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Brindley v. City of Memphis

United States Court of Appeals, Sixth Circuit

August 13, 2019

John Brindley, Plaintiff-Appellant,
v.
City of Memphis, Tennessee; Michael Rallings, in his official capacity as Director for the Memphis Police Department; Daniel Barham, individually and in his official capacity as Lieutenant for the Memphis Police Department, Defendants-Appellees.

          Decided and Filed: July 24, 2019 [*]

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:17-cv-02849-Samuel H. Mays, Jr., District Judge. [**]

         ARGUED:

          Nathan W. Kellum, CENTER FOR RELIGIOUS EXPRESSION, Memphis, Tennessee, for Appellant.

          Barbaralette G. Davis, CITY OF MEMPHIS, Memphis, Tennessee, for Appellees City of Memphis and Michael Rallings.

          Mary Elizabeth McKinney, GODWIN, MORRIS, LAURENZI & BLOOMFIELD, P.C., Memphis, Tennessee, for Appellee Daniel Barham.

         ON BRIEF:

          Nathan W. Kellum, CENTER FOR RELIGIOUS EXPRESSION, Memphis, Tennessee, for Appellant.

          Barbaralette G. Davis, CITY OF MEMPHIS, Memphis, Tennessee, for Appellees City of Memphis and Michael Rallings.

          Mary Elizabeth McKinney, Deborah Godwin, GODWIN, MORRIS, LAURENZI & BLOOMFIELD, P.C., Memphis, Tennessee, for Appellee Daniel Barham.

          Before: STRANCH and DONALD, Circuit Judges.

          OPINION

          Jane B. Stranch, Circuit Judge.

         Virginia Run Cove is a privately owned street that offers access to the parking lots of several businesses, including a Planned Parenthood clinic, in Memphis, Tennessee. John Brindley seeks a preliminary injunction requiring the City of Memphis to let him stand near the entrance to this clinic and spread his pro-life message. He argues that Virginia Run Cove is a traditional public forum and that his exclusion from the street violates the First Amendment. The district court denied his motion for a preliminary injunction, and he now appeals.

         The Supreme Court has long held that public streets are traditional public fora. And even when a street is privately owned, it remains a traditional public forum if it looks and functions like a public street. The roadway at issue here-which connects directly to a busy public thoroughfare, displays no sign of private ownership, and is used by the general public to access many nearby buildings, including the clinic, a gas station, a church, and a U.S. Immigration and Customs Enforcement (ICE) office-has all the trappings of a public street. We therefore REVERSE the district court's denial of Brindley's preliminary injunction motion.

         I. BACKGROUND

         A. Factual History

         In 1999, 5325 Summer Avenue Properties, LLC (SAP) bought the land on which Virginia Run Cove (the Cove) and its surrounding businesses now sit. In January 2007, SAP signed a final plat that subdivided the land into six units. On the last page of the plat, Curtis Wegener, SAP's property manager, signed an "owner's certificate" that stated:

We, 5325 Summer Ave. Prop., the undersigned owner of the property shown hereon, hereby adopt this plat as [our] plan of subdivision, and dedicate the streets, right-of-ways, easements and rights of access as shown to the public use forever . . . .

         A few weeks after he signed the final plat, Wegener also signed a quitclaim deed that transferred ownership of the Cove-but not the rest of the land-from SAP to 5325 Summer Avenue Property ...


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