Lakendus Cole; Leon Edmond, individually and as representatives of all others similarly situated, Plaintiffs-Appellees,
City of Memphis, Defendant-Appellant.
Argued: June 14, 2016
from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:13-cv-02117-Jon
Phipps McCalla, District Judge.
Michael Fletcher, CITY OF MEMPHIS, Memphis, Tennessee, for
L. J. Spence, Jr., THE SPENCE LAW FIRM, Memphis, Tennessee,
Michael Fletcher, Zayid A. Saleem, Barbaralette G. Davis,
CITY OF MEMPHIS, Memphis, Tennessee, for Appellant.
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.
SMITH GIBBONS, Circuit Judge.
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
intrastate 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.
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 §§
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.
and another named plaintiff, Leon Edmond,  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. §
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).)
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.
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.
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.