a roadway whether the court believes that these have characteristics of sidewalks or roadways still their public form once raised the city has the requirements rebut that and in this case of the medians how many they are what they look like anything like that done by the district court is that right size that is correct that we do not have a full scale in all of the media and in sandy city we do have an inquiry into a large number and most of that was produced by the plaintiffs and not the defendants and did the district court then make findings as regards records that we have below and know the court did not do so in a very limited and short decision the court cannot identify any specific features of any specific media and why or why not a cell within or outside  cite a lot of what i call a non binding president a president regards to this case but i don't see anything where you say the burden is on the sitting well the ordinance looks pretty neutral when you look at it and you see the documentation this provided as far as the picture of what's happening and you're wanting to argue that that's a public forum when it would appear that it's pretty  rocky which could lead to the conclusion pretty unsafe and regardless of all that how does the ordinance prohibit on the basis of time space and matter of the right of the city to exercise its safety procedures or police powers prevent a certain place for being used for a certain thing less speech evidenced by five to ten and these are just some of the mediums we reference in our appendix that are large arguably  median at one intersection in sandy city and he says a prosecutor indetermined his subjective opinion that it's unsafe when he reached a certain location and that's how they came to this conclusion of the thirty six inches or less and that is only with for rocky well that's part of the issue in this case and that we raised below is that there is no definition of aids and so and we did get a difference of opinion from both police help me understand what you think should have been done here yes i mean they should have had an expert they should've i mean just tell me understand what you think should have yes and then in part as made a discovery occurred as you know summary judgment was filed almost immediately upon an answer in this case limited discovery over the cases five months only in the court below less than actually we determined that all of the complaints were coming from and so had the city done this inquiry they could have determined at least first step one is finding out where the issues are what size of media and when accidents occur what time of day which location so to impact these type of issues as a hat in this case it was very very limited so it's too broad is your point too much speeches ar everything and it should have been targeted just to these unsafe mediums that you've identified assuming that the city can show that there's a justified safety concern that can't be fact the less restrictive means that the courts pointed to in both cutting and reynolds to invalidate those statutes up until a few years ago the state statute in utah was a statute and r it targeted solicitation and panhandling and the scope of it was all roadways including shoulders and medians that was struck down city city has no quarrel with that they stopped but don't you don't you have medians in sandy city that are landscaped and have park benches on them the only thing that pointed to your honor is something that the city absolutely does not consider to you median it's right outside of city hall and it does not have traffic going in both directions it's not divide traffic going in both through are there are there median that have crosswalks going to them and from them there are medians where cross walks go to the median but only because they go completely across the street i'm not aware of any cross walks that directs someone to a median or  monument and that's i'm not sure about the benches i think that comes from reynolds but if there could very well be benches a monument isn't enough it's all just concede that there can be twenty benches as well but that is not a median where traffic goes both directions in the city said on the target the type of activity we're just going to look at medians and whether they're safe or not and we're only going to place this restriction on ones that are we legislatively deem to be unsafe that is not all media and that's what the chief of police wanted that's the ordinance and cutting sandy city where he said we're not going to do that we have to do more under intermediate screamed so the same day went down a nation yeah so nice went out and they stood on different medians and they ask themselves how why does it need to be where with traffic coming by i feel as if i'm safe i'm not going to move a couple inches get clipped by a mirror on a big truck and alternatively you are feel safe on the medians that are uneven and landscape with rocks as the autumn all is or mr evans was here they went out they gathered that data and the city attorney came back reported the long with the chief of police to the city council and they decided that the correct way to a narrow their ordinance as described as what should be done in cutting and reynolds was thirty six inches and not anything beyond that if it's flat it's a flatten paved safe anything that's landscapes it's almost impossible to describe it in any way except if it's done even in landscapes in some way it's not paved then we're not considering those to be safe safe medians that's the before he would you to cait those motions and before they were briefed the party did all the discovery that both parties thought were necessary they put it in those motions and ultimately what the district court did you know the granting the summary judgment motion in favor of sandy city i think that under citizens for peace vs the colorado springs because there is no deference in first amendment cases given to district court findings when doing in america intermediate treatment allison i don't think the summary judgment posture matters here i don't think any material facts that are in dispute that have been identified that go to the intermediate scrutiny chast and the fifth specifically i don't think there's been any material facts