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VOL. 131 | NO. 210 | Thursday, October 20, 2016

Federal Appeals Court Upholds Ban on Beale Sweep

By Bill Dries

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A federal appeals court has confirmed that an eight-year-old Memphis Police Department policy of clearing the Beale Street entertainment district after 3 a.m. is unconstitutional.

A federal appeals court has upheld the permanent injunction that bans Memphis police from clearing the street at 3 a.m. on Saturdays for no public safety reason.

(Daily News File/Andrew J. Breig)

The ruling Monday, Oct. 17, by a three-judge panel of the U.S. 6th Circuit Court of Appeals upholds a 2015 permanent injunction by U.S. District Judge John McCalla that bars the practice.

McCalla issued a stinging 44-page court order in June 2015 after a jury in a federal civil suit awarded damages to Memphis police officer Lakendus Cole who sued the city after he and Bureau of Alcohol, Tobacco and Firearms agent Leon Edmonds – both off duty – were arrested on Beale in 2012 for not leaving the district after 3 a.m.

They were arrested after the city had contended it had already ended the sweeps.

The city appealed to the 6th Circuit after McCalla wrote, “The city’s post-verdict argument reinforces the conclusion that the city has yet to accept and institutionalize the constitutional balance required by the Fourth and Fourteenth amendments of the United States Constitution in policing the Beale Street Entertainment District.”

He said the city could clear the street when “conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.”

The appeal was decided by a three-judge panel consisting of Judges Julia Gibbons and Bernice Donald of Memphis and Judge Richard Allen Griffin.

Gibbons, in the opinion, wrote that McCalla erred in telling the jury to hold the city to a standard of “whether conditions throughout the Beale Street area posed an existing, imminent or immediate threat to public safety.”

The appeals court ruled that there should have been a less strict standard of “a significant government interest that was furthered by the Beale Street Sweep.”

“The city has identified public safety, which we have recognized as a ‘compelling’ interest,” Gibbons wrote. “Therefore the outcome determinative question is whether the Beale Street Sweep bears a reasonably close relationship to the city’s stated goal of public safety.”

The error in jury instructions was ultimately harmless Tuesday’s ruling concluded. And the city’s argument didn’t meet even the intermediate standard.

The jury found that Memphis police officers on Beale “carried out a custom and/or well-established practice mainly on weekends at or about 3 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street.

“This finding alone strongly supports the conclusion that the sweep was not tied to public safety concerns but rather to a specific, arbitrary time on certain nights,” the appeals ruling concluded.

Griffin dissented in part saying McCalla’s error in the jury instructions wasn’t harmless and held the city to a higher standard when the intermediate standard would likely have produced a different verdict by the jury.

“Unlike my colleagues, I conclude that a reasonable juror could have rendered a different verdict with the instructions framed correctly in terms of a reasonable potential threat to public safety,” Griffin wrote.

He added that in all other respects, he concurred with Donald and Gibbons but would have reversed McCalla’s decision and remanded the case “for further proceedings applying the correct law.”

Earlier this year the district implemented a cover charge of $10 to get on the street through one of five entrances after 10 p.m. on Saturdays. The cover charge came with a $7 rebate through Beale Street Bucks that could be used at any Beale Street business.

It was a reaction to several stampedes in the district during late night-early morning hours.

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