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Case Name Cole v. Memphis PN-TN-0002
Docket / Court 2:13-cv-02117 ( W.D. Tenn. )
State/Territory Tennessee
Case Type(s) Policing
Case Summary
This is a case about a Memphis Police Department (MPD) policy that resulted in the use of excessive force and unlawful arrests. On February 25, 2013, an officer of the MPD and a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) filed this class action lawsuit against ... read more >
This is a case about a Memphis Police Department (MPD) policy that resulted in the use of excessive force and unlawful arrests. On February 25, 2013, an officer of the MPD and a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) filed this class action lawsuit against the City of Memphis and six MPD police officers in the District Court for the Western District of Tennessee. The plaintiffs sued on behalf of themselves and similarly situated persons for violations of their Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983, as well as for negligence under the Tennessee Governmental Tort Liability Act. Represented by private counsel, the plaintiffs sought compensatory damages, punitive damages, fees and costs, and injunctive relief to stop Memphis from continuing this practice. The case was assigned to Chief Judge Jon McCalla.

The "Beale Street Sweep"
The MPD had a practice known as the "Beale Street Sweep," where it would order all persons to immediately leave the sidewalks of Beale Street, even though there was nothing threatening the safety of the public or MPD police officers. This was typically early on Saturday and Sunday mornings, or during weekday entertainment events. The complaint stated that Memphis knew this incited hostile behavior among its police officers. The complaint additionally alleged that in the course of implementing this policy, the MPD assaulted, employed excessive force against, unlawfully detained and arrested, and fabricated criminal charges against numerous innocent people in an attempt to conceal their own unlawful conduct.

The first plaintiff, an off-duty MPD officer, alleges that he was assaulted by the MPD while eating pizza outside of a club. Several MPD officers approached him, shouting "didn't we tell you to get off the street?" (the complaint claims he was not previously told this). The complaint goes on to say the police "viciously attack[ed]" him, slamming his body into a police vehicle with enough force to dent it, arresting him, and preparing fabricated charges against him. The MPD dismissed the charges shortly after.

The other plaintiff, an off-duty ATF agent, was arrested after failing to gain entry to a club. The MPD confronted him and a family member after they were turned away, then arrested him for public intoxication. The complaint emphasizes that he was at no point intoxicated, and he was released immediately after his supervisor arrived on the scene.

Both of these events occurred during Beale Street Sweeps. Plaintiffs claimed the sweeps violated their Fourteenth Amendment right to "to remain in a public place with no apparent purpose and to travel locally through public spaces and roadways," as well as their Fourth Amendment right against excessive force and unreasonable seizure.

On April 4, 2013, two of the defendant officers moved to dismiss. Another followed suit on May 16, and another on May 31.

On June 4, 2013, Judge McCalla granted the first motion in part, dismissing the Fourteenth Amendment claim against the defendant on the grounds that his actions would more properly be analyzed under the Fourth Amendment. The Court denied, however, that plaintiffs had failed to state a claim. He granted the other two motions on the same grounds on June 6 and July 10.

The Court Grants Class Certification
On November 27, 2013, plaintiffs moved for class certification. After 10 months of heated discovery, the Court granted class certification under Rule 23(b)(2) on September 29, 2014. He allowed plaintiffs' definition of the class as "[a]ll 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." 2014 WL 8508560.

The Court Mostly Denies Summary Judgment for the Defendants
Both parties subsequently moved for summary judgment on October 27, 2014. That same day, the plaintiffs voluntarily dismissed their claims against the individual MPD officers, leaving the City of Memphis as the lone defendant.

Judge McCalla granted in part the city's motion for summary judgment on January 18, 2015. 97 F.Supp.3d 947 (2015 WL 1567824). The plaintiffs had previously conceded that the record and case law did not support their claims for failure to train, investigate or discipline; negligence under the Governmental Tort Liability Act; and punitive damages. Consequently, Judge McCalla granted the motion for the defendant on those claims. However, he denied summary judgment against the plaintiffs on their Fourth and Fourteenth Amendment claims as well as their municipal liability claims. He found that the plaintiffs had a Fourteenth Amendment right to travel that was potentially violated prior to their seizure. Additionally, genuine questions of fact remained on whether their Fourth Amendment rights had been violated and on whether the city was generally liable.

A Jury Returns a Verdict for the Plaintiffs
A jury trial began two days later on January 20, 2015. The jury returned a verdict for one of the individual plaintiffs (the MPD officer) but not the other (the ATF agent). In regards to the class, the jury found that: (1) Memphis had “through its police officers, carried out a custom and/or well-established practice...of preventing persons from standing and/or walking on the sidewalk or street of Beale Street;" (2) this well-established practice “occur[ed] without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety;” (3) this was “the cause of persons being prevented from standing and/or walking on the sidewalk or street of Beale Street;” and (4) “since at least 2007, thousands of persons were cleared off of Beale Street pursuant to” that practice.

