Lozoya, a City employee and engineer, who stated, broadly, that the

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Ordinance proscribed pedestrian presence in and around areas “not designed for

pedestrian use”).

Because its ambit was “limited to specific locations within the roadway that

are not designed for pedestrian use or for pedestrian-vehicle interactions,” said

the City, the Ordinance was sufficiently tailored to pass constitutional muster. Id.

at 1019. The City further emphasized that the Ordinance was “proactive” and

that, without such a forward-looking approach, the City’s “present interest” in

reducing pedestrian-vehicle conflicts could only be achieved less effectively. Id.

at 1022. Finally, the City objected to the notion that it was required to consider

or to “adopt narrower alternatives” prior to passing the Ordinance. Id. at 1023.

C

In August 2019, the district court granted Plaintiffs’ summary judgment

motion in substantial part, concluding that subsections (B) through (E) of the

Ordinance facially violated the First Amendment. In pertinent part, 9 the court

9
The district court made a number of rulings that are not disputed on
appeal. First, the district court concluded that Plaintiffs’ activities constituted
speech and expressive conduct that the First Amendment protects. See Martin,
396 F. Supp. 3d at 1019 (“Plaintiffs assert that the various types of speech that
they commonly engage in, including passively soliciting donations by holding
signs on medians and exit and entrance ramps, providing donations from a vehicle
while stopped in traffic, and handing out informational leaflets to motorists, ‘fall
within the heartland of constitutionally protected speech.’ The City does not
dispute this assertion, and the [c]ourt agrees that Plaintiffs’ activities constitute
protected speech.” (citation omitted) (quoting Aplt.’s App., Vol. II, at 348)).
Second, the court found that subsections (B) through (E) of the Ordinance
“implicate traditional public fora.” See id. at 1021. Third, the district court ruled
(continued...)

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concluded that, although the City has a significant interest in promoting

pedestrian safety and, in particular, reducing pedestrian-vehicle conflicts, the

Ordinance was not narrowly tailored to serve or advance that interest. Construing

the facts in the light most favorable to the City, as the non-movant on the issue of

narrow tailoring, see Martin v. City of Albuquerque, 396 F. Supp. 3d 1008, 1028

n.11 (D.N.M. 2019), the court applied what it called the “roadmap for conducting

a narrow tailoring inquiry” outlined in the Supreme Court’s decision in McCullen

v. Coakley, 573 U.S. 464 (2014), id. at 1029. Under that roadmap, “while the

existence of a significant government interest may be adequately supported by

prior caselaw and common sense, the government must present case-specific

evidence that the restriction actually serves the stated goal without burdening too

much speech in order to satisfy the narrow tailoring inquiry.” Id.

However, the court recognized that our precedent had discerned in

McCullen’s text a limitation on this government obligation. See id. at 1030.

Specifically, the district court acknowledged that we had concluded in Evans v.

Sandy City that McCullen “did not ‘create a new evidentiary requirement for

governments to compile data or statistics’” in order to establish the requisite

narrow tailoring. Id. (quoting Evans v. Sandy City, 928 F.3d 1171, 1181 (10th Cir.

2019), amended and superseded on reh’g, 944 F.3d 847 (10th Cir. 2019)).

9
(...continued)
that the Ordinance is content neutral. See id. at 1023–27.

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Although McCullen “did not lay out a ‘new rule’ regarding narrow tailoring, as

the court reasoned, it makes clear that,” to demonstrate such tailoring, the

government “bears the burden of producing concrete evidence”—in “some

form”—“to show that its proposed restriction will actually achieve its asserted

interest without burdening substantially more speech than necessary.” Id. at

1031.

In the district court’s eyes, the City did not carry this burden on any of the

subsections at issue—that is, subsections (B)–(E). As to subsection (B), the court

found that the City’s evidence of narrow tailoring was deficient. To justify this

regulation, the City pointed to the Ordinance’s preamble, which “repeatedly

reference[d] a University of New Mexico Study that focused on the ten

intersections in Albuquerque with the highest numbers of pedestrian and

bicyclist-involved crashes and proposed five categories of ‘countermeasures’ to

improve pedestrian and bicyclist safety at these intersections.” Id. at 1032.

However, that Study “d[id] not recommend a blanket ban on pedestrian presence

in certain areas,” which, to the court, “demonstrate[d] that the Study may be

strong evidence that a pedestrian-vehicle conflict problem exists, but is not strong

evidence that each provision of the Ordinance is narrowly tailored to address that

problem.” Id.

Beyond the Study, the City cited “‘alarming’ [national traffic] statistics

concerning pedestrian fatalities in Albuquerque” and “anecdotal experiences” of

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police officers, city councilors, and constituents. Id. But even giving “great

weight” to the police department’s “observations and perceptions of safety risks”

in the City, according to the court, “these statistics and anecdotes . . . offer[ed] no

concrete evidence that the restrictions the City ultimately chose to enact were

actually tailored to address the issue” of pedestrian safety. Id. Nor was the court

impressed by the City’s expert, Melissa Lozoya, whose “sweeping” opinions

“betray[ed] the lack of narrow tailoring” with respect to subsection (B). Id. at

1032–33. Accordingly, because the City “failed . . . to show that all pedestrian

presence near all the ramps covered by the Ordinance is equally dangerous and

must be completely prohibited in order to successfully minimize pedestrian-

vehicle conflicts,” the court found subsection (B) to be insufficiently tailored to

pass constitutional muster. Id. at 1033.

The court reached the same conclusion regarding subsection (C). As with

its evidence supporting subsection (B), the City’s “evidence that the medians

covered by [s]ubsection (C) are ‘only those medians that pose risks to pedestrian

safety’ [wa]s . . . limited to general traffic safety design principles that highlight

the dangers associated with standing in proximity to moving traffic.” Id. at 1034.

But as the court reasoned, “general design principles” are “simply not strong

enough evidence to show that the City’s decision to apply the median ban to all

those medians narrower than six feet was a narrowly tailored decision to advance

the goal of reducing pedestrian-vehicle accidents.” Id. As well, “the City’s

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proffered anecdotal evidence supporting the Ordinance d[id] not directly address

why banning standing in most medians less than six feet wide [wa]s a narrowly

tailored restriction.” Id. Indeed, according to the court, the analysis of the City’s

accident data by Plaintiffs’ expert “show[ed] generally that the majority of the

vehicle-pedestrian conflicts reported in Albuquerque over a four-year period

would not have been prevented by the prohibitions contained in the Ordinance.”

Id. at 1034–35.

Crucially, the district court also faulted the City for “fail[ing] to mount an

argument as to why other measures with less speech-restrictive impacts would

[not] . . . achieve the goal of reducing pedestrian-vehicle conflicts in

Albuquerque.” Id. at 1035. And the court reasoned that the City’s reliance on an

“attenuated chain of ‘proactive enforcement’ [was] not enough to support such a

broad restriction of First Amendment rights,” nor had the City “offered any

analysis here—even an estimate—of what percentage of medians in the City

would remain available for expressive speech under the Ordinance, beyond an

estimate of what percentage of total roadways would be implicated by Subsection

(C).” Id. (citation omitted). Thus, while it was “quite possible to craft a

narrowly tailored ordinance that addresses a public safety concern related to

pedestrian presence on medians”—as Sandy City did in Evans—the court

reasoned that Albuquerque “must offer evidence that proves ‘alternative measures

that burden substantially less speech would fail to achieve the government’s

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interests, not simply that the chosen route is easier,’” which it did not do with

regard to subsection (C). Id. (quoting McCullen, 573 U.S. at 495).

Finally, the court determined subsections (D) and (E) were not narrowly

tailored for many of the same reasons applicable to subsections (B) and (C). At

bottom, the City “ha[d] not presented sufficient evidence that the physical

exchange ban achieve[d] the goal of reducing pedestrian-vehicle conflicts without

burdening substantially more speech than necessary.” Id. While the court

believed the City had “ample reason” to prohibit certain pedestrian-motorist

exchanges, for example, “[a] motorist who, several travel lanes from the median,

waves money at a pedestrian and encourages him to run across travel lanes,

during which time the light turns green”—it found that the exchange regulation

proscribed a much wider swath of conduct than this. Id. at 1035–36. And, more

broadly, the City proffered virtually no evidence that exchanges prohibited by the

regulation in fact obstructed traffic or endangered pedestrian safety. See id. at

1036.

In sum, then, the district court ruled that “prohibiting all access to” certain

public fora “on the ground that Albuquerque struggles with troublingly high rates

of pedestrian-vehicle conflicts, without presenting any evidence beyond anecdotal

and personal speculation that the [Ordinance] would actually reduce the number

of such conflicts in the City and that less sweeping restrictions would not

suffice,” ran “afoul of the First Amendment.” Id. Consequently, the court

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granted Plaintiff’s motion for summary judgment in relevant part and found

subsections (B) through (E) of the Ordinance unconstitutional. See id. at

1036–37.

II

On appeal, the City challenges the district court’s grant of summary

judgment to Plaintiffs. We review that grant de novo, “applying the same

standard as the district court.” iMatter Utah v. Njord, 774 F.3d 1258, 1262 (10th

Cir. 2014). Summary judgment is appropriate “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” F ED . R. C IV . P. 56(a). “When applying this standard,” we

review “the evidence and draw reasonable inferences therefrom in the light most

favorable to the nonmoving party.” Doe v. City of Albuquerque, 667 F.3d 1111,

1122 (10th Cir. 2012) (quoting Com. Union Ins. Co. v. Sea Harvest Seafood Co.,

251 F.3d 1294, 1298 (10th Cir. 2011)).

Furthermore, “[b]ecause this [case] implicates First Amendment freedoms,

we perform an independent examination of the whole record in order to ensure

that the judgment protects the right of free expression.” Evans, 944 F.3d at 852;

see Aptive Env’t, LLC v. Town of Castle Rock (“Aptive”), 959 F.3d 961, 978

(10th Cir. 2020) (“In a First Amendment case, we have ‘an obligation to make an

independent examination of the whole record in order to make sure that the

judgment does not constitute a forbidden intrusion on the field of free

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Appellate Case: 19-2140 Document: 010110610058 Date Filed: 11/24/2021 Page: 20

expression.’” (quoting Citizens for Peace in Space v. City of Colorado Springs,

477 F.3d 1212, 1219 (10th Cir. 2007))); see also First Unitarian Church of Salt

Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1120 (10th Cir. 2002)

(“Because First Amendment interests are involved, we have an obligation to

conduct an independent review of the record and to examine constitutional facts

and conclusions of law de novo.” (quoting Z.J. Gifts D-2, LLC v. City of Aurora,

136 F.3d 683, 685 (10th Cir. 1998)), cert. denied, 539 U.S. 941 (2003)). 10

The First Amendment provides that “Congress shall make no law . . .

abridging the freedom of speech.” U.S. Const. amend. I; see also iMatter Utah,

774 F.3d at 1263 (“At its core, ‘the First Amendment reflects a profound national

commitment to the principle that debate on public issues should be uninhibited,

robust, and wide-open.’” (quoting Boos v. Barry, 485 U.S. 312, 318 (1988)));

Pahls v. Thomas, 718 F.3d 1210, 1229 (10th Cir. 2013) (“At the core of the First

Amendment is the idea that ‘government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content.’” (quoting

Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972))). “By incorporation

through the Fourteenth Amendment, this prohibition applies to states and their

political subdivisions.” Aptive, 959 F.3d at 979; accord McCraw, 973 F.3d at

10
This independent obligation to examine the record, however, “does
not excuse the parties from their requirement under Federal Rule of Appellate
Procedure 28 to cite to the ‘parts of the record on which [they] rel[y].’” McCraw,
973 F.3d at 1065 n.4 (alterations in original) (quoting F ED . R. A PP . P. 28(a)(8)(A),
28(b)) .

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1065. As well, the First Amendment “applies not only to legislative enactments,

but also to less formal governmental acts,” including city policies like the

Ordinance at issue. Evans, 944 F.3d at 852 (quoting Hawkins v. City & Cnty. of

Denver, 170 F.3d 1281, 1286 (10th Cir. 1999)); accord Aptive, 959 F.3d at 979.

Thus, here, the burden falls on the City to establish the Ordinance is

constitutional. See, e.g., Ass’n of Cmty. Orgs. for Reform Now (ACORN) v. Mun.

of Golden, 744 F.2d 739, 746 (10th Cir. 1984) (“[W]hen a law infringes on the

exercise of First Amendment rights, its proponent bears the burden of establishing

its constitutionality.”); accord iMatter Utah, 774 F.3d at 1263.

III

A

On appeal, the City’s primary contention is that the district court “erred in

granting summary judgment to Plaintiffs on narrow tailoring grounds,” despite the

City presenting what it characterizes as “ample evidence supporting the

Ordinance’s restrictions.” 11 Aplt.’s Opening Br. at 29; see id. at 4, 30 (describing

11
The City also argues that the district court erred by improperly
resolving genuine disputes of material fact as to the question of narrow tailoring,
and by improperly construing the facts in the light most favorable to Plaintiffs,
the movants. See Aplt.’s Opening Br. at 5, 31–32. Because our review is de
novo, however, we need not separately consider this argument. See, e.g., Rivera
v. City & Cnty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (“Because our
review is de novo, we need not separately address Plaintiff’s argument that the
district court erred by viewing evidence in the light most favorable to the City
and by treating disputed issues of fact as undisputed.”); accord Simmons v. Sykes
Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011); cf. Lincoln v. BNSF Railway
(continued...)

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the City’s first appellate issue as “[w]hether the district court’s narrow tailoring

analysis placed too great an evidentiary burden on the City,” in contravention of

our caselaw, and later asserting that the district court’s narrow tailoring analysis

was “too strict”); see Aplees.’ Resp. Br. at 22 (“The City’s principal argument is

that the district court applied the wrong legal standard; according to the City, ‘the

district court misapplied McCullen’ by adopting a ‘more stringent’

narrow-tailoring inquiry than the one this Court applied in Evans.” (quoting

Aplt.’s Opening Br. at 33)).

Indeed, the parties train nearly all their argumentative firepower on the

narrow tailoring prong of our multi-pronged First Amendment analysis, contesting

not only the type and quantum of evidence our caselaw demands to establish

narrow tailoring, but also whether the City was required to try, or at least

consider, alternate, equally-effective restrictions that burden less speech before

settling on the Ordinance. We agree with the parties that the Ordinance’s fate

turns on our disposition of this prong. And we ultimately conclude that

subsections (B) through (E) of the Ordinance are not narrowly tailored and, thus,

violate the First Amendment.

11
(...continued)
Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (“In reviewing a grant of summary
judgment, ‘we “need not defer to factual findings rendered by the district
court.”’” (quoting Amparan v. Lake Powell Car Rental Cos., 882 F.3d 943, 947
(10th Cir. 2018))).

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To begin, however, we recognize that, in resolving First Amendment claims

like Plaintiffs’, ordinarily we would be obliged to answer a series of antecedent,

predicate questions, such as the following: (1) whether Plaintiffs’ speech and

conduct are protected under the First Amendment; (2) whether the areas impacted

by the Ordinance’s relevant subsections are “traditional public fora,” or are,

instead, nonpublic fora; and (3) whether the Ordinance regulates speech in these

particular fora without regard to its content. More specifically, ordinarily, our

First Amendment analysis would proceed in several steps. First, we would ask

whether Plaintiffs’ activities “constitute[] protected speech under the First

Amendment.” Evans, 944 F.3d at 852; see also Verlo v. Martinez, 820 F.3d 1113,

1128 (10th Cir. 2016). If Plaintiffs demonstrate that their activities fall within the

First Amendment’s ambit, we then would “identify whether the challenged

restrictions affect a public or nonpublic forum”; this identification process reveals

the appropriate standard of review applicable to the Ordinance. McCraw, 973

F.3d at 1065 (quoting Verlo, 820 F.3d at 1128).

However, the parties’ framing of their appellate arguments permit us to

refrain from opining on these otherwise important antecedent questions. See State

v. U.S. Env’t Prot. Agency, 989 F.3d 874, 885 (10th Cir. 2021) (“The principle of

party presentation is a fundamental premise of our adversarial system. That

means ‘we rely on the parties to frame the issues for decision and assign to courts

the role of neutral arbiter of matters the parties present.’” (citation omitted)

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(quoting United States v. Sineneng-Smith, --- U.S. ----, 140 S. Ct. 1575, 1579

(2020))); see also Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“In our

adversary system, in both civil and criminal cases, in the first instance and on

appeal, we follow the principle of party presentation.”); Utah Poultry Producers

Co-op v. Union Pac. R.R. Co., 147 F.2d 975, 977 (10th Cir. 1945) (noting that “it

is not necessary for us to decide this [particular issue], because this is not the

issue as framed by the parties”). More specifically, insofar as the parties do not

dispute the answers to these predicate questions on appeal, they have effectively

“waived (i.e., abandoned)” any arguments that could have put the answers at issue

and obliged us to opine regarding them. United States v. Yelloweagle, 643 F.3d

1275, 1280 (10th Cir. 2011), cert. denied, 556 U.S. 964 (2012); accord Tran v.

Trs. of State Colleges, 355 F.3d 1263, 1266 (10th Cir. 2004); Bronson v. Swensen,

500 F.3d 1099, 1104–05 (10th Cir. 2007). Accordingly, for purposes of resolving

this appeal, we accept the parties’ effective resolution of these questions, without

opining on them ourselves.

Thus, to start, the City does not challenge the district court’s finding that

Plaintiffs carried their threshold burden of showing their speech and conduct are

protected by the First Amendment. In light of our caselaw, this is not surprising.

