Evans v. Sandy City, 070519 FED10, 17-4179

Docket Nº:17-4179
Opinion Judge:Baldock, Circuit Judge.
Party Name:STEVE RAY EVANS, Plaintiff - Appellant, v. SANDY CITY, a municipal corporation; TIM DOLAN, Mayor of Sandy City; KEVIN THACKER, Sandy City Police Chief; ROBERT WALL, Sandy City Attorney; DOUGLAS JOHNSON, Sandy City Prosecutor; R. MACKAY HANKS, Sandy City Prosecutor; SCOTT COWDELL, Sandy City Council Member; MAREN BARKER, Sandy City Council ...
Attorney:Angela H. Elmore, Utah Legal Clinic Foundation (John Robinson, Jr., The Law Office of John Robinson, Jr., with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellant. Troy L. Booher, Zimmerman Booher (Freyja R. Johnson, Zimmerman Booher; Michael D. Black, Parr Brown Gee & Loveless; Davi...
Judge Panel:Before BRISCOE, BALDOCK, and EID, Circuit Judges. BRISCOE, Circuit Judge, dissenting.
Case Date:July 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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STEVE RAY EVANS, Plaintiff - Appellant,

v.

SANDY CITY, a municipal corporation; TIM DOLAN, Mayor of Sandy City; KEVIN THACKER, Sandy City Police Chief; ROBERT WALL, Sandy City Attorney; DOUGLAS JOHNSON, Sandy City Prosecutor; R. MACKAY HANKS, Sandy City Prosecutor; SCOTT COWDELL, Sandy City Council Member; MAREN BARKER, Sandy City Council Member; KRISTIN COLEMAN-NICHOLL, Sandy City Council Member; CHRIS MCCANDLESS, Sandy City Council Member; STEVE FAIRBANKS, Sandy City Council Member; LINDA MARTINEZ SAVILLE, Sandy City Council Member; STEPHEN P. SMITH, Sandy City Council Member; C. TYSON, Sandy City Police Department; C. PINGREE, Sandy City Police Department; J.E. BURNS, Sandy City Police Department; JOHN DOE I-XX, Sandy City Police Department, Defendants - Appellees.

No. 17-4179

United States Court of Appeals, Tenth Circuit

July 5, 2019

Appeal from the United States District Court for the District of Utah D.C. No. 2:17-CV-00408-BSJ

Angela H. Elmore, Utah Legal Clinic Foundation (John Robinson, Jr., The Law Office of John Robinson, Jr., with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellant.

Troy L. Booher, Zimmerman Booher (Freyja R. Johnson, Zimmerman Booher; Michael D. Black, Parr Brown Gee & Loveless; David C. Reymann, Parr Brown Gee & Loveless, with him on the brief), Salt Lake City, Utah, for Defendants-Appellees.

Before BRISCOE, BALDOCK, and EID, Circuit Judges.

Baldock, Circuit Judge.

In 2016, the Sandy City, Utah city council adopted an ordinance making it illegal for any person "to sit or stand, in or on any unpaved median, or any median of less than 36 inches for any period of time." Sandy City Traffic Code, Article 16, Section 299.1 (the Ordinance). After the Sandy City council adopted the Ordinance, Plaintiff-Appellant Steve Ray Evans received four citations for violating the Ordinance when he stood on narrow or unpaved medians. Evans filed suit against the City and many of its officials under 42 U.S.C. § 1983 in the district court of Utah, alleging the Ordinance is facially invalid because it violates the First Amendment right to free speech. Evans also asked the district court to grant his request for a preliminary injunction. The City filed a motion for summary judgment and the court allowed discovery. After a hearing on the motion, the district court denied Evans' preliminary injunction and granted summary judgment in favor of the City because the Ordinance was a valid time, place, or manner restriction on speech.1 Evans appealed, arguing the district court incorrectly applied the time, place, or manner standard and wrongly granted summary judgment because the City did not satisfy its evidentiary burden. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

We review a district court's summary judgment ruling de novo, applying the same standard as the district court. iMatter Utah v. Njord, 774 F.3d 1258, 1262 (10th Cir. 2014). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In reviewing a motion for summary judgment, "we review the facts and all reasonable inferences those facts support, in the light most favorable to the nonmoving party." iMatter, 774 F.3d at 1262 (citation omitted). Because this decision implicates First Amendment freedoms, we perform an independent examination of the whole record in order to ensure that the judgment protects the right of free expression. Faustin v. City and Cty. of Denver, 423 F.3d 1192, 1196 (10th Cir. 2005). Here, the City carries the burden to justify the Ordinance with uncontested facts. See iMatter, 774 F.3d at 1263.

