source: Caselaw Access Project

license: Public Domain

text:
    Jeff COURTRIGHT, Plaintiff-Appellee, v. CITY OF BATTLE CREEK; Craig Wolf and Todd Rathjen, in their individual and official capacities, Defendants-Appellants.
    No. 15-1722
    United States Court of Appeals, Sixth Circuit.
    Argued: March 9, 2016
    Decided and Filed: October 14, 2016

      ARGUED: Paul D. Hudson, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Kalamazoo, Michigan, for Appellants. Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, Michigan, for Appellee. ON BRIEF: Paul D. Hudson, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Kalamazoo, Michigan, Brad H. Sysol, BATTLE CREEK CITY ATTORNEY’S OFFICE, Battle Creek, Michigan, for Appellants. Shawn C. Cabot, CHRISTOPHER TRAI-NOR & ASSOCIATES, White Lake, Michigan, for Appellee.
    Before: DAÜGHTREY, MOORE, and STRANCH, Circuit Judges.
   OPINION

' MARTHA CRAIG DAUGHTREY, Circuit Judge.

Prompted by a phone tip, the Battle Creek Police Department dispatched two of its police officers, defendants. Craig Wolf and Todd Rathjen, to a local hotel, leading to the arrest of plaintiff Jeff Courtright. Courtright then filed this 42 U.S.C, § 1983 suit against Officer Wolf, Officer Rathjen, and the City of Battle Creek, alleging claims of excessive force, false arrest, and municipal liability. The defendants filed a motion to dismiss all claims against them, but the district court denied the motion. The defendants now seek relief on interlocutory appeal, contending that they are entitled to qualified immunity on the excessive-force and false-arrest claims and that the municipal-liability claim fails as a matter of law. Because Courtright alleged a plausible claim that the officers violated his clearly established constitutional rights, we affirm the district court’s denial of the motion to dismiss the excessive-force and false-arrest claims. We also dismiss, for lack of jurisdiction, the appeal of the district court’s denial of the motion to dismiss the municipal-liability claim.

FACTUAL AND PROCEDURAL BACKGROUND

In response to a phone tip that Court-right had “come out of his room [at the Traveler’s Inn] with a gun and threatened to shoot” the dog of “another resident” at the hotel, Wolf and Rathjen were dispatched to the Traveler’s Inn. In his complaint, Courtright averred that he “was nowhere néar his room when the alleged incident was said to have taken place,” that he “attempted to tell Defendant Wolf that he was not in his room at the time the incident allegedly occurred, but was visiting friends,” and that he further attempted to tell Wolf that he did not “leav[e] his room with a gun and threaten[ ] to shoot any animal.” Wolf nevertheless arrested Courtright for felonious assault. In handcuffing Courtright in the course of the arrest, Wolf and Rathjen “forcefully grabbed Plaintiffs arms and pulled them behind Plaintiffs back,” even though Courtright had told the officers that prior rotator cuff injuries and shoulder surgeries precluded him from placing his hands behind his back. Courtright repeatedly complained of pain to the officers after he was handcuffed, but neither officer “did anything to alleviate Plaintiffs pain.” Though Courtright was jailed overnight, the prosecutor declined to issue a warrant, and Courtright was released the next day.

Subsequently, Courtright sued Wolf, Ra-thjen, and the City of Battle Creek, alleging use of excessive force by Wolf and Rathjen in violation of the Fourth Amendment and 42 U.S.C. § 1983 (Count I); false arrest by Wolf in violation of the Fourth Amendment and § 1983 (Count II); false arrest and false imprisonment by Wolf under state law (Count III); and municipal liability on the part of the City of Battle Creek under § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (Count IV).

The defendants moved to dismiss all four counts for failure to state a claim under Federal Rule .of Civil Procedure 12(b)(6). The district court declined to exercise supplemental jurisdiction over the state-law claims (Count III) and denied the motion with respect to the plaintiffs federal-law claims (Counts I, II, and IV), rejecting the officers’ qualified-immunity defense. The district court reasoned that the federal excessive-force and false-arrest claims were “thin,” but that there was “enough to kick the case forward into at least the basic discovery process,” and that it was “okay to keep [the municipal liability] claim alive for now so that we can at least see if there’s any potential for the plaintiff to flesh out what they claim in terms of policy and practice.” The defendants filed an interlocutory appeal of the district court’s denial of their motion to dismiss on Counts I, II, and IV.

DISCUSSION

Although most denials of motions to dismiss are non-final orders that do not fall within Congress’s statutory grant of appellate jurisdiction, see 28 U.S.C. § 1291, “a limited set of district-court orders are reviewable ‘though short of final judgment.’” Ashcroft v. Iqbal, 556 U.S. 662, 671, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted). Pursuant to the collateral-order doctrine, “a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within the meaning of § 1291.” Id. at 672, 129 S.Ct. 1937 (internal citation omitted). We therefore have appellate jurisdiction over the district court’s order denying the motion to dismiss based on qualified immunity. Id.) see also Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 562 (6th Cir. 2011).

“When a defendant appeals the denial of a motion to dismiss based on qualified immunity, we review de novo whether the complaint alleges violation of a clearly established constitutional right.” Heyne, 655 F.3d at 562. In reviewing the motion to dismiss, we construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Directo, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); see also Heyne, 655 F.3d at 562-63. “No heightened pleading requirement applies” to our review of a motion to dismiss based on qualified immunity. Heyne, 655 F.3d at 562; see also Back v. Hall, 537 F.3d 552, 555-56 (6th Cir. 2008).

