McCraw v. City of Okla. City

• Decision Date: 31 August 2020
• Docket Number: No. 19-6008,19-6008
• Citation: 973 F.3d 1057
• Parties: Calvin MCCRAW; G. Wayne Marshall; Mark Faulk; Trista Wilson; Neal Schindler; Oklahoma Libertarian Party; Red Dirt Report, Plaintiffs - Appellants, v. CITY OF OKLAHOMA CITY, an Oklahoma municipal corporation; William Citty, in his official capacity as Chief of the Oklahoma City Police Department, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

973 F.3d 1057

Calvin MCCRAW; G. Wayne Marshall; Mark Faulk; Trista Wilson; Neal Schindler; Oklahoma Libertarian Party; Red Dirt Report, Plaintiffs - Appellants,

v.CITY OF OKLAHOMA CITY, an Oklahoma municipal corporation; William Citty, in his official capacity as Chief of the Oklahoma City Police Department, Defendants - Appellees.

No. 19-6008

United States Court of Appeals, Tenth Circuit.

FILED August 31, 2020

Joseph Thai, Oklahoma City, Oklahoma (Erwin Chemerinsky, Berkeley, California; Ryan Kiesel, Brady Henderson, Megan Lambert, ACLU of Oklahoma Foundation, Oklahoma City, Oklahoma; Greg Beben, Legal Aid Services of Oklahoma, Inc., Oklahoma City, Oklahoma; and Micheal Salem, Salem Law Offices, Norman, Oklahoma, with him on the briefs)

Amanda Carpenter, Oklahoma City, Oklahoma (Kenneth Jordan, Municipal Counselor; Catherine Campbell, Phillips Murrah P.C., Oklahoma City, Oklahoma, with her on the briefs)

Before LUCERO, EBEL, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

This case concerns the First Amendment rights of citizens in the public square—specifically on medians in public roads. Oklahoma City Ordinance 25,777 prohibits standing, sitting, or remaining for most purposes on certain medians. Okla. City, Okla., Code ch. 32, art. XIII, § 32-458. Plaintiffs are Oklahoma City residents, a minority political party in Oklahoma, and an independent news organization. They use medians to panhandle, engage in protests or other expressive activity, mount political campaigns, cover the news, or have personal conversations. After they were no longer able to engage in such activity due to the ordinance, plaintiffs sued Oklahoma City and its chief of police, William Citty, (together, "the City") alleging violations of their First and Fourteenth Amendment rights. The district court dismissed plaintiff Trista Wilson's First Amendment claim; granted summary judgment favoring the City on plaintiffs’ due process vagueness claims; and, following a bench trial, entered judgment against plaintiffs on all other claims. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the court's entry of judgment favoring the City on plaintiffs’ First Amendment claims; we reverse the dismissal of Wilson's First Amendment claim; and we affirm on all other claims.

I

A

As in many other cities, the medians in Oklahoma City are varied and diverse. They range in length and width: some span an entire city block, others stretch down several car lengths at intersections. Many contain trails, sidewalks, benches, art, large signs, landscaping, or wide-open spaces. One even contains an operating fire station.

In 2015, before the enactment of the ordinance at issue in this case, Oklahoma City's municipal code prohibited pedestrians from soliciting in roadways without a permit. Pedestrians could apply for a permit to walk from a median or sidewalk into the road to solicit, so long as they did not impede traffic and remained in the road only when cars were stopped at traffic lights. Under this system, political campaigns, panhandlers, and community fundraisers—including firefighters engaged in their annual Fill the Boot campaign for the Muscular Dystrophy Association—engaged in various activities on medians.

In December 2015, the Oklahoma City Council further restricted pedestrian activity on medians. Ordinance 25,283 ("Original Ordinance") prohibited standing, sitting, or staying on any portion of a median either less than thirty feet wide or located less than two hundred feet from an intersection. Okla. City, Okla., Ordinance 25,283 (Dec. 9, 2015). The ordinance eliminated the prior permit exception for soliciting in roadways, but it allowed access to medians for certain specified purposes, including access by public employees and for emergency uses.

Before its passage, city officials and others pointed to panhandlers as the impetus for the Original Ordinance. The ordinance's author cited complaints she had received from citizens and businesses regarding panhandling and repeatedly described the Original Ordinance as addressing panhandling. She also stated that her goal was "to help try to find a way to redirect the dollars that are going out windows" back to agencies that provide food and shelter. Before the Original Ordinance was introduced, the City's municipal counselor informed City officials that the author was working on an ordinance to ban panhandling and soliciting on medians; he recognized the potential unconstitutionality of such a law. Later, at a public hearing regarding the ordinance two weeks after its introduction, the municipal counselor's office contended it should be viewed as addressing public safety and was "not necessarily about panhandlers." An assistant city attorney explained that people on medians, regardless of their activity, were in danger and that panhandling would still be permitted on sidewalks and on the side of the road.

