analysis was too strict and nd the district court ignored material disputed facts they feel to construe the facts in the light most favorable to the city as the one who didn't and i will address these issues a little bit s necessary to further the government's legitimate interests in this requirement demands a close fit between ends and means but close fit does not mean perfect  regulation need not be the least restrictive or at least intrusive means and its validity does not turn on a judge's agreement concerning the most appropriate method of proving the government's interests and consider that road with safety cases are a different context and justify airing a little bit more on the side of caution in this case the district court recognized the inherent danger of pedestrian standing in actually your honor sadly just last week we had an accident here in this don't let me ask in a different way in the summary judgment record that was presented to the district judge and it's on review here was there any evidence of any of the accidents associated with in prince or an exit of a highway radio not any of that involved pedestrians your honor but it's there was some evidence about the dangers of high speed traffic w to be consistent with evans in postulating what that role would be for the less restricted means analysis and if not where were is any we glean from that is when an ordinance sort of at the outset appears to be reasonably well trailer to the harm it's trying to prevent we don't necessarily need to get into a less restrictive means an presumptive language in what i'm trying to struggle with to understand is how that would be and in ministering to pull rules i mean are we supposed to say that on its face this doesn't this is not  narrowly tailored mayor for we don't need to look at less restrictive means i mean how does one determine what is is narrowly tailored in less you know what else what other options are available just seems to be necessarily violate kind of a limitless possibility only limited by the judicial imagination of what the different alternatives could be and that starts to slide into what looks more like a strict scrutiny analysis though it does say to you what one could argue that it does but but the point would be that why wouldn't it be part of that as well as well as across suggested the obligation in satisfying narrow tailoring point out that the obvious alternatives we consider and they weren't sufficient to address the need and in other words it in this situation it when i looked  there it is not necessary in every case to undertake a less restrictive means analysis that's you that would be your view right i think that's true and it would be sort of once learned and i think ok not the  a three foot wide median beyond was appropriate and that was based on anecdotal reports of close calls and it was based on basically the city officials going out to these meetings and determining whether they focused on a specific specific areas where these problems could come up and so in in in valuating fit we have to look at what each subsection is actually eating to do well before you before you get into a b and say i want to stick on this issue to judge holmes is inquiring about so in your your answer focusing back on evans and you your distinction that in evans there was anecdotal evidence that the police chief and others in the city leadership had gone and looked at particular mediums that were three foot wide and said the these are dangerous now in this that industrial design for comfort is a benchmark for the safety of people standing there on a meeting and for safety i can to the the very specific evidence proved elusive in evidence that looking at particular mediums saying that median is dangerous i'm not sure that i  is a safety regulation were a guideline i suppose that talks about oh yes trains trying to make a safe street crossing in the city determine that this is a reasonable guy  because it least before evans came along it was hard to imagine any other way to determine what is a safe distance and so it looked to the neck to guidelines and that in that's there was a reasonable sanchez use albuquerque streets to make donations to those in need to solicit donations to meet their daily needs and to communicate about war and economic injustice these are three of the most cherished forms of free expression protected by the st amendment and if the plaintiffs lived in santa fe they would be able to do this freely as long as they didn't engage in any dangerous behavior like jay walking or darting into traffic but albuquerque has effectively shut down its roadways to this type of free expression because in the words of the law's chief architect chrisma lendrick as it's more helpful and easier to enforce an outright ban on allowing people in the roadways or near the roadways at all than it would be to target interest conduct and i would like to start with judge backtracks question about design guidelines because that's something that the city has leaned on heavily throughout this litigation but there's no design defense to the  those who are providing design guidelines are looking at urban design they're learnt looking at maximizing the government's interest in safety ineffectiveness and inefficiency but the city isn't allowed to pursue those go at all costs when doing so imposes a burden on free expression we know that the city has to be the trustee for traditional public fora like media and sidewalks and streets and so it has to take into account and balance  st amendment interests when it decides how to run a city so it can't simply look blindly at design guidelines and book them as a reason to close down free expression  visitors my question is if you're briefing you had characterized this as somehow an argument that it's counter to that whole notion that  anecdotal evidence of people looking at three thought why medians and saying those are dangerous that here you don't have that sort of specific evidence but what you do have is equivalent evidence so why isn't that poor he just explained equivalent benchmarks for the media and well your honor i agree with you that i don't think the city is mounting a form analysis challenge as it did in the district court but by invoking these design guidelines and saying essentially that if a particular part of the roadway which we know is a traditional public forum if that is not designed for pedestrians to in or it's not designed for pedestrians to use to engage in physical exchanges then we can all together prohibit pedestrians from being in these locations and using them for free expression then the impact is essentially the same as allowing the city to d designate a traditional public forum by government i think that's the point that i'm making and i wanted to also get to a point that i'm judge holmes asked in in his discussion with m that's about the less restrictive alternative i think that the supreme court's decision in thompson says western states medical center is really helpful on this court because what it says is that sure there doesn't have you don't have to use the very least restrictive alternatives we know that from war but the court said the existence of a whole obvious slew of available alternatives is indicative that a lot was more extensive and necessary and i think  with looking at something very specific it was looking at a court of appeals decision in which the court held that you have to use the least restrictive means under intermediate scrutiny and the court said no no you don't have to do that this is not strict scrutiny but it never said that you that there's any instance