Evans v. Sandy City

928 F.3d 1171
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 5, 2019
Docket17-4179
StatusPublished
Cited by2 cases

This text of 928 F.3d 1171 (Evans v. Sandy City) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Sandy City, 928 F.3d 1171 (10th Cir. 2019).

Opinions

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 *1176right 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, 105 S.Ct. 3439, 87 L.Ed.2d 567 (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, 108 S.Ct. 2667, 101 L.Ed.2d 669 (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.

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Bluebook (online)
928 F.3d 1171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-sandy-city-ca10-2019.