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Martin v. City of Albuquerque

United States District Court, D. New Mexico

July 18, 2019

JOHN MARTIN, RHONDA BREWER, DAVID MCCOY, MARY O'GRADY, and MARISSA ELYSE SANCHEZ, Plaintiffs,
v.
CITY OF ALBUQUERQUE, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE

         This case involves a First Amendment issue that continues to confront courts across the country-whether a municipal ordinance restricting pedestrian activities violates the free speech rights of those pedestrians, particularly panhandlers. The City of Albuquerque has justified the restrictions in its “pedestrian safety” ordinance (the Ordinance) with roadway design principals that suggest pedestrians were never meant to occupy certain areas. Though terms like “solicitation” and “panhandling” never appear in its text, many Albuquerque citizens-including some of the City Councilors who approved it-view the Ordinance as a measure to reduce panhandling. The relevant legal issues are nuanced and numerous, but the underlying question for the Court is relatively straightforward. Are common-sense and anecdotal safety concerns about the risk of standing near moving traffic sufficient to justify restricting access to areas where pedestrians often engage in panhandling, charitable giving, and political speech?

         The Court heard argument on this matter during a motions hearing on June 18, 2019. (See Doc. 128.) Being fully advised of the record and relevant law, the Court concludes that, with the exception of the prohibition on standing in travel lanes, the Ordinance is an unconstitutional restriction on free speech because it is not narrowly tailored to meet the City's interest in reducing pedestrian-vehicle conflicts.

         I. Background[1]

         In November 2017, the City adopted Council Bill O-17-51, now codified at Albuquerque Code of Ordinances § 8-2-7-2. (Doc. 1 (Compl.) ¶ 1.) The Ordinance, sponsored by City Councilor Trudy Jones, amends the section of the Albuquerque Traffic Code regarding pedestrians to prohibit “occupying roadways, certain medians and roadside areas . . . [and] certain pedestrian interactions with vehicles.” Albuquerque, N.M., Code § 8-2-7-2. (See also Doc. 90-29 at 3, 6.) On July 10, 2019, the City enacted Council Bill O-19-66, which amended the Ordinance.[2] (See Doc. 133 at 1.) The preamble to the original bill includes numerous “whereas clauses” painting a picture of the grave state of pedestrian safety in Albuquerque. (Doc. 90-29 at 3-5). It references statistics from the National Highway Traffic Safety Administration (NHTSA) that show “New Mexico had the highest rate of pedestrian fatalities per 100, 000 population in 2014 and the seventh highest in 2015, and Albuquerque had the second highest pedestrian fatality rate per 100, 000 population amongst cities with a population of over 500, 000 in 2014 . . . .” (Id. at 3.)

         A complete understanding of the Ordinance requires a close examination of its five operative subsections. Subsection (A) makes it “unlawful for any person to stand in any travel lane of a street, highway, or controlled access roadway or in any travel lane of the exit or entrance ramps thereto . . . .” § 8-2-7-2(A). “Travel lane” is defined as “the portion of the roadway dedicated to the movement of motor vehicles traveling from one destination to another where a motor vehicle may not remain stationary indefinitely without eventually obstructing the free flow of traffic, and not including shoulders, bicycle lanes, or on-street parking.” § 8-1-1-2.

         Subsection (B) makes it “unlawful for any person to access, use, occupy, congregate or assemble 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 . . . .” § 8-2-7-2(B).

         Subsection (C) prohibits the same activities “within any median not suitable for pedestrian use . . . .” § 8-2-7-2(C). A median that is “not suitable for pedestrian use” is defined as:

(1) Any portion of a median that is less than six feet in width, and located within a roadway with a posted speed limit of 30 miles per hour or faster or located within 25 feet of an intersection with such a roadway; or
(2) Is the landscaped area of the median as defined by this Traffic Code; or
(3) Is otherwise identified by signage as not suitable for pedestrian use by the City Traffic Engineer based on identifiable safety standards, including but not limited to an unsuitable gradient or other objectively unsuitable features.