To survive the motion to dismiss on qualified-immunity grounds, the plaintiff must allege facts that “plausibly mak[e] out a claim that the defendant’s conduct violated a constitutional right that was clearly established law at the time, such that a reasonable officer would have known that his conduct -violated that right.” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). The plaintiff also must allege with particularity “facts that demonstrate what each defendant did to violate the asserted constitutional right.” Heyne, 655 F.3d at 564 (internal citations and quotation marks omitted). Ultimately, the plaintiff bears the burden of showing that an officer is not entitled to the defense of qualified immunity. Johnson, 790 F.3d at 653. “The test is whether, reading the complaint in the light most favorable to the plaintiff, it is plausible that an official’s acts violated the plaintiffs clearly established constitutional right.” Heyne, 655 F.3d at 562-63.

Although “insubstantial claims against government officials should be resolved as early in the litigation as possible, preferably prior to broad discovery,” Johnson, 790 F.3d at 653, we also have cautioned that “it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015). We clarified, “Although an officer’s entitlement to qualified immunity is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal under Rule 12.” Id. at 433-34 (internal marks and citations omitted).

We apply this circuit’s “ ‘two-tiered inquiry’” in reviewing the dismissal of a claim on qualified-immunity grounds. Id. at 428 (quoting Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013)). “The first step is to determine if the facts alleged make out a violation of a constitutional right. The second is to ask if the right at issue was ‘clearly established’ when the event occurred such that a reasonable officer would have known that his conduct violated it.” Martin, 712 F.3d at 957 (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “These two steps may be addressed in any order[,] [b]ut both must be answered in the affirmative” for the plaintiffs claim to proceed. Id. (citing Pearson, 555 U.S. at 236, 129 S.Ct. 808). If either step is not satisfied, then qualified immunity shields the government officer from civil damages. Id.

I. Excessive Force (Count I)

We have held that “excessively forceful or unduly tight handcuffing is a constitutional violation under the Fourth Amendment” and that “freedom from excessively forceful or unduly tight handcuffing is a clearly established right for purposes of qualified immunity.” Baynes v. Cleland, 799 F.3d 600, 613-14 (6th Cir. 2015); see also Marvin v. City of Taylor, 509 F.3d 234, 247 (6th Cir. 2007) (“an excessive force claim can be premised on handcuffing, i.e., the right not to be handcuffed in an objectively unreasonable manner was clearly established”). To plead successfully a claim of excessively forceful handcuffing, the plaintiff must allege physical injury from the handcuffing. -“[W]hen there is no allegation of physical injury, the handcuffing of an individual incident to a lawful arrest is insufficient-as a matter of law to state a claim of excessive force under the Fourth Amendment.” Neague v. Cynkar, 258 F.3d 504, 508 (6th Cir. 2001).

The extent of the physical injury suffered by the plaintiff need not be severe in order to sustain the excessive-force claim. See Morrison v. Bd. Of Trs., 583 F.3d 394, 402 (6th Cir. 2009) (“the injury required to sustain a successful handcuffing claim is not as demanding as [the defendant] would suggest.”). For example, in Morrison, we found that allegations of bruising, wrist marks, and “attendant pain” suffered by the plaintiff while she was handcuffed were sufficient to allow the plaintiffs excessive-force claim to proceed past summary judgment. Id. at 403. In so finding, we cited our decision in Martin v. Heideman, 106 F.3d 1308 (6th Cir. 1997), in which we reversed a grant of qualified immunity on a claim of excessively forceful handcuffing where the plaintiff alleged merely that the handcuffing caused numbness and swelling in his hands. Id. at 402-03.

Here, Courtright’s allegations of physical injury from handcuffing are admittedly sparse. Indeed, the thrust of the defendants’ argument is that Courtright’s factual allegations do not plead physical injury and that the excessive-force claim therefore must be dismissed. The defendants, for example, argue that Courtright’s factual allegations are “nearly identical” to those in Kahlich v. City of Grosse Pointe Farms, 120 Fed.Appx. 580 (6th Cir. 2005), in which we upheld a grant of qualified immunity because the plaintiff did not allege physical injury from the handcuffing. However, the plaintiff in Kahlich stated during a deposition that he was not physically injured by virtue of being handcuffed, 120 Fed.Appx. at 584, whereas no such facts exist in Courtright’s case. Moreover, Kahlich, as well as all other cases the defendants cite to support the dismissal of the excessive-force claim for failure to plead physical injury, arose at the summary-judgment stage, not at the motion-to-dismiss stage.

At the motion-to-dismiss stage, we are required to draw all reasonable inferences in favor of Courtright. See Directv, Inc., 487 F.3d at 476. Courtright pleaded in his complaint that he suffered from prior rota-tor-cuff injuries and shoulder surgeries, that he could not put his hands behind his back because of his medical condition, and that he suffered from pain after he was handcuffed behind his back. Viewing the allegations in the complaint in the light most favorable to Courtright, we reasonably may infer that he was handcuffed in a manner that aggravated his prior medical injuries, that he suffered pain from that handcuffing, and that he thus was physically injured by the handcuffing. That Courtright did not allege that he continued to suffer injury after his handcuffs were removed does not preclude the survival of his excessive-force claim. See Morrison, 683 F.3d at 402 (discussing Martin, 106 F.3d at 1312-13).