At the third and final council meeting regarding the ordinance, Chief Citty gave a presentation. The presentation was originally titled "Panhandler Presentation," but by the time Chief Citty gave it, its name had been changed to "Median Safety Presentation." It demonstrated that between January 10, 2010, and September 29, 2015, there were 39,833 collisions citywide. This included 16,358 accidents resulting in injuries or fatalities, of which 76% occurred near intersections. However, it showed no pedestrian-related accidents on medians.

Chief Citty showed slides and photographs of damaged medians and accidents in which vehicles entered or crossed onto the median, but he offered no specific evidence of accidents involving pedestrians on medians. He stated that some of the accidents involved pedestrians but that he did not know the precise number, adding that the number would not be "very high." He also stated that much of the damage to medians is caused by unreported accidents.

According to Chief Citty, it had been the police department's position for several years that pedestrian activity on medians was dangerous because of pedestrians’ exposure to traffic moving in different directions. The City Council disagreed about whether these safety concerns justified the Original Ordinance, but it passed by a seven-to-two vote.

Plaintiffs sued, claiming that the Original Ordinance violated their First and Fourteenth Amendment rights. The same month, the City Council amended the city's Aggressive Panhandling Ordinance, Okla. City, Okla., Code ch. 30, art. XV, div. 2, § 30-428 et seq., to expand existing panhandling-free zones and to create new ones. The ordinance included a ban on panhandling within fifty feet of any mass transportation stop.

In 2017, after the district court denied the City's motion for summary judgment without prejudice, the City Council revised the ordinance. Ordinance 25,777 ("Revised Ordinance"), amended the section of the City's municipal code entitled, "Standing, sitting, or staying on streets, highways, or certain medians." § 32-458. It outlawed pedestrian presence on medians in all streets with a speed limit of forty miles per hour or more, but exempted government employees and people on the median to cross the street, perform "legally authorized work," or "respond[ ] to any emergency situation." Id.

The Revised Ordinance included findings, with citations to a Centers for Disease Control and Prevention ("CDC") report listing higher vehicle speeds among risk factors for auto-pedestrian crashes and a Federal Highway Administration publication with general statistics regarding the likelihood of fatality for a pedestrian struck by a moving vehicle. Neither report addressed medians in particular. The findings also noted that in 2015, pedestrian deaths accounted for 15% of all traffic fatalities; 90% of the pedestrian deaths were from crashes involving a single vehicle; and 19% of pedestrian deaths were from crashes involving hit-and-run drivers. Without citation, the Revised Ordinance also concluded that people sitting, standing, or remaining on medians "create additional distractions for the operators of motor vehicles using such streets and highways."

Before the Revised Ordinance was passed, an assistant city attorney told the City Council that the City had conducted further research to determine the highest risk factor for pedestrians who remained on medians for longer than necessary to cross the street. Based on National Highway Traffic Safety Administration ("NHTSA") statistics, the City determined that vehicles traveling at high speeds caused the most risk. According to the NHTSA, the pedestrian fatality rate in accidents with vehicles traveling at forty miles per hour is 85%, compared to 45% for vehicles traveling at thirty miles per hour and 5% for vehicles traveling at twenty miles per hour. The CDC similarly reported that vehicle speeds increased both the likelihood of pedestrians being struck by a motor vehicle and the severity of injury.

The City solicited the opinion of Master Sergeant Brian Fowler, a fatality investigator for the Oklahoma City Police Department, who observed that in 2015 the Insurance Institute of Highway Safety reported that 54% of pedestrian deaths occurred on large, arterial roadways. He testified that median curbs offer "very minimal" protection when vehicles are traveling at higher speeds, that driver distractions cause pedestrians to be at higher risk, and that pedestrians on medians cause distractions to drivers. Fowler and Chief Citty set forth a descending hierarchy of the riskiest places for pedestrians to be: (1) traffic lanes, (2) medians, and (3) roadsides or sidewalks. Fowler also testified that he believed that the longer a pedestrian remained on a median, the greater the risk. He was unable, however, to quantify the risk or provide any support in safety literature for his opinion.

In response to a request from plaintiffs for all accident reports involving medians or pedestrians, the City produced 504 reports dating from 2012 to 2017. No report...