Greene v. City of Memphis

• Decision Date: 01 November 1979
• Docket Number: 78-1528,Nos. 78-1527,s. 78-1527
• Citation: 610 F.2d 395
• Parties: N. T. GREENE, Plaintiff-Appellant (78-1527), Elnora Priest Cross, Edwin Owens and Carolyn Burse (78-1528), Plaintiffs- Intervenors-Appellants, v. CITY OF MEMPHIS, Wyeth Chandler, the Council of the City of Memphis and Edwin McBrayer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 395

610 F.2d 395

N. T. GREENE, Plaintiff-Appellant (78-1527) Elnora Priest Cross, Edwin Owens and Carolyn Burse (78-1528), Plaintiffs- Intervenors-Appellants, v. CITY OF MEMPHIS, Wyeth Chandler, the Council of the City of Memphis and Edwin McBrayer, Defendants-Appellees.

Nos. 78-1527, 78-1528.

United States Court of Appeals Sixth Circuit.

Argued June 5, 1979.

Decided Nov. 1, 1979.

N. T. Greene, pro se.

Alvin O. Chambliss, Jr., National Conference of Black Lawyers, Oxford, Miss., for plaintiffs-appellants.

Michael C. Speros, Charles V. Holmes, Asst. City Attys., for defendants-appellees in both cases.

Clifford D. Pierce, Jr., City Atty., Memphis, Tenn., for defendants-appellees in No. 78-1527.

A. C. Wharton, Jr., Memphis Area Legal Services, Inc., Memphis, Tenn., for plaintiffs-intervenors-appellants.

Before CELEBREZZE, ENGEL and KEITH, Circuit Judges.

ENGEL, Circuit Judge.

This litigation arises out of efforts by the residents of Hein Park, a subdivision located in Memphis, Tennessee, to close West Drive at its northerly end so as to bar all through traffic. ¹ As found by the district court, Hein Park

was developed well before World War II as an exclusive residential neighborhood for white citizens and these characteristics have been maintained. To the west of Hein Park is the sizeable and handsomely landscaped Southwestern College campus; the southern boundary of Hein Park is a boulevard which is the northern boundary for a large park and zoo; the eastern boundary is a large crosstown thoroughfare, which also contains residences; and the northern boundary is Jackson Avenue which carries considerable traffic, much of which is commercial in nature.

The street involved in this litigation is known as West Drive. It extends the complete length of the subdivision, which is about one-half mile. Opposite West Drive on the north side of Jackson Avenue is a major thoroughfare, Springdale Street, which serves a sizeable area composed of black citizens. These are primarily the persons who will be inconvenienced by the so-called closing of West Drive.

As the map indicates, Springdale Street is, in fact, a northward extension, under another name, of West Drive.

The proposed closing is described by the district court in its opinion:

The partial closing will be accomplished by having the northernmost property owners on West Drive buy a 25-foot east-west strip across the entire width of the street. Because officials of certain departments of the city deem it necessary that public service vehicles will be able to cross the strip, a 24-foot gap will be left in the barricade. There will be a speed breaker across the gap, but other details, such as signs, have not been finalized.

Although the record is uncertain whether the northernmost property owners who are acquiring the east-west strip across the width of West Drive will, in fact, bar all foot traffic as well, it is clear that the proposed conveyance will leave them with the absolute right to do so if they wish, since the property will be private in all respects except for retained rights-of-way for certain service and emergency vehicles and utility easements.

Plaintiffs, certain black individuals and members of a class of black persons in the City of Memphis who own or stand to inherit property immediately to the north of and adjoining the Hein Park area, have attempted from the beginning to prevent the closing. They principally claim in this lawsuit that the closing of West Drive deliberately creates a barrier between the all-white Hein Park subdivision and the predominantly black residential area to the north, limiting access to and from the latter and impairing their property values. The closing is claimed to be a violation of their rights under the Thirteenth and Fourteenth Amendments; ² they seek relief under 42 U.S.C. §§ 1982 and 1983. ³

In an earlier appeal, our court reversed a judgment of the district court which dismissed the original complaint for failure to state a claim. In so doing, we held that the district court relied too heavily on Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), and its ruling that the closings of municipal swimming pools would not violate the Equal Protection Clause of the Fourteenth Amendment where it was shown that such closings prevented whites and blacks equally from enjoying the pools. Greene v. City of Memphis, 535 F.2d 976 (6th Cir. 1976) (Greene I ). In remanding, we held that the facts alleged in the complaint, construed in the light most favorable to the plaintiffs, stated claims under 42 U.S.C. § 1982 and, even though it had not then been specifically pleaded, under 42 U.S.C. § 1983. In dicta, our court further observed that:

