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Media Alerts - Sixth Circuit strikes down Memphis's "Beale Street Sweep" policy
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October 24, 2016
  Sixth Circuit strikes down Memphis's "Beale Street Sweep" policy
Case: Cole v. City of Memphis

Area of law: Constitutional law, fundamental rights, strict scrutiny, intermediate scrutiny, and intrastate travel.

Issue presented: Can a city implement a policy to clear streets after 3 a.m., even when there is no threat to public safety and regardless of why citizens are there?

Brief summary: Cole, an off-duty police officer, was arrested sometime after 3:30 a.m. on Beale Street in Memphis, Tennessee, under a standing police policy to sweep Beale Street of all "after hours" pedestrians regardless of whether there was any threat to public safety. Although all charges were eventually dropped, Cole sued because the police had violated his fundamental right to travel within the state. At trial, the City failed to show a connection between sweeping Beale Street and public safety. On appeal, the Sixth Circuit affirmed, holding that there was no connection between public safety and the arbitrary early-morning sweeps of Beale Street on weekends.

Extended summary: The Beale Street area of Memphis, Tennessee, is a popular entertainment district made up of restaurants, bars, clubs, and other venues. This area is a pedestrian-only zone: no vehicles are permitted on the street, so most traffic is on foot. Under state and local ordinances, pedestrians may carry and drink alcohol on the street and sidewalks when the street is closed to traffic.

Officer Cole, who was not on duty, was on Beale Street and left a dance club at around 3:30 a.m. Based on witness testimony, Cole was drunk and behaving erratically. Fellow Memphis police officers arrested and charged Cole with disorderly conduct, resisting arrest, and vandalism based on a standing policy: the "Beale Street Sweep." Under this policy, Memphis police were to order all "after hours" pedestrians off Beale Street - or arrest them - even if there were no circumstances posing a threat to public safety.

All charges against Cole were later dropped, but not before they caused Cole to lose his second job and be demoted through reassignment from the organized-crime unit to traffic patrol.

Cole and another plaintiff sued in the district court and formed a class action for those who were also arrested under this policy. In their complaint, they alleged that the "Beale Street Sweep" incited violence because the Memphis police became highly aggressive, agitated, and confrontational towards lawful pedestrians. The City admitted to having had this policy in place, but it claimed that it had abandoned the policy some time before Cole was arrested.

The jury found that the "Beale Street Sweep" was the cause for Cole's arrest because the conditions on Beale Street did not pose an imminent threat to public safety when Cole was arrested. Cole was awarded $35,000 in compensatory damages. The district court also granted Cole's motion for injunctive relief: the City of Memphis was enjoined from "engaging in the Beale Street Sweep."

On appeal, the City of Memphis argued that the district court erred when it found that the "Beale Street Sweep" infringed on a fundamental right: intrastate travel. Thus, the City argued, the district court had improperly applied strict scrutiny.

The Sixth Circuit reaffirmed its precedent recognizing that, in general, intrastate travel is a fundamental right. It explained that intrastate travel is so deeply rooted in the nation's history and traditions that it is an implicit liberty. Thus, local travel through public places continues to be a fundamental right, warranting heightened scrutiny. Nevertheless, the Sixth Circuit concluded that intermediate scrutiny, and not strict scrutiny, was the more appropriate standard in this case given the Beale Street Sweep's limited two-block scope and limited two-hour timing on weekends and after special events.

Under intermediate scrutiny, the Sixth Circuit required the City of Memphis to show that the Beale Street Sweep was a narrowly tailored practice to meet the City's significant objectives. The City identified public safety as its significant objective. The Sixth Circuit agreed that public safety is a significant - in fact, a compelling - objective.

Yet the City's argument failed because it couldn't show that the Beale Street Sweep was connected to its stated goal of ensuring public safety. The Sixth Circuit observed that in the district court, the jury found that the sweep occurred without regard to whether there was an imminent or immediate threat to public safety. Instead, the sweep was set at an arbitrary time and had no connection to then-existing conditions on Beale Street. Without the required connection to public safety, the City's policy failed under intermediate scrutiny.

Panel: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.

Date of issued opinion: October 17, 2016

Docket numbers: October 17, 2016

Decided: October 17, 2016

Decision: Affirmed the district-court judgment.

Counsel: ARGUED: J. Michael Fletcher, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees. ON BRIEF: J. Michael Fletcher, Zayid A. Saleem, Barbaralette G. Davis, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., Bryan M. Meredith, E. Lee
Whitwell, THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees.

Author of opinion: GIBBONS, J., delivered the opinion of the court in which DONALD, J., joined, and GRIFFIN, J., joined in part. GRIFFIN, J. (pp. 16 - 19), delivered a separate opinion concurring in part and dissenting in part.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case:

Edited: 10/24/2016 at 02:27 PM by Mark Cooney

    Posted By: Mark Cooney @ 10/24/2016 02:05 PM     6th Circuit  

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