Defendants protest that “the pleading standards require more than a wispy suggestion of an injury ‘and/or’ the ‘reasonable inference’ of one” and that Court-right pleaded only conclusory allegations of pain that should be disregarded. To be sure, Courtright’s allegation that “[a]s a result of Defendants’ unlawful actions and/or inactions, Plaintiff suffered injuries and damages” is a conclusory recitation of an element of his claim that is not entitled to the presumption of truth. See Iqbal, 566 U.S. at 678, 129 S.Ct. 1937 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,”) However, Courtright’s allegations that he had prior medical injuries that precluded him from being handcuffed behind his back and that he suffered pain from his arms being pulled behind him are not of the concluso-ry ilk that we ignore while evaluating a motion to dismiss. Taken as a whole, and considered in the light most favorable to Courtright, the factual allegations in the complaint state a plausible excessive-force claim.

Having failed to establish that Courtright’s factual allegations did not plausibly allege the violation of a constitutional right, the defendants argue, in the alternative, that it was not clearly established that handcuffing without physically injuring the suspect constitutes excessive force. The premise of this argument is flawed. As discussed, Courtright did suffer physical injury: he suffered pain as a result of the manner in which he was handcuffed. Moreover, the relevant clearly established right in our circuit is “freedom from excessively forceful or unduly tight handcuffing.” Baynes, 799 F.3d at 613. “Requiring any more particularity than this would contravene the Supreme Court’s explicit rulings that neither a ‘materially similar,’ ‘fundamentally similar,’ or ‘case directly on point’—let alone a factually identical case—is required, and that the specific acts or conduct at issue need not previously have been found unconstitutional for a right to be clearly established law.” Id. at 614 (internal citation omitted). Therefore, we affirm the district court’s order denying the motion to dismiss the excessive-force claim based on qualified immunity.

II, False Arrest (Count II)

In their second issue on appeal, the defendants argue that the district court wrongly denied qualified immunity on Courtright’s claim that he was arrested without probable cause. The constitutional right to “freedom from arrest in the absence of probable cause” is clearly established within our circuit. Wesley, 779 F.3d at 428. Therefore, to survive the motion to dismiss, Courtright must allege facts that make out a plausible violation of that constitutional right, ie. that his arrest was unsupported by probable cause. Id. at 429. In particular, because Courtright brings his false-arrest claim only against Wolf, Courtright must allege facts that demonstrate that Wolf arrested him without probable cause. See Heyne, 655 F.3d at 564. We conclude that he has done so here.

A police officer has probable cause for arrest if, at the time the officer makes the arrest, “the facts and circumstances within [the officer’s] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [plaintiff] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see also Wesley, 779 F.3d at 429 (citing Beck, 379 U.S. at 91, 85 S.Ct. 223). In other words, probable cause exists only when the police officer “discovers reasonably reliable information that the suspect has committed a crime.” Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000) (citing Beck, 379 U.S. at 91, 85 S.Ct. 223). “A probable cause determination is based on the ‘totality of the circumstances,’ and must take account of ‘both the inculpatory and exculpatory evidence’” then within the knowledge of the arresting officer. Wesley, 779 F.3d at 429 [quoting Gardenhire, 205 F.3d at 318). Thus, if the officer discovers information or evidence favorable to the accused in the course of an investigation, the officer “‘cannot simply turn a blind eye.’” Id. (quoting Ahlers v. Schebil, 188 F.3d 365, 372 (6th Cir. 1999)). Rather, that information or evidence must enter into the totality-of-the-circumstances analysis to determine whether there is probable cause for arrest. Id. Moreover, the probable-cause determination must be based on the information that the arresting officer had when he made the arrest, “rather than with the 20/20 vision of hindsight.” Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (internal citations and quotation marks omitted).

The crux of the issue in this case is whether the phone call to the police stating “that [Courtright] had come out of his room with a gun and threatened to shoot another resident’s dog” was sufficient to establish probable cause for Court-right’s arrest. Citing Ahlers, the defendants argue that the phone call was an eyewitness identification sufficient to establish probable cause. In Ahlers, we held that because “eyewitnesses’ statements are based on firsthand observations, they are generally entitled to a presumption of reliability and veracity.” Ahlers, 188 F.3d at 370. Courtright, on the other hand, argues that under Gardenhire, the phone call was an individual’s “mere allegation” of criminal activity that “may [have] create[d] reasonable suspicion justifying an investigative stop under [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], but [fell] short of creating probable cause absent some corroborating evidence of wrongdoing.” Wesley, 779 F.3d at 429 (discussing Gardenhire)-, see also Gardenhire, 205 F.3d at 317 (“Consider the following situation: a woman flags down a police officer and points out a Porsche being driven by a young man, which the woman claims is her car and which has been stolen by the man. Would the officer have probable cause to arrest the Porsche’s driver at that point? We think not.”). Although there is “some tension” between the Ahlers and Gardenhire lines of cases, we recently clarified that “those cases also contain an important limiting factor: Probable cause is created only by eyewitness allegations that are reasonably trustworthy, and thus probable cause does not exist where there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection.” Wesley, 779 F.3d at 429-30 (internal quotation marks and citation omitted).