§ 8-2-7-2(C)(1)-(3).

         Under Subsection (D), it is “unlawful for any pedestrian to engage in any physical interaction or exchange with the driver or occupants of any vehicle within a travel lane . . . .” § 8-2-7-2(D). Subsection (E) prohibits the same “physical interaction or exchange” with a pedestrian by “any occupant of a motor vehicle within any travel lane or intersection . . . .” § 8-2-7-2(E).[3]

         Plaintiffs are Albuquerque residents who engage in activities including panhandling, donating, and political advocacy in areas where they allege such activity would be prohibited by the Ordinance. (See Compl. ¶¶ 33-38.) Rhonda Brewer has been homeless since 2015, and one to three times per week, “to make ends meet[, ]” she solicits donations from motorists at stoplights while she is standing on street medians or near freeway entrances (Docs. 90-10 ¶¶ 5-7; 90-9 at 7:21-9:8, 14:5-10.) Ms. Brewer typically solicits money, food, clothing, and other items by holding a sign that says, “Work is slow, anything will help” or something similar. (Doc. 90-10 ¶ 7.)

         Mary O'Grady donates food, water, and hygiene products to individuals soliciting donations “on a daily basis, often more than once per day.” (Doc. 90-14 ¶¶ 5, 8.) Ms. O'Grady typically makes these donations from her car, while stopped at a red light, to individuals “who are standing on medians or at stop lights along the side of the road next to highway entrance or exit ramps.” (Id. ¶¶ 6, 9.) David McCoy is an Army veteran who donates money, water bottles, food, and other items to panhandlers approximately three to four times per week (Doc. 90-6 ¶¶ 2, 5), usually “by handing the[se] items from the window of [his] vehicle while stopped at a red light (id. ¶ 6).

         Finally, Marissa Elyse Sanchez participates in political demonstrations and engages in issue advocacy throughout the City numerous times per year. (See Docs. 90-17 ¶¶ 3-4; 90-16 at 4.) She and her fellow demonstrators often “hold [their] signs to raise awareness and verbally provide information about [their] cause, ” and “distribute flyers and articles to pedestrians and occupants of vehicles stopped at red lights.” (Doc. 90-17 ¶ 5.) She “typically engage[s] in political speech on sidewalks, street corners, and medians near busy intersections because [she] can reach the greatest number of people in those locations.” (Id. ¶ 4.)

         On January 11, 2018, Plaintiffs brought suit against the City alleging that the Ordinance “unconstitutionally infringes Plaintiffs' rights to exercise freedom of speech and expression in traditional public for[a] by restricting a substantial volume of constitutionally protected speech without adequate justification.”[4] (Compl. ¶ 41.) Following the close of discovery, Plaintiffs moved for summary judgment-arguing that the City failed to meet its burden to prove the Ordinance is a valid speech restriction under a First Amendment analysis and urging the Court to rule in their favor as a matter of law. (See Doc. 89 at 22-25.)[5] The City simultaneously filed three separate motions for partial summary judgment on discrete elements of the First Amendment analysis that are also addressed in Plaintiffs' all-encompassing motion.[6] (See Docs. 91; 92; 93.)

         I. Legal Standard

         Summary judgment is appropriate when the Court, viewing the record in the light most favorable to the nonmoving party, determines “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact is “material” if it could influence the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if a reasonable trier of fact could return a verdict for either party. See id.

         A comparison of the proffered material facts and asserted disputes in all four motions reveals that the parties vigorously dispute the meaning and application of various aspects of First Amendment caselaw and dispute each other's characterizations of the facts. (Compare Doc. 89 at 10-21, with Doc. 107 at 4-23; Doc. 91 at 3-8, with Doc. 101 at 7-19; Doc. 92 at 3-4, with Doc. 102 at 6-11; Doc 93 at 2-9, with Doc. 103 at 6-17.) Still, they have asserted no genuine disputes of fact, let alone disputes of material fact, that would require a trial. Thus, the Court concludes that this matter is properly resolved on summary judgment.