To establish a section 1982 or 1983 claim on remand, Greene must prove his allegations that city officials conferred the closed street on West Drive residents because of their color; he must prove racial motivation, intent or purpose, in the absence of such egregious differential treatment as to in itself violate equal protection or, alternatively, to command an inference of racial motivation. (citations omitted)

This view does not conflict with Palmer, supra, which noted that "no ease in this Court has held that a legislative act may violate equal protection Solely because of the motivations of the men who voted for it." 403 U.S. at 224, 91 S.Ct. at 1944, 29 L.Ed.2d at 444 (emphasis supplied). (citations omitted)

In Palmer, the closings left whites and blacks alike without municipal pools; consequently, there was "no state action affecting blacks differently from whites." 403 U.S. at 225, 91 S.Ct. at 1945, 29 L.Ed.2d at 445. According to the instant complaint allegations, the closing of West Drive left certain white residents with privacy and quiet of a dead-end street, though black residents, for racial reasons, have been and would be unable to acquire such a dead-end street.

535 F.2d at 979-80.

Upon remand, amendments to the complaint were filed, certain additional individuals moved and were permitted to intervene as plaintiffs and the court certified this as a class action. ⁴ Thereafter a bench trial was conducted on the merits before the district judge who on June 21, 1978, entered a judgment in favor of the defendants on all remaining issues. In doing so, the judge obviously deemed himself confined to the rationale expressed in the dicta of our earlier opinion of reversal. Thus, his primary focus was on that proof which showed what action was taken by the City of Memphis on petitions filed from time to time by private citizens, white and black, to close streets and alleys within the city. In this respect the court observed that

the action of the City Council which undertakes to close West Drive did not create a benefit for white citizens which has been denied black citizens. The proof shows that this is the only time that the street and alley closing procedure has been used to close a street which serves as a thoroughfare for the residents and the public. From the standpoint that the closing procedure has been used to close alleys and dedicated but unused streets, the proof shows that the procedure has benefited black citizens as well as white citizens.

The court, however, did hold that the proposed closing had a disproportionate impact upon the black citizens, but that the disparate impact was not so stark that a discriminatory motive could be inferred therefrom. The court stated that

the closure of West Drive in the manner adopted by the City Council will have disproportionate impact on certain black citizens. However, the Court also concludes that there is not sufficient proof of racially discriminatory intent or purpose on the part of the city officials to establish a constitutional violation.

As heretofore indicated, by placing the narrow barrier at the intersection of West Drive and Jackson, the southbound overwhelmingly black traffic will no longer be allowed to continue a logical and direct route across Jackson. At the same time the white residents of West Drive will have considerably less traffic. The residents of West Drive also will have less inconvenience because most of their movement will logically take them southbound on departure and northbound on return.

However, this Court does not believe that the disparate impact is so stark that a purpose or intent of racial discrimination may be inferred. It must be noted that excessive traffic in any residential neighborhood has public welfare factors such as safety, noise, and litter, regardless of the race of the traffic and the neighborhood.

Similarly this Court does not find a purpose or intent to racially discriminate based upon a consideration of other evidence in the case as directed in Arlington Heights v. Metropolitan Housing Corp., supra, 429 U.S. (252) at 267, 68 (97 S.Ct. 555, 50 L.Ed.2d 450).

While ruling against the plaintiffs, the district judge nonetheless entertained serious reservations concerning the wisdom of the proposed closing. His opinion further stated In the instant case, this federal court is of the opinion that it should refrain from applying its judgment on the merits even though the City Council opted for lessening the traffic problems for the white citizens of West Drive in spite of the adverse impact upon the black citizens north of Hein Park, the aggravation of racial hostility with the attendent (sic) retribution and vandalism caused by the obvious rejection, a reduction of response time for the fire and police and the inconvenience and delay to Sanitation Department employees.

The trial judge's observations were supported by the record. Besides the evidence previously described, included in the evidence before the court were the petitions circulated by the Shankman Hill Civic Club and signed by several hundred citizens residing immediately to the north of West Drive. Those petitions took note that "(t)his Closing Symbolizes in unmistakable...