On February 13, 2015, Memphis moved to decertify the class on the basis that class membership was "unascertainable without a full adjudication on the merits of each potential member's claim." The Court denied this motion on May 28, though it granted a modification to the class definition by defining what the "Beale Street Sweep" was. 2015 WL 3442277. Simultaneously, it denied plaintiffs' October 27 motion for summary judgment.

The Court Enters Judgment for the Plaintiffs and Grants the Injunction
On June 3, 2015, Judge McCalla entered judgment for the plaintiffs and granted declaratory and injunctive relief. 108 F.Supp.3d 593 (2015 WL 3507110). The Court declared that "since at least 2007, the City of Memphis violated the constitutional rights of thousands of persons who were subjected to 'the Beale Street Sweep,' that is, 'the 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 to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.'" The Court also permanently enjoined the city from engaging in the Beale Street Sweep, issuing several instructions as orders to ensure it would not happen. The Court further determined that a monitor would be appointed to observe and report on the MPD's progress for one year after appointment.

Memphis Appeals and the Court Grants Fees to Plaintiffs
On July 6, 2015, Memphis appealed the Court's injunctive order, as well as the jury's verdict, the Court's earlier ruling on summary judgment, and the Court's granting of class certification, to the Sixth Circuit.

On August 27, 2015, Judge McCalla granted attorneys' fees, reimbursement of expenses, entry of judgment, and post-judgment interest to the plaintiffs. 2015 WL 5076974.

Memphis Appeals Again and the Court Stays the Judgment
On September 11, 2015, Memphis filed notice of a new appeal to the Sixth Circuit of the August order and judgment. It also moved to stay the injunction, declaratory order, judgment, and monetary relief pending resolution by the Sixth Circuit. The court granted the motion in part on October 28, allowing a stay of the judgment and monetary damages, but denying a stay of the injunctive and declaratory relief.

The Sixth Circuit Denies the Appeals
A Sixth Circuit panel consisting of Circuit Judges Julia Gibbons, Bernice Donald, and Richard Griffin heard oral arguments for both appeals concurrently on June 14, 2016. On October 17, 2016, Judge Gibbons delivered an opinion joined by Judge Donald and joined in part by Judge Griffin (who also filed an opinion concurring in part and dissenting in part). She first held that plaintiffs' Fourteenth Amendment right was violated, and that it should be subject to intermediate scrutiny. Even though it was subject to strict scrutiny in the District Court, that was a "harmless error" (this was the only part on which the dissenting in part opinion disagreed). Next, Judge Gibbons found that there was no abuse of discretion in certifying the class of people subject to the Beale Street Sweep. Although Memphis had claimed "ascertainability" was a requirement for class certification, Judge Gibbons held that, in this case, the "precise identity of each class member need not be ascertained." Finally, she addressed the City's claim that there was "insufficient evidence" that the Beale Street Sweep was the "moving force" behind the plaintiffs' arrest. She pointed out that Memphis had failed to preserve this issue procedurally, but even if it had, it would fail on the merits because there was sufficient evidence. 839 F.3d 530 (2016 WL 6068911).

On October 31, 2016, Memphis petitioned for a rehearing by the Sixth Circuit en banc. The petition was denied on January 4, 2017, and the Sixth Circuit issued a mandate on January 12.

The District Court Lifts the Stay of the Judgment
Back in the District Court, the plaintiffs moved to lift the stay of judgment and moved for additional attorneys' fees and post-judgment interest on January 25, 2017. The Court granted the motion to lift the stay on February 28, 2017, holding that it lacked the authority to stay the mandate of the Court of Appeals. But it held off on granting the motion for supplemental fees, instead ordering Memphis to file a response. 2017 WL 782929.

Memphis Appeals Yet Again, Unsuccessfully
Undeterred, Memphis appealed the District Court's order on March 16, 2017. It also filed a petition for a writ of certiorari from the Supreme Court on April 7, 2017, hoping to obtain review of the Sixth Circuit's October 17 decision affirming the District Court's judgment.

The Supreme Court denied the City's petition on June 7, 2017. Memphis then voluntarily dismissed its appeal to the Sixth Circuit on June 13.

The Court Grants Supplemental Fees
On July 31, 2017, the Court entered an order taxing costs, indicating that the parties had come to an agreement on expenses. On August 4, 2017, Judge McCalla issued an order and judgment granting attorneys' fees, enhancements of those fees, and post-judgment interest to the plaintiffs.

