Martin v. City of Albuquerque, 18 F.4th 1205

Background

Albuquerque enacted Ordinance § 8-2-7-2 prohibiting: (B) pedestrians within 6 feet of certain highway entrance/exit ramps; (C) use of medians "not suitable for pedestrian use" (including <6-ft medians, landscaped medians, or medians designated by the traffic engineer); and (D)/(E) physical exchanges between pedestrians and vehicle occupants in travel lanes. Violations are petty misdemeanors.
Plaintiffs (people who panhandle, protest, and give/receive donations at medians/ramps) sued, claiming the Ordinance burdens protected speech in traditional public fora in violation of the First Amendment.
The City defended the Ordinance as a content-neutral time, place, and manner regulation intended to advance pedestrian safety and reduce pedestrian-vehicle conflicts, relying on engineering principles, a UNM study, police anecdotes, and an engineer expert (Lozoya).
The district court granted summary judgment to Plaintiffs as to subsections (B)–(E), finding the City failed to show narrow tailoring: the City’s evidence was limited, often anecdotal or theoretical, and it did not adequately consider less-speech-restrictive alternatives.
On appeal the Tenth Circuit (Holmes, J.) affirmed: assuming (as the parties did) Plaintiffs’ activities are protected speech, the areas are traditional public fora, and the Ordinance is content-neutral, the City failed the intermediate-scrutiny narrow-tailoring requirement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Narrow tailoring of subsections (B)–(E) to advance pedestrian safety	Ordinance sweeps too broadly; City offered no concrete evidence that bans materially reduce pedestrian-vehicle conflicts	Ordinance targets locations not designed for pedestrians; engineering principles and anecdotes justify prophylactic rule	Held: Not narrowly tailored; record lacks concrete evidence linking prohibited conduct to significant harms and bans burden substantially more speech than necessary
Evidentiary burden — must government present data or try alternatives?	City must show alternatives that burden less speech would fail (McCullen); absence of serious consideration of alternatives fatal	Evans allows some deference; government need not have tried alternatives or present abundant empirical data	Held: Harmonizing Evans and McCraw, government need not have physically tried alternatives but must meaningfully consider less-restrictive means; City failed to do so
Reliance on expert engineering opinion and anecdotes	Plaintiffs: Lozoya’s testimony was theoretical, not tied to Albuquerque collision data; anecdotes insufficient	City: engineering principles and common-sense preventive approach suffice; not required to wait for accidents	Held: Expert and anecdotes were insufficient because Lozoya relied little on city data and City’s accident reports largely contradicted the claimed harms
Scope and availability of alternative channels (median/ramp breadth)	Ordinance effectively closes many traditional public fora and leaves no comparable alternative locations	City: Ordinance limited to areas "not designed for pedestrians" and to a fraction of roadways	Held: City provided no reliable count or analysis showing medians/locations left open; breadth reinforces lack of narrow tailoring

Key Cases Cited

Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time, place, manner restrictions must be narrowly tailored but need not be least restrictive)
McCullen v. Coakley, 573 U.S. 464 (2014) (invalidated broad buffer-zone; government must show it seriously considered less-intrusive tools and that alternatives would fail)
Evans v. Sandy City, 944 F.3d 847 (10th Cir. 2019) (upheld a narrower median ban; acknowledged McCullen but explained government need not compile exhaustive data or try alternatives before regulation)
McCraw v. City of Oklahoma City, 973 F.3d 1057 (10th Cir. 2020) (struck down median ban where city failed to present concrete harms and did not meaningfully consider alternatives)
Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012) (government bears burden to prove regulation of speech in public forum is narrowly tailored; lack of record evidence fatal)
Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212 (10th Cir. 2007) (narrow-tailoring requires regulation to serve the asserted interest in a direct and effective way)
iMatter Utah v. Njord, 774 F.3d 1258 (10th Cir. 2014) (narrow tailoring requires reasonable fit; courts may consider alternatives)
Aptive Env’t, LLC v. Town of Castle Rock, 959 F.3d 961 (10th Cir. 2020) (anecdotes, history, or common sense can support regulation but are inadequate when contradicted by data)