under intermediate scrutiny where you should ignore readily available alternatives well i mean a bill in which your evidence of it may be helpful i think i mean helpful in clause you don't necessarily have arguably were required at least consideration by the city of some less restrictive means and so what do we do with evans from your perspective were and how do you read  absolutely and also two things about the kind of end mccraw situation and i won't pretend there is no tension between those decisions and i'll note that i know that that in athens there is a pending her petition but what i think is that if this court believe that there is significant tension between those decisions it has to look also at the fact that this court has in case numerous cases proceeding avon's looked at and invalidated speech restrictions based on the existence of readily available alternatives that were not tried so in dover society of albuquerque the court looked at a ban on allowing convicted sex offenders in public library and it said that they had failed to the narrow tailoring test because there are a whole bunch of options that the city could have done short of a ban but it did it the same thing and i matter utah verses new york or however when and if that that the city said it you've got this parade permit requirement and it certainly advances the government's interest in fiscal responsibility but you haven't told us why existing tort law and insurance law and immunity wouldn't accomplish that same goal without restricting speech so i think before athens and after athens the court has always looked at the existence of available alternatives and to the extent evans is inconsistent with that it's because it would be an anomaly in the case law not something that should have to be fit and the nd point i want to make about and is i think that the way the district court looked at that case here and the way the court did in macross was pretty similar it said it was faced with a plaintiff who wanted to stand on a seventeen inch piece pushed in the media when he could have moved down ten feet and stuck in the same location and so the burden on speech was slight and so that the government had to maybe do less leg work to justify that restriction and what macross says is that when the burden of speech is severe then the government has to do a lot more lake work to prove that it's true that the government is essentially not trying to use a missile to kill a mouse and here i think this case is more restrictive have honest each than either evans or oklahoma city but let me stop you there i think to some extent that's consistent with mr outlives argument because the you're saying that when the bird disappear then you have to be more like work which means you have to do more consideration of alternatives but the antecedent point that the i'm trying to get down is whether you have to consider these least restrictive alternatives at all in in in your or in doing  hearing helpful does not mean you have to be helpful being more in evans so is it your point that that if you look at the broad swath of our case law it would suggest that there is some well some will in every narrow tailoring and then depending on the burden on speech that will determine how much of or what i think that's exactly right your honor and thing i wanted to response to it and it comes from the city supplemental brief which kind of for the st time argue right i don't think it really set forth the affirmative argument as much as in the supplemental brief about what the city dead and i think it's really critical to look at what the record actually shows because for example in selma well brief the city says that  the city looked at just imposing the ordinance in certain locations and if you look at the actual page that the city cites mr melendez who is the one testifying at his deposition when when we asked did you look at imposing certain locations he said quote briefly at best that is not serious consideration of alternatives the nd evidence that the city marshal in its supplemental brief has to do with consideration of existing laws existence of other laws on the books and he described it as a centrally a box checking exercise as if to say jaywalking yet we have one of those but he decided that those laws weren't enough because what the city wanted was to play certain locations quote off limits he said that on page seven tet on and it wanted to do that instead of the target dangerous conduct that is exactly the type of calculus that mcmullen and mccraw and the   i think that's exactly right and and let me explain why your honor it's because i think the the consideration of alternatives is not a process requirement it's not about saying if the city satisfies elements a b c d and e then it can a speech what that entire fireman is supposed to get at is what the supreme court said in thompson which is if the st amendment means anything it means that regulating speech must be a last not a st resort and so i think what this alternative consideration a requirement gets at is the idea that if the city tries alternatives like cities across the country have done for decades protecting pedestrian safety while allowing panhandling and leafletting on the roadsides it will actually be able to address safety concerns that exist then used the word strong it didn't say prior so if you have said rate so that i do think there's some question about whether you have to seriously consider it or whether you have to try  i think the way i would resolve that is to look at cases like ward which actually in that case it involved a sound ordinance if it required concert goers in central park to use the city's  depends on things like foliage and weather and so i think if you if you seriously consider and give a a really good substantive reason for not actually trying an alternative that would probably satisfy but a cursory explanation which that this court case is show that it takes every case on the record before it so even in dover city of albuquerque the court said you know it's possible that the city could have justified the espana but it didn't present any evidence here so it hasn't done so i think when you look at the landscaping ban it fails on two fronts one is the franks that was discussed in across there is no evidence in the record no data no and anecdotes of any concrete safety issue that this ordinance would re and that's what mcroberts wired that's what active environmental versus town of castle rock requires if you can't show that you don't even move on to looking at whether a dam is a nearly tailored solution to that concrete harm and then i think if you and well it was a commercial speech case which the court said in mccraw is analogous to the narrow taylor here but what the and what the court said in that case is that common sense and anecdotes can sometimes be enough but it is the government's burden to seconds to answer at least thank you so in in ns there was no record no readily available data showing whether there was a concrete harm either way in this case in contrast the city produced four hundred and one dollars collision it was enough because common sense in anecdotes were sufficient and they weren't on the data here there is readily a available data showing that the real harm in albuquerque is from lawfully crossing the street fifty percent of the incidents involved lawfully crossing the street which the reports it was not an empirical study your honour's moving on to going to be could i just make sure i asked one question and this relates to see three that's sort of a unique provision that would have centrally if i understand