See McCraw, 973 F.3d at 1064–67 (finding that plaintiffs who, while on medians,

“held campaign signs and t[ook] part in political protests,” “garner[ed] signatures

for petitions,” “panhandle[d],” distributed newspapers, and conversed with

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companions while jogging, all engaged in protected speech); Doe, 667 F.3d at

1118–20 (recognizing that the First Amendment includes “not just a right of free

speech, but also a right to receive information”); see also McCraw, 973 F.3d at

1066–67 (noting that speech is protected by the First Amendment “[e]ven though

[it] . . . may not amount to grand rhetoric or political soapbox oratory,” or where

the speaker “is simultaneously engaged in non-expressive activity,” or where the

government “has deemed [the] speech valueless”); cf. Evans, 944 F.3d at 852–53

(assuming, without deciding, that panhandling is protected under the First

Amendment based on, inter alia, “several of our sister circuits who [have] . . .

determined panhandling is protected” and the Supreme Court’s recognition that

“solicitation of charitable contributions is protected speech” (quoting Riley v.

Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988))).

Likewise, while the City mounted a forum analysis challenge in the district

court, it does not contest on appeal the district court’s conclusion that the

subsections of the Ordinance at issue restrict speech in traditional public fora.

See Aplt.’s Opening Br. at 29 (focusing its appellate argument on whether “the

district court erred in granting summary judgment to plaintiffs on narrow tailoring

grounds”). “Under First Amendment jurisprudence, ‘the extent to which the

Government can control access [to Government property] depends on the nature

of the relevant forum.’” Evans, 944 F.3d at 853 (alteration in original) (quoting

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Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800

(1985)). 12

Traditional public fora, which “occupy a ‘special position in terms of First

Amendment protection,’” “have immemorially been held in trust for the use of the

public and, time out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public questions.”

McCullen, 573 U.S. at 476 (first quoting United States v. Grace, 461 U.S. 171,

180 (1983); and then quoting Pleasant Grove City v. Summum, 555 U.S. 460, 469

(2009))); accord Evans, 944 F.3d at 853 (“A traditional public forum is a place

that ‘by long tradition or by government fiat ha[s] been devoted to assembly and

debate.’” (alteration in original) (quoting Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983))). “In these traditional public fora, the

government’s right to ‘limit expressive activity [is] sharply circumscribed.’”

Verlo, 820 F.3d at 1129 (alteration in original) (quoting Perry Educ. Ass’n, 460

12
Generally speaking, we recognize “three types of speech fora: the
traditional public forum, the designated public forum, and the nonpublic forum.”
Verlo, 820 F.3d at 1129; see also Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45–46 (1983); Evans, 944 F.3d at 853. We describe a
“traditional public form” in the main text infra. “A designated public forum is
public property, not constituting a traditional public forum, which the government
has intentionally opened to the public for expressive activity”; so long as the
government keeps this property open to expressive activity, “it is bound by the
same standards as apply in a traditional public forum.” Verlo, 820 F.3d at 1129
(quoting Perry Educ. Ass’n, 460 U.S. at 46). All other fora are “nonpublic fora,”
access to which the government can restrict in reasonable, viewpoint-neutral
ways. See id.

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U.S. at 45); see Grace, 461 U.S. at 177 (noting that, in public fora, “the

government’s ability to permissibly restrict expressive conduct is very limited”);

Perry Educ. Ass’n, 460 U.S. at 45 (noting that, in “quintessential public forums,

the government may not prohibit all communicative activity”); see also Summum,

555 U.S. at 469 (recognizing that “members of the public retain strong free

speech rights when they venture into” traditional public fora).

The magnitude of the burden the government must carry to justify its

regulation depends on whether the regulation’s restriction on speech is deemed

content-based or content-neutral. Content-based regulations of speech—i.e.,

regulations “based upon either the content or the subject matter of the

speech”—must meet strict scrutiny, whereas content-neutral regulations of

speech—i.e., regulations “justified without reference to the content of the

regulated speech”—must meet intermediate scrutiny. Pahls, 718 F.3d at 1229

(first quoting Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447

U.S. 530, 536 (1980); and then quoting Ward, 491 U.S. at 791).

While Plaintiffs initially alleged in the district court that the Ordinance was

a content-based measure aimed at panhandlers, they do not raise such an argument

on appeal, claiming instead that the Ordinance, even if content-neutral, cannot

satisfy intermediate scrutiny. The City, for its part, has maintained throughout

the litigation that the Ordinance’s purpose is to promote pedestrian safety and,

more specifically, to reduce pedestrian-vehicle conflicts, without regard to the

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content of any particular individual’s speech. Thus, without dispute on this point

on appeal, we assume the Ordinance is content-neutral and subject to intermediate

scrutiny.

In sum, taking into account how the parties’ appellate arguments have

framed this dispute, we may assume for purposes of our decision the following

answers to the aforementioned predicate questions: (1) Plaintiffs’ speech and

conduct enjoy First Amendment protection; (2) subsections (B) through (E)

impact traditional public fora; and (3) the Ordinance is content neutral. These

answers, together, provide the appropriate standard of review, which we apply

here—that is, intermediate scrutiny. Under that standard, to establish that its

content-neutral Ordinance is constitutional, the City must show that the Ordinance

is narrowly tailored to achieving significant government interests, and that the

Ordinance leaves open ample alternative channels of communication. See Verlo,

820 F.3d at 1134 (“[I]n a public forum, the government can restrict speech

through ‘content-neutral time, place, and manner restrictions that: (a) serve a

significant government interest; (b) are narrowly tailored to advance that interest;

and (c) leave open ample alternative channels of communication.’” (quoting Doe,

667 F.3d at 1130–31)); see also McCraw, 973 F.3d at 1070 (applying

“intermediate scrutiny” to an analogous city restriction of speech); Am. Target

Advert., Inc. v. Giani, 199 F.3d 1241, 1247 (10th Cir. 2000) (noting that where

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“the Act is content neutral . . we accordingly subject it to intermediate scrutiny”),

cert. denied, 531 U.S. 811 (2000).

B

With these predicate questions answered, we turn our attention to the “hotly

contested question” in this case: whether Albuquerque’s Ordinance is narrowly

tailored to serve a significant government interest. Evans, 944 F.3d at 856. As

noted, the City bears the burden of making the requisite narrow tailoring showing.

See Doe, 667 F.3d at 1133. As detailed below, we conclude that the City has not

successfully carried this burden.

In brief, we reach that conclusion for two principal reasons. First, the

evidence that the City relies on to make its narrow tailoring showing does not

indicate that the Ordinance alleviates in a direct and material way a real,

non-speculative harm; relatedly, the City is unable to establish that the Ordinance

does not burden substantially more speech than necessary to further its interest in

pedestrian safety. Second, the City has almost completely failed to even consider

alternative measures that restrict or burden the speech at issue less severely than

does the Ordinance—which underscores its failure to demonstrate that the

Ordinance is narrowly tailored to achieve its professed significant governmental

interests in pedestrian safety. In explaining this second reason, we address and

harmonize a possible tension between our two recent decisions examining

content-neutral time, place, or manner regulations in public fora—Evans and

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McCraw—and, in particular, between their respective discussions of what role, if

any, a less-restrictive (i.e., less-burdensome) means analysis plays in the narrow

tailoring inquiry. 13 We turn to that detailed examination now.

1

“For a content-neutral time, place, or manner regulation to be narrowly

tailored, it must not burden substantially more speech than is necessary to further

the government’s legitimate interests.” McCraw, 973 F.3d at 1071 (quoting

McCullen, 573 U.S. at 486); accord Ward, 491 U.S. at 799; Evans, 944 F.3d at

856; cf. Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002) (“If the First

Amendment means anything, it means that regulating speech must be a last—not

first—resort.”). “In other words, the government ‘may not regulate expression in

such a manner that a substantial portion of the burden on speech does not serve to

13
For purposes of our discussion of the “less-restrictive means”
analysis, we discern no material, conceptual distinction between this term and
related terms, such as “less-restrictive alternatives” or “less-burdensome
alternatives” or “less-burdensome means,” or “less-intrusive means.” See, e.g.,
McCullen, 573 U.S. at 492, 496 (discussing the government’s “failure to look to
less intrusive means” and “less restrictive measures”); McCraw, 973 F.3d at
1074–76 (using the term “less burdensome alternatives” but relying on authority,
like McCullen, which, as noted, uses other terminology); Evans, 944 F.3d at
859–60 (discussing “less restrictive means analysis” and appearing to use the term
“less restrictive alternatives” synonymously); see also McCullen, 573 U.S. at 495
(“To meet the requirement of narrow tailoring, the government must demonstrate
that alternative measures that burden substantially less speech would fail to
achieve the government’s interests, not simply that the chosen route is easier.”
(emphasis added)). Such terms are used synonymously in this opinion.

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advance its goals.’” Evans, 944 F.3d at 856 (quoting McCullen, 573 U.S. at 486).

This narrow tailoring requirement not only “guard[s] against an[y]

impermissible desire to censor,” but, more significantly, “prevents the

government from too readily ‘sacrific[ing] speech for efficiency’” by “demanding

a close fit between ends and means.” McCullen, 573 U.S. at 486 (third alteration

in original) (quoting Riley, 487 U.S. at 795); accord Evans, 944 F.3d at 856; see

also McCraw, 973 F.3d at 1071 (explaining that the narrow tailoring burden

“ensures that restrictions on speech are not permitted when either the harms or the

remedial effects of the government’s restrictions are supported only by

speculation or conjecture, or when the regulation burdens substantially more

speech than is necessary to further the government’s legitimate interests”

(emphases added)). 14

14
In McCraw, we stated that, “[f]or a content-neutral time, place, or
manner regulation to be narrowly tailored, it must not burden substantially more
speech than is necessary to further the government’s legitimate interests.”
McCraw, 973 F.3d at 1071 (quoting McCullen, 573 U.S. at 486). We explained
further that the narrow tailoring requirement “ensures that restrictions on speech
are not permitted when either [1] the harms or the remedial effects of the
government’s restrictions are supported only by speculation or conjecture,
or”—as already stated—“[2] when the regulation burdens substantially more
speech than is necessary to further the government’s legitimate interests.” Id.
(emphases added). The second portion of this explanation is drawn directly from
McCullen and other cases examining content-neutral time, place, or manner
restrictions on private speech in public fora; the first portion, though, is drawn
from caselaw examining restrictions on commercial speech—which, to be sure,
we have recognized as closely analogous to cases grappling with time, place, and
manner restrictions. See id. at 1071 n.9 (recognizing that “we have applied
commercial speech precedent when analyzing time, place, and manner
(continued...)

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14
(...continued)
restrictions” because the “validity of [such] . . . restrictions is determined under a
standard essentially identical to that governing the regulation of commercial
speech” (quoting Citizens for Peace in Space, 477 F.3d at 1220 n.3)); cf. United
States v. Edge Broad. Co., 509 U.S. 418, 430–31 (1993) (noting that “[t]he Ward
holding is applicable” in the commercial speech context because “we have
observed that the validity of time, place, or manner restrictions is determined
under standards very similar to those applicable in the commercial speech context
and that it would be incompatible with the subordinate position of commercial
speech in the scale of First Amendment values to apply a more rigid standard to
commercial speech than is applied to fully protected speech”).

That said, our articulation of the standard governing commercial speech
restrictions differs slightly from the traditional articulation of the standard
governing content-neutral time, place, and manner restrictions. Compare Aptive,
959 F.3d at 987 (noting that the test governing restrictions on commercial speech
is “a form of ‘intermediate standard of review’” and “provides that in determining
whether commercial speech may be proscribed, we must ask [1] whether the
State’s interests in proscribing it are substantial, [2] whether the challenged
regulation advances these interests in a direct and material way, and [3] whether
the extent of the restriction on protected speech is in reasonable proportion to the
interests served.” (brackets in original) (block quote formatting omitted) (quoting
Edenfield v. Fane, 507 U.S. 761, 767 (1993))), with Evans, 944 F.3d at 854 (“It is
well-settled ‘that even in a public forum the government may impose reasonable
restrictions on the time, place, [or] manner of protected speech, provided the
restrictions “are justified without reference to the content of the regulated speech,
that they are narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication of [the]
information.”’” (quoting Ward, 491 U.S. at 791)), and Citizens for Peace in
Space, 477 F.3d at 1219–20 (“The government may impose reasonable time,
place, and manner restrictions on speech in public forums provided the
restrictions are (1) content neutral, (2) that they are ‘narrowly tailored to serve a
significant governmental interest,’ and (3) that they ‘leave open ample alternative
channels for communication.’” (quoting Ward, 491 U.S. at 791)); see also iMatter
Utah, 774 F.3d at 1266 (articulating the constitutional test for time, place, and
matter regulations as requiring that such regulations “(1) are content neutral; (2)
are ‘narrowly tailored to serve a significant governmental interest;’ (3) ‘leave
open ample alternative channels for communication;’ and (4) ‘do not delegate
overly broad licensing discretion to a government official’” (first quoting
(continued...)

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14
(...continued)
McCullen, 573 U.S. at 477; and then quoting Forsyth Cnty. v. Nationalist
Movement, 505 U.S. 123, 130 (1992))).

In McCraw we incorporated the second prong of the commercial speech
framework as a facet of our “narrow tailoring” analysis. See McCraw, 973 F.3d
at 1071–74 (explaining that the narrow tailoring burden is not met when, inter
alia, “the harms or the remedial effects of the government’s restrictions are
supported only by speculation or conjecture,” concluding that Oklahoma City’s
“evidence [was] insufficient to demonstrate that the [c]ity’s ‘recited harms are
real’ or that the . . . [o]rdinance ‘will in fact alleviate these harms in a direct and
material way,’” and further concluding that the regulation burdened substantially
more speech than necessary based on “many of the same weaknesses . . .
identified when analyzing whether the [c]ity’s evidence met its burden to show
the existence of a real, non-conjectural harm” (quoting Citizens for Peace in
Space, 477 F.3d at 1221)); see also id. at 1073–74 (noting that Oklahoma City’s
failure to present evidence “of concrete harm arising from the presence of
pedestrians on its medians”—which the ordinance at issue was intended to
impact—“infect[ed] our analysis of both the ‘ends’ and the ‘means’”). McCraw
drew on our prior decision in Citizens for Peace in Space, where we similarly
utilized the second prong of the commercial speech framework to assess whether
a content-neutral regulation of speech or expressive conduct in a public forum
was narrowly tailored. See 477 F.3d at 1220–21 (“‘Government may not regulate
expression in such a manner that a substantial portion of the burden on speech
does not serve to advance its goals.’ Thus, in order to demonstrate that a
challenged restriction is narrowly tailored, the government must demonstrate that
the restriction ‘serve[s] a substantial state interest in a direct and effective way.’.
. . [A] regulation is not narrowly tailored when it ‘does not sufficiently serve
those public interests that are urged as its justification.’ . . . [T]he burden falls on
the [c]ity to show that its ‘recited harms are real . . . and that the regulation will
in fact alleviate these harms in a direct and material way.’” (first alteration and
third omission in original) (emphasis added) (citations omitted) (first quoting
Ward, 491 U.S. at 799; then quoting Edenfield, 507 U.S. at 773; then quoting
Grace, 461 U.S. at 181; and then quoting Turner Broad. Sys. Inc. v. FCC, 512
U.S. 622, 664 (1994))).

While McCraw and Citizens for Peace in Space quite explicitly incorporate
this second prong of the commercial speech framework into our narrow tailoring
inquiry for time, place, and manner restrictions, such an incorporation of this
(continued...)

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14
(...continued)
prong (and especially its emphasis on whether the harm is concrete or real, and
whether the government regulation addresses it in a direct and effective or
material way) is at least implicit in other cases from this court and the Supreme
Court. See Evans, 944 F.3d at 856, 858 (concluding that the ordinance at issue
was narrowly tailored based in part on the “direct relationship” between “the
[c]ity’s goal of promoting public safety,” the significance of which was
uncontested, and “the restriction on speech [the city] selected,” and finding that
the restriction promoted this goal in “a direct and effective way”); iMatter Utah,
774 F.3d at 1266–67 (accepting “the general proposition that promoting public
order and safety is a significant government interest,” but finding that the state
“failed to present any evidence that its [regulations] . . . actually address that
interest,” and, consequently, stating that, “[s]imply put, a regulation that has no
discernible effect on an objective is not narrowly tailored to achieve that
objective”); cf. Doe, 667 F.3d at 1130–33 (citing caselaw articulating the second
prong of the commercial speech framework as a facet of the government’s larger
burden to establish a time, place, and manner regulation’s constitutionality, and
noting that the government’s “invitation . . . to imagine hypothetical
justifications” for its regulation on a public forum, rather than presenting
evidence of the “interests to be served” by the regulation, “obfuscate[d] our
ability to determine” what those interests were); cf. also McCullen, 573 U.S. at
493 (expressing skepticism about the state’s asserted significant interest in
“preventing congestion in front of abortion clinics” because the state’s record
evidence “cite[d] to support th[is] anticongestion interest pertain[ed] mainly to
one place at one time,” and “[f]or a problem shown to arise only once a week in
one city at one clinic, creating a 35-foot buffer zones at every clinic across
[Massachusetts] [wa]s hardly a narrowly tailored solution”); Ward, 491 U.S. at
800 (“It is undeniable that the city’s substantial interest in limiting sound volume
is served in a direct and effective way by the [regulation] . . . .” (emphasis
added)).

Ultimately, we need not determine, as a formal matter, the degree of
analytical overlap between the second prong of the commercial speech framework
and the narrow tailoring prong of the time, place, and manner framework. Suffice
to say, we recognize, in light of our precedent, that the government, as a function
of its overarching burden to establish that a content-neutral regulation of speech
or expressive conduct in a public forum is narrowly tailored, must demonstrate
not only that the regulation does not sweep too broadly, but also that the interests
advanced as justifying the regulation are real, and not speculative—and that the
(continued...)

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In applying this requirement, “[w]e look ‘to the amount of speech covered

by the ordinance and whether there is an appropriate balance between the affected

speech and the governmental interests that the ordinance purports to serve.’”

Evans, 944 F.3d at 856 (quoting Watchtower Bible & Tract Soc’y of N.Y., Inc. v.

