Mimesis Law
20 November 2019

Memphis Sweeps Beale Street, Violates Civil Rights

October 28, 2016 (Mimesis Law) – It doesn’t seem right that a city can encourage excessive alcohol consumption, 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 arrest drunks at the bottom of their wallets and squeeze a bit harder. Another issue is whether these were the right circumstances when law enforcement officers can clear the streets.

Tennessee seems like a nice enough place. Fault Lines contributor Chris Seaton calls it home; so, it can’t be all bad. Nashville is a nice city.  The sports teams have some Ohio State connections. The Titans almost won the Superbowl on the back of Eddie George; Mike Conley plays for the Grizzlies. On the other hand, the team colors for the Volunteers is pretty bad. Oh and that song the fans sing—what’s it called, Rocky Road Sundae Toppings? The song has got nothing on Carmen Ohio.

In Memphis, there is a two-block pedestrian area known as Beale Street. This area bills itself as “world famous,” though I had not heard about it until recently. And it claims to be Tennessee’s top tourism attraction, which must have something to do with the amazing asphalt. It is probably a very beautiful street. And perhaps it is very soft when landing face down and drunk, after visiting all the bars clubs on the street.

Booze, a lot of people, loud music, tourists, and late hours together often give rise to public disturbances and nuisance behavior. No one wants to be part of a stampede or get stabbed. It’s bad for tourism. And people get hurt too. But it’s really bad for business when people get hurt. Plus, you cannot keep selling booze to someone once that person is loaded up in an ambulance. In an effort to clean up the Bourbon Street of Tennessee, Memphis Police Department instituted a policy of clearing the streets at 3 a.m.

Beginning in 2007, Memphis Police officers would force every person off the streets and into some building. During the sweep, no one was allowed to stand on or walk across an otherwise public street. These sweeps happened without regard to the circumstances, such as weather, crowd rowdiness, or threat to public safety. They even put up signs notifying people that come 3 a.m. they would be forced from public streets. And pedestrians refusing to get off the street were often arrested.

The sweep was executed with such earnestness that even off-duty officers were not exempt. No professional courtesy on Beale Street, as two officers discovered. Lakendus Cole was a Memphis Police officer, assigned to the Organized Crime Unit, and Leon Edmond was a Special Agent with ATF.

It seems Cole didn’t move fast enough when told to clear the street. So, he was grabbed, cuffed, and slammed against the patrol car with such force he dented it. By denting the car with his body, Cole seemingly got charged with felony vandalism, along with disorderly conduct and resisting arrest. Although charges were dropped, Cole was re-assigned and lost his side job.

Edmond was visiting Beale Street, probably because he heard it was a world famous stretch of asphalt that other tourists loved. He too was approached during the sweep and was arrested for public intoxication. Nevermind that alcoholic beverages could be carried openly in this area, and vendors are even allowed to sell to pedestrians. Like defendants everywhere, he denied that he was drunk or did anything wrong; the police officers stated he was fighting with a bouncer. Although Edmond got a little courtesy when the special agent in charge for the Memphis field office came to collect him—rather than getting a ride to jail.

Neither one of these guys liked being detained, arrested, humiliated, nor suffering adverse consequences from Memphis’ Beale Street sweep. So they sued Memphis. The suit no doubt made handing a Thanksgiving turkey to Cole pretty awkward. At the end of the trial, the jury made the following findings:

(1) that the City of Memphis had “through its police officers, 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”; (2) that this well-established practice “occurs without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety”;(3) that the well-established practice was “the cause of persons being prevented from standing and/or walking on the sidewalk or street of Beale Street”; and (4) that “since at least 2007, thousands of persons were cleared off of Beale Street pursuant to” that practice.

And the defense attorneys for Memphis wept. The jury found that the Memphis Police officers used excessive force and violated his constitutional rights. He was awarded $35,000 in compensatory damages. The District Court judge found that the arrest was due to Memphis’ Beale Street policy; the policy was unconstitutional; and the judge granted a permanent injunction. Later, the judge awarded the attorneys almost half a million dollars in fees. So, it couldn’t have been a much worse result for Memphis.