We conclude that the phone call at issue here lacks the indicia of trustworthiness and reliability that accompanied the Ahlers eyewitness’s information. First, although the allegations in the complaint suggest that the caller was another resident at the Traveler’s Inn, there is no indication that the caller was an actual eyemtness to the crime. In Ahlers, the eyewitness was the victim of the relevant crime, and we found probable cause because she consistently identified her perpetrator during the course of several in-person interviews with the investigating officers. Ahlers, 188 F.3d at 367-68. Here, the “eyewitness” is an unidentified “[ ]other resident” at the Traveler’s Inn who made a single phone call to the police.

Second, although there may be some instances in which a sufficiently reliable phone call to the police may provide reasonable suspicion for an investigatory stop, Navarette v. California, — U.S. -, 134 S.Ct. 1683, 1688, 188 L.Ed.2d 680 (2014), we have not found any precedential case in which we concluded that a phone call, without any corroborating information, provided probable cause for arrest. See United States v. McClain, 444 F.3d 566, 563 (6th Cir. 2005) (phone call conveying “suspicious incident” at a neighboring residence coupled with the officers’ discovery of a slightly ajar front door did not establish probable cause that burglary was underfoot). Even in Ahlers, we found that corroborating evidence “bolstered” the probable-cause determination. Ahlers, 188 F.3d at 370-71; see also Radvansky v. City of Olmsted Falls, 395 F.3d 291, 308 (6th Cir. 2005) (discussing Ahlers). Although the defendants correctly note that “independent corroboration of an informant’s story is not necessary to a determination of probable cause,” United States v. McCraven, 401 F.3d 693, 698 (6th Cir. 2005) (emphasis added), the touchstone for probable cause is that the police officer possessed “reasonably reliable information that the suspect has committed a crime.” Gardenhire, 205 F.3d at 318.

Viewing the allegations in the complaint in the light most favorable to Courtright, as we are required to do on a motion to dismiss, we find that the only information Wolf had prior to arresting Courtright was one phone call from “another resident.” There is no indication in the pleadings that Courtright ever possessed a gun, that there was a dog staying at the Traveler’s Inn that night, that Wolf attempted to conduct any sort of investigation once he got to the Traveler’s Inn, or that there was any corroborating information at all to support Wolfs probable-cause determination. The Traveler’s Inn phone call, by itself, was not enough to establish probable cause for an arrest.

At best, Wolf had reasonable suspicion for an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), at the time that he arrived at Courtright’s room. Therefore, to legitimate an arrest of Courtright, Wolf would have needed to discover more information or evidence at the Traveler’s Inn that would have established probable cause for an arrest. But, viewing the allegations in the complaint in the light most favorable to Courtright, there are no additional facts that would have provided a basis for a probable-cause determination. Because Courtright stated a plausible claim that his arrest was unsupported by probable cause, he has alleged a violation of a clearly established constitutional right. We therefore affirm the district court’s denial of the defendants’ motion to dismiss the false-arrest claim based on qualified immunity.

III. Municipal Liability (Count IV)

Lastly, the defendants appeal the district court’s denial of the motion to dismiss Courtright’s municipal-liability claim (Count IV). The defendants argue that Courtright’s municipal liability claim should be dismissed because the City cannot be liable under Monell absent a constitutional violation. The defendants additionally argue that Courtright failed to plead facts supporting his claim.

Although “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’” under the collateral-order doctrine, Mitchell v. Forsyth, 472 U.S. 511, 529, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the denial of a municipal-liability claim is not immediately ap-pealable under the collateral-order doctrine. Crockett v. Cumberland Coll., 816 F.3d 571, 578 (6th Cir. 2003). “[Ujnlike the qualified immunity entitlement, municipal defenses under § 1983 [do not entail] a right to immunity from trial but a ‘mere defense to liability’ ” that is not “effectively lost” if a case erroneously is allowed to proceed. Summers v. Leis, 368 F.3d 881, 888-89 (6th Cir. 2004) (quoting Swint v. Chambers Cty. Com’n, 514 U.S. 35, 43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) and Mitchell, 472 U.S. at 526, 105 S.Ct. 2806). Nevertheless, pursuant to principles of pendent appellate jurisdiction, we may exercise jurisdiction over the appeal of a municipal-liability claim if it is “ ‘inextricably intertwined’ with the qualified immunity analysis properly before the Court.” Lane v. City of LaFollette, 490 F.3d 410, 423 (6th Cir. 2007) (quoting Crockett, 316 F.3d at 578). In such circumstances, “the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well.” Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir. 1999) (internal citation omitted).

The defendants urge us to exercise pendent appellate jurisdiction over the municipal-liability claim in this case because “the finding of nonexistence of a constitutional claim for immunity purposes necessarily decide[s] the whole case not only in favor of the officer, but also in favor of the [municipality] as well.” As discussed above, however, Courtright did allege a constitutional violation sufficient to survive the motion to dismiss, foreclosing the defendants’ argument. See Martin, 712 F.3d at 963 (“[I]n the face of a constitutional violation, we lack subject-matter jurisdiction to entertain an appeal of the municipal-liability claim because the only path to review the City’s claim is foreclosed here.”).