Vill. of Stratton, 536 U.S. 150, 165 (2002)); see McCraw, 973 F.3d at 1071 (“In

order to assess whether [an] . . . [o]rdinance is narrowly tailored, we must

measure it against the [government’s] asserted interest.”); see also iMatter Utah,

774 F.3d at 1266 (“To meet the requirement of narrow tailoring, the government

must demonstrate that alternative measures that burden substantially less speech

would fail to achieve the government’s interests.” (quoting McCullen, 573 U.S. at

495)); cf. Edenfield v. Fane, 507 U.S. 761, 773 (1993) (“Where a restriction on

speech lacks [a] close and substantial relation to the governmental interests

14
(...continued)
regulation addresses or ameliorates those interests in a direct manner.

Here, as explicated further infra—especially, in Part III.B.2.a—we
conclude that Albuquerque lacks adequate record support for the notion that it
faces real, concrete harms arising from pedestrian presence near highway ramps
and on medians, or from pedestrian involvement in physical exchanges with
vehicle occupants in travel lanes; relatedly, Albuquerque also fails to show that
its Ordinance avoids burdening substantially more speech than necessary to
achieve its interests in public safety and, more specifically, pedestrian safety—a
conclusion that flows in part from the lack of record support just noted.

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asserted, it cannot be, by definition, a reasonable time, place, or manner

restriction.”). 15

But while “fit matters” when it comes to content-neutral regulations of

speech, iMatter Utah, 774 F.3d at 1266 (quoting McCutcheon v. Fed. Election

Comm’n, 572 U.S. 185, 218 (2014) (plurality op.)), such regulations “‘need not be

the least restrictive or least intrusive means of’ serving the government’s

interests,” McCullen, 573 U.S. at 486 (quoting Ward, 491 U.S. at 798). Rather,

“‘the requirement of narrow tailoring is satisfied so long as the . . . regulation

promotes a substantial government interest that would be achieved less effectively

absent the regulation’ without ‘burden[ing] substantially more speech than is

necessary to further the government’s legitimate interests.’” Doe, 667 F.3d at

15
Moreover, we have stressed that governmental interests must not be
defined too generally. See, e.g., McCraw, 973 F.3d at 1071 n.10 (acknowledging
that, while “a government’s interest in public safety is clearly significant,” “it is
not enough for the [government] to use broad safety justifications” as the impetus
for a speech regulation); Citizens for Peace in Space, 477 F.3d at 1223 (“The
narrowly tailored analysis proceeds from the specific security interest articulated
by the [c]ity. Indeed, to assess whether a restriction is an appropriate ‘fit’ to
some important government interest, it is necessary that the government interest
be specifically defined. Otherwise, the narrowly tailored analysis more closely
resembles the ‘reasonably necessary’ standard used in reviewing restrictions on
speech in areas that are not public forums.” (citations omitted)); cf. Bl(a)ck Tea
Soc’y v. City of Boston, 378 F.3d 8, 13 (1st Cir. 2004) (opining, in the context of
a time, place, and manner restriction the city claimed was intended to “maintain
security” around the Democratic National Convention, that “security simpliciter is
too broad a rubric to be useful” in the narrow tailoring analysis; that “[s]ecurity is
not a talisman that the government may invoke to justify any burden on speech
(no matter how oppressive)”; and that the ultimate “question of narrow tailoring
must be decided against the backdrop of the harms that a particular set of
[responsive] measures are designed to forfend”).

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1133 (alteration and omission in original) (emphasis added) (quoting Ward, 491

U.S. at 799); see Evans, 944 F.3d at 856–57 (“So long as the means chosen are

not substantially broader than necessary to achieve the government’s interest, . . .

the regulation will not be invalid simply because a court concludes that the

government’s interest could be adequately served by some less-speech-restrictive

alternative.” (omission in original) (quoting Ward, 491 U.S. at 800)); iMatter

Utah, 774 F.3d at 1266 (observing that, under the narrow tailoring framework,

“the scope of the restriction on speech must be reasonably, though it need not be

perfectly, targeted to address the harm intended to be regulated” (quoting 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 529 (1996) (O’Connor, J.,

concurring))).

“In other words, ‘restrictions on the time, place, or manner of protected

speech are not invalid simply because there is some imaginable alternative that

might be less burdensome on speech.’” iMatter Utah, 774 F.3d at 1266 (quoting

Ward, 491 U.S. at 797); cf. Evans, 944 F.3d at 857 (“‘The validity of [time, place,

or manner] regulations does not turn on a judge’s agreement with the responsible

decisionmaker concerning the most appropriate method for promoting significant

government interests’ or the degree to which those interests should be promoted.”

(alteration in original) (quoting Ward, 491 U.S. at 800)).

2

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The City, drawing heavily on our decision in Evans v. Sandy City, asserts

that it “produced sufficient evidence to show that the Ordinance is narrowly

tailored.” Aplt.’s Opening Br. at 30. The City maintains that the Ordinance

imposes a slight burden on speech and is limited in focus because it applies only

to “areas in the roadway that are not designed for pedestrian use or for

pedestrian-vehicle interactions and which are in close proximity to high-speed

and high-volume traffic.” Id. at 30–31; see also id. at 38–39 (arguing that the

Ordinance, like the regulation in Evans, “does not impose a substantial burden on

speech because” of its “limited application” to “locations within the roadway that

are” not designed for pedestrian presence or that are near “high-speed and

high-volume traffic”). Moreover, the City claims it has “introduced substantial

evidence of safety risks arising from pedestrian activities in these locations.” Id.

at 31; see also id. at 45 (characterizing the Ordinance as the product of a

“preventive approach based both on: (1) traffic engineering and roadway design

concepts that focus on minimizing conflicts between pedestrians and vehicles by

separating them, and (2) anecdotal evidence of real safety problems arising within

the scope of the Ordinance’s prohibitions”).

The City also contends that the district court “imposed a much higher

evidentiary burden on the City than [we] imposed on Sandy City in Evans.” Id. at

45. In the City’s eyes, it produced enough evidence to show that the Ordinance

was “actually tailored to address” pedestrian safety, notwithstanding the district

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court’s alleged insistence on “concrete evidence” that showed such tailoring. Id.

at 42 (quoting Martin, 396 F. Supp. 3d at 1032). Lastly, the City objects to the

district court’s conclusion that the “Ordinance was not narrowly tailored due to

the City’s alleged failure to ‘offer evidence . . . prov[ing] “alternative measures

that burden substantially less speech would fail to achieve [its] interests”’”—a

conclusion that, according to the City, runs counter to our holding in Evans. Id.

at 44 (quoting Martin, 396 F. Supp. 3d at 1035).

The City’s efforts to show narrow tailoring, however, are unavailing. We

summarize our reasons as follows. Fundamentally, the fit between the “means”

chosen by the City—subsections (B) through (E) of the Ordinance—and its

“ends”—reducing pedestrian-vehicle conflicts and otherwise keeping pedestrians

safe—is impermissibly poor because, as the record evidence reflects, the

Ordinance neither alleviates any real, non-speculative harms in a direct and

material (i.e., effective) way, nor otherwise advances the City’s more abstract

safety rationales. More specifically, the fact that the Ordinance burdens

substantially more speech than necessary to achieve the City’s interest in

pedestrian safety is unmistakable when the Ordinance’s expansive restrictions on

speech and expressive conduct are juxtaposed against the paltry record evidence

of real, non-speculative harms ameliorated by the Ordinance. That the City

barely considered less-restrictive means—if it considered them at all—merely

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underscores the fact that the City did not meaningfully tailor the Ordinance to

address the interests or harms it identified.

Thus, because the Ordinance “regulate[s] expression in such a manner that

a substantial portion of the burden on speech does not serve to advance [the

City’s] goals,” it is not narrowly tailored and, consequently, violates the First

Amendment. Evans, 944 F.3d at 856 (quoting McCullen, 573 U.S. at 486); see

McCraw, 973 F.3d at 1071 (“In order to assess whether the [regulation] is

narrowly tailored, we must measure it against the [government’s] asserted

interest.”); see also iMatter Utah, 774 F.3d at 1266 (“[T]he scope of the

restriction on speech must be reasonably, though it need not be perfectly, targeted

to address the harm intended to be regulated.” (quoting 44 Liquormart, 517 U.S.

at 529 (O’Connor, J., concurring)).

a

To assess whether the Ordinance is narrowly tailored, “we must measure it

against the City’s asserted interest[s].” McCraw, 973 F.3d at 1071; see Doe, 667

F.3d at 1132 (“[O]nly by discerning the interest to be served by a restriction can a

court proceed to determine whether the restriction is sufficiently tailored to

advance that interest.”). Throughout the litigation, the City has claimed it

enacted the Ordinance to promote pedestrian safety and, more specifically, to

minimize pedestrian-vehicle conflicts. See Aplt.’s App., Vol. IV, at 997; Aplt.’s

Opening Br. at 1. And Plaintiffs concede that Albuquerque “ha[s] an issue with

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traffic safety” generally and that, in the abstract, the City has “a legitimate

interest in protecting pedestrians and motorists from the hazards incident to

vehicular traffic.” Aplees.’ Resp. Br. at 5–6.

But while the City’s “interest in public safety is clearly significant,” it is

“not enough for the City to use broad safety justifications” to establish the

Ordinance’s necessity. McCraw, 973 F.3d at 1071 n.10. Rather, for our

assessment of “whether [the Ordinance] is an appropriate ‘fit’ to some important

government interest,” the City must “specifically define[]” that interest, lest our

narrow tailoring analysis “more closely resemble[] the ‘reasonably necessary’

standard used in reviewing restrictions on speech” in nonpublic fora. Citizens for

Peace in Space, 477 F.3d at 1223; see McCraw, 973 F.3d at 1071 n.10 (noting

that this specificity requirement is “critical to prevent restrictions on speech

designed to advance other interests that would not on their own justify the burden

on expression”); see also supra note 15.

Thus, “the burden falls on the City to show that its ‘recited harms,’”

specifically defined, “are real . . . and that the [Ordinance] will in fact alleviate

the[m] . . . in a direct and material way”—and if the City is unable to demonstrate

that the Ordinance provides more than “ineffective or remote support for [the

City’s stated] purpose,” or “sufficiently serve[s] those public interests” in a

“direct and effective [i.e., material] way,” then we are constrained to conclude

that the Ordinance is not narrowly tailored and, consequently, contravenes the

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First Amendment. Citizens for Peace in Space, 477 F.3d at 1220–21 (first

omission in original) (first quoting Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622,

664 (1994); then quoting Edenfield, 507 U.S. at 770; then quoting Grace, 461

U.S. at 181; and then quoting Edenfield, 507 U.S. at 773).

Independently examining the record before us under “our special standard

of de novo review,” we find little evidence of non-speculative harms or interests

that the Ordinance’s restrictions alleviate in a direct and material way. McCraw,

973 F.3d at 1071 (quoting Citizens for Peace in Space, 477 F.3d at 1219–20).

Broadly speaking, the City relies on three categories of evidence to argue that the

Ordinance materially alleviates significant traffic safety problems in

Albuquerque:

• the opinions of Melissa Lozoya, P.E., a “registered
Professional Civil Engineer” and Deputy Director of the
City’s Department of Municipal Development, whom the
City disclosed as its F ED . R. Civ. P. 26(a)(2)(C) expert to
testify regarding general traffic engineering and roadway
design principles, see Aplt.’s App., Vol. I, at 217 (City of
Albuquerque Expert Disclosure, dated Feb. 11, 2019)
(disclosing Ms. Lozoya and averring that she may “testify
regarding roadway design considerations that aim to
minimize pedestrian-vehicle conflicts and how [the]
Ordinance . . . specifically furthers that goal”); see id.,
Vol. IV, at 1128 (Tr. Melissa Lozoya Dep., dated Mar. 18,
2019) (Ms. Lozoya testifying that she authored the
disclosure herself);

• a series of accident reports the City produced in response
to Plaintiffs’ discovery requests in district court, see
Aplt.’s Opening Br. at 40–41 (discussing “police reports
that provided examples of pedestrians being harmed by

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vehicles while standing on medians and of vehicles driving
onto medians,” along with “evidence of unsafe situations,
including collisions, resulting from physical interactions
between pedestrians and motorists in travel lanes”); and

• general statistical information, primarily compiled in the
Ordinance’s preamble, along with anecdotes from city
councilors, police officers, and constituents, see Aplt.’s
Opening Br. at 41.

None of this evidence, however, points to significant safety problems

arising from pedestrian presence near ramps or on medians, or from exchanges

between pedestrians and vehicle occupants—and, further, those safety problems

to which the evidence does point are not likely to be ameliorated by the relevant

subsections of the Ordinance. Thus, the City does not meet its burden of showing

either that its recited harms relating to pedestrian presence nears ramps and on

medians or pedestrian exchanges with vehicle occupants are real and non-

speculative, or that the Ordinance alleviates these or any other harms invoked by

the City in a direct and material way. Cf. McCraw, 973 F.3d at 1073–74 (noting

that Oklahoma City’s failure to “present[] . . . evidence of concrete harm arising

from the presence of pedestrians on its medians” infected “our analysis of both

the ‘ends’ and the ‘means’” chosen by the city).

i

To start, arguably the central piece of evidence in the City’s narrow

tailoring argument is expert testimony offered by Ms. Lozoya. See Aplt.’s

Opening Br. at 12–17, 39–40 (contending that “the City’s safety rationale”

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undergirding the Ordinance “is rooted in roadway design and traffic engineering

concepts that call for separating pedestrian and motor vehicle traffic,” and

describing Ms. Lozoya’s expert opinions on such concepts in detail); see also

generally Aplt.’s App., Vol. IV, at 1013–24 (City of Albuquerque’s Resp. to Pls.’

Mot. for Summ. J., filed May 10, 2019). The City presented Ms. Lozoya to

testify about how the Ordinance “specifically furthers” the goal of “minimiz[ing]

pedestrian-vehicle conflicts.” Aplt.’s App., Vol. I, at 217 (City of Albuquerque’s

Expert Disclosure, filed Feb. 11, 2019). In particular, Ms. Lozoya averred in her

expert disclosure that she would offer the following opinions at trial:

• “roadways are designed in an effort to minimize conflicts
or interaction between vehicles, pedestrians, and
bicyclists,” such that “various users” of the roadways “are
to remain within their designated zone”
and—crucially—“pedestrian[s] and motor vehicles should
not interact or share space within the roadway corridor”;

• regarding subsection (C)’s median regulation, “medians in
the City of Albuquerque generally are not designed to
accommodate pedestrians for any purpose, whether it is to
cross the street or to remain on the median for an extended
time”; medians “that are designed to accommodate
pedestrians” should be at least six feet wide, and
preferably eight to ten feet wide, to “provide a comfortable
and safer space for pedestrians . . . to wait for gaps in
traffic”—but even medians at least six feet in width “are
not designed to accommodate pedestrians . . . for long
periods of time; and “medians that are off limits to
pedestrians” under the Ordinance “are not designed to
accommodate pedestrians” at all;

• regarding subsection (B)’s ramp regulation, the
Ordinance’s prohibition “against standing or congregating

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on or near . . . the entrance or exit ramps of . . .
[high-speed] roadways furthers the goal of avoiding
dangerous pedestrian-vehicle conflicts”; and

• regarding subsection (D) and (E)’s exchange regulation,
the Ordinance’s prohibitions “against physical exchanges
between pedestrians and vehicle occupants in a travel lane
further[] the goal of avoiding dangerous pedestrian-vehicle
conflicts,” and “[a]llowing such physical exchanges to
occur in travel lanes . . . would be contrary to the goal of
minimizing [such] conflicts because it encourages
pedestrians to leave the areas that are designed for
pedestrian use and to venture into areas that are not.”

Id. at 218–21.

In forming her opinions, Ms. Lozoya relied on “several nationally-accepted

roadway design manuals and guidelines,” such as guidelines from the National

Association of City Transportation Officials (“NACTO”). Aplt.’s Opening Br. at

13–14; see Aplt.’s App., Vol. III, at 718–19 (Tr. Melissa Lozoya Dep., dated Mar.

18, 2019). The City cites her opinions as support for the ultimate goal it hopes to

achieve through the Ordinance: “minimiz[ing], [or] pretty much eliminat[ing],

conflicts between pedestrians and vehicles.” Aplt.’s Opening Br. at 16 (quoting

Aplt.’s App., Vol. IV, at 1130 (Tr. Melissa Lozoya Dep., dated Mar. 18, 2019));

see also Aplt.’s Reply Br. at 8 (“The Ordinance seeks to reduce

pedestrian-vehicle conflicts by focusing on roadway design and traffic

engineering concepts that call for separating pedestrian and motor vehicle traffic

into areas designed for those modes of travel.”).

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But while the City frames much of its narrow tailoring argument around

Ms. Lozoya’s opinions, these opinions lend minimal support to the notion that the

Ordinance does not burden substantially more speech than necessary, or that it

alleviates non-speculative harms in a direct and material way. Crucially, Ms.

Lozoya’s opinions are theoretical, and largely unmoored from any on-the-ground

data regarding Albuquerque’s traffic safety problems. Notably, the City concedes

that Ms. Lozoya’s opinions are based on her “engineering experience” and

“roadway design manuals and guidelines”—but not, for example, on the accident

reports the City proffered in support of the Ordinance. Aplt.’s Opening Br. at 13,

17. And Ms. Lozoya herself confirmed during her deposition that she relied on

little, if any, data in formulating her opinions. See Aplt.’s App., Vol. II, at 325

(Tr. Melissa Lozoya Dep., dated Mar. 18, 2019) (Counsel: “So is it safe to say

you didn’t review any collision reports in order to come to the conclusions in

your Expert Disclosure . . .?” Ms. Lozoya: “Correct.”); id., Vol. III, at 590 (Tr.

Melissa Lozoya Dep., dated Mar. 18, 2019) (Counsel: “Did you rely on any

specific collision data from the City of Albuquerque to come to [your]

conclusion[s]?” Ms. Lozoya: “I did not.”).

Indeed, when asked whether she could point to any connections between

accidents in Albuquerque and the conduct proscribed by subsections (B) through

(E) of the Ordinance, Ms. Lozoya answered in the negative:

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[Counsel]: And can you point to any links between
Albuquerque’s high rate of accidents and people occupying
medians? . . .

[Ms. Lozoya]: I can’t.

[Counsel]: Can you point to any links between Albuquerque’s
high rate of accidents and people standing on on- and off-ramps?
...

