John Brindley v. City of Memphis, Tenn.
Opinion
*465 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 Owners Association, Inc. That deed described the Cove this way:
A Private Drive designated as COMMON AREA SPACE on the Final Plan of 5325 Summer Avenue P.D., as shown on plat of record in Plat Book 230, Page 56, in the Register's Office of Shelby *466 County, Tennessee, to which plat reference is hereby made for a more particular description of said property ....
In the ensuing years, several businesses bought lots on either side of the Cove. Those businesses now include a gas station, an auto repair shop, a church, an ICE office, and the Planned Parenthood clinic.
Today, the Cove is a two-lane asphalt street that provides access to the parking lots of these buildings. The street has no sidewalks, and grassy medians with manicured hedges separate the Cove from the parking lots. The Cove turns directly off Summer Avenue, a busy public thoroughfare. There are no signs or other indicators notifying the public that the Cove is privately owned. 1
Planned Parenthood opened its clinic adjacent to the Cove on May 1, 2017. Early that morning, Brindley stood near the entrance to the clinic's parking lot and began promoting his pro-life message. A Planned Parenthood employee met him outside, told him that the Cove was a private street, and asked him to leave. He refused to leave, and eventually a Memphis police officer arrived at the scene. The officer spoke to the Planned Parenthood employee, who repeated that the Cove was a private street. After Brindley disputed that characterization, the officer contacted his supervisor, Lieutenant Daniel Barham. Barham spoke to his own superior about the Cove's status and confirmed that it was privately owned. He then drove to the scene and ordered Brindley to relocate to Summer Avenue, which lies several hundred feet away from the clinic. Brindley abandoned his effort and left the area.
B. Proceedings Below
Brindley filed this suit against the City of Memphis, Michael Rallings in his official capacity as Director of the Memphis Police Department, and Barham in his individual capacity (collectively, the Appellees). He claimed that (1) his exclusion from the Cove violated his First Amendment rights because the Cove is a traditional public forum, and (2) the City of Memphis violated his due process rights by adopting an unconstitutionally vague "policy" of excluding certain speakers from traditional public fora. 2 Shortly thereafter, Brindley sought a preliminary injunction requiring the Appellees to give him access to the Cove. The district court found that Brindley had not demonstrated a strong likelihood of success on the merits and denied his motion. He timely appeals.
II. ANALYSIS
A. Preliminary Injunction Standard
District courts weigh four factors when deciding whether to grant a preliminary injunction: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction."
*467
Hall v. Edgewood Partners Ins. Ctr.
,
We typically review a district court's weighing of these factors for abuse of discretion and its legal conclusions, including its assessment of the plaintiff's likelihood of success on the merits, de novo.
Bays v. City of Fairborn
,
B. First Amendment Claim
1. Traditional Public Forum
a. The test
All parties agree that Brindley's speech is protected under the First Amendment; this dispute turns on the Cove's forum classification. "Forum analysis requires a court first to categorize a location (or forum) to which a speaker seeks access for the purpose of expressive activity, and then to analyze the government's restriction on speech against the constitutional standard that governs in that forum."
Agema v. City of Allegan
,
Two considerations guide our analysis. The first is that the Supreme Court has "repeatedly referred to public streets as the archetype of a traditional public forum."
Frisby v. Schultz
,
*468
The second consideration is that a street does not lose its status as a traditional public forum simply because it is privately owned. If the street looks and functions like a public street, then it is a traditional public forum regardless of who holds title to the street.
See, e.g.
,
Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C.
,
There are some exceptions to these rules in a very limited number of cases. In
Greer v. Spock
, the Supreme Court found that a sidewalk inside a military compound was a nonpublic forum.
Relying on
Kokinda
's recognition that "[t]he mere physical characteristics of the property cannot dictate forum analysis," the Appellees urge us to turn our attention away from the Cove's objective characteristics and focus instead on the references to private ownership in the Cove's underlying property records. In context, however,
Kokinda
stands for a much narrower principle: the
appearance
of a street does not make it a traditional public forum if its
function
is not that of a public street. The
Kokinda
Court dismissed the plaintiff's reliance on the "physical characteristics" of the post office's internal sidewalk because its function was simply to create a passageway from the parking lot to the building's entrance, not to facilitate the daily commerce and life of the surrounding neighborhood.
