John Brindley v. City of Memphis, Tenn. , 934 F.3d 461 ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0375n.06
No. 18-5753
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN BRINDLEY, ) FILED
) Jul 24, 2019
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. )
) ON APPEAL FROM THE
CITY OF MEMPHIS; MICHAEL RALLINGS, in his ) UNITED STATES DISTRICT
official capacity as Director for the Memphis Police ) COURT FOR THE WESTERN
Department; DANIEL BARHAM, individually and in ) DISTRICT OF TENNESSEE
his official capacity as Lieutenant for the Memphis )
Police Department, ) OPINION
)
Defendants-Appellees. )
BEFORE: STRANCH and DONALD, Circuit Judges.*
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 Honorable Damon J. Keith, a member of the original panel, passed away on April 28, 2019. Judge
Stranch and Judge Donald act as a quorum pursuant to 28 U.S.C. § 46(d).
No. 18-5753, Brindley v. City of Memphis, et al.
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 County, Tennessee, to which plat reference is hereby made for
a more particular description of said property . . . .
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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
The Appellees note that the Cove’s street sign is blue, whereas publicly owned streets ordinarily
1
have green signs. But apart from this difference in color, nothing on the sign indicates that the Cove is
privately owned.
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(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.” Hall v. Edgewood Partners Ins. Ctr., 878 F.3d 524, 526–27 (6th Cir. 2017)
(citation omitted).
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, 668 F.3d 814, 819 (6th Cir. 2012). But in First Amendment
cases, “the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success
2
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, 693 F.3d 681, 687 n.6 (6th Cir. 2012) (“Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed [forfeited].” (citation omitted)). At any rate, because we find that his exclusion likely violated the
First Amendment—and because a due process violation would require an identical remedy—we need not
reach his due process claim.
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on the merits. 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].” Id. (citation and internal
quotation marks omitted). For that reason, our review of the district court’s decision here—which
rests on its conclusion that Brindley is unlikely to succeed on the merits of his First Amendment
claim—is de novo. Id.
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, 826 F.3d 326, 335 (6th Cir. 2016)
(Merritt, J., dissenting in part) (citation and internal quotation marks omitted). Courts recognize
four types of fora: (1) the traditional public forum, (2) the designated public forum, (3) the limited
public forum, and (4) the nonpublic forum. Miller v. City of Cincinnati, 622 F.3d 524, 534–36
(6th Cir. 2010). Restrictions on speech in traditional or designated public fora receive strict
scrutiny, which means they must be “necessary to serve a compelling state interest” and “narrowly
drawn to achieve that interest.” Id. at 534 (citation and internal quotation marks omitted).
Restrictions on speech in limited or nonpublic fora, however, need only be “reasonable in light of
the purpose served by the forum and . . . viewpoint neutral.” Id. at 535 (citation and internal
quotation marks omitted). The first question, then, is whether the Cove is a traditional public
forum; Brindley says it is, and the Appellees say it is not.
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No. 18-5753, Brindley v. City of Memphis, et al.
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, 487 U.S.
474, 480 (1988); see also Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d 506, 517 (6th Cir. 2012)
(noting that “streets and parks” have for “time out of mind . . . been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions” (citation and internal
quotation marks omitted)). In fact, the presumption that streets are traditional public fora is so
strong that, ordinarily, “[n]o particularized inquiry into the precise nature of a specific street is
necessary” because “all public streets are held in the public trust and are properly considered
traditional public fora.” Frisby, 487 U.S. at 481; see also Dean v. Byerley, 354 F.3d 540, 549–50
(6th Cir. 2004) (recognizing that “the Supreme Court considers streets . . . to be public fora for
purposes of First Amendment scrutiny” and assuming that the street at issue was a traditional
public forum without further analysis).
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., 518 U.S. 727, 792 (1996) (Kennedy, J.,
concurring in part) (noting that public fora are not “limited to property owned by the government”
and, in many cases, “title to some of the most traditional of public fora, streets and sidewalks,
remains in private hands”); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (“Wherever
the title of streets and parks may rest, they have immemorially been held in trust for the use of the
public . . . .”); McGlone v. Bell, 681 F.3d 718, 733 (6th Cir. 2012) (finding sidewalk was a public
forum even though it was privately owned because it looked and functioned like a public
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sidewalk); United Church of Christ v. Gateway Econ. Dev. Corp. of Greater Cleveland, 383 F.3d
449, 452–53 (6th Cir. 2004) (same).