Moreover, the appeal of the municipal-liability issue and the appeal of the qualified-immunity issues are not inextricably intertwined, because resolution of the qualified-immunity issue would not necessarily resolve the municipal-liability issue. See Mattox, 183 F.3d at 524. The officers’ liability depends on whether the force they used in handcuffing Courtright or their grounds for arresting Courtright violated his clearly established rights, whereas the City of Battle Creek’s liability depends on its municipal policies, training programs, and customs. Because resolution of the officers’ interlocutory appeal does not necessarily determine the City of Battle Creek’s training and supervision obligations, we do not have jurisdiction to consider the City’s municipal-liability appeal at this time. As a result, we must dismiss the defendants’ appeal of the municipal-liability claim for lack of jurisdiction.

CONCLUSION

For the reasons set out above, we AFFIRM the district court’s denial of the defendants’ motion to dismiss the excessive-force and false-arrest claims based on qualified immunity. We DISMISS the defendant’s appeal of the district court’s denial of the motion to dismiss the municipal-liability claim for lack of jurisdiction at this time.

      . In denying the motion to dismiss the excessive-force claim, the district court concluded, citing Crooks v. Hamilton County, 458 Fed.Appx. 548 (6th Cir. 2012) (unpublished) and Dixon v. Donald, 291 Fed.Appx. 759 (6th Cir. 2008) (unpublished), that “repeated claims of pain from a person who informed police of a specific medical problem that police ignored is at least enough to keep the case alive past Rule 12(b)(6).” On appeal, citing Dixon and Walton v. City of Southfield, 995 F.2d 1331 (6th Cir. 1993), Courtright similarly argues that the analysis for an excessive-force claim is different in the case of a plaintiff with "a specific medical problem,”
      In response, the defendants argue only that Courtright did not allege physical injury from his handcuffing, whereas the plaintiffs in Crooks, Dixon, and Walton did. Because we conclude, as we discuss in this section, that Courtright did plead physical injury in his complaint and that he thus stated a plausible excessive-force claim that survives the motion to dismiss, we need not address whether the excessive-force analysis is different for plaintiffs with "specific medical problem[s].”

      . Contrary to Courtright’s contentions, the fact ' that Courtright ultimately was not charged for the offense by itself does not negate the existence of probable cause for an arrest.

      . To be sure, such information may come to light through the discovery process, and it still remains possible that the claims Court-right asserts against the officers could be dismissed at the summary-judgment stage.


author: JULIA SMITH GIBBONS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence Ray BONDS, Defendant-Appellant.
    No. 15-2405
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: October 14, 2016

      ON BRIEF: Britt M. Cobb, WILLEY & CHAMBERLAIN LLP, Grand Rapids, Michigan, for Appellant. B. Rene Shekmer, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appel-lee.
    Before: DAUGHTREY, GIBBONS, COOK, Circuit Judges.
   OPINION

JULIA SMITH GIBBONS, Circuit Judge.

In April 2010, Clarence Bonds pled guilty to a drug-conspiracy charge and was sentenced to 120 months’ imprisonment, which represented a significant downward variance from his guideline range of 210 to 262 months. In November 2015, the district court denied Bonds’s motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), on the erroneous ground that Bonds had been sentenced to the statutory mandatory minimum, when, in fact, there was no applicable mandatory minimum sentence. On appeal, Bonds argues for the first time that the retroactive Amendment 782 opens the door to applying the non-retroactive Amendment 742, which would change his criminal history from a category of VI to V. Only if Amendment 742 applies in conjunction with Amendment 782 is Bonds eligible for a sentence reduction. Because courts do not have the authority to consider the non-retroactive Amendment 742 in determining eligibility for a § 3582(c)(2) reduction, we affirm the district court’s denial of Bonds’s motion.

I.

Bonds was named in a superseding indictment dated August 20, 2009, for conspiracy to possess with intent to distribute 50 grams or more of cocaine base—a crime which, at that time, carried a mandatory minimum sentence of 10 years’ imprisonment. Pursuant to a plea agreement, Bonds pled guilty in December 2009 to a one-count criminal information for conspiracy to possess with intent to distribute an unspecified amount of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). The statutory penalty for the offense was not more than 20 years in prison; no mandatory minimum sentence applied. 21 U.S.C. § 841(b)(1)(C). In accordance with the plea agreement, the superseding indictment was dismissed as to Bonds.

The probation officer prepared a presen-tence investigation report (“PSR”), which attributed 113.4 grams of cocaine base to Bonds under the 2009 edition of the Guidelines Manual, resulting in a base offense level of 30. At that time, a base offense level of 30 applied to quantities of cocaine base in the amount of 50 grams to 150 grams. U.S. Sentencing Guidelines Manual § 2Dl.l(c)(5) (U.S. Sentencing Comm’n 2009). The PSR calculated Bonds’s criminal history category as VI. Bonds’s criminal history score was 13, which included a one-point increase pursuant to U.S.S.G. § 4Al.l(e) because the instant offense was committed less than two years after his release from state prison. The PSR found no other applicable enhancements or reductions. Thus, the PSR concluded that Bonds’s sentencing range was 168 to 210 months.

At sentencing, the district court found that Bonds was responsible for only 90 grams of cocaine base, which did not change the base offense level of 30. The district court further applied the two-point enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, making Bonds’s total offense level 32. The court agreed that Bonds’s criminal history category of VI was appropriate, making his sentencing range 210 to 262 months. The court, however, varied downward in sentencing Bonds to 120 months’ imprisonment because of the crack-versus-powder cocaine disparity, Bonds’s mental health, the short time he was involved in the conspiracy, and his family background. Bonds did not appeal his sentence.