[Ms. Lozoya]: I can’t.

[Counsel]: And can you point to any links between
Albuquerque’s . . . high rates of accidents between pedestrians
and vehicles to physical exchanges between vehicle occupants
and people in the travel lane? . . .

[Ms. Lozoya]: I have no information to base anything on.

Id., Vol. III, at 592; see also id., Vol. IV, at 854 (Tr. Melissa Lozoya Dep., dated

Mar. 18, 2019) (indicating that Ms. Lozoya was not aware of “accidents that have

occurred on medians because of somebody standing or sitting or just being on a

median” or “accidents that have occurred because somebody is standing or sitting

or being on a [freeway] on- or off-ramp”).

As Plaintiffs’ rebuttal expert, Dr. Ragland, noted in his report, while Ms.

Lozoya’s statements “contain[] high-level, theoretical opinions about roadway

design and vehicle/pedestrian facility design generally,” they “do[] not address . .

. actual data reflecting vehicle-pedestrian conflicts in Albuquerque” and,

therefore, only marginally bolster the City’s claim that the Ordinance is necessary

to address pedestrian safety concerns. Id., Vol. I, at 228 (Expert Report of Dr.

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David Ragland, dated Mar. 4, 2019). Thus, while Ms. Lozoya’s opinions could

conceivably aid Albuquerque’s city council as it considered and crafted

ordinances addressing traffic safety issues generally, they shed little light on the

central inquiry of our narrow tailoring analysis in these circumstances: whether

the Ordinance alleviates real, non-speculative harms in a direct and material way,

and avoids burdening substantially more speech than necessary in doing so?

Indeed, we conclude that Ms. Lozoya’s testimony exposes, rather than

bolsters, the lack of tailoring at the heart of the Ordinance. That is, Ms. Lozoya’s

exposition on general design guidelines—which she admits is not informed by

empirical data—does nothing to indicate whether the Ordinance is aimed at real

and non-speculative harms—relating to pedestrian presence near ramps or on

medians, or pedestrian interactions with vehicle occupants in travel lanes—or

whether the Ordinance alleviates such harms in a direct and material way. Yet

Ms. Lozoya nonetheless recommends wide-ranging bans on pedestrian usage of

entire categories of traditional public fora, predicated solely on theoretical safety

concerns.

This “ends justify the means”-style thinking, decoupled from an accurate

picture of the extant pedestrian safety problems the City actually faces—is

anathema to the narrow tailoring required here, and resembles efficiency and

ease-of-application arguments that the Supreme Court, and this court, have

rejected before. Cf. e.g., McCullen, 573 U.S. at 495 (noting that “the prime

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objective of the First Amendment is not efficiency,” and that, “[t]o meet the

requirement of narrow tailoring, the government must demonstrate that alternative

measures that burden substantially less speech would fail to achieve the

government’s interests, not simply that the chosen route is easier”); McCraw, 973

F.3d at 1077–78 (concluding that Oklahoma City’s median ordinance was “not

narrowly tailored to the problem it purport[ed] to address,” and therefore

“sacrificed [speech] for efficiency,” by “tak[ing] ‘the extreme step of closing a

substantial portion of a traditional public forum to all speakers . . . without

seriously addressing the problem through alternatives that leave the forum open

for its time-honored purposes,” which was a course of conduct that the city could

not pursue “consistent with the First Amendment” (omission in original) (first

quoting Evans, 944 F.3d at 856; and then quoting McCullen, 573 U.S. at 497)).

Thus, Ms. Lozoya’s generic and theoretical opinions do not aid the City’s cause.

Indeed, in relying so heavily on Ms. Lozoya’s abstract opinions concerning

roadway design principles to assert that the Ordinance is narrowly tailored, the

City sometimes verges on arguing—inadvertently or otherwise—that the areas

regulated by the Ordinance are not public fora. That is, the City claims the

Ordinance displays a permissible “fit between means and ends” because it “only

targets pedestrian use of roadway features (such as travel lanes, freeway ramps

and certain portions of medians) that put[] pedestrians in unsafe proximity to

vehicle traffic,” while leaving open to pedestrian use “other roadway features.”

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Aplt.’s Reply Br. at 8–9; see also Aplt.’s Opening Br. at 41 (arguing the

Ordinance is narrowly tailored because its scope is “limited . . . to only those

locations that are not designed to accommodate pedestrians and for which there is

objective evidence of safety concerns”). 16 In other words, in highlighting Ms.

16
In other words, while couched in terms of “narrow tailoring,” the
City’s invocation of Ms. Lozoya’s opinions bears more directly on the
antecedent—but uncontested—question of whether the areas regulated by the
Ordinance are themselves public fora—that is, areas that, by their very character,
are amenable to hosting expressive conduct. As the City states, it aims to
proscribe, not simply regulate or restrict, pedestrian presence in these areas
because they are inherently dangerous—i.e., they are not designed to
accommodate pedestrians for any sustained period. See Aplt.’s Opening Br. at
1–2 (asserting that the Ordinance “furthers” the City’s goals of “promot[ing]
public safety” by “prohibiting . . . . pedestrians from standing in areas of
roadways that are not designed to accommodate pedestrians and which pose a
safety risk” and “prohibit[ing] . . . physical interactions between pedestrians and
vehicle occupants when the vehicle is in a travel lane” (emphases added)); cf.
Aplt.’s App., Vol. IV, at 1128 (Tr. Melissa Lozoya Dep., dated Mar. 18, 2019)
(Ms. Lozoya opining that “medians should never be a place where people stand or
sit” for longer than “[o]ne cycle length of a traffic signal”—and, even for that
length, it would only be “reasonable or safe for people to be in medians” if they
are “designed to accommodate someone standing there”). But this would seem to
conflict with the very notion that these areas are traditional public fora—i.e.,
“places that by long tradition have been open to public assembly and debate,”
Verlo, 820 F.3d at 1129, and that the City has “immemorially . . . held in trust”
for the public to use for such expressive purposes, McCullen, 573 U.S. at 476
(quoting Summum, 555 U.S. at 469). Cf. Cutting v. City of Portland, 802 F.3d 79,
91 (1st Cir. 2015) (rejecting a city’s claim “that it [was] obvious that all medians
are unsafe” where the city “d[id] not contest that [its] median strips, as a group,
are traditional public fora” and, thus, the city’s “medians would seem to be—as a
class—presumptively fit for the very activities that the [c]ity now contend[ed] are
obviously dangerous”).

Indeed, Appellees raise a similar point, claiming that, under its narrow
tailoring argument, as viewed through the lens of Ms. Lozoya’s design guidelines
testimony, the City could “convert . . . paradigmatic public spaces into nonpublic
(continued...)

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Lozoya’s opinions, the City appears to argue that the Ordinance is narrowly

tailored because “the specific areas” that it “cordon[s] off . . . are inherently

dangerous locations for pedestrians—so dangerous in fact that restrictions on

pedestrian presence and pedestrian activity are necessary to reduce and prevent

the occurrence of injurious vehicle-pedestrian conflicts.” Aplt.’s App., Vol. I, at

230.

However, the City has given up the right on appeal to make this argument.

As noted, the City has not challenged on appeal the district court’s determination

that the areas at issue here are traditional public fora. And, having effectively

agreed that these areas have this First Amendment status, the City “may not by its

own ipse dixit destroy the . . . status.” U.S. Postal Serv. v. Council of

Greenburgh Civic Ass’ns, 453 U.S. 114, 133 (1981); see First Unitarian Church,

16
(...continued)
fora through its design and landscaping choices,” which would “flip[] the
narrow-tailoring inquiry on its head.” Aplees.’ Resp. Br. at 33–34; see id. at 3
(“Taken to their logical conclusion, the City’s arguments would effectively allow
the government to eliminate streets as traditional public fora simply by stating a
subjective preference for vehicular traffic over speech by pedestrians.”); see also
Oral Arg. at 16:57–17:37 (conceding that, while it is not “mounting a forum
analysis challenge” on appeal, “as it did in the district court,” the City, “by
invoking the[] design guidelines [relied on by Ms. Lozoya],” is “essentially”
arguing that it can “altogether prohibit pedestrians from being in” “particular
part[s] of the roadway,” even if it “know[s]” and does not contest that such parts
are “traditional public for[a],” so long as those parts are “not designed for
pedestrians to stand in or . . . use [for] . . . physical exchanges”—and that the
“impact” of this argument would be “essentially the same as allowing the City to
de-designate a traditional public forum by government fiat”).

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308 F.3d at 1124 (“The government cannot simply declare the First Amendment

status of property regardless of its nature and its public use.”); cf. Grace, 461

U.S. at 180 (recognizing that the government may not “transform the character of

the property by the expedient of including it within the statutory definition of

what might be considered a non-public forum parcel of property”); McCraw, 973

F.3d at 1069 (concluding that, “[b]ecause the proximity, speed, and volume of

passing cars does not deprive streets of their status as public fora, they similarly

fail to strip medians of that status”).

ii

Beyond Ms. Lozoya’s expert opinions, the City cites, as “concrete evidence

demonstrating the danger of standing in areas that are prohibited under the

Ordinance,” a series of accident reports it produced in response to Plaintiffs’

discovery requests in the district court. Aplt.’s Opening Br. at 40–41 (discussing

“police reports that provided examples of pedestrians being harmed by vehicles

while standing on medians and of vehicles driving onto medians,” along with

“evidence of unsafe situations, including collisions, resulting from physical

interactions between pedestrians and motorists in travel lanes”); see also Aplt.’s

App., Vol. I, at 227–28 (describing these accident reports as spanning a

“four-plus-year timeframe” and as proffered in response to Plaintiffs’ request for

all documents relating to safety concerns the City considered when it adopted the

Ordinance and pedestrian injuries caused by vehicle conflicts since 2014).

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The City admits that it did not rely on these reports during the drafting of

the Ordinance—and, more broadly, that it undertook little, if any, empirical or

data-driven research prior to the Ordinance’s passage. See, e.g., Aplt.’s App.,

Vol. III, at 582–83 (City of Albuquerque’s Objs. & Resps. to Pls.’ First Set of

Reqs. for Admission, dated March 15, 2019) (admitting that the city council “did

not examine” the accident reports produced to support the City’s safety

justification for the Ordinance, while contending the City “did examine events,

facts, and circumstances analogous to those [accident reports],” including

“personal accounts of pedestrian-vehicle collisions and/or near collisions from

constituents, observations of safety concerns relating to pedestrian-vehicle

conflicts by Albuquerque Police Department staff and by City Councilors

themselves”); id. at 583–84 (admitting that the City did not “commission” studies

examining ramp-, median-, or exchange-related safety hazards prior to the

Ordinance’s passage, but instead relied on “constituent concerns, independent

observations of safety concerns relating to pedestrian-vehicle conflicts by

Albuquerque Police Department staff, and by City Councilors themselves”).

Nonetheless, the City avers these reports evince troubling public safety concerns

that the Ordinance addresses.

But as the Plaintiffs’ expert, Dr. David Ragland, explained in his expert

report, the accident reports—to the contrary— actually rebut any inference of

narrow tailoring and reveal that the Ordinance broadly restricts speech rights in

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Albuquerque’s public fora in service of alleviating largely non-existent,

speculative harms. See Aplt.’s App., Vol. I, at 228 (Dr. Ragland concluding that

the “actual data”—as represented by the accident reports—“d[id] not support the

City’s position . . . that the challenged Ordinance is a needed public-safety

measure”); id. at 229 (concluding that “[t]he median, ramp, and

physical-interaction prohibitions in the Ordinance would therefore . . . likely . . .

have a minimal impact on the overall vehicle-pedestrian conflicts identified in the

[accident reports]”).

In reaching his ultimate conclusions, Dr. Ragland reviewed and organized

the 900 accident reports provided by the City, concluding that 606 of the 900

were “unique (i.e., non-duplicate) reports” and that “only 401” of the 900

“included some level of pedestrian involvement.” Id. at 231. Dr. Ragland

“coded” these 401 pedestrian-involved reports “for multiple variables, such as

lighting conditions, pedestrian injury, vehicle-occupant injury, relationship to an

activity prohibited by the Ordinance, and contributing factors identified by the

reporting officer in the Collision Reports (such as ‘Driver Inattention[,]’

‘Alcohol[,]’ and ‘Pedestrian Error’).” Id.

Dr. Ragland’s analysis of the data revealed that “[o]ver 50% (203 of 401)”

of the relevant accident reports “involved a vehicle colliding with a pedestrian

who was making a lawful street crossing (such as walking in a crosswalk, or

walking with the traffic light, for example)”—i.e., “proper pedestrian behavior”

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that is not proscribed by the Ordinance. Id. at 232 (emphasis omitted).

Moreover, roughly “43% (173 of 401) of the reports involved pedestrians who

engaged in conduct—such as jaywalking or darting into the road—not addressed

by the Ordinance’s median restrictions, ramp restrictions, or prohibitions on

physical interactions/exchanges between pedestrians and vehicle occupants”—i.e.,

conduct that, while unlawful, does not fall within the Ordinance’s ambit. Id.

Thus, “[o]nly approximately 6% (25 of 401) of” the accident reports related

to “behavior specific to the median, ramp, and physical interaction restrictions in

the Ordinance”—or, stated differently, “nearly 94% (376 of 401)” of the relevant

reports “involved [either] lawful behaviors or behaviors that the Ordinance’s

median restrictions, ramp restrictions, and physical-exchange restrictions do not

address.” Id. at 233 (emphasis added); see also id. at 233 & nn.16–17 (explaining

that accident reports involving pedestrian presence near highway ramps did not

indicate whether the pedestrian was within six feet of the ramp, and that accident

reports involving pedestrian presence on medians did not indicate the width,

location, or landscaping status of the particular median, such that Dr. Ragland’s

categorization of the 25 accident reports as involving pedestrian conduct

proscribed by the Ordinance “may be over-inclusive, and include pedestrians that

are in locations that the City itself may deem suitable for pedestrians under”

subsections (B) and (C) of the Ordinance).

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Additionally, Dr. Ragland’s “further analysis of these 25 reports indicate[d]

that most of the[m] . . . involve[d] circumstances such as substance abuse, mental

illness, or driver error, and many did not involve conduct that would violate”

subsections (B) through (E) of the Ordinance. Id.; see also id. at 233–35

(summarizing the scenarios described in each accident report, which included,

inter alia, (1) “[a] vehicle driver who reported being shot at by the driver of

another vehicle”; (2) “[a] pedestrian who was struck by a vehicle” during a

potential domestic dispute; (3) a pedestrian who ran into an intersection

screaming and jumped onto a vehicle; and (4) various instances of intoxicated,

mentally ill, or simply disoriented pedestrians who sustained injuries from

stepping into oncoming traffic). In Dr. Ragland’s estimate, “only four (4)

[accident reports] clearly involved someone standing on a median or ramp, not

otherwise likely violating an existing law”—and none “involved

fatalities”—indicating an “extraordinary low accident rate” given the “likely

hundreds of millions of instances of vehicles driving by persons in these

locations” over the timeframe of the reports. Id. at 236.

The reports also indicated the rate of pedestrian injuries and fatalities was

quite low: “28% (112 of 401)” of the relevant reports involved “no pedestrian

injury,” while “23% (94 of 401) exhibited the lowest injury rating, complaint of

pain,” such that “over 51% (206 of 401) of the vehicle-pedestrian conflicts

identified by the City [in the reports] resulted in either no or minor pedestrian

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injury.” Id. (emphasis omitted). Of the 401 relevant accident reports, “fewer

than 4% (15 of 401)” involved a pedestrian fatality—and a “further analysis of

these 15 reports indicate[d] that most of these [fatality] incidents involved

pedestrians who attempted to make illegal road crossings (such as jaywalking,

crossing against the light, etc.).” Id.; see also id. at 236–37 (explaining that the

reports “include[d] pedestrians who were struck by vehicles” when, inter alia,

“jaywalking”; walking “against the light”; or walking outside the crosswalk).

And injuries to vehicle occupants were even less common: more than 85% of the

401 relevant accident reports involved no vehicle occupant injury, 7.5% involved

only minor injuries, and less than 3% of reports (11 of 401) “involved more

significant injuries (with no reported fatalities).” Id. at 237–38. Viewed

alongside Dr. Ragland’s expert analysis, then, the accident reports do not

support—and, indeed, rebut—the City’s position that “the Ordinance is needed in

order to reduce the incidence of vehicle-pedestrian conflicts.” Id. at 230.

The City, for its part, pushes back on this conclusion—but only weakly so.

See, e.g., Aplt.’s Opening Br. at 18 & n.76, 19–22 (generically complaining about

district court’s denial of its motion to exclude Dr. Ragland as untimely disclosed

without adequately challenging this denial on appeal, as well as noting that Dr.

Ragland often agreed with Ms. Lozoya’s opinions concerning theoretical traffic

safety guidelines). Specifically, the City’s most substantive objection is that the

district court improperly resolved disputed inferences from Dr. Ragland’s analysis

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in Plaintiffs’ favor. See, e.g., Aplt.’s Reply Br. at 29–30 (“emphatically

disput[ing] the accuracy of Dr. Ragland’s report” based on, inter alia, the limited

number of accident reports produced, the fact that the reports that were produced

“could not possibly include every accident or near-accident involving pedestrians

engaging in the conduct limited by the Ordinance,” and Dr. Ragland’s

“acknowledg[ment] that it was possible that his team missed accident reports that

included conduct that was prohibited by the Ordinance”). We, of course, review

the record de novo, so even if the district court had improperly resolved disputed

facts or factual inferences—and we offer no opinion on this matter—that would

not invariably require remand, much less reversal outright. See supra note 11.

More particularly, the City’s attempt to cast doubt on Dr. Ragland’s

conclusions based on the data it produced to support the Ordinance is

unconvincing. If the City has further “concrete data” supporting the necessity of

the Ordinance’s restrictions, then it should have presented that data to the district

court. The City, not Plaintiffs, bears the burden of establishing the relevant

provisions of the Ordinance are narrowly tailored, and it cannot bear that burden

by positing, on the one hand, that its own evidence is too incomplete or unreliable

to allow for reliable analysis, yet on the other hand, that the evidence is robust

enough to carry its legal burden. Cf. Aplt.’s App., Vol. V, at 1268–72 (Pls.’ Br.