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. 424 U.S. 828, 837–38 (1976). The Court emphasized the “special constitutional function
of the military in our national life” and the military’s associated “special interest” in regulating
speech “within the confines of [a] military reservation.” Id. at 837. The Court further
distinguished the compound’s internal sidewalks from “a municipality’s open streets, sidewalks,
and parks.” Id. at 835. Similarly, in United States v. Kokinda, the Court decided that an internal
sidewalk owned by the Postal Service, which led “only from the parking area to the front door of
the post office,” was a nonpublic forum. 497 U.S. 720, 727 (1990). The Court rejected the
plaintiff’s claim that this internal sidewalk was “not distinguishable from the municipal sidewalk
across the parking lot from the post office’s entrance,” noting that “[t]he mere physical
characteristics of the property cannot dictate forum analysis.” Id. The Court reasoned that the
internal sidewalk “was constructed solely to assist postal patrons to negotiate the space between
the parking lot and the front door of the post office, not to facilitate the daily commerce and life
of the neighborhood or city.” Id. at 728. The sidewalk on the opposite end of the parking lot, by
contrast, ran “parallel to the road” and served as “a public passageway.” Id. at 727.
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
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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. Id. at 728. But the Court identified that function using
a common-sense appraisal of the sidewalk’s location and purpose, not by resort to the precise
language used in the building’s property records.
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. 383 F.3d at 452. First, the sidewalk’s appearance was indistinguishable from a public
sidewalk: it “blend[ed] into the urban grid, border[ed] the road, and look[ed] just like any public
sidewalk.” Id. Second, it functioned like a public sidewalk: rather than simply “leading to the rest
of the Complex,” it “contribute[d] to the City’s downtown transportation grid and [wa]s open to
the public for general pedestrian passage.” Id. For the same reason, we decided in McGlone that
a privately owned sidewalk on a university campus was a traditional public forum. 681 F.3d at
733. Citing Church of Christ, we held that “[b]ecause the perimeter sidewalks at [the university]
blend into the urban grid and are physically indistinguishable from public sidewalks, they
constitute traditional public fora.” Id. at 732–33.
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. 681 F.3d
at 733. It is a paved, two-lane roadway with no signs or other specific indicators signaling its
private ownership. Likewise, the Cove serves the same function as most public streets: it gives
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cars and pedestrians access to the businesses on the Cove. And as in Church of Christ, it “blends
into the urban gird” by virtue of its direct intersection with Summer Avenue, a busy public
thoroughfare. 383 F.3d at 452. More fundamentally, the photos of the Cove in the record
demonstrate that a reasonable member of the public visiting one of the many buildings on the street
would encounter nothing to indicate that he or she had turned onto a private drive. See, e.g., United
States v. Grace, 461 U.S. 171, 180 (1983) (finding sidewalk next to the Supreme Court building
was a traditional public forum because “[t]here [wa]s no separation, no fence, and no indication
whatever to persons stepping from the street to the curb . . . that they ha[d] entered some special
type of enclave”). And that impression would apply equally to Brindley, to a patron of the gas
station, to a visitor at the nearby church, or to a protester outside the ICE office on the same street.
The Cove looks and functions like a public street, and that is enough to classify it as a traditional
public forum.
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 support for the conclusion
that the Cove deserves First Amendment protection. See, e.g., Venetian Casino Resort, L.L.C. v.
Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 947 (9th Cir. 2001) (finding that a sidewalk was
a traditional public forum because of the sidewalk’s “historically public character . . . , the
sidewalk’s continued use by the general public, the fact that the sidewalk is connected to and
virtually indistinguishable from the public sidewalks to its north and south, and the dedication of
the sidewalk to public use” (emphasis added)).
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No. 18-5753, Brindley v. City of Memphis, et al.
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., 257 F.3d at 945–46 (“Property that is dedicated to public use
is no longer truly private. Although the owner of the property retains title, by dedicating the
property to public use, the owner has given over . . . the right to exclude others.” (citation and
internal quotation marks omitted)).
