Legal Review Committee Agenda and Packet 2020 09 30

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SUBJECT: SOLICITATOIN IN STREET MEDIANS DATE: SEPTEMBER 30, 2020 PAGE30F5 Administration publication regarding the likelihood of fatality for a pedestrian struck by a moving vehicle. Neither report addressed medians. And, without citation to any authority, the ordinance concluded that people sitting, standing, or remaining on medians "create additional distractions for the operators of motor vehicles using such streets and highways." The record included testimony from a City Police Department investigator who opined the longer a pedestrian remained on a median, the greater the risk, but the investigator was unable to quantify that risk or provide any support in safety literature for his opinion. During the litigation, Plaintiffs requested copies of all accident reports involving medians or pedestrians. These reports included: • 504 reports dating from 2012 to 2017, none of which involved a pedestrian struck on any median; • 39,833 accidents reported from 2010 to 2015, none of which involved pedestrians or medians. At trial, the City could not identify anyone injured on a median in Oklahoma City or any accident caused by a pedestrian on a median. The Tenth Circuit Court of Appeals first found all Plaintiffs were engaged in protected speech on the medians, including the runners who described stopping on medians to have personal conversations with running companions. As in Evans, the Court also found medians a traditional public fora, subject to strict scrutiny under constitutional analysis. The Court found, based on the record before it, the ordinance failed to survive even intermediate scrutiny, which would be applied to a content -neutral ordinance, and this ordinance placed a "severe burden" on speech. Oklahoma City also did not show its regulation was narrowly tailored to meet its purported safety interest. The Court found Oklahoma City had not met its burden to show that its recited harms were real or that the ordinance would in fact alleviate the harms in a direct and material way, instead describing Oklahoma City's concerns as hypothetical rather than an actual issue. The Court went on to say it was "baffled" as to why there was no impersonal hard evidence of harm. The generic "speed kills" evidence did not address medians or any other factor, including the width or composition of medians. While the court acknowledged a city need not wait for accidents and fatalities to address its interest through safety regulations, it must show the recited harms are real. Finally, the Court noted Oklahoma City had not evaluated any alternatives to address its safety concerns that did not burden speech, and the City already had existing laws that CITY COUNCIL COMMUNICATION