Regarding the Rebuttal Expert Report of Dr. David Ragland, filed June 7, 2019)

(arguing that the “City’s criticism of its own data set and data collection,” along

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with its “speculation” about “additional data regarding ‘close calls’” that “may

not even exist” provides “no reason to doubt the reliability of Dr. Ragland’s

opinions, or to think that the Ordinance passes constitutional muster,” especially

given “that the City has the burden of showing that the law is . . . narrowly

tailored to . . . addressing a significant . . . government interest”); cf. also Doe,

667 F.3d at 1133–34 (holding that a city failed to show its ban on registered sex

offenders in public libraries was narrowly tailored where the city “did not present

any evidence” and “provided nothing in the record” showing such tailoring).

Stated otherwise, the City cannot render these accident reports more probative of

real harms arising from pedestrian presence in the areas that the Ordinance covers

through sheer speculation—especially concerning the quality or completeness of

the evidence that it itself produced. And, more generally, these reports do not aid

the City’s efforts to show that the Ordinance’s restrictions are adequately tailored

to advance real and non-speculative government interests.

iii

Lastly, the City cites general statistical information, primarily compiled in

the Ordinance’s preamble, along with anecdotes from city councilors, police

officers, and constituents, as evincing both the existence of real or anticipated

harms arising from pedestrian presence in the areas addressed by the Ordinance

and the concomitant need for the Ordinance’s restrictions to remedy those harms.

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See Aplt.’s Opening Br. at 41. But these statistics and anecdotes are simply too

generic or isolated to offer support for the notion that the Ordinance “serve[s] a

substantial state interest in a direct and effective way” and, more specifically, that

the City’s “recited harms are real,” or “that the [Ordinance] will in fact alleviate”

any identified interests or harms “in a direct and material way.” Citizens for

Peace in Space, 477 F.3d at 1220–21 (first alteration in original) (first quoting

Edenfield, 507 U.S. at 773; and then quoting Turner, 512 U.S. at 664).

(A)

The Ordinance’s preamble recites a variety of general traffic statistics the

City contends justify the Ordinance’s restrictions. See Aplt.’s App., Vol. I, at

81–83. Among other things, these statistics indicate that, nationally, “more than

4,000 pedestrians die and 70,000 get injured by encounters with vehicle traffic

annually,” and that Albuquerque, and New Mexico more generally, have

particularly extreme rates of pedestrian fatalities. Id. at 81. More specifically,

the preamble references a University of New Mexico Study commissioned by the

City in 2015 “to study the occurrences and possible causes of pedestrian and

bicyclist involved crashes in Albuquerque.” Id.; see generally id., Vol. I, at

88–158 (Pedestrian & Bicycle-Involved Crash Analysis & Safety Performance

Enhancement at High-Traffic Intersections (“UNM Study”), dated Jan. 2016).

The Study, according to the preamble, “revealed that among the 10 intersections

in the City with the highest number of pedestrian injuries and fatalities,

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pedestrian error and driver inattention were frequently among the top contributing

factors”—and that, at those intersections, the Study identifies as a “contributing

factor” the “existence of pedestrians entering traffic outside of crosswalks for

such purposes as interacting with motorists to solicit donations.” Id. at 82; see

also id. (reciting, generally, that interactions between pedestrians on medians and

motorists “foster scenarios for greater driver distraction and pedestrian-vehicle

conflicts”). The preamble goes on to state that, “absent special safety

accommodations specifically for pedestrians such as pedestrian refuges, roadway

medians are not designed for use by pedestrians”; moreover, national guidelines

“recommend a minimum median width of 6 feet,” with a preference for a width of

8-to-10 feet, for medians “contemplated to accommodate a pedestrian-refuge from

traffic.” Id. at 82–83; see also id. at 83 (listing “potential physical, capital

improvements” that the UNM Study recommends to “help improve intersection

safety”).

These statistics are of limited value, however. Broadly speaking, the injury

and fatality numbers recited in the preamble, on their face, do not specify how

many of these injuries or deaths—if any—were related to pedestrian presence

near ramps or on medians, or to exchanges between pedestrians and vehicle

occupants in Albuquerque. Nor has the City included evidence in the record

further elucidating such generic numbers.

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Quite the contrary, in fact: various portions of the record—such as the

deposition testimony of one-time city council president Ken Sanchez, excerpted

below—suggest a lack of understanding by at least some of the city councilors as

to whether the statistics bore on traffic and safety problems in Albuquerque

related to ramps, medians, and physical exchanges:

[Counsel]: Did you personally review any studies by the National
Highway Traffic Safety Administration in considering this
ordinance?

[Mr. Sanchez]: No. . . .

[Counsel]: Do you know what percentage of [the] 4,000
pedestrian fatalities [referenced in the Ordinance’s preamble]
relate to pedestrians standing in medians?

[Mr. Sanchez]: No.

[Counsel]: Do you know what percentage of those 4,000 fatalities
relate to pedestrian interactions with vehicles from roadsides?

[Mr. Sanchez]: No.

[Counsel]: Do you know what percentage . . . of the 70,000
injuries [referenced in the Ordinance’s preamble] relate to
pedestrians standing in medians?

[Mr. Sanchez]: No.

[Counsel]: Do you know what percentage of the 70,000 injuries
relate to pedestrians interacting with vehicles from roadsides?

[Mr. Sanchez]: No. . . .

[Counsel]: Do you know what percentage of [New Mexico’s
pedestrian] fatalities relate to pedestrians standing in medians?

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[Mr. Sanchez]: No.

[Counsel]: Do you know what percentage of those fatalities relate
to pedestrians interacting with vehicles from roadsides?

[Mr. Sanchez]: No. . . .

[Counsel]: And with respect to [the] data [relating to
Albuquerque’s pedestrian fatalities], do you know what
percentage of those fatalities relate to pedestrians standing in
medians?

[Mr. Sanchez]: No.

[Counsel]: Do you know what percentage of those fatalities relate
to pedestrians interacting with vehicle occupants from a
roadside?

[Mr. Sanchez]: No.

Id., Vol. II, at 414 (Tr. Ken Sanchez Dep., dated Sept. 12, 2018); see also id. at

415–16.

Indeed, the UNM Study, which was “one of the [City’s] principal bases of

evidentiary support” for the Ordinance, id., Vol. II, at 441 (Tr. Chris Melendrez

Dep., dated Jan. 30, 2019), is largely beside the point, as it includes virtually no

data relevant to subsection (B) through (E)’s restrictions, see Aplees.’ Resp. Br.

at 29, 32, 39–40 (asserting that (1) regarding subsection (B), “[t]he UNM Study .

. . did not analyze highway exit or entrance ramps at all”; (2) regarding

subsection (C), “[t]he UNM Study . . . did not identify a single accident involving

a pedestrian simply standing on a median”; and (3) regarding subsections (D) &

(E), “the UNM Study does not identify a single accident or injury caused by

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physical exchanges between pedestrians and motorists”—and, what’s more, “the

only physical interaction the Study affirmatively identifies as a factor

contributing to crashes—‘catching a connected bus’—is expressly exempt from

the Ordinance’s prohibitions” (quoting Aplt.’s App., Vol. III, at 640–41)); see

also Aplt.’s App., Vol. III, at 583 (City: admitting that “none of the ten

intersections identified in” the UNM Study are located at a highway exit or

entrance ramp, as described in subsection (B) of the Ordinance); id., Vol. II, at

438 (the City’s Rule 30(b)(6) deponent testifying that (1) none of the intersections

discussed in the UNM Study are “located at an entrance or exit ramp”; (2) the

Study does not “mention entrance or exit ramps even once”; (3) the Study does

not “report any examples of people standing on medians being hit by vehicles”;

and (4) the Study does not “talk about people on on-ramps being hit by any

vehicles”); cf. id., Vol. III, at 640–41, 643–45 (UNM Study) (discussing

pedestrian solicitation of donations from motorists in the context of roadway

accidents, but failing to specify whether this solicitation involved the “physical

exchanges” proscribed by subsections (D) and (E) of the Ordinance and,

furthermore, opining that such accidents could be reduced not by banning all such

exchanges or solicitation attempts, but rather by, inter alia, increasing crosswalk

times, installing median barriers, and strategically placing warning signs).

The statistical evidence the City relies on, then, is not sufficiently

particularized to the interests the City claims the Ordinance directly addresses,

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and, therefore, does little to show that the Ordinance—as a means of addressing

those interests—is narrowly tailored.

(B)

The City’s anecdotal evidence fares no better. As with the statistical

evidence discussed above, the anecdotes the City cites either are too generic to

support the Ordinance’s restrictions, or involve incidents where the nexus

between the injuries described and the conduct that the Ordinance proscribes is

simply too tenuous to bolster any conclusion that the City narrowly tailored the

Ordinance to address real, non-speculative harms or to alleviate such harms in a

direct and material way. See Aplt.’s Opening Br. at 41 (claiming that the City, in

“enacting the Ordinance, . . . relied on . . . the observations of the Albuquerque

Police Department and its officers’ safety concerns for pedestrians standing on

medians and for unsafe pedestrian-vehicle interactions” and “City Councilors’ and

their constituents’ own observations and experiences regarding pedestrian safety

in these areas,” but citing in support of this claim only two excerpts from the

deposition of the City’s Senior Policy Analyst, Chris Melendrez); Aplt.’s App.,

Vol. IV, at 1107–13 (Tr. Chris Melendrez Dep., dated Jan. 30, 2019) (generically

discussing traffic safety issues in Albuquerque; relating vague, second-hand

accounts of pedestrian-vehicle conflicts; or recounting others’ descriptions of

incidents involving pedestrians “r[unning] in front of . . . car[s]”); see also id.,

Vol. II, at 400 (Tr. Trudy Jones Dep., dated Jan. 31, 2019) (testifying that she did

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not need empirical data to demonstrate the necessity of the Ordinance because she

felt it was adequately justified by “good common sense”).

Indeed, in many respects the situations described by the anecdotes are

largely divorced from the central thrust of the Ordinance—which is to ameliorate

the purported harms caused by pedestrian presence near ramps and on medians, or

pedestrian involvement in physical exchanges with vehicle occupants. Cf.

Aplees.’ Resp. Br. at 33 (arguing, with regard to subsection (C), that “[t]he City’s

anecdotal evidence . . . focuse[s] on conduct entirely outside the scope of” the

median regulation or lacks the requisite modicum of detail to adequately support

the necessity of this regulation); Aplt.’s App., Vol. II, at 402 (Tr. Trudy Jones

Dep., dated Jan. 31, 2019) (city councilor, Trudy Jones, initially claiming,

generally, that she had seen “[d]ozens” of pedestrians fall off medians but, when

pressed for details, being able to describe only one, six-month-old incident

involving an individual crossing the street and tripping when he reached the

median, while additionally testifying that she could not recall any panhandlers

standing on medians who had fallen off); id. at 415 (Tr. Ken Sanchez Dep., dated

Sept. 12, 2018) (when asked what “personal experiences . . . inform[ed his] view

that pedestrians . . . within . . . street medians can distract drivers,” describing an

“occurrence” relating to solicitation of donations where an individual “on the

sidewalk . . . picked up [a] bat” and damaged a vehicle near him).

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Thus, as with its statistical evidence, the City’s anecdotal evidence simply

misses the mark. While these statistics and anecdotes—like the accident reports

and Ms. Lozoya’s opinions discussed above—might be relevant factors in an

overarching policymaking process by Albuquerque’s city council, they have little

bearing, in this case, on the question of whether the Ordinance is narrowly

tailored to achieving significant government interests that are real and not

speculative.

b

In light of the paucity of evidence proffered by the City showing that “the

harms or the remedial effects of” the Ordinance “are supported” by more than

“speculation [and] conjecture,” the Ordinance’s breadth merely reinforces our

ultimate conclusion that the Ordinance “burdens substantially more speech than is

necessary to further [the City’s] legitimate interests” and is, therefore, not

narrowly tailored. McCraw, 973 F.3d at 1071; see id. at 1073–74 (noting that,

“[f]or a regulation to be narrowly tailored, it must not only promote ‘a substantial

government interest,’ but that interest must ‘be achieved less effectively absent

the regulation, and . . . not burden substantially more speech than is necessary to

further the government’s legitimate interests,’” and that a government’s failure to

present “evidence of concrete harm arising from” the activities it seeks to restrict

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“infects our analysis of both the ‘ends’ and the ‘means’” chosen by the

government (omission in original) (emphasis added) (quoting Verlo, 820 F.3d at

1134)).

By their plain terms, subsections (B) through (E) of the Ordinance sweep

broadly and substantially burden private speech, “prohibit[ing] all expressive

activity in a wide variety of spaces where Albuquerque’s citizens have

historically . . . exercised their” First Amendment rights. Aplees.’ Resp. Br. at 2.

Subsection (B) erects a six-foot buffer zone around all of Albuquerque’s highway

entrance and exit ramps, subject only to limited exceptions. The City concedes

there are no ramps in Albuquerque that fall outside Subsection (B)’s ambit. See

Aplt.’s Opening Br. at 49 (acknowledging that the City “did not select certain

controlled access roadways to be included in the Ordinance,” but rather “included

all three of them” (emphasis added)). Likewise, subsections (D) and (E) bar all

exchanges between pedestrians and vehicle occupants where the vehicle is in a

travel lane or at an intersection, absent extenuating circumstances; the subsections

“contain[] no geographic or temporal limitations” and “appl[y] through

Albuquerque’s 190 square miles, in any neighborhood, at any time of day and no

matter the traffic volume.” Aplees.’ Resp. Br. at 10. As well, Subsection

(C)—the median regulation—proscribes expressive conduct across numerous

categories of medians throughout the City.

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Thus, the Ordinance’s text alone makes clear that numerous public fora

throughout Albuquerque are effectively rendered off-limits for speech and

expressive conduct through these regulations. Cf. Edenfield, 507 U.S. at 777

(“Broad prophylactic rules in the area of free expression are suspect. Precision of

regulation must be the touchstone in an area so closely touching our most

precious freedoms.” (quoting NAACP v. Button, 371 U.S. 415, 438 (1963))); cf.

also McCullen, 573 U.S. at 492 (noting the “First Amendment virtues of targeted

injunctions[,] as alternatives to broad, prophylactic measures”). While the City

objects to this characterization, its objections are unpersuasive. Broadly, the City

claims the Ordinance “does not impose a substantial burden on speech because it

has a limited application,” but what the City means by “limited application” is

telling. Aplt.’s Opening Br. at 38. That is, the City contends the Ordinance’s

application is “limited” because it “applies only to locations within the roadway

that are: (1) not designed for pedestrian use or for pedestrian-vehicle interactions,

and (2) in close proximity to high-speed and high-volume traffic.” Id. at 38–39.

However, the City is not permitted to claim the Ordinance has a limited

ambit or imposes a light burden on First Amendment rights by effectively

“downgrading” the public fora it restricts through the invocation of roadway

design guidelines. First Unitarian Church, 308 F.3d at 1129 n.11 (“The Supreme

Court has made clear that once an ‘archetype’ of a public forum has been

identified, it is not appropriate to examine whether special circumstances would

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support downgrading the property to a less protected forum.”). Nor can the City

narrow the Ordinance’s scope by observing that its restrictions leave “[o]ther

portions of the roadway that are either designed for pedestrian use or which

provide a greater refuge from the dangers of high-speed traffic . . . available for

speech activities,” as this argument effectively conflates the narrow tailoring

inquiry with an alternative channels analysis. See, e.g., iMatter Utah, 774 F.3d at

1267 (“[The government] contends that if a regulation leaves open ample

alternative forums for communication, then that regulation is narrowly tailored.

The district court rejected [this] position, concluding that it ‘improperly conflated

the government’s need to narrowly tailor its regulations with its need to

demonstrate ample alternatives for free speech.’ ‘Even if ample alternatives for

speech exist,’ the district court explained, ‘the [government] cannot simply

prohibit a group from speaking in a traditional public forum without

demonstrating how the [government’s] restriction on speech is narrowly tailored

to serve a significant interest.’ We agree. Although a narrowly tailored

regulation may tend to leave open ample alternatives for communication, there is

no basis for substituting one requirement for the other.” (citations omitted)

(quoting iMatter Utah v. Njord, 980 F. Supp. 2d 1356, 1372 (D. Utah 2013)));

Cutting v. City of Portland, 802 F.3d 79, 88 (1st Cir. 2015) (noting that “the fact

that there are other places where plaintiffs may engage in their expressive activity

‘misses the point’” of the narrow tailoring inquiry, and a “flat ban on speech in a

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particular forum . . . can fail narrow tailoring even if it leaves open other channels

for plaintiffs to engage in their expressive activity” (quoting McCullen, 573 U.S.

at 489)).

Beyond these arguments, the City also specifically asserts that subsection

(C) is sufficiently tailored in scope to pass constitutional muster because it

“would apply [only] to 20% of the roadways in Albuquerque.” Aplt.’s Opening

Br. at 53; see Aplt.’s Reply Br. at 14; see also Aplt.’s App., Vol. IV, at 1135–36

(Ms. Lozoya testifying that “20 percent” of Albuquerque’s “4600 lane miles of

[city] roadway” would be subject to the Ordinance’s prohibitions). But this

roadway estimation tells us little about how many of Albuquerque’s medians

come under subsection (C)’s restrictions, and the City itself concedes that it never

specifically counted how many medians would be covered by the median

regulation. See Aplt.’s Opening Br. at 53 (admitting that the City “did not

provide a precise figure for the number of medians affected” to the district court);

Aplt.’s Reply Br. at 14 (“Plaintiffs are correct that the City never did a

median-by-median count to determine how many would come within the scope of

the Ordinance.”).

More broadly, testimony from Albuquerque’s Senior Policy Analyst, Chris

Melendrez, indicates that the City’s efforts to measure the median regulation’s

overall breadth were cursory at best:

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[Counsel]: Did [the City] undertake any analysis to determine
how many medians would be available to people who wanted to
solicit donations?