In March 2015, Bonds filed a pro se motion for a sentence reduction under 18 U.S.C. § 3582(e)(2), based on Amendment 782 to the Sentencing Guidelines. Counsel was appointed, and the probation officer filed a sentence modification report (“SMR”). The SMR incorrectly- attributed 113.4 grams of cocaine base to Bonds and thus calculated his base offense level as 26. With the two-point enhancement for obstruction of justice, and Bonds’s criminal history category of VI, the SMR calculated Bonds’s guideline range as 140 to 175 months. The SMR therefore recommended that Bonds was ineligible for a sentence reduction because he was subjected to a mandatory minimum and because his original sentence was lower than the bottom of his amended guideline range. In response to-the SMR, Bonds’s federal public defender concurred with the report finding that he was not eligible for a sentence reduction. The federal public defender did not object to the SMR’s erroneous attribution of 113.4 grams, rather than 90 grams,' of cocaine base to Bonds, nor did she object on the basis that Bonds was not subject to a mandatory minimum sentence.

The district court then denied Bonds’s motion, based on its finding that it had imposed the mandatory minimum sentence of 120 months. Bonds was appointed new counsel and appealed the court’s denial of his motion. As part of the appeal, Bonds’s appellate counsel requested a transcript of the sentencing proceedings.

A.

This court reviews the district court’s determination that a defendant is ineligible for a sentence reduction, under 18 U.S.C. § 3582(c)(2) de novo. United States v. Taylor, 815 F.3d 248, 250 (6th Cir. 2016) (citing United States v. Joiner, 727 F.3d 601, 604 (6th Cir. 2013)). Because Bonds failed to file any objections in the district court, he must show plain error as to the claims he now raises. United States v. Brookins, 410 Fed.Appx. 918, 920 (6th Cir. 2011) (citing Fed. R. Crim. P. 52(b)), Thus, Bonds must demonstrate “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’ ” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).

B.

Bonds may be eligible for a sentence reduction if “(1) [he] ‘has been sentenced to a term of imprisonment based on a sentencing-range that has subsequently been lowered by the Sentencing Commission’; and (2) such reduction is ‘consistent with applicable policy statements issued by the Sentencing Commission.’ ” United States v. Riley, 726 F.3d 756, 758 (6th Cir. 2013) (quoting 18 U.S.C. § 3582(c)(2)). “[T]o satisfy the second requirement, ‘a guidelines amendment must have the effect of lowering the defendant’s applicable guideline range.’ ” Id. (quoting United States v. Hameed, 614 F.3d 259, 269 (6th Cir. 2010)). Put another way, “pursuant to 18 U.S.C. § 3582(c)(2), a district court is not authorized to reduce a defendant’s sentence below the amended Guidelines range.” United States v. Washington, 584 F.3d 693, 701 (6th Cir. 2009); U.S.S.G. § 1B1.10(b)(2)(A). Further, district courts may not reduce a defendant’s sentence below his amended guideline range except to account for substantial assistance. Taylor, 815 F.3d at 250-51 (citing U.S.S.G. § 1B1.10(b)). Thus, in order to be eligible for a § 3582(c)(2) sentence reduction, Bonds must demonstrate that his amended guideline range is below 120 months’ imprisonment.

In 2014, the Commission passed Amendment 782, which reduced the base offense levels for most drug-trafficking crimes, and Amendment 788, which made Amendment 782 retroactive. United States v. Ferguson, No. 15-6240, 656 Fed.Appx. 772, 773-74, 2016 WL 4056052, at *2 (6th Cir. July 29, 2016); see also U.S.S.G. § 1B1.10(d) (listing Amendment 782). Amendment 742, on the other hand, struck the provision of the former subsection (e) of U.S.S.G. § 4A1.1, which had provided: “Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b).... ” U.S.S.G. § 4A1,1(e) (2009 ed.); United States v. Galaviz, 645 F.3d 347, 363 (6th Cir. 2011). Unlike Amendment 782, however, Amendment 742 was not explicitly made retroactive by its inclusion in U.S.S.G. § 1B1.10(d). United States v. Urena, 659 F.3d 903, 909 (9th Cir. 2011) (noting that “[t]he change implemented by Amendment 742 is not designated as retroactive”); U.S.S.G. § 1B1.10(d).

Here, the retroactive application of Amendment 782 to Bonds is not at issue. The parties contest only whether Amendment 742 applies to Bonds. As Bonds did not raise this issue before the district court, this court reviews it for plain error. If Bonds were sentenced under the 2014 Guidelines Manual, then his base offense level would be 24 for 90 grams of cocaine base. U.S.S.G. § 2Dl.l(c)(8) (applying level 24 for cocaine base quantities between 28 grams and 112 grams). With the two-point obstruction of justice enhancement, his total offense level would be 26. If his criminal history remains at category VI, as the government argues, then his guideline range would be 120 to 150 months’ imprisonment, in which ease Bonds would not be eligible for a reduction. However, if Amendment 742 applies, as Bonds contends, then Bonds’s criminal history would be category V, which would amend his guideline range to 110 to 137 months, making him eligible for a reduction.

