NOT RECOMMENDED FOR PUBLICATION File Name: 19a0375n.06 No. 18-5753 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN BRINDLEY, ) FILED ) Jul 24, 2019 Plaintiff-Appellant, ) DEBORAH S.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 ...
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