Mimesis Law
20 September 2019

6th Circuit: Right To Intrastate Travel Trumps the “Beale Street Sweep”

October 20, 2016 (Fault Lines) — In the Land of Elvis, there is an entertainment district called “Beale Street” consisting of two blocks of restaurants, pubs, and nightclubs that are usually barricaded on each end. In theory and reality, it exists for people to let loose so that the occasional bar owners and proprietors may make some dough while pushing the last legal drug. It also doesn’t hurt the state that its coffers are filled with liquor-by-the-drink taxes in the process.

Beale is the Memphis equivalent of Duval Street in Key West, Bourbon Street in New Orleans. The bars are open until 5 a.m., and there’s even a city ordinance that permits vendors to sell and patrons to carry booze on the streets and sidewalks. So far it’s a domestic libertine’s paradise, until the Memphis Police Department, as per policy, “sweeps” the streets and sidewalks of everyone at 3 a.m. so that the City may literally sweep the streets.

What could possibly go wrong with this sweep operation involving cops and those who are fond of drink and who may not have a Ph.D. in compliance? Ironically, at least one MPD officer, Lekendus Cole, found out one morning, when his body was used to make two dents in a squad car:

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, brought a class-action lawsuit. They alleged that the City’s routine practice of sweeping Beale Street in the early morning hours was unconstitutional.

Cole’s appellate lawyers cleverly and successfully contended that the city’s practice of sweeping the streets and sidewalks of people at 3 a.m. on weekends interfered with his fundamental right to travel within the state of Tennessee. The 5th Circuit agreed with Cole in that the “Beale Street Sweep,” when applied without exception, when there are no circumstances threatening the safety of the public or MPD police officers, was unconstitutional under a strict scrutiny standard.

The cops showed up at 3 a.m. on weekends without fail, and acted as if everyone was automatically a nuisance and needed to get off the streets immediately. Talk about one big buzzkill.  An army of officers approaching a large group, heterogeneous in character and state of inebriation, in the middle of the night while telling them to get the hell out no matter what, creates one helluva volatile environment.

All this in a place that is notorious for lawlessness.  Cole was correct in  alleging 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.” This in an age when some warriors cops have yet to embrace the concept of de-escalation when faced with the slightest push-back from a civilian citizen.

Now, the Beale Street Sweep lasted approximately 30 minutes (depending on your level of alcohol intake concept of time at 3 a.m.), and the businesses remained open until 5 a.m. This means that those kicked out of the streets and sidewalks at 3 a.m. had two choices: go home, or go back into the bars.

In essence, those who exercise their right to keep drinking intrastate travel on Beale were in essence “kicked back” into the bars by the cops, where they may have that extra drink that pushes them into the blackout realm. There is also something sinister about the city giving people the green light to drink on Beale while it collects tariffs on that booze, only to have its police officers then show up and bully them off the streets or back into the bars, even when no threat is afoot.

So up until 2012 (the year Memphis disavowed this brilliant practice of dispersing libertines people en masse), if you were caught in a Beale Street sidewalk at 3:16 a.m. enjoying your Jägermeister buzz and minding your own goddamn business, you were liable to be accosted by a cop with his nose in a rule book and told to leave. This applied to your brothers and sisters in arms booze as well, in this tyrannical display of “one size must fit all.” Thank Dionysus that the 5th Circuit put a stop to this madness, at least on Beale.

5 Comments on this post.

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  • Ferne Wiesenthal
    20 October 2016 at 9:21 am - Reply

    Tennessee is in 6th circuit.

    • shg
      20 October 2016 at 10:08 am - Reply

      Thanks. My bad.

  • Jim Tyre
    20 October 2016 at 11:05 am - Reply

    The 5th Circuit agreed with Cole in that the “Beale Street Sweep,” when applied without exception, when there are no circumstances threatening the safety of the public or MPD police officers, was unconstitutional under a strict scrutiny standard.

    The 6th Circuit (see comment above) actually found that intermediate scrutiny was the appropriate standard, not strict scrutiny. That makes the result more interesting in some ways. In these types of cases, the standard of review that’s applies almost always determines what the end result will be.

    • Mario Machado
      20 October 2016 at 11:34 am - Reply

      You’re right, Jim. Good eye.

      It was the district court that applied the strict scrutiny standard, and the 6th Circuit deemed said error harmless because the jury’s finding “supports a finding that the Sweep lacks the connection to public safety necessary to survive intermediate scrutiny.” See you at Beale.

  • Memphis Sweeps Beale Street, Violates Civil Rights
    28 October 2016 at 9:19 am - Reply

    […] and then overreact when people get drunk. Fault Lines contributor Mario Machado took the city to task for its hypocrisy. It’s not quite the Ferguson-style of racket, but it probably doesn’t hurt to […]