City Can’t Sweep People |Off Street in Wee Hours

(CN) — Memphis police cannot clear people off the street regularly at 3 a.m. without violating the Constitution, the Sixth Circuit ruled.

As described in the Oct 17 ruling, Lakendus Cole, a police officer, was walking on Beale Street in Memphis after leaving a night club in August 2012. His fellow officers arrested him, denting a squad car in the process.

Cole was charged with disorderly conduct, resisting stop/arrest and felony vandalism. While the charges were dropped, Cole was reassigned from the organized crime unit to traffic patrol.

He filed a class action lawsuit against the city, claiming the automatic sweep violated his constitutional right to intrastate travel.

Cole claimed that the sweep led to police officers being "highly aggressive, agitated, frenetic, and confrontational towards individuals lawfully standing and walking on Beale Street."

The jury ruled in Cole's favor, finding that the city failed to consider whether the conditions on Beale Street posed a threat to public safety. He was awarded $35,000.

The city appealed, arguing that the policy should not have been found unconstitutional, and that the class should not have been since its members were not ascertainable.

Also, the city argued that the sweep was not the cause of Cole's arrest.

The Sixth Circuit ruled in Cole's favor in an opinion written by U.S. Circuit Judge Julia Smith Gibbons.

"The primary purpose of the Beale Street Sweep was to impede travel, and it resulted in the broad denial of access to a popular, two-block area of a public roadway and sidewalk," she wrote. "This is much more than an incidental or negligible inconvenience."

Gibbons noted that signs were posted regarding the sweep and that deputy police chief Arley Knight testified that the sweep took place "irrespective of emergencies."

She added that every member of this class does not need to be identified.

"Here, the plaintiffs seek a single remedy: an injunction prohibiting the City from reenacting the Beale Street Sweep," Gibbons wrote. "As the district court observed, this injunction provides the sole remedy necessary to protect the affected class."

The judge also refuted the city's argument that the sweep was not the reason for Cole's arrest.

"Two officers, including one of Cole's arresting officers, Chris Bing, testified that Cole was arrested because he did not leave the street when the police told him to move," she wrote.

U.S. Circuit Judge Richard Allen Griffin wrote a partially dissenting opinion.

"Law enforcement is tasked every day with maintaining public safety on Beale Street among thousands of intoxicated persons concentrated in a two-block area with a history of disorderly conduct, stampedes, fights, sexual assaults and gang violence," he wrote. "In that context, the City's decision to clear a two-block section of Beale Street for fewer than two hours in the early morning hours of some weekends may be narrowly tailored (just not the least restrictive means) to protect public safety."

Contacted by Courthouse News, Bruce McMullen, the city's chief legal officer said, "The City is currently evaluating its options including petitioning for an En Banc hearing."

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