[Mr. Melendrez]: Only in the sense that we reviewed the map of
the city and which roadways would be impacted. And it was easy
to identify large swaths of the city that wouldn’t be impacted.

[Counsel]: Do you know about how many medians would still be
available that wouldn’t be impacted by the ordinance?

[Mr. Melendrez]: We didn’t—I never did a numeric count.

[Counsel]: Did you ever ask for data or information from another
City department on how many medians would be left open for
individuals soliciting donations?

[Mr. Melendrez]: No. . . .

[Counsel]: Did you or any other policy analyst or anyone else
working on the ordinance [conduct observational activities to
assess the number of unaffected medians]?

[Mr. Melendrez]: You know, I don’t know that we went out and
did, like, a data gather, you know, a visual survey of where
people are standing or anything like that.

Aplt.’s App., Vol. III, at 815 (Tr. Chris Melendrez Dep., dated Jan. 30, 2019).

Moreover, Ms. Lozoya’s testimony with regard to subsection (C)(2), which

restricts pedestrians from being present on landscaped medians, reinforces the

breadth of subsection (C)’s median regulation because she testified that the City’s

policy “is to landscape most medians as long as they are about 10 to 12 feet in

width or wider.” Id., Vol. III, at 589. And last, but not necessarily least on the

breadth scale, subsection (C)(3) would appear to vest near-unbridled discretion in

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the “City Traffic Engineer” to deem specific medians unsafe and, consequently,

bar pedestrians from using them. See id., Vol. VI, at 1440 (allowing the City

Traffic Engineer to “identif[y] by signage as not suitable for pedestrian use” any

median in Albuquerque “based on identifiable safety standards” or “objectively

unsuitable features”).

Thus, the median regulation could conceivably leave virtually no medians

available to Albuquerque residents for speech or expressive conduct. More to the

point, the City has failed to provide us with concrete, adequate evidence that

would permit us to draw contrary inferences.

c

In contending that the Ordinance is narrowly tailored, and that it has

proffered sufficient evidence of such tailoring, the City relies almost exclusively

on our decision in Evans v. Sandy City. See Aplt.’s Reply Br. at 3 (“Ultimately,

this appeal requires the Court to decide how Evans applies to the facts of this

case.”). The City asserts that its approach—i.e., “limit[ing] the Ordinance’s

application to only those locations that are not designed to accommodate

pedestrians and for which there is objective evidence of safety concerns”—is

“exactly in line with, and arguably more comprehensive, than what Sandy City

did in Evans.” Aplt.’s Opening Br. at 41; see also Aplt.’s Suppl. Br. at 4

(claiming the City “produced more comprehensive evidence in support of” its

interest in reducing pedestrian-vehicle conflicts “than Sandy City produced in

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Evans” and emphasizing that “the Ordinance was created in the context of a

severe pedestrian safety problem,” which “created a heightened incentive for the

City to reduce pedestrian-vehicle conflicts through a variety of measures”).

As well, the City argues that the evidence it has proffered to support the

Ordinance is comparable to, and even more substantial than, the evidence

presented in Evans. See id. at 42 (comparing the City’s reliance on “observations

of [Albuquerque police officers],” “traffic engineering principles, nationally

accepted traffic design guides, pedestrian fatalities statistics, the observations of

the City Councilors and of their constituents, and . . . police reports” to our

determination in Evans that “subjective observations of a police captain and

prosecutor regarding the dangerousness of medians were sufficient to show that

the ordinance” at issue was narrowly tailored).

By brushing off its evidence, says the City, the district court “imposed a

much higher [narrow tailoring] burden” than the one we explicated in Evans,

which consequently warrants reversal in this case. Id. at 45. But Evans is not the

panacea that the City believes it to be. To start, that case’s facts are plainly

distinguishable. Briefly, in Evans we considered whether Sandy City, Utah’s

ordinance—which prohibited persons from sitting or standing on unpaved

medians or medians less than three feet wide—was narrowly tailored. See Evans,

944 F.3d at 851–52. We ultimately concluded that the ordinance was narrowly

tailored for several reasons. Among these reasons, we concluded that the

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ordinance did not impose a substantial burden on the plaintiff’s speech. While

the Evans plaintiff had “received two citations for standing on a paved 17-inch

median,” it was uncontested that “[a] mere ten feet away from where he was

cited, the median [in question was] wider than 36 inches and [was] therefore

unaffected by the [o]rdinance”—and we “simply [could not] accept th[at] ten-foot

difference on the same median as a substantial burden on speech.” Id. at 857.

As well, we held a “direct relationship exist[ed] between the City’s goal of

promoting public safety and the restriction on speech it selected.” Id. at 858.

Sandy City’s police captain, “a[n] . . . official who had years of experience

dealing with unsafe situations involving pedestrians on medians[,] . . . conducted

a survey of the medians” in the city; based on these observations, “the [c]ity

drafted the [o]rdinance limiting it only to those medians where it would be

dangerous to sit or stand at any time of day, at any traffic speed or volume.” Id.

The city’s prosecutor, who had also surveyed the medians, explained that unpaved

medians were included because of the “tripping hazard” they presented. Id. We

found such evidence “sufficient to satisfy the [c]ity’s burden to show the

[o]rdinance” was narrowly tailored. Id.; see id. (“The [o]rdinance only prohibits

sitting or standing on narrow or unpaved medians where it would be dangerous to

do so. This is the sort of close fit the narrow tailoring requires.”). Additionally,

we rejected the plaintiff’s argument that the city “failed to satisfy its evidentiary

burden because it did not provide accident reports or complaints regarding

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medians in all parts of the [c]ity,” holding that the city was “not require[d] . . . to

wait for accidents to justify safety regulations.” Id.

The City’s Ordinance at issue here is plainly more burdensome and less

tailored than the one at issue in Evans—even putting aside the fact that the City’s

Ordinance targets more categories of fora and types of conduct than did the

ordinance in Evans. The relevant regulation for comparison with

Evans—subsection (C)’s median regulation—is substantially broader in scope

than was the regulation in Evans. In Evans, Sandy City prohibited persons from

standing or sitting on medians slimmer than three feet, and on unpaved medians

that presented tripping hazards. Here, Albuquerque sets its minimum width

requirement at six feet—double the width in Sandy City’s ban—provided such a

median is in a roadway with a speed limit of thirty miles per hour or higher, or is

within twenty-feet feet of an intersection with such a roadway. Moreover,

Albuquerque also bars pedestrians from being present on all landscaped medians,

and it delegates broad, largely unchecked power to a City official to deem

medians “unsafe” and concomitantly cordon them off from pedestrian usage.

More significantly, the City points to no evidence indicating how many

medians are covered by the restrictions in subsection (C); indeed, while the City

claims this subsection is narrowly tailored because it, conceivably, applies only to

those portions of medians that the City has deemed unsafe, rather than entire

medians, see Aplt.’s Reply Br. at 14–16; Aplts.’ Suppl. Br. at 10–11, the City

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cites no evidence in the record that large portions of regulated medians are left

open to expressive conduct—and it offers nothing resembling the uncontested fact

in Evans that the plaintiff could simply move ten feet down the same median and

continue his conduct, which (as Plaintiffs correctly assert) was “central” to our

reasoning in that case, see Aplees.’ Resp. Br. at 43–44 (arguing the contrast with

Evans “could not be more stark” because, unlike in Evans, where the plaintiff’s

ability to avail himself of the same median was “central” to our narrow tailoring

finding, in this case, “speakers in Albuquerque do not enjoy the freedom to move”

to “another median—much less ten feet down the same median”—or to “a

virtually identical location to engage in the same speech,” as the City has barred

pedestrians from “all entrance and exit ramps” and “all medians that are

commonly used for communication,” along with barring qualifying physical

exchanges “in every street in every part of the City”).

Indeed, any attempt by the City to create a favorable comparison between

the scope of the Ordinance here and the scope of the ordinance in Evans is largely

undercut by the fact—established by Ms. Lozoya’s testimony—that the

landscaping restriction in subsection (C)(2) likely sweeps in most of

Albuquerque’s widest medians. See Aplt.’s App., Vol. III, at 589 (testifying that

the City’s policy “is to landscape most medians as long as they are about 10 to 12

feet in width or wider”). And unlike Albuquerque’s Ordinance, Sandy City’s

ordinance had no provision allowing for a municipal officer to deem medians

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unsafe based on undefined “safety standards.” Thus, the City cannot argue that

the Ordinance’s median regulation imposes only a slight burden based on a

comparison with the regulation at issue in Evans.

Yet, more particularly, the City also argues that subsection (C)(2), by itself,

is a lawful regulation, given that we upheld Sandy City’s similar prohibition on

persons standing or sitting on “unpaved medians” in Evans. See Aplt.’s Reply Br.

at 17 (claiming that subsection (C)(2) is “clearly narrowly tailored under Evans,”

and that the City need not present “evidence of ‘accidents or incidents stemming

from pedestrian presence in the landscaped areas of medians’” because “the First

Amendment ‘does not require [it] to wait for accidents to justify safety

regulations’” (first quoting Aplees.’ Resp. Br. at 36; and then quoting Evans, 944

F.3d at 858)). But this argument fails for numerous reasons.

At the outset, the City cannot justify this particular provision simply by

citing to Evans; rather, it is required to come forward with some evidence

demonstrating that the provision ameliorates real, not speculative, harms, in a

direct and material way. Cf. Doe, 667 F.3d at 1133–34 (rejecting a city’s bare

citation to “other cases in which courts have found challenged restrictions” like

the one at issue “to be narrowly tailored” because the question of “whether the

restrictions at issue in those cases were narrowly tailored in the respective

contexts of those cases d[id] not compel any conclusion as to the [c]ity’s ban in

this case,” and stating more broadly that “[g]eneral reference to other cases

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involving other cities, other restrictions, other interests to be served, and other

constitutional challenges do not relieve” the city of its narrow tailoring obligation

“in this case”). Nor is it clear that subsection (C)(2) is readily analogous to the

“unpaved median” provision in Evans, at least not without further factual

elaboration on the contours of that subsection by the City. This is especially true

given that the scope of subsection (C)(2) seems much broader than that of the

regulation in Evans, in light of Ms. Lozoya’s testimony on the breadth of the

City’s landscaping policy. See Aplt.’s App., Vol. III, at 589.

More to the point, the City has presented no anecdotes or data indicating

the existence of a real or concrete safety issue arising from pedestrian presence on

landscaped medians. By contrast, in justifying its “unpaved medians” restriction,

Sandy City presented testimony from its police captain that “sitting or standing on

. . . unpaved medians [was] a public safety hazard” in light of “several close

calls” between pedestrians and vehicles that could have led to “devastating”

accidents. Evans, 944 F.3d 854; cf. id. (noting that the city’s prosecutor was

notified by police of “safety issues” relating to people “falling into traffic”).

Moreover, Sandy City “further confirmed” its “public safety justification”

through the drafting procedure employed by its prosecutor, who “gathered

information by surveying the [c]ity’s medians” and subsequently concluded that

“unpaved medians, which were typically covered in rocks, boulders, and in some

cases shrubs, were dangerous because pedestrians could easily lose their footing

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or trip on uneven surfaces.” Id. at 854–55; see id. at 858 (“The [c]ity prosecutor

explained he included unpaved medians where the ‘footing isn’t uniform,’ which

posed a tripping hazard.”). Thus, we concluded that such evidence was

“sufficient to satisfy” the city’s narrow tailoring burden. See id. at 858. We have

no such evidentiary showing here.

To be sure, Albuquerque counters that, under Evans, it need not present

much, if any, evidence in support of this subsection. Rather, it reasons that it can

simply rely on its own common sense and a desire to proactively prevent

accidents before they occur. See Aplt.’s Reply Br. at 17 (“Plaintiffs attack

[subsection (C)(2)] as lacking evidence of ‘accidents or incidents stemming from

pedestrian presence in the landscaped areas of medians.’ But, such evidence is

not necessary; the First Amendment ‘does not require the government to wait for

accidents to justify safety regulations.’” (first quoting Aplees.’ Resp. Br. at 36;

and then quoting Evans, 944 F.3d at 858). True, we have recognized that the

government may act proactively, see Evans, 944 F.3d at 858—and that, more

broadly, the government is “permitted . . . to justify speech restrictions by

reference to studies and anecdotes pertaining to different locales altogether, or

even . . . based solely on history, consensus, and ‘simple common sense,’” and it

need not proffer either “empirical data . . . accompanied by a surfeit of

background information” or a “double-blind empirical study[ ] or a linear

regression analysis” to bear its First Amendment burden, Aptive, 959 F.3d at 989,

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992 n.11 (first quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001);

and then quoting Luce v. Town of Campbell, 872 F.3d 512, 517 (7th Cir. 2017)).

But “the City’s prerogative to determine how to support a regulation does

not extinguish its burden to ‘show that its recited harms are real,’” McCraw, 973

F.3d at 1073 (quoting Citizens for Peace in Space, 477 F.3d at 1221)—and here,

not only has the City put forward inadequate evidence of real, non-speculative

harms arising from pedestrian presence on landscaped medians, but, more

significantly, the evidence it has put forward belies any notion that the City, in

reality, faces such harms. Most prominently, the City points to not one accident

report among the 900 it produced that relates to some kind of pedestrian accident

or danger involving a landscaped median, and it cites to nothing else in the record

bolstering the idea that its common-sense rationale for this particular provision is

grounded in anything more than speculation. In other words, while we approved

of Sandy City’s use of common sense and anecdotes to justify its regulation in

Evans, what was absent there—and present here—is concrete data that undercuts

such anecdotal and common sense evidence. Cf. id. at 1083 (Hartz, J.,

concurring) (“The purported government interest is public safety. But a number

of years of relevant data [regarding Oklahoma City] failed to support the claimed

danger. I am not saying that such data are necessary to support a claim of danger.

. . . But when there are data available, and they contradict what common sense

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and expert opinion may tell us, courts must be cautious before endorsing a

governmental claim of danger.” (emphasis added)).

Thus, for this reason, the City’s reliance on Evans is misplaced and, more

importantly, its reliance on scattered anecdotes in the record and its generic

invocation of “common sense” are simply not enough to demonstrate that

subsection (C)(2) is directed at remediating real harms in a manner that does not

burden substantially more speech than necessary. Cf. id. at 1072–73 (conceding

that “municipalities remain free to determine what type of evidence they will use

to support proposed remedial regulations,” and that “a government need not wait

for accidents or fatalities to address its interest through safety regulations,” but

concluding that Oklahoma City’s proffered evidence “d[id] not meet [its]

burden,” and admitting that we were “baffled as to why” there was not more

objective evidence of pedestrian injuries if “medians present[ed] the danger that

the [c]ity argue[d] they d[id]”); Aptive, 959 F.3d at 989, 993 (finding Castle

Rock’s “anecdotal and common-sense showing . . . woefully insufficient, when

viewed through the ‘helpful’ prism” of cases in which “anecdotes, history, or

common sense” had “previously been invoked,” because, inter alia, the

“common-sense and anecdotal evidence that” was presented was “contradicted by

the police chief’s testimony that there was no evidence that [the regulated

conduct] posed a threat to public safety and the accompanying data

demonstrat[ed] that there ha[d] not been any complaints about [such conduct

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during the time period that was regulated]” (emphasis added) (quoting Pac.

Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 n.12 (10 th Cir. 2005)).

***

In sum, the City’s largely evidence-free approach to establishing subsection

(C)(2)’s constitutionality—an approach that is unavailing—is emblematic of its

efforts, more broadly, to demonstrate the Ordinance’s constitutionality—efforts

that are also unavailing. With regard to subsection (B), the City all but admitted

at oral argument that it lacks concrete evidence that such a sweeping prohibition

on pedestrian presence near highway ramps is necessary to ameliorate, in a direct

and material way, real, non-speculative safety concerns. See Oral Arg. at

2:43–3:01 (The court: “In the summary judgment record that was presented to the

district judge and that’s on review here, was there any evidence of any . . .

accidents associated with an entrance or exit of a highway ramp?” City counsel:

“Not any that involved pedestrians.”).

And while the City strives to rely on accident reports to justify subsections

(C) through (E), those reports actually belie any notion that these subsections

alleviate a real, non-speculative government public-safety concern in a direct and

material way. The City’s attempt to bolster its showing by citing Ms. Loyoza’s

theoretical opinions, scattered and factually inapposite anecdotes, and its

“common sense” are simply not enough to tighten the impermissibly “loose fit

between [the City’s chosen] means”—the Ordinance—“and [its] safety interest.”

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McCraw, 973 F.3d at 1077. Thus, the City fails to carry its burden of showing

that the Ordinance does not substantially burden more speech than necessary to

advance its real, significant interests in pedestrian safety.

3

In addition to its evidentiary arguments discussed supra, the City also

contends that the district court erred in “improperly concluding that the

Ordinance”—and, in particular, subsections (C), (D), and (E)—“was not narrowly

tailored due to the City’s alleged failure to ‘offer evidence that prove[d]

“alternative measures that burden substantially less speech would fail to achieve

the government’s interests.”’” Aplt.’s Opening Br. at 44 (quoting Martin, F.

Supp. 3d at 1035). Under Evans, says the City, it was not required to prove the

inadequacy of less-restrictive means unless the district court “first . . .

determin[ed] that the [Ordinance] burdens substantially more speech than

necessary.” Id.; see also Aplt.’s Reply Br. at 2–3 (arguing that the Plaintiffs’

insistence on a “strict application of the less restrictive means inquiry” would

“distort[] the deferential ‘substantially broader than necessary’ inquiry and . . . is

contrary to . . . Evans”).

Plaintiffs counter by citing McCraw, which we issued during the pendency

of this appeal; under McCraw, argue Plaintiffs, the City is required to prove that

less-restrictive means would fail to achieve its stated interests as effectively. See

Aplees.’ Suppl. Br. at 2; see also Aplees.’ Resp. Br. at 19 (arguing that, under our

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pre-McCraw precedent—along with the Supreme Court’s decision in McCullen v.

