Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster. Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case. The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.
The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States. To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends.
In this case, the Tenth Circuit confirmed that the median restriction was content neutral, and narrowly tailored to the government’s interest in public safety for vehicles and pedestrians. Eschewing any public forum analysis, the court confirmed that the median restriction meets constitutional muster even under the strict standards applicable to traditional public fora. Although some evidence suggested that Sandy City had adopted the ordinance in question to address panhandling, the court was persuaded that the actual purpose of the ordinance was to address public safety concerns and vehicle-pedestrian conflicts.
The Tenth Circuit’s ruling follows a 2015 decision involving a similar restriction in Portland, Maine, where the appeals court held that the median restriction was unenforceable. It is likely that other case involving median restrictions will make their way through federal courts, as local governments continue to seek ways to further public safety concerns associated with panhandling.