II.

Today, we confront whether the Ordinance, which prohibits the sitting or standing on medians that are unpaved or less than 36 inches wide (hereinafter "affected medians"), violates the First Amendment. The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." U.S. Const. amend. I. The First Amendment "applies not only to legislative enactments, but also to less formal governmental acts, including city policies," such as the Ordinance at issue. Hawkins v. City and Cty. of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999).

A.

As a threshold matter, we must first consider whether the activity in question constitutes protected speech under the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788, 797 (1985) ("[I]f [the speech] is not [protected], we need go no further."). Here, Evans contends the Ordinance restricts his ability to panhandle and solicit financial support. According to the Supreme Court, "the solicitation of charitable contributions is protected speech." Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988). Neither the Supreme Court nor this Circuit has directly addressed whether panhandling is protected speech under the First Amendment but several of our sister circuits who reached the question determined panhandling is protected. See Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir. 2015); Speet v. Schuette, 726 F.3d 867, 870 (6th Cir. 2013); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999); Loper v. N.Y.C. Police Dep't, 999 F.2d 699, 704 (2d Cir. 1993). Assuming without deciding panhandling is protected under the First Amendment, as we will explain later, the Ordinance is a valid time, place, or manner restriction. See Gresham v. Peterson, 225 F.3d 899, 904-05 (7th Cir. 2000) (after "assuming . . . some panhandler speech would be protected by the First Amendment," the Seventh Circuit applied the First Amendment "time, place, and manner" framework.).

We note that while solicitation and panhandling laws are on the books in cities across the United States and challenges to such laws have been similarly widespread, an astute reader will recognize the Ordinance challenged here is not a ban on panhandling or solicitation like many other ordinances. Instead, the Ordinance is a restriction on sitting or standing on narrow and unpaved medians. This distinction will become important later, but for now we assume Evans' form of speech, panhandling, is protected speech.

B.

We turn next to the nature of the forum affected by the Ordinance. Under First Amendment jurisprudence, "the extent to which the Government can control access [to Government property] depends on the nature of the relevant forum." Cornelius, 473 U.S. at 800. The Supreme Court has identified three categories of Government property subject to First Amendment analysis: (1) traditional public fora; (2) designated public fora; and (3) nonpublic fora. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983). A traditional public forum is a place that "by long tradition or by government fiat ha[s] been devoted to assembly and debate." Id. at 45. "Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius, 473 U.S. at 800 (citing Perry, 460 U.S. at 45). In contrast, designated public fora are places that are not generally open to the public for First Amendment activity and "are created by purposeful governmental action" to allow speech activity. Arkansas Educ. Television Com'n v. Forbes, 523 U.S. 666, 677 (1998). A nonpublic forum is anything that does not qualify as a traditional or designated public forum. Access to a nonpublic forum "can be restricted as long as the restrictions are 'reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'" Cornelius, 473 U.S. at 800 (quoting Perry, 460 U.S. at 46) (alteration in original).

Evans contends "[m]edians are widely considered [traditional] public fora" whereas the City contends the affected medians are nonpublic fora. The district court did not decide the issue, concluding the forum designation was not dispositive since the Ordinance was valid even under the stricter standard for traditional public fora. We agree with the district court. As we will explain, the Ordinance is a valid time, place, or manner regulation; thus, we need not decide if the affected medians are more appropriately classified as nonpublic fora.2

C.

Assuming without deciding the affected medians are traditional public fora, we turn to whether the Ordinance is a valid restriction of protected speech. It is well-settled "that even in a public forum the government may impose reasonable restrictions on the time, place, and manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are...

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