identified that aren't legislative in nature unravels reynolds tracks mcmullen and what the court says correctly is you don't have to get an expert input on a bunch of evidence in order to convince us that there's a safety concern that's fine reynolds  agrees the city there had a safety concern you also don't need experts to show that that safety concerns satisfied by this ordinance for things that sort of fit within its core and the example that reynolds pulled out of they said you've got an eighteen inch median we don't need data to show that that's on safe of course your nets could cover that but where did the additional evidence of data need to come in both cutting and rental because there the ordinance is covered every single median and roadway in those cities which necessarily encompass in compass what reynolds or is that fifty foot wide medians within that  want your ordinance to encompass that type of media in you're going to need to present us data under now to show us why your safety concern is furthered by restricting the speech in those type of me that's why those ordinances failed we don't need that here have you know you had a chance to look at our cases in very low and you saw probably in reading those opinions that we saw in those cases the need to have fact finding and to look at the forum and describe the form and understand how the form was used and without that they swine information it's very difficult for us to make a first amendment i have this is very fair point your honor and i think that in very low here's what i would say about the forum argument before the court right now is that all the discovery that needed to be done court finds that sufficient and i think it could because there's unrebutted summary judgment testimony that says that these these mediums were not intended their purpose was not for pedestrians and even though both parties were given the opportunity to gather whatever of evidence they needed at that stage of the proceeding none was put on but the court doesn't need to go there and the reason the court doesn't need to go there is even if it's a traditional public forum intermediate scrutiny applies that those are in fact our best case because those circuits in analyzing broader statutes essentially invalidated those statutes because they didn't look like sandy cities here because sandy city has that there is sufficient fit here we pointed out that in looking at all of these because you had a guy standing on saying i feel unsafe or i feel safe well your honor i don't think that it's it's just that i mean that's the way that part of the data is gathered here but i even reynolds in in making the point the court judicially made the point that an eighteen inch median is per se unsafe there would be need to be no study done you would even need to got have a guy go out there and stand up for the reynolds court to conclude that that's unsafe and that you can restrict in a time place manner way the people standing and sitting on that median and so here it's it's double it's thirty six inches but that's only three feet wide and so i don't think it's it's i don't mean to but i don't think it's as frivolous as one person going out and saying that i don't feel safe that is commonsense determination that can be made at that point as long as you're with him what the supreme court has considered to be a commonsense safety concern but the reynolds court considered to be a commonsense safety concern they didn't say the outer limits was more than eighteen inches they just use that as an example what are the outer limits of the commonsense safety concern as long as you're within it you don't need a study but we have data here if data was necessary from public complaints and the safety concerns on these particular well the public complaints went to how many millions i don't know the different medians that it went to i don't know which one we all of those reports by  every single one of those police reports are also in the record and so the need the fact that the ordinance here was crafted responsibly in response to cutting and reynolds it was crafted in a way to only get at the safety concern that was the point of it not to restrict the speech on every single media and sandy city it was crap to get only up to safety concern there is enough of us that there is a common sense safety concern and a median that is under three feet i think it's still within the common sense safety concern that you don't need to commission a study or you don't need someone to get hit and hurt first before a city can act legislatively in that particular area and so sandy responsibly put its ordinance together so that it only got at the safety concerns it doesn't mention concepts like most of the other ordinances do only mention median it only goes to the type of median and is the one of the target here actually panhandling though your honor was there discussion of panhandling in the city's commission yeah and it's very interesting what that was of this post an accident discussion that's number one made below went to those post inaccurate comments if you look at them though they certainly don't make this content based because the point is that it has to be a restriction that you're putting on speech not because you disagree with it if you look at that most act on it it is sympathetic to the message that mr evans is conveying when he's out there is saying i've seen those signs i'm sympathetic to it in the city city council considering an ordinance like this there is no way that i'm going to stand up here and tell you that people don't understand who's going to be affected but that's worlds away under the wall from enacting the statute in order to get at a certain viewpoint and suppress it and if you look at the reply brief you're it's basically see this is a continental thank you roger thank you discussion about panhandlers it was only after it was only the subsequent hearing where there was additional discussion and specific reference to something that had previously says the city my clients and so i also would like to address  but the intent of the city to to enforce these meetings or build these mediums i believe that it relevant none of the cases have considered the intent necessarily of the city and more it's more to the point of