Our caselaw supports this common-sense approach. In
United Church of Christ
, we found that a privately owned sidewalk encircling a sports complex was a traditional public forum for two reasons.
These cases carry a simple takeaway: if a privately owned street (1) is physically indistinguishable from a public street and (2) functions like a public street, then it is a traditional public forum. We next apply these criteria to the facts of this case.
As in
McGlone
, the Cove is "physically indistinguishable" from a public street.
b. The dedication in the final plat
The district court also considered whether the Cove is a "dedicated public right-of-way" under Tennessee property law. As an initial matter, we do not defer to state property law in determining whether a contested forum deserves First Amendment protection. Evidence of the Cove's dedication to public use under Tennessee law is not necessary to show that the street is a traditional public forum; but state property law can provide additional evidence of its status as a public forum.
See, e.g.
,
Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas
,
The Cove's property records reinforce the public character of the street. On the last page of SAP's final plat, Wegener 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 ....
This dedication cuts against the Appellees' claim that the Cove is for only limited, private use.
See
Venetian Casino Resort
,
L.L.C.
,
The Appellees try to sidestep this dedication in two ways. First, they argue that "if certain language on the Final Plat is interpreted as a dedication to the public, such dedication is limited to a specific public purpose, to wit, the City's utility easements." But this claim ignores the plain language of the dedication, which includes not only the property's easements but also its "streets, right-of-ways ... and rights of access as shown" in the plat.
The Appellees next argue that even if the final plat dedicated the Cove to public use, the quitclaim deed signed by Wegener a few weeks later revoked the dedication. The quitclaim deed described the Cove as:
A Private Drive designated as COMMON AREA SPACE on the Final Plan of 5325 Summer Avenue P.D., as shown on plat of record in Plat Book 230, Page 56, in the Register's Office of Shelby County, Tennessee, to which plat reference is hereby made for a more particular description of said property ....
The Appellees suggest that this language "could constitute a revocation of [the final plat's] dedication where, as here, the [deed]. . . refers to the Final Plat, but not explicitly to the dedication." But the case cited to support this claim,
Smith v. Black
, found only that the "conveyance of [a] subject property
may
effect a revocation" if the conveyance does not "recognize[ ] the existence of the dedication (offer), as by reference in the description of the property."
The next question is whether the public "accepted" the final plat's dedication. Ordinarily, "[t]o establish a dedicated public right-of-way, there must be a showing of an offer of dedication and a public acceptance of the offer. Both the offer of dedication and the public acceptance may be express or implied."
Gentry v. McCain
,
Even if the quitclaim transfer had not made the dedication irrevocable, the public's longstanding use of the Cove would serve as an implied acceptance of the final plat's dedication. This is consistent with the purpose of a dedicated public right-of-way in the context of land development. If a street is not dedicated to public use, then owners of adjacent lots-in many cases, business owners whose lots are generally open to the public-lose the ability to facilitate easy access to their properties. That is why developers typically dedicate common spaces to public use.
See, e.g.
,
Wolfe
,
2. Conclusion
For all the reasons explained above, the Cove is a traditional public forum. It looks and functions like a public street, and the final plat dedicated the street to public use forever. Because the Cove is a traditional public forum, the Appellees' restriction on Brindley's speech must be "necessary to serve a compelling state interest" and "narrowly drawn to achieve that interest."
Miller
,
C. Remaining Preliminary Injunction Factors
Because Brindley has shown a strong likelihood of success on the merits of his First Amendment claim, the remaining preliminary injunction factors fall into place. "This is so because ... the issues of the public interest and harm to the respective parties largely depend on the constitutionality of the [challenged action]."
Bays
,
III. CONCLUSION
We REVERSE the district court's denial of Brindley's preliminary injunction motion and REMAND for proceedings consistent with this opinion.
The Appellees note that the Cove's street sign is blue, whereas publicly owned streets ordinarily have green signs. But apart from this difference in color, nothing on the sign indicates that the Cove is privately owned.
Brindley relegates his due process claim to a footnote. He has forfeited this argument on appeal by failing to develop it.
See, e.g.
,
Hensley v. Gassman
,
Reference
- Full Case Name
- 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.
- Cited By
- 3 cases
- Status
- Unpublished