Naturally, they decided to throw good money after bad and appealed the case to the Sixth Circuit. Memphis argued that citizens do not have a constitutional right to travel across open public streets. Memphis reportedly euthanizes Dalmatians to make fur coats for its elected officials. Not that it’s an unconfirmed report. Ok, it’s made up. But it’s an aggressive argument for a government to make against its citizens, especially because the Sixth Circuit had already recognized the right to intrastate travel.

But Memphis probably felt that the facts were worse in the prior case, Johnson, which they were and hoped to win by distinguishing the case (internal citations omitted):

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.” 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. The ordinance’s exclusion extended for up to one year upon conviction.

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.”

They succeeded, but only by a little. In the prior case, the Sixth Circuit determined strict scrutiny was the appropriate standard of review. In the Memphis case, the court cut the city a little break:

The evidence at trial established that around thirty minutes before the Sweep, MPD officers used flashing blue lights and a PA announcement to warn visitors that the street would be swept. Officers instructed visitors to either enter a business along Beale Street or leave the barricaded street area. Posted signs also indicated that the street would be cleared at 3 a.m.

Visitors were not prohibited from patronizing businesses altogether, but they were temporarily cleared from the street and adjacent sidewalks. Accordingly, the Beale Street Sweep was considerably more limited in time and place than the broad drug-exclusion zone ordinance in Johnson.

Intermediate scrutiny is appropriate in this case. The Beale Street Sweep has much more in common with the anti-cruising ordinance at issue in Lutz than the broad drug-exclusion zone ordinance in Johnson.

It was limited in scope to a specific, two-block radius, and it was limited in time to specific two hours periods on weekend mornings and following special events. The policy appears to be exactly the type of “narrow ‘place’ restriction” the Johnson court contemplated would be appropriately reviewed under intermediate scrutiny.

The court went on to conclude that the sweep was not tied to public safety, rather specific yet arbitrary nights. Any time the court finds the conduct to be arbitrary, the standard of review is rarely going to matter. It’s pretty hard to see how the city thought it could win even under a rational basis review. The decision making process appeared to go something like this: he have a problem—we must do something; here’s something; let’s do that.

In light of the permanent injunction, Memphis appears to be taking a more measured approach. They instituted a partially refundable cover charge; stopped serving alcohol at 3 a.m. (which appears to be a magical time in Memphis); enforce curfew; deploy more officers more effectively.  Meanwhile, people can continue to travel freely on public streets. It’s just unfortunate it took a civil rights case to get to a better solution.

2 Comments on this post.

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  • Kevin Sours
    28 October 2016 at 12:49 pm - Reply
  • Brian
    28 October 2016 at 4:53 pm - Reply

    Only one thing: 3 AM might very well be a magical time in Memphis. In statistics, such “magical numbers” do actually exist.

    https://en.m.wikipedia.org/wiki/Standard_deviation

    [Note: as I can’t find any such data with a quick search, this is all hypothetical.]

    It is (with an appropriate program, such as Excel) almost trivially easy to plot the times of all public disturbances over (say) a ten-year period, which is data the city should have access to. Then, simply finding the mean (average) time disturbances began and subtracting one standard deviation from it gives a time, which may or may not be about 3 AM. Closing everything down right around this time prevents about 85% of the public disturbances, and because we can probably assume there was little intent involved in them they won’t simply begin earlier.

    Again, all hypothetical because I have no data, but the point is that so-called “magical numbers” do actually exist, and are used quite a lot.

    As for why they would have originally shooed people back into bars instead of closing them…my guess is most of the disturbances happened in the street so they figured they would let most people get drunker in peace and only round up the most riotous ones (the ones who wouldn’t stay out of the streets).

    Still unconstitutional, but hopefully the city’s actions make a bit more sense now.