         II. Discussion

         The First Amendment, which provides that “Congress shall make no law . . . abridging the freedom of speech, ” U.S. Const. amend. I, applies to states and local governments through the Due Process Clause of the Fourteenth Amendment. iMatter Utah v. Njord, 774 F.3d 1258, 1263 (10th Cir. 2014) (citing Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996)). The First Amendment “reflects a ‘profound national commitment' to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open . . . .” Boos v. Barry, 485 U.S. 312, 318 (1988) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Yet “nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985); see also iMatter Utah, 774 F.3d at 1263.

         Plaintiffs' facial challenge to the Ordinance on the ground that it unconstitutionally encumbers free speech involves six distinct inquiries, which the Court will take up in turn:

1. Does the Ordinance restrict protected speech?
2. If so, does the Ordinance implicate traditional public fora?
3. If so, is the Ordinance content neutral?
If so, intermediate scrutiny applies, which involves three additional inquiries:
4. Does the Ordinance address a significant government interest?
5. If so, is the Ordinance narrowly tailored to achieve that interest?
6. If so, does it leave open ample alternative channels of communication?

         As explained below, the Court concludes that (1) the Ordinance restricts protected speech; (2) the majority of the Ordinance implicates speech in traditional public fora (with the exception of Subsection (A), which the Court determines is a valid restriction on speech in nonpublic fora); (3) the Ordinance is content neutral; (4) the Ordinance addresses a significant government interest; but (5) the Ordinance is not narrowly tailored to achieve that government interest. Because the Court concludes that the majority of the Ordinance is unconstitutional based on the narrow tailoring inquiry, it does not consider alternative channels of communication.

         A. Protected Speech

         The first step in a facial challenge to a law on the ground that it unconstitutionally encumbers free speech is obvious, “Plaintiffs must first establish that their activities are protected by the First Amendment.” Verlo v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016) (citing Cornelius, 473 U.S. at 797). 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.” (See Doc. 89 at 22-23.) The City does not dispute this assertion (see generally Doc. 107), and the Court agrees that Plaintiffs' activities constitute protected speech.

         A. Forum Analysis

         Having established that the Ordinance impacts Plaintiffs' protected speech, the Court must next “identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum.” Verlo, 820 F.3d at 1128. The Supreme Court has identified three categories of government property that affect when and how speech may be regulated:

(1) traditional public fora (“streets and parks which 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”); (2) designated public fora (“public property which the State has opened for use by the public as a place for expressive activity”); and (3) nonpublic fora (“[p]ublic property which is not by tradition or designation a forum for public communication”).

Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983)). In a traditional public forum or designated public forum, the government may only restrict speech after satisfying the requirements of either strict or intermediate scrutiny to show that the restriction is narrowly crafted to achieve a government interest. See Perry, 460 U.S. at 45-46. On the other hand, “[a]ccess to a nonpublic forum ‘can be restricted as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'” Evans v. Sandy City, No. 17-4179, 2019 WL 2896507, at *2 (10th Cir. July 5, 2019) (quoting Cornelius, 473 U.S. at 800 (internal quotation omitted)).

         Plaintiffs argue that the areas covered by the Ordinance-travel lanes, medians, and areas near the exit and entrance ramps of some roadways-fall into the “traditional public fora” category because they all fall under the broad definition of “streets.” (See Docs. 89 at 23-24; 130 at 4.) “Albuquerque residents have long used these locations consistent with [the] understanding” that they are “integral parts of the public thoroughfares . . . .” (Doc. 89 at 23-24 (quotation marks and citations omitted).) The City counters that the various components of streets implicated by the Ordinance are not traditional public fora simply because they fall under the technical definition of “streets.” (See Doc. ...


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