As of April 10, 2021, there is no indication that Memphis has not adhered to the injunction or paid the fees. The case is likely not ongoing.

Jack Kanarek - 04/10/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process: Substantive Due Process
Right to travel
Unreasonable search and seizure
Content of Injunction
Implement complaint/dispute resolution process
Monitoring
Training
Defendant-type
Jurisdiction-wide
General
Excessive force
Failure to discipline
Failure to supervise
Failure to train
False arrest
Over/Unlawful Detention
Pattern or Practice
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
State law
Defendant(s) City of Memphis
Plaintiff Description "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."
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Declaratory Judgment
Attorneys fees
Damages
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 2015 - n/a
Filed 02/25/2013
Case Ongoing No reason to think so
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
W.D. Tenn.
10/28/2018
2:13-cv-02117-JPM-dkv
PN-TN-0002-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
W.D. Tenn.
02/25/2013
Class Action Complaint for Damages, Complaint for Damages for Deprivation of Constitutional Rights and Injunctive Relief [ECF# 1 & 1-1]
PN-TN-0002-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Tenn.
06/04/2013
Order Granting in Part and Denying in Part Defendants Robert Forbert and John Faircloth's Motion to Dismiss [ECF# 22] (2013 WL 2443242)
PN-TN-0002-0004.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Tenn.
09/29/2014
Order Granting in Part and Denying in Part Plaintiffs' Motion for Class Certification [ECF# 88] (2014 WL 8508560)
PN-TN-0002-0002.pdf | WESTLAW | Detail
Source: Westlaw
W.D. Tenn.
01/18/2015
Order Granting in Part and Denying in Part Defendant City of Memphis' Motion for Summary Judgment [ECF# 121] (97 F.Supp.3d 947)
PN-TN-0002-0003.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
W.D. Tenn.
05/28/2015
Order Denying in Part and Granting in Part Motion of the City of Memphis to Decertify or Modify Class [ECF# 160] (2015 WL 3442277)
PN-TN-0002-0005.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Tenn.
06/03/2015
Order Granting Declaratory and Injunctive Relief [ECF# 161] (108 F.Supp.3d 593)
PN-TN-0002-0006.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Tenn.
08/27/2015
Order Granting Monetary Damages, Prejudgment Interest, Postjudgment Interest, and Attorneys' Fees [ECF# 188] (839 F.3d 530)
PN-TN-0002-0007.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Tenn.
02/28/2017
Order Granting Motion to Lift Partial Stay of Judgment & Concerning Motion for Supplemental Award of Attorneys' Fees [...] [ECF# 250]
PN-TN-0002-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Tenn.
08/04/2017
Order Granting in Part and Denying in Part Motion for Supplemental Award of Attorneys' Fees, Reimbursement of Expenses, and Post-Judgment Interest [ECF# 274]
PN-TN-0002-0009.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
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Judges McCalla, Jon Phipps (W.D. Tenn.) show/hide docs
PN-TN-0002-0002 | PN-TN-0002-0003 | PN-TN-0002-0004 | PN-TN-0002-0005 | PN-TN-0002-0006 | PN-TN-0002-0007 | PN-TN-0002-0008 | PN-TN-0002-0009 | PN-TN-0002-9000
Vescovo, Diane K. (W.D. Tenn.) [Magistrate] show/hide docs
PN-TN-0002-9000
Plaintiff's Lawyers Meredith, Bryan (Tennessee) show/hide docs
PN-TN-0002-0001 | PN-TN-0002-9000
Spence, Robert L. J. Jr. (Tennessee) show/hide docs
PN-TN-0002-0001 | PN-TN-0002-9000
Whitwell, Emmett Lee (Tennessee) show/hide docs
PN-TN-0002-9000
Defendant's Lawyers Bearman, Leo Maurice Jr. (Tennessee) show/hide docs
PN-TN-0002-9000
Busey, Zachary B (Tennessee) show/hide docs
PN-TN-0002-9000
Davis, Barbaralette G (Tennessee) show/hide docs
PN-TN-0002-9000
Fletcher, J Michael (Tennessee) show/hide docs
PN-TN-0002-9000
Godwin, Deborah E. (Tennessee) show/hide docs
PN-TN-0002-9000
McKinney, Mary Elizabeth (Tennessee) show/hide docs
PN-TN-0002-9000
Patterson, Lori H. (Tennessee) show/hide docs
PN-TN-0002-9000
Ryall, John Michael (Tennessee) show/hide docs
PN-TN-0002-9000
Saleem, Zayid A (Tennessee) show/hide docs
PN-TN-0002-9000

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