Legal Review Committee Agenda and Packet 2020 09 30

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SUBJECT: SOLICITATION IN STREET MEDIANS DATE: SEPTEMBER 30, 2020 PAGE 2 OF 5 The Tenth Circuit Court of Appeals issued another decision regarding median regulation on August 31, 2020, in the case of McGraw v. City of Oklahoma City, No. 19-6008 (W.D. Okla. 2020). Plaintiffs in this lawsuit included Oklahoma City residents (and runners), a minority political party in Oklahoma, and an independent news organization who claimed they use medians to panhandle, engage in protests or other expressive activity, mount political campaigns, cover the news, or have personal conversations. They claimed the ordinance violated their constitutional rights, but there was no mention in the Court's opinion that any of the Plaintiffs had been issued a ticket or the City had otherwise attempted to enforce the ordinance against them. This case involved an original ordinance and an amendment to the ordinance that was adopted while the litigation was pending, and included a challenging factual record. Unlike the record in the Evans case, which contained complaints about pedestrians who were almost hit and studies of the actual medians in Sandy City, Oklahoma City officials and others specifically pointed to panhandlers as the impetus for this ordinance. The Police Chief gave a presentation to the City Council that was originally titled "Panhandler Presentation," but was changed to "Median Safety Presentation" amidst concerns from the City Attorney, who recognized the ordinance was potentially unconstitutional as a panhandler regulation. Although there was traffic safety data included in the record, there were no pedestrian - related accidents on medians. Photos of damaged medians and accidents where vehicles crossed onto or entered the median were in the record, but there was no evidence that any of these involved pedestrians. The City Councilmembers themselves disagreed about whether safety concerns justified the ordinance, which was adopted on a 7-2 vote. The ordinance, as amended, made it unlawful for a pedestrian to be present on a median located within a street with a speed limit of 40 miles per hour or more, but exempted: • Government employees; and • People on the median o to cross the street; o perform "legally authorized work"; or o respond to any emergency situation. The ordinance prohibited pedestrians from being on approximately 400 medians across Oklahoma City. The City claimed at least 103 medians were not affected by the ordinance, but Plaintiffs argued at least 27 of these were unavailable to panhandlers under the City's Aggressive Panhandling Ordinance. The ordinance included findings, with citations to a report by the Centers for Disease Control regarding risk factors for auto -pedestrian crashes and a Federal Highway CITY COUNCIL COMMUNICATION r L