Whether Amendment 742 may be applied in conjunction with Amendment 782 appears to be a question of first impression for any court of appeals. However, the Court of Appeals for the Third Circuit previously considered whether a motion to reduce a sentence pursuant to retroactive Amendment 750, which reduced the offense levels applicable to cocaine base offenders, allowed the court also to apply Amendment 742. United States v. Wayne, 516 Fed.Appx. 135, 137 (3d Cir. 2013). The Third Circuit reasoned that because Amendment 742 is not retroactive, the district court lacked the authority to apply it in conjunction with Amendment 750. Id. (citing Dillon v. United States, 560 U.S. 817, 831, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010)). We adopt the Third Circuit’s reasoning and find that Amendment 782 does not permit district courts to apply other non-retroactive amendments.

As an initial matter, “proceedings under 18 U.S.C. § 3582(c)(2) ... do not constitute a full resentencing of the defendant.” U.S.S.G. § 1B1.10(a)(3); see also Dillon, 560 U.S. at 831, 130 S.Ct. 2683 (“[Section] 3582(c)(2) does not authorize a resentencing.”). Rather, they “permit[] a sentence reduction within the narrow bounds established by the Commission.” Dillon, 560 U.S. at 831, 130 S.Ct. 2683. The Commission’s policy statements on § 3582(c)(2) motions are binding on this court. United States v. Horn, 679 F.3d 397, 404 (6th Cir. 2012) (citing United States v. Garcia, 655 F.3d 426, 435 (5th Cir. 2011); United States v. Smith, 459 Fed.Appx. 99, 100-01 (3d Cir. 2012)).

Section 1B1.10 of the Sentencing Guidelines contains the policy statement for § 3582(c)(2). Subsection lB1.10(a) provides that the court may reduce the defendant’s term of imprisonment if the applicable guideline range has subsequently been lowered by one of the amendments named in subsection (d). Similarly, § 1B1.10(b)(l) addresses the determination of the, reduction in the term of imprisonment as follows: “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (d) had been in effect at the time the defendant was sentenced.” The policy statement continues: “the court shall substitute only the amendments listed in subsection (d) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” Id. While Amendment 782 is listed in subsection (d), notably absent is Amendment 742. Id. § lB1.10(d). The policy statement is clear and unambiguous that courts may not consider Amendment 742 under motions pursuant > to § 3582(c)(2). The commentary further sup? ports this conclusion: “In determining the amended guideline range ..., the court shall substitute only the amendments listed in subsection (d) for the corresponding guideline provisions that were- applied when the defendant was sentenced. All other guideline application decisions remain unaffected.” U.S.S.G. § 1B1.10 appl. n.2.

Bonds argues that the so-called “one book” rule of U.S.S.G. § lBl.ll(b)(2), which provides that “[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety,” supports his position that Amendment 782 opens the door to the application of Amendment 742. Suéh a broad reading of this provision, however, would strip § 1B1.10, as discussed above, of any import, in violation of the presumption against superfluity. See Nat’l Air Traffic Controllers Ass’n v. Sec’y of Dep’t of Transp., 654 F.3d 654, 657 (6th Cir. 2011) (explaining that courts must not “interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous” (quoting Menuskin v. Williams, 145 F.3d 755, 768 (6th Cir. 1998))). To the extent that the provisions of § 1B1.10 and § 1B1.11 conflict, § 1B1.10 controls because it provides more specific guidance. See United States v. Kumar, 750 F.3d 563, 568-69 (6th Cir. 2014) (“One of the most basic canons of statutory interpretation is that a more specific provision takes precedence over a more general one.” (quoting United States v. Perry, 360 F.3d 519, 535 (6th Cir. 2004))). Moreover, if the court were to adopt Bonds’s reasoning, then the retroactivity decisions of the Commission would be applied inconsistently. That is, a defendant who stood to benefit from a retroactive amendment would doubly benefit from a non-retroactive amendment, whereas a defendant to whom only non-retroactive amendments applied would find no relief.

The district court acted within its authority when it denied Bonds’s motion for a sentence reduction, though its attribution of 113.4 grams of cocaine base and its conclusion that Bonds was not entitled to a reduction because he was sentenced to the statutory mandatory minimum were obvious errors. These errors, however, do not rise to the level of plain error here. Because we may affirm a district court’s decision for any reason presented in the record, even if the reason was not raised below, Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 514 (6th Cir. 2003), we conclude that Bonds was not entitled to a sentence reduction because his amended guidance range was 120 to 150 months. The fact that Amendment 782 “applied retroactively did not open the door for retroactive application of other guideline amendments.” See Wayne, 516 Fed.Appx. at 137.

III.

For the reasons stated above, we affirm.

      . Pursuant to the 2014 Sentencing Guidelines, cocaine base quantities of 112 grams to 196 grams are scored at a base offense level of 26, whereas cocaine base quantities of 28 grams to 112 grams are scored at a base offense level of 24. U.S. Sentencing Guidelines Manual § 2Dl.l(c)(7)-(8) (U.S. Sentencing Comm'n 2014).

      . The parties do not contest that if Amendment 742 applies to Bonds, then his criminal history category would be V.

      . Though the SMR attributed 113.4 grams of cocaine base to Bonds, the court at sentencing attributed only 90 grams of cocaine base to Bonds.