Coakley—the City must demonstrate “why obvious, less-burdensome measures

were insufficient to address its stated concerns” in order to establish narrow

tailoring). But cf. Aplt.’s Suppl. Br. at 14–15 (maintaining that the less-

restrictive-means inquiry does not arise until the court has made a predicate

determination that the regulation is “substantially broader than necessary,” and

that McCraw did not change this, but nevertheless claiming that the City did, in

fact, “introduce evidence of alternative measures it considered before enacting the

Ordinance” that would satisfy any less-restrictive-means burden).

In framing their less-restrictive-means arguments in this manner, the parties

broach a potential tension between our two most recent cases analyzing content-

neutral time, place, and manner restrictions in public fora. As a general matter,

“we must endeavor to interpret our cases in a manner that permits them to coexist

harmoniously . . . with each other.” United States v. Hansen, 929 F.3d 1238,

1254 (10th Cir. 2019) (collecting cases); accord United States v. Miers-Garces,

967 F.3d 1003, 1018 (10th Cir. 2020), cert. denied, 141 S. Ct. 1431 (2021). In

undertaking this endeavor, we discover that what might, at first blush, appear to

be a substantive tension between Evans and McCraw is, by and large, illusory,

and—perhaps, more to the point—these two cases may “coexist harmoniously”

without difficulty. Hansen, 929 F.3d at 1254. That is to say, when read

alongside controlling Supreme Court authority and our prior precedents, Evans

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and McCraw are best interpreted (as relevant here) as stating the following

principle: in carrying its burden of proving that a content-neutral time, place, and

manner regulation of speech or expressive conduct in a traditional public forum is

narrowly tailored, the government will ordinarily need to show that it seriously

considered alternative regulatory options that burden less protected speech or

expressive conduct, yet also have the potential of achieving its real and

significant interests. Such a principle fits squarely with McCraw, among other

cases, and, as we explain below, nothing in Evans is to the contrary.

We begin below by discussing our decisions in Evans and McCraw, along

with other caselaw from the Supreme Court and this court. Upon identifying the

operative principles running through these cases, we apply those principles to the

instant matter. Here, Albuquerque has failed to establish that it seriously

considered less-restrictive means to the Ordinance, which also have the potential

of achieving its real and significant interests. This failing by the City has the

effect of underscoring and reinforcing our overarching conclusion: the City has

not shown that the Ordinance is narrowly tailored to advance real, non-

speculative interests.

a

i

(A)

In addressing the question of whether the government must consider less-

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restrictive means as a facet of its narrow tailoring analysis, Evans and McCraw

grapple with the implications of the Supreme Court’s decision in McCullen v.

Coakley, which in turn applied the Court’s seminal First Amendment decision,

Ward v. Rock Against Racism. Accordingly, we start our analysis with Ward,

working our way forward in time to McCraw.

Ward dealt with a New York City regulation requiring performers in

Central Park’s Naumberg Acoustic Bandshell “to use sound-amplification

equipment and a sound technician provided by the city.” Ward, 491 U.S. at 784.

The Court held that the regulation was a permissible, content-neutral time, place,

and manner restriction and, more particularly, that the regulation was narrowly

tailored to serving the city’s significant interest in “ensuring the ability of its

citizens to enjoy whatever benefits the city parks have to offer, from amplified

music to silent meditation.” Id. at 796–97. In reaching this narrow-tailoring

conclusion, the Court disapproved of the appellate court’s contrary analysis,

which turned on New York City’s failure to show that the sound-amplification

regulation was the least-restrictive means to achieving the city’s substantial

interests. Id. at 797. In “sifting through all the available or imagined alternative

means of regulating sound volume in order to determine whether the city’s

solution was ‘the least intrusive means’ of achieving the desired end,” the

appellate court erred, as the “less-restrictive-alternative analysis . . . has never

been a part of the inquiry into the validity of a time, place, and manner

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regulation.” Id. (omission in original) (quoting Regan v. Time, Inc., 468 U.S.

641, 657 (1984) (opinion of White, J.)).

Rather, “restrictions on the time, place, or manner of protected speech are

not invalid ‘simply because there is some imaginable alternative that might be

less burdensome on speech.’” Id. (quoting United States v. Albertini, 472 U.S.

675, 689 (1985)). Thus, the Court “reaffirm[ed] . . . that a regulation of the time,

place, or manner of protected speech must be narrowly tailored to serve the

government’s legitimate, content-neutral interests but that it need not be the least

restrictive or least intrusive means of doing so.” Id. at 798 (emphases added); see

id. at 800 (“So long as the means chosen are not substantially broader than

necessary to achieve the government’s interest, however, the regulation will not

be invalid simply because a court concludes that the government’s interests could

be adequately served by some less-speech-restrictive alternative.”).

Yet, twenty-five years later, the Court decided McCullen v. Coakley.

McCullen invalidated a Massachusetts statute that enacted a “buffer zone” around

certain medical facilities; specifically, the statute criminalized standing on a

public way or sidewalk within thirty-five feet of any non-hospital facility that

performed abortions. McCullen, 573 U.S. at 469, 496–97. The Court found that

the statute “burden[ed] substantially more speech than necessary to achieve

[Massachusetts’s] asserted interests,” and in making this finding, the Court

discussed a number of alternative, regulatory options that could address the

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state’s significant interests while burdening substantially less speech in the

process. Id. at 490–94. The state replied that it had tried alternative approaches,

but that they had been ineffectual. Id. at 494. The Court was unmoved,

observing that the state failed to identify “a single prosecution brought under

th[ese alternative] laws within at least the last 17 years.” Id.

Given this failure, the Court concluded the state “ha[d] not shown that it

seriously undertook to address the problem[s it cited as justifying the buffer zone

statute] with less intrusive tools readily available to it,” nor had it “shown that it

considered different methods that other jurisdictions ha[d] found effective.” Id.

Moreover, in response to Massachusetts’s argument that enforcing the buffer zone

law was easier than enforcing alternative measures, the Court opined that, “[t]o

meet the requirement of narrow tailoring, the government must demonstrate that

alternative measures that burden substantially less speech would fail to achieve

the government’s interests, not simply that the chosen route is easier.” Id. at 495.

Notably, in performing its analysis and reaching its holding, the Court did not shy

away from Ward. Quite the contrary: McCullen liberally cited Ward throughout.

See, e.g., id. at 477–78, 486.

Against this backdrop we first decided Evans v. Sandy City. As noted

supra, Evans affirmed that Sandy City’s median ordinance was narrowly tailored

to achieve the significant interest of public safety. See Evans, 944 F.3d at

851–52, 860. In reaching this conclusion, we rejected two arguments made by the

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plaintiff. First, the plaintiff “contend[ed] [Sandy] City did not meet its burden to

justify the fit between the ends [i.e., public safety] and the means [i.e., the

ordinance] when it failed to ‘compile any data, statistics, or accident reports’”;

according to the plaintiff, “th[is was] the grit of McCullen: governments must

provide real evidence to justify their public safety concerns.” Id. at 857; see id.

(the plaintiff claiming that Sandy City’s “failure to conduct research and analysis

[was] dispositive” as to the narrow tailoring question). We recognized that, in

McCullen, the Supreme Court “explained [that] evidence of a problem at one

abortion clinic at one time did not justify the burden [that Massachusetts’s buffer

zone statute placed] on other clinics at other times,” but from this explanation we

did not glean a “new evidentiary requirement for governments to compile data or

statistics” in order to carry their narrow tailoring burden. Id. at 857–58. Instead,

“governments bear the same burden” after McCullen as they did before, under

Ward: i.e., they must “show a regulation does not ‘burden substantially more

speech than is necessary to further [their] legitimate interests.’” Id. at 858

(quoting McCullen, 573 U.S. at 486).

Second, and more relevant for our purposes here, the Evans plaintiff

“argue[d] the [o]rdinance [was] not narrowly tailored because [Sandy] City did

not demonstrate alternative measures that burden substantially less speech would

fail to promote public safety.” Id. at 858. More particularly—and crucially—the

plaintiff argued as follows: “since the City did not ‘prove that it actually tried

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other methods to address the problem,’ . . . [the court] should strike down the

[o]rdinance as not narrow tailored.” Id. at 858–59 (quoting Evans Aplt.’s

Opening Br. at 31, which in turn quotes Reynolds v. Middleton, 779 F.3d 222, 231

(4th Cir. 2015)). We rejected this argument, holding that, while McCullen

“taught us [that] a less restrictive means analysis might be helpful in the narrow

tailoring inquiry, . . . it did not modify Ward’s clear rule”: i.e., that a time, place,

and manner regulation must be “narrowly tailored to serve the government’s

legitimate, content-neutral interests,” but that it “need not be the least restrictive

or least intrusive means of doing so.” Id. at 859 (emphasis added) (quoting Ward,

491 U.S. at 798). “So long as the means chosen are not substantially broader than

necessary to achieve the government’s interest,” a regulation “will not be invalid

simply because a court concludes that the government’s interest could be

adequately served by some less-speech-restrictive alternative.” Id. at 859

(emphasis omitted) (quoting Ward, 491 U.S. at 800).

Less than a year later, we decided McCraw, striking down Oklahoma City’s

median ordinance: we concluded that it was insufficiently tailored, and supported

by only speculative interests. See McCraw, 973 F.3d at 1071–73, 1077–78. As

McCullen did with Ward, we cited Evans liberally throughout our opinion. But

we reached a slightly different resolution with the McCraw plaintiffs’ less-

restrictive-means argument than we did with the Evans plaintiff’s argument.

After concluding that Oklahoma City “ha[d] not met its burden to demonstrate

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that its interest [was] based on a concrete, non-speculative harm” and that,

instead, the city’s ordinance actually “place[d] a severe burden on plaintiffs’

speech,” we also determined, “[i]n light of the severity of [the ordinance’s]

burden,” that the city “ha[d] failed to demonstrate that less burdensome

alternatives would not achieve its interest in median safety.” Id. at 1073–74

(emphasis added). We noted that the city “acknowledge[d] in its brief” that,

“under McCullen, ‘[it needed to] . . . demonstrate that alternative measures that

burden substantially less speech would fail to achieve the government’s interests,

not simply that the chosen route is easier.’” Id. at 1074 (quoting McCullen, 573

U.S. at 495). Nonetheless, the city “assert[ed] that ‘narrow tailoring d[id] not

require [it] to undertake the futile task of identifying, reviewing[,] and rejecting

alternatives that could not possibly protect pedestrians on medians from vehicles,

or drivers of vehicles from distractions caused by pedestrians.’” Id. at 1075 (third

and fourth alterations in original).

However, we determined that this argument of the city was implausible;

indeed, the “only way for the [c]ity to evaluate alternatives,” and subsequently

opine on their utility, was “to consider them” in the first place—“precisely the

burden articulated in McCullen.” Id. And because the city “present[ed] no

evidence that it contemplated the relative efficacy or burden on speech of any

alternatives,” we concluded the city “ha[d] not met [that] burden.” Id.; see also

id. at 1075–76 (“Given that the [c]ity ha[d] at its disposal information regarding

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the relative safety of its medians at different times and in different locations, its

failure to consider [less restrictive] alternatives is especially harmful to its

argument. The data supports numerous alternatives to a total ban on presence on

affected medians . . . .” (emphasis added)).

And we elaborated on our reasoning:

[T]he [c]ity’s summary dismissal of alternatives is insufficient.
“[G]iven the vital First Amendment interests at stake, it is not
enough for [the city] simply to say that other approaches have not
worked.” This is particularly so when there is no evidence that
the [c]ity has tried, or even considered, any less-burdensome
alternatives. Instead, the [c]ity relies on unsupported statements
that hypothetically these alternatives could not possibly work.
The [c]ity “has not shown that it seriously undertook to address
the problem with less intrusive tools readily available to it[, n]or
has it shown that it considered different methods that other
jurisdictions have found effective.”

Id. at 1076 (third, fourth, and eighth alterations in original) (first, second and

fourth emphases added) (citations omitted) (quoting McCullen, 573 U.S. at 494,

496)).

(B)

At the outset, it is important to highlight the arguments made and rejected

in Evans and McCraw. As to Evans, we rejected the plaintiff’s argument that,

unless the government established that it had affirmatively tried to address the

problems it identified as justifying a given regulation through less-burdensome

means, it could not demonstrate that the regulation was narrowly tailored. See

Evans, 944 F.3d at 858–59. In doing so, we recognized that, based on McCullen,

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a “less restrictive means analysis might be helpful in the narrow tailoring

inquiry,” but that “Ward’s clear rule”—that the government’s regulatory choice

need not be the least restrictive or intrusive one—lives on and controls. Id. at 859

(emphasis added).

By contrast, in McCraw, the government effectively asserted that it need

not “undertake the futile task” of considering less-restrictive means that would be

ineffectual at addressing the government’s significant interests. McCraw, 973

F.3d at 1075. This argument was a non-starter because the city “present[ed] . . .

no evidence that it contemplated the relative efficacy or burden on speech of any

alternatives.” Id. (emphasis added). In other words, we stated that “the only way

for [a c]ity to evaluate alternatives is to consider them”—and we went further and

recognized that this need, relative to narrow tailoring, of a serious engagement

with and consideration of less-restrictive means by the government was “precisely

the [government] burden articulated in McCullen.” Id.; see also id. at 1075–76.

Thus, the argument we rebuffed in Evans was an expansive one: i.e., that,

in order to establish that a regulation is narrowly tailored, a city must

affirmatively prove that it tried less-restrictive alternative measures and that those

trials demonstrated that these measures were ineffectual in addressing the

significant interests cited by the city. But in McCraw, we were not faced with

such a proposed broad rule. There, Oklahoma City offered little more than

general statements that less-restrictive means were unworkable—but these

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statements were entirely unpersuasive given the lack of evidence that the city had

even considered, let alone tried, such means. And it was this baseline lack of

consideration that we stressed was dispositive in McCraw.

Stepping back, and reading Evans and McCraw in the context of Ward and

McCullen, we discern the following operative principles, which weave these cases

into a cohesive and coherent whole. Broadly speaking, it is clear from McCullen,

Evans, and McCraw that Ward’s fundamental narrow-tailoring test is still

controlling and provides the overarching foundation for our analysis. Under this

test, content-neutral restrictions on the time, place, or manner of speech in

traditional public fora need not be the least restrictive means for achieving the

government’s significant interests. See, e.g., McCraw, 973 F.3d at 1073; Evans,

944 F.3d at 859; see also iMatter Utah, 774 F.3d at 1266; Doe, 667 F.3d at 1133.

However, in conducting this narrow-tailoring inquiry under Ward and its

decisional progeny, a less-restrictive-means analysis is invariably helpful—and

ordinarily necessary. To be sure, McCraw arguably suggests that such an analysis

is a required component of the government’s narrow tailoring burden of proof.

See, e.g., McCraw, 973 F.3d at 1074, 1076 (in its narrow tailoring analysis,

quoting McCullen’s language that “the government must demonstrate that

alternative measures that burden substantially less speech would fail to achieve

the government’s interests,” and “conclud[ing] that the [c]ity’s summary

dismissal of alternatives is insufficient” (quoting McCullen, 573 U.S. at 495)).

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But Evans does not go so far; it merely holds that such an analysis is helpful in a

typical narrow-tailoring showing by the government. Evans, 944 F.3d at 859. We

of course read these two cases—in the light of Ward and McCullen—with an eye

towards harmonizing them. See, e.g., Hansen, 929 F.3d at 1254. And, in doing

so, it can be reasonably inferred from Evans’s acknowledgment of the helpfulness

of a less-restrictive-means inquiry in the narrow tailoring analysis and from the

importance that McCraw accords to this inquiry that the less-restrictive-means

inquiry should almost always be a part of the government’s narrow tailoring

showing—even though it is not a standalone, required element of that showing.

Cf. Evans, F.3d at 858 (noting that McCullen did not announce “new evidentiary

requirement[s]”). And our examination infra of our precedent in analogous

contexts and commercial speech precedent from the Supreme Court and this court

only serves to validate the reasonableness of our inference.

ii

Specifically, our conclusion is bolstered by our prior precedent, which

highlights the significance of a less-restrictive-means inquiry within our narrow-

tailoring analysis. Notably, our decision in Verlo v. Martinez reinforces the

notion that the government’s consideration of—or, more precisely, failure to

consider—less restrictive means is relevant to the question of whether the chosen

regulation is narrowly tailored to achieving the government’s interests. In Verlo,

we evaluated whether a federal district court erred in preliminarily enjoining an

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order issued by a local judicial district prohibiting expressive activities in a

courthouse plaza. See Verlo, 820 F.3d at 1118. We found no error in the federal

district court’s ruling. And, in doing so, we rejected the argument that the district

court applied the wrong legal standard for assessing whether the judicial district’s

order—a content-neutral time, place, and manner restriction on speech in a public

forum—was narrowly tailored. See id. at 1133–35. Specifically, as appellant, the

local judicial district faulted the federal district court for “consider[ing]

alternatives to the Order that might have been employed to achieve the . . .

[d]istrict’s objectives”; such consideration, said the local judicial district,

“prove[d] [that] the district court [improperly] applied the ‘least restrictive

means’ standard” to a content-neutral measure subject only to intermediate

scrutiny. Id. at 1134. “In the Judicial District’s view,” then, “any inquiry into

alternative means of achieving the government objective is inappropriate where,

like here, the restrictions are content-neutral, rather than content-based, and thus

not subject to the least restrictive alternative form of narrow tailoring.” Id. at

1134–35.

