Cole v. City of Memphis

• Decision Date: 17 October 2016
• Docket Number: Nos. 15–5725/5999,s. 15–5725/5999
• Citation: 839 F.3d 530
• Parties: Lakendus Cole; Leon Edmond, individually and as representatives of all others similarly situated, Plaintiffs–Appellees, v. City of Memphis, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

839 F.3d 530

Lakendus Cole; Leon Edmond, individually and as representatives of all others similarly situated, Plaintiffs–Appellees,

v.City of Memphis, Defendant–Appellant.

Nos. 15–5725/5999

United States Court of Appeals, Sixth Circuit.

Argued: June 14, 2016

Decided and Filed: October 17, 2016

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.

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

GIBBONS

, J., delivered the opinion of the court in which DONALD, J., joined, and GRIFFIN, J., joined in part. GRIFFIN, J. (pp. 543–45), delivered a separate opinion concurring in part and dissenting in part.

OPINION

JULIA SMITH GIBBONS

, Circuit Judge.

Lakendus Cole, a Memphis police officer, was arrested in the early morning hours of August 26, 2012, shortly after leaving a night club on Beale Street in downtown Memphis, Tennessee. After his arrest, he brought claims individually and on behalf of those similarly situated, alleging that the City's routine practice of sweeping Beale Street at 3 a.m. on weekend nights violated his constitutional right to intra state travel. Cole and the class won at trial. The jury found that the City implemented its street-sweeping policy without consideration of whether conditions throughout the Beale Street area posed an existing, imminent, or immediate threat to public safety. Based on the jury's findings, the district court found the policy unconstitutional under strict scrutiny, entered an injunction, and ordered other equitable relief on behalf of the class. The City appeals, arguing that it was error to subject the Beale Street Sweep to strict scrutiny and error to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(2)

when the precise members of the class were not ascertainable. The City also argues that there was insufficient evidence to support the jury's findings that the Sweep was the cause of Cole's arrest. For the reasons set forth below, we affirm the district court.

I.

Beale Street is a popular entertainment district in Memphis, consisting of two blocks of restaurants, bars, clubs, and other entertainment venues. The street is typically barricaded on each end, so most traffic is by foot. By Memphis ordinance, vendors may sell, and patrons may carry, alcoholic beverages on the sidewalks and streets when the street is closed to motor traffic. Tenn. Code Ann. § 57–4–102(27)(A)(iv)

; Memphis Ordinance §§ 7–4–15(C), 7–8–23.

Around 3:30 a.m. on August 26, 2012, Memphis Police Department (“MPD”) officers arrested fellow MPD officer Lakendus Cole on Beale Street shortly after he exited a dance club. During the course of arrest, officers pressed Cole against a squad car with enough force to make two dents. Cole was charged with disorderly conduct, resisting stop/arrest, and vandalism over $500 (a felony). Although the charges were ultimately dropped, the arrest and pending charges resulted in damages to Cole, including loss of secondary employment and reassignment from the MPD's organized crime unit to traffic patrol. He also sought medical treatment from a neurologist for physical injuries.

Cole and another named plaintiff, Leon Edmond,¹ brought a class-action lawsuit. They alleged that the City's routine practice of sweeping Beale Street in the early morning hours was unconstitutional. Plaintiffs defined the “Beale Street Sweep” as:

[T]he policy, procedure, custom, or practice by which police officers of the [MPD] order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers.