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
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the dedication (offer), as by reference in the description of the property.” 547 S.W.2d 947, 951
(Tenn. Ct. App. 1976) (emphasis added). Even assuming that Smith’s inconclusive dicta is
persuasive authority, it does not help the Appellees. In Smith, the property owners acquired a deed
“that did not contain an express reservation of easements, but described the property as being the
same as that conveyed in the previous deed which did contain the express reservations.” Id. at
952. The Smith court found this language sufficient to preserve the dedication. Id. The court’s
note that a conveyance “may” need to recognize the dedication “as by reference in the description
of the property” meant only that the conveyance should refer to the record containing the
dedication, not that the conveyance must expressly include this dedication. See id. That is what
the deed’s language did here: it identified the dedicated plat and then stated, “[This] plat reference
is hereby made for a more particular description of said property.” The direct reference to the plat
served to incorporate its contents, including the dedication. See, e.g., Brewer v. Brewer,
869 S.W.2d 928, 932 (Tenn. Ct. App. 1993) (defining “[i]ncorporation by reference” as “[t]he
method of making one document of any kind become a part of another separate document by
referring to the former in the latter, and declaring that the former shall be taken and considered as
a part of the latter the same as if it were fully set out therein”).
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, 329 S.W.3d 786, 793–94 (Tenn. Ct. App. 2010)
(quoting West Meade Homeowners Ass’n, Inc. v. WPMC, Inc., 788 S.W.2d 365, 366–67 (Tenn.
Ct. App. 1989)). But there is an exception to this rule. When a developer purchases a property,
records a final plat that dedicates the property to public use, and then sells the property to the
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public, the sale itself creates “an irrevocable and immediate dedication” without any additional
showing of public acceptance. Varallo v. Metro. Gov’t of Nashville & Davidson Cnty., 508 S.W.2d
342, 345 (Tenn. Ct. App. 1973); see also Wolfe v. Jarnigan, No. C.A. 16, 1988 WL 138934, at *2
(Tenn. Ct. App. Dec. 30, 1988) (“[A] sale of lots with reference to such plat, or describing lots as
bounded by streets, etc., will amount to an irrevocable and immediate dedication, binding on both
vendor and vendee[] . . . without any act of acceptance on the part of the public.”). In this case,
SAP bought the land, subdivided it into lots for sale to businesses, recorded a final plat that
identified the Cove as running alongside each lot, dedicated the Cove to public use forever, and
then sold the Cove to the property owners’ association as common open space. On these facts, the
dedication became complete at the moment of transfer.
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 in their final plats. See, e.g., Wolfe, 1988 WL 138934, at *2 (explaining that a street’s
dedication to public use “operates . . . not only in favor of those who buy from the donor, relying
upon the existence of the road, street or alley, but also in favor of all who buy on the general plan
of the locality” (quoting Long v. Garrison, 1 Tenn. App. 211, 216 (1925) (emphasis added))). This
interpretation is also in line with the settled expectations of the Cove’s property owners and
patrons. See, e.g., Payton v. Richardson, 49 Tenn. App. 514, 520 (1961) (noting that public
acceptance of a dedication is implied “where it was received and acted upon by the public for such
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length of time that the public accommodation and private rights would be materially affected by a
denial or interruption of the enjoyment of the easement” and adding that “[t]he manner of its use
is more material than the length of time the use has continued”).
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, 622 F.3d at 534 (citation and internal quotation marks omitted). The Appellees do not
claim on appeal that the restriction at issue here would survive strict scrutiny, nor could they.
There is no compelling state interest in excluding demonstrators from the Cove, and even if there
were, the Appellees offer no argument that the disputed restriction is narrowly tailored to that
interest.
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, 668 F.3d at 819 (citation omitted). Restricting
a citizen’s “First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury,” and “no substantial harm to others can be said to inhere [in the
restriction’s] enjoinment.” Id. at 825 (citation and internal quotation marks omitted). And “it is
always in the public interest to prevent violation of a party’s constitutional rights.” Id. (citation
omitted).
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III. CONCLUSION
We REVERSE the district court’s denial of Brindley’s preliminary injunction motion and
REMAND for proceedings consistent with this opinion.
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