“We disagree[d].” Id. at 1135. After setting out the overarching, narrow-

tailoring standard—i.e., “the requirement of narrow tailoring is satisfied so long

as the regulation promotes a substantial government interest that would be

achieved less effectively absent the regulation, and does not burden substantially

more speech than is necessary to further the government’s legitimate

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interests”—we highlighted that the Supreme Court “has not discouraged courts

from considering alternate approaches to achieving the government’s goals when

determining whether a content-neutral regulation is narrowly tailored to advance a

significant government interest.” Id. at 1134–35 (quoting Wells v. City & Cnty. of

Denver, 257 F.3d 1132, 1148 (10th Cir. 2001)). Citing McCullen, we observed

that, while the Court “has held that a content-neutral regulation ‘need not be the

least restrictive or least intrusive means of serving the government’s interests,’ it

has also explained that ‘the government still may not regulate expression in such

a manner that a substantial portion of the burden on speech does not serve to

advance its goals.’” Id. at 1135 (quoting McCullen, 573 U.S. at 486). Moreover,

“when considering content-neutral regulations, the Court itself . . . examined

possible alternative approaches to achieving the government’s objective to

determine whether the government’s chosen approach burdens substantially more

speech than necessary.” Id.

Likewise, we recounted the Court’s observation that the government “may

not [simply] ‘forgo[ ] options that could serve its interests just as well,’ if those

options would avoid ‘substantially burdening the kind of speech in which

[plaintiffs] wish to engage.’” Id. (second alteration in original) (emphasis added)

(quoting McCullen, 573 U.S. at 490). Thus, “[t]o meet the requirement of narrow

tailoring [in the context of content-neutral regulations], the government must

demonstrate that alternative measures that burden substantially less speech would

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fail to achieve the government’s interests, not simply that the chosen route is

easier.” Id. (alterations in original) (quoting McCullen, 573 U.S. at 495).

Consequently, in light of McCullen, we concluded in Verlo that the district court

did not apply “the wrong legal standard merely because it considered whether the

Judicial District had options other than the complete ban on speech [it chose] . . .

that would equally serve its interests.” Id.

Similarly, iMatter Utah provides support for the regular and ordinary

incorporation of a less-restrictive-means analysis into the narrow-tailoring

inquiry. There, we expressly quoted the language from McCullen that we also

quote in McCraw: i.e., “[t]o meet the requirement of narrow tailoring, the

government must demonstrate that alternative measures that burden substantially

less speech would fail to achieve the government’s interests.” iMatter Utah, 774

F.3d at 1266 (quoting McCullen, 573 U.S. at 495). We went on to fault the

government for its failure to show that less-burdensome means would be

ineffectual in achieving its stated interests. See id. at 1269 (stating that the

government “must offer some evidence that [its chosen regulatory means], and not

some less[ restrictive alternative], is necessary [to achieve its interests]”); id. at

1270–71 (acknowledging that one of the government’s regulations is “narrower in

scope” than another, but concluding that the regulation was, nevertheless, not

narrowly tailored because the government “ha[d] offered no evidence that its

existing . . . law [was] insufficient to [achieve its interests]”).

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Finally, in Doe v. City of Albuquerque, the city “did not present any

evidence that its ban” on registered sex offenders in public libraries “was

narrowly tailored to serve its interest in providing a safe environment for library

patrons,” instead simply citing and relying on other cases “in which courts have

found challenged restrictions on sex offenders to be narrowly tailored.” Doe, 667

F.3d at 1133–34. Stressing that the city had the burden to show the regulation

was narrowly tailored, we noted that “whether the restrictions at issue in [other]

cases were narrowly tailored in the respective contexts of those cases d[id] not

compel any conclusion as to the [c]ity’s ban” in Doe. Id. at 1134; see id.

(“General reference to other cases involving other cities, other restrictions, other

interests to be served, and other constitutional challenges do not relieve the

[c]ity’s burden in this case.”). Moreover, the city “provided nothing in the record

that could satisfy its obligation of proving that the ban is narrowly tailored.” Id.

And, most significantly, the city’s failure to satisfy its burden of proof was

brought into sharp relief, we reasoned, by the fact that “possible, less restrictive

approaches . . . suggest[ed] themselves.” Id. By invoking potential less

restrictive means, at least tacitly, we suggested in Doe that we viewed a less-

restrictive-means analysis ordinarily as being part and parcel of the broader,

narrow-tailoring inquiry.

iii

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Furthermore, commercial speech precedent from the Supreme Court and

this court—which we have recognized is closely analogous to time, place, and

manner caselaw—confirms the salience of a less-restrictive-means analysis to the

overarching narrow tailoring inquiry. See Bd. of Trs. of State Univ. of N.Y. v.

Fox, 492 U.S. 469, 477 (1989) (recognizing that the test governing the validity of

restrictions on commercial speech is “‘substantially similar’ to the application of

the test for validity of time, place, and manner restrictions on protected speech”

(quoting S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 537

n.16 (1987)); see also supra note 14. For example, in U.S. West, Inc. v. FCC, we

made the following remarks regarding narrow tailoring in the context of a

commercial speech regulation:

Even assuming, arguendo, that the state interests in privacy and
competition are substantial and that the regulations directly and
materially advance those interests, we do not find, on this record,
the FCC rules regarding customer approval properly tailored.
The . . . regulations must be “no more extensive than necessary
to serve [the stated] interest[s].” In order for a regulation to
satisfy this final . . . prong [of the commercial speech
framework], there must be a fit between the legislature’s means
and its desired objective—“a fit that is not necessarily perfect,
but reasonable; that represents not necessarily the single best
disposition but one whose scope is in proportion to the interest
served.” While clearly the government need not employ the least
restrictive means to accomplish its goal, it must utilize a means
that is “narrowly tailored” to its desired objective. Narrow
tailoring means that the government’s speech restriction must
signify a “carefu[l] calculat[ion of] the costs and benefits
associated with the burden on speech imposed by its prohibition.”
“The availability of less burdensome alternatives to reach the
stated goal signals that the fit between the legislature’s ends and

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the means chosen to accomplish those ends may be too imprecise
to withstand First Amendment scrutiny.” This is particularly
true when such alternatives are obvious and restrict substantially
less speech.

182 F.3d 1224, 1238 (10th Cir. 1999) (third alteration added) (emphasis added)

(citations omitted) (first quoting Rubin v. Coors Brewing Co., 514 U.S. 476, 486

(1995); then quoting Fox, 492 U.S. at 480; then quoting City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 417 (1993); and then quoting 44

Liquormart, 517 U.S. at 529 (O’Connor, J., concurring)), cert. denied, 530 U.S.

1213 (2000).

We went on to note, in footnote 11 of that opinion, that, while the passage

quoted above “in effect[] imposes a burden on the government to consider certain

less restrictive means—those that are obvious and restrict substantially less

speech—it does not amount to a least restrictive means test.” Id. at 1238 n.11

(emphasis added). That is, “[w]e do not require the government to consider every

conceivable means that may restrict less speech and strike down regulations when

any less restrictive means would sufficiently serve the state interest.” Id. Rather,

“[w]e merely recognize[d] the reality that the existence of an obvious and

substantially less restrictive means for advancing the desired government

objective indicates a lack of narrow tailoring.” 17 Id.

17
Additional cases accord with West in acknowledging the significance
of a meaningful consideration by the government of less restrictive means to the
narrow tailoring inquiry. See, e.g., Discovery Network, Inc., 507 U.S. at 417 n.13
(continued...)

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***

These cases, read together, then, make clear that a less-restrictive-means

analysis is ordinarily part and parcel of the narrow tailoring inquiry itself. And,

as we have stated above, we think that the government, which bears the burden of

establishing that its time, place, and manner regulations are narrowly tailored to

achieving its significant interests, should ordinarily undertake a less-restrictive-

means analysis as a facet of this narrow tailoring showing.

17
(...continued)
(“We reject the city’s argument that the lower courts’ and our consideration of
alternative, less drastic measures by which the city could effectuate its interests
. . . somehow violates [our prior] holding that regulations on commercial speech
are not subject to ‘least-restrictive-means’ analysis. To repeat, while we have
rejected the ‘least-restrictive-means’ test for judging restrictions on commercial
speech, so too have we rejected mere rational-basis review. A regulation need not
be ‘absolutely the least severe that will achieve the desired end,’ but if there are
numerous and obvious less-burdensome alternatives to the restriction on
commercial speech, that is certainly a relevant consideration in determining
whether the ‘fit’ between ends and means is reasonable.” (citations omitted)
(quoting Fox, 492 U.S. at 480)); Rubin, 514 U.S. at 491 (suggesting that “the
availability of alternatives that would prove less intrusive to the First
Amendment’s protections for commercial speech” and “could [still] advance the
Government’s asserted interest” indicates that a particular regulation “is more
extensive than necessary”); Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d
1228, 1242 (10th Cir. 2004) (“Whether or not there are ‘numerous and obvious
less-burdensome alternatives’ is a relevant consideration in our narrow tailoring
analysis.” (quoting Fla. Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995))); cf.
Thompson, 535 U.S. at 371–73 (stating that the Court “ha[s] made clear [in prior
commercial speech cases] that if the Government could achieve its interests in a
manner that does not restrict speech, or that restricts less speech, the Government
must do so,” then proceeding to consider alternative approaches that would
restrict less speech, and concluding the government had failed to carry its burden
by “not offer[ing] any reason why these [alternatives], alone or in combination,
would be insufficient to [advance its interests]”—or indicating in the record that
it had even considered the relative efficacy of any of these alternatives).

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b

As for what this analysis should look like in practice, our decision in Evans

bars making actual testing of less-restrictive means dispositive to our narrow-

tailoring assessment; in other words, it effectively concluded that it was improper

to impose a new, evidentiary burden on the government to affirmatively

demonstrate that it tried alternative, less-restrictive approaches before enacting a

particular regulation. See Evans, 944 F.3d at 858–59 (rebuffing the argument that

the government must prove it tried less-restrictive means in order to establish

narrow tailoring); cf. McCraw, 973 F.3d at 1076–78 (citing the Fourth Circuit’s

Reynolds decision, which articulates this burden on the government to prove that

it tried less-restrictive means, but ultimately resting its holding as to narrow

tailoring in part on the city’s failure to demonstrate that it considered less-

restrictive means). Nothing in Evans, however, prevents us from inquiring into

whether the government tried or tested less-restrictive means as part of our

overarching narrow tailoring assessment, even if such testing is not a requirement.

More significantly, we do think McCraw (along with other cases discussed

supra) makes clear that the government’s less-restrictive-means analysis must

involve at least a serious consideration of less-restrictive means. That is, the

government may not simply wave at such an analysis superficially. Instead, in

weighing whether to enact a particular regulation that burdens protected speech,

the government should seriously consider the relative efficacy of means

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that impose lesser burdens on speech, while having the potential of achieving its

real and significant interests.

This principle is a direct fit with McCraw’s holding, and it comports as

well with the Supreme Court’s analysis in McCullen. Nor is such a principle at

odds with our decision in Evans, as we had no occasion to opine in that case on

whether serious consideration of means ordinarily should be part and parcel of

any less-restrictive-means analysis, given the expansive argument that was made

by the Evans plaintiff. Indeed, far from being at odds with Evans, this principle

is arguably implicit in it. That is, we expressly recognized that a less-restrictive-

means analysis is helpful to the narrow tailoring inquiry—and if such an analysis

is helpful, we should expect the government to do more than gesture at it, or

ignore it altogether. Rather, if the government undertakes such an analysis, it

should do so seriously.

In sum, we believe that Evans and McCraw, along with numerous other

cases that we have discussed supra, stand for the principle that a less-restrictive-

means analysis is ordinarily a necessary part of a government’s narrow tailoring

showing. Moreover, while such a less-restrictive-means analysis need not entail

the government affirmatively proving that it tried less-restrictive means that have

the potential of achieving its real and significant interests, it does entail the

government giving serious consideration to such less-restrictive means before

opting for a particular regulation. With these principles in place, we assess

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whether the City’s less-restrictive-means analysis is sufficient here to demonstrate

that the Ordinance is narrowly tailored. We conclude that it is not.

4

The City’s less-restrictive-means analysis is insufficient to demonstrate that

the Ordinance is narrowly tailored, and this insufficiency bolsters our

conclusions, outlined supra, that the Ordinance is not meaningfully directed at

alleviating non-speculative harms, and burdens substantially more speech than

necessary to achieve the City’s aims. To start, the City argues that it need not

“show that it considered . . . less burdensome alternatives” because the Ordinance

“[is] not substantially broader than necessary to achieve the City’s interest.”

Aplt.’s Suppl. Br. at 14. But as our precedents suggest—along with the foregoing

analysis in this opinion—we typically cannot reach an informed conclusion

regarding whether an ordinance is substantially broader than necessary without an

inquiry into less-burdensome alternatives. Consequently, a bald assertion by the

government that an ordinance is not substantially broader than necessary will not

ordinarily be sufficient to satisfy the narrow-tailoring inquiry or render

unnecessary an inquiry into less-burdensome alternatives. And, as shown supra,

the City’s not-substantially-broader-than-necessary assertion does not have

sufficient grounding in the record evidence to be labeled anything other than

“bald.”

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Alternatively, the City insists that it did undertake a less-restrictive-means

analysis, and that such analysis revealed the Ordinance to be “the most

appropriate way to address its interest in preventing pedestrian-vehicle conflicts.”

Id. at 14–15; see also Aplt.’s Reply Br. at 12–13, 17–19, 23–24 (asserting, in

relatively conclusory fashion, that the alternatives proffered by Plaintiffs and the

district court would not be equally as effective at promoting pedestrian safety as

the Ordinance). The record does not support the City’s position. To be sure, the

City is correct that it was not required to show that it actually tried less-restrictive

means. But as explained supra, the City was obligated to show that it seriously

considered less-restrictive means. The City’s purported analysis, as outlined in

its briefing, however, does not evince such serious consideration.

Specifically, the City attempts to show consideration of alternative

approaches by noting that it “considered ordinances prohibiting pedestrians and

vehicles from obstructing streets and prohibiting jaywalking,” but that “those

ordinances d[id] not address the dangers the City identified.” Aplt.’s Suppl. Br.

at 14. As well, the City claims it “considered certain state statutes, but th[ese

statutes] similarly d[id] not regulate conduct on medians or pedestrian-vehicle

conflicts.” Id. But these references to facially-inapposite ordinances and statutes

do not demonstrate that the City seriously undertook a less-restrictive-means

analysis. These laws are not a close fit with the problems and interests the City

identifies as justifying the Ordinance. Identifying laws clearly not directed at

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these problems and simply declaring them to be ineffectual does not provide a

proper predicate for imposing the Ordinance and does not satisfy the City’s

narrow-tailoring burden, as such an approach gives us little insight into whether

the Ordinance is, in fact, substantially broader than necessary. See Aplt.’s App.,

Vol. II, at 426–34 (Mr. Melendrez likening his review of other ordinances or laws

to “checking a box” and testifying that he felt other regulatory options would not

address the City’s interests because of, inter alia, difficulties with enforcement);

cf. McCullen, 573 U.S. at 494–97 (rejecting the state’s argument that alternative

approaches were ineffectual because they would be harder to enforce than the

more burdensome regulation chosen because “the prime objective of the First

Amendment is not efficiency,” and concluding that the state could not, “consistent

with the First Amendment,” “close[] a substantial portion of a traditional public

forum to all speakers” without “seriously addressing [its identified] problem

through alternatives that leave the forum open for its time-honored purposes”).

The City also claims that it “considered limiting the Ordinance only to

certain intersections, but found that it could not distinguish those intersections

from similar dangerous roadway locations throughout the City.” Aplt.’s Suppl.

Br. at 14–15. Here, though, the record indicates that any consideration of a

narrower Ordinance was cursory at best. See Aplt.’s App., Vol. IV, at 1115

(Counsel: “At any point did the City consider limiting the ordinance only to

intersections that were determined to be particularly dangerous?” Mr. Melendrez:

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“Briefly, at best”). Likewise, the City’s attempt to show that less-restrictive

means proposed by Plaintiffs would be ineffectual is far too underdeveloped to

advance the City’s cause. See Aplt.’s Suppl. Br. at 15 n.3 (claiming that the City

“addressed . . . Plaintiffs’ comments concerning potential less restrictive means in

its Reply Brief,” but citing portions of its Reply Brief that contain, at best, a

superficial engagement with the efficacy of these potential less-restrictive

alternatives); cf. Aplees.’ Resp. Br. at 37–39, 41–42 (proposing alternative

measures to the Ordinance that arguably would burden less speech while

addressing as effectively the City’s stated interests); Aplees.’ Suppl. Br. at 13–14

(same).

In any event, given that the City did not meaningfully engage in a less-

restrictive-means analysis here, we need not speculate as to whether Plaintiffs’

proposed less-restrictive means would address the City’s interests as efficaciously

as the Ordinance. After all, the narrow tailoring burden is on the City—not

Plaintiffs. Thus, even if Plaintiffs’ proposals turned out to be less efficacious, the

City would still fail to demonstrate that the Ordinance is narrowly tailored for the

reasons already discussed. Cf. Doe, 667 F.3d at 1134 (noting that “[o]ther

possible, less restrictive approaches [than the ban chosen by the government]

potentially suggest themselves,” but declining to engage in “speculation upon

speculation” given that the city “provided nothing in the record that could satisfy

its obligation of proving that the ban is narrowly tailored”). Thus, the City’s

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deficient, largely non-existent less-restrictive-means analysis bespeaks and

emphasizes what we have already concluded: the Ordinance is not narrowly

tailored to serve the City’s significant and non-speculative interests.

IV

For the reasons stated supra, we conclude that Albuquerque’s Ordinance is

not narrowly tailored to serve its identified significant governmental interests. In

light of this conclusion, we need not consider whether the Ordinance leaves open

ample alternative channels of communication. See McCullen, 667 F.3d at 496

n.9. Accordingly, we AFFIRM the district court’s judgment. 18

18
As noted supra, the parties do not appeal the district court’s ruling
regarding the validity of subsection (A) of the Ordinance. See supra note 2.
Neither do the parties appeal the district court’s conclusions regarding
severability of the Ordinance’s subsections. See Martin, 396 F. Supp. 3d at 1023
n.10 (concluding that the Ordinance’s severability clause is valid and that
subsection (A) of the Ordinance can be severed from any remaining, invalid
portions). Thus, in affirming the district court’s judgment as to the invalidity of
subsections (B), (C), (D), and (E) of the Ordinance, we make no ruling
concerning the other subsections of the Ordinance.

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