(DE 88, ID 769 (emphasis added).) They alleged that the Beale Street Sweep “incite[d] violence and create[d] an environment where Memphis police officers involved in this unlawful conduct bec[a]me highly aggressive, agitated, frenetic, and confrontational towards individuals lawfully standing and walking on Beale Street.” (DE 1, ID 8–9.) Plaintiffs also brought individual claims for unlawful arrest and excessive force pursuant to 42 U.S.C. § 1983

.²

The district court certified the following class definition under Federal Rule of Civil Procedure 23(b)(2)

: “All persons who have been unlawfully removed from Beale Street and/or adjacent sidewalks by City of Memphis police officers pursuant to the custom, policy and practice known as the Beale Street Sweep.” (DE 88, ID 780, 805–08.) However, upon the City's motion to decertify or modify the class and before final judgment, the district court revised the definition of the Beale Street Sweep “in order to be more consistent with the strict scrutiny standard that is applied to cases regarding violations of an individual's fundamental rights, such as the fundamental right to intrastate travel.” (DE 160, ID 2062.) The court revised the definition of the Beale Street Sweep (embedded in the class definition) as follows:

[T]he policy, procedure, custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration of whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.

(Id. at 2063 (emphasis added).)

In support of its pretrial motions, the City admitted that it had a practice of regularly sweeping Beale Street but argued that it discontinued the practice on or about June 14, 2012. The City also defended the practice as being related to public safety. After a five-day trial, a jury found otherwise. It concluded that the City “carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street” prior to and on or after June 14, 2012, (DE 141, ID 1899–1900), that the custom was “the cause of persons being prevented from standing and/or walking on the sidewalk or street of Beale Street” (id. at 1900), and that the practice occurred “without consideration to whether conditions throughout the [area] pose[d] an existing, imminent or immediate threat to public safety.” (Id. ) Further, the jury found that, since 2007, thousands of persons were cleared pursuant to the practice.

As for Cole, the jury found that the practice was the cause of his arrest, and that on the night of Cole's arrest, conditions on Beale Street did not pose an existing, imminent, or immediate threat to public safety. Cole was awarded $35,000 in compensatory damages for his arrest pursuant to the policy.

After trial, the district court granted plaintiffs' motion for class-wide declaratory and injunctive relief, permanently enjoining the City and its employees from “engaging in ‘the Beale Street Sweep’ [as previously defined],” but the court specifically noted that the injunction did not “prevent the MPD from conducting normal police work or clearing Beale Street under appropriate circumstances where an imminent threat exists to public safety throughout the Beale Street area.” (DE 161, ID 2092–93.) In addition, the court ordered other equitable relief, including officer training and the distribution of bulletins to officers explaining that the practice is unconstitutional. The City timely appeals.

II.

A.

The City first argues that the district court erred in finding that the Beale Street Sweep infringed the fundamental right to intrastate travel and in subjecting the policy to strict scrutiny. In the City's view, the policy does not implicate the right to intrastate travel, and even if it does, the infringement is slight and, therefore, it should be reviewed for a rational basis.

In 2002, we became one of a few circuits to recognize the right to intrastate travel as “fundamental.”³ In Johnson v. City of Cincinnati

, our court held that the Due Process Clause of the Fourteenth Amendment protects the “right to travel locally through public spaces and roadways.” 310 F.3d 484, 495 (6th Cir. 2002). At issue in Johnson was a city ordinance that banned individuals arrested for certain drug offenses from entering designated “drug-exclusion zones” (such as Cincinnati's Over the Rhine neighborhood) for up to ninety days. Id. at 487–88. The ordinance's exclusion extended for up to one year upon conviction. Id. at 488. Two plaintiffs, one of whom was prohibited from entering the neighborhood where her daughter and five minor grandchildren lived, challenged the ordinance as an unconstitutional infringement on their right to “freedom of movement in the form of their right to intrastate travel.” Id. at 489.

We began by asking whether the right to intrastate travel was “deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty,” id. at 495

(quoting Washington v. Glucksberg , 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ), and concluded that “the right to travel locally through public spaces and roadways enjoys a unique and protected place in our national heritage.” Johnson , 310 F.3d at 495–98. We noted:

Although the Supreme Court has not expressly recognized a fundamental right to intrastate travel, as early as the Articles of Confederation, state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.”

Id. at 496–97

(quoting United States v. Wheeler , 254 U.S. 281, 293, 41 S.Ct. 133, 65 L.Ed. 270 (1920) ).

After concluding that “the right to travel locally through public spaces and roadways” was a “fundamental liberty...