      .In United States v. Johnson, 703 F.3d 464, 467-71 (8th Cir. 2013), the Court of Appeals for the Eighth Circuit found that applying Amendment 750—but not Amendment 742— to a defendant's sentence pursuant to § 3582(c)(2) did not violate the defendant's right to due process, nor was such decision arbitrary and capricious.

      . "In interpreting the Sentencing Guidelines, the traditional canons of statutory interpretation apply.” United States v. Jackson, 635 F.3d 205, 209 (6th Cir. 2011).


author: JULIA SMITH GIBBONS, Circuit Judge. GRIFFIN, Circuit Judge,

text:
    Lakendus COLE; Leon Edmond, individually and as representatives of all others similarly situated, Plaintiffs-Appellees, v. CITY OF MEMPHIS, Defendant-Appellant.
    Nos. 15-5725/5999
    United States Court of Appeals, Sixth Circuit.
    Argued: June 14, 2016
    Decided and Filed: October 17, 2016

      ARGUED: J. Michael Fletcher, City of Memphis, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., The Spence Law Firm, Memphis, Tennessee, for Ap-pellees. ON BRIEF: J. Michael Fletcher, Zayid A. Saleem, Barbaralette G. Davis, City of Memphis, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., Bryan M. Meredith, E. Lee Whitwell, The Spence Law Firm, Memphis, Tennessee, for Ap-pellees.
    Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
   GIBBONS, J., delivered the opinion of the court in which DONALD, J., joined, and GRIFFIN, J., joined in part. GRIFFIN, J. (pp. 543-45), delivered a separate opinion concurring in part and dissenting in part.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Lakendus Cole, a Memphis police officer, was arrested in the early morning hours of August 26, 2012, shortly after leaving a night club on Beale Street in downtown Memphis, Tennessee. After his arrest, he brought claims individually and on behalf of those similarly situated, alleging that the City’s routine practice of sweeping Beale Street at 3 a.m. on weekend nights violated his constitutional right to mira state travel. Cole and the class won at trial. The jury found that the City implemented its street-sweeping policy without consideration of whether conditions throughout the Beale Street area posed an existing, imminent, or immediate threat to public safety. Based on the jury’s findings, the district court found the policy unconstitutional under strict scrutiny, entered an injunction, and ordered other equitable relief on behalf of the class. The City appeals, arguing that it was error to subject the Beale Street Sweep to strict scrutiny and error to , certify a class pursuant to Federal Rule of Civil Procedure 23(b)(2) when the precise members of the class were not ascertainable. The City also argues that there was insufficient evidence to support the jury’s findings that the Sweep was the cause of Cole’s arrest. For the reasons set forth below, we affirm the district court.

I.

Beale Street is a popular entertainment district in, Memphis, consisting of two blocks of restaurants, bars, clubs, and other entertainment venues. The street is typically barricaded on each end, so .most traffic is by foot. By Memphis ordinance, vendors may sell, and patrons may carry, alcoholic beverages on the sidewalks and streets when the street is closed to motor traffic. Tenn. Code Ann. §; 57-4-102(27)(A)(iv); Memphis Ordinance §§ 7-4-15(C), 7-8-23.

Around 3:30 a.m. on August 26, 2012, Memphis Police Department (“MPD”) officers arrested fellow MPD officer Laken-dus Cole on Beale Street shortly after he exited a dance club. During the course of arrest, officers pressed Cole against a squad car with enough force to make two dents. Cole was charged with disorderly conduct, resisting stop/arrest, and vandalism over $500 (a felony). Although the charges were ultimately dropped, the arrest and pending charges resulted in damages to Cole, including loss of secondary employment and reassignment from the MPD’s organized crime unit to traffic patrol. He also sought medical treatment from a neurologist for physical injuries.

Cole and another named plaintiff, Leon Edmond, brought a class-action lawsuit. They alleged that the City’s routine practice of sweeping Beale Street in the early morning hours was unconstitutional. Plaintiffs defined the “Beale Street Sweep” as:

[T]he policy, procedure, custom, or practice by which police officers of the [MPD] order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers.

(DE 88, ID 769 (emphasis added).) They alleged that the Beale Street Sweep “incite[d] violence and create[d] an environment where Memphis police officers involved in this unlawful conduct bec[a]me highly aggressive, agitated, frenetic, and confrontational towards individuals lawfully standing and walking on Beale Street.” (DE 1, ID 8-9.) Plaintiffs also brought individual claims for unlawful arrest and excessive force pursuant to 42 U.S.C. § 1983.

The district court certified the following class definition under Federal Rule of Civil Procedure 23(b)(2): “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.” (DE 88, ID 780, 805-OS.) However, upon the City’s motion to decertify or modify the class and before final judgment, the district court revised the definition of the Beale Street Sweep “in order to be more consistent with the strict scrutiny standard that is applied to cases regarding violations of an individual’s fundamental rights, such as the fundamental right to intrastate travel.” (DE 160, ID 2062.) The court revised the definition of the Beale Street Sweep (embedded in the class definition) as follows:

[T]he 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 of whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.

(Id. at 2063 (emphasis added).)

In support of its pretrial motions, the City admitted that it had a practice of regularly sweeping Beale Street but argued that it discontinued the practice on or about June 14, 2012. The City also defended the practice as being related to public safety. After a five-day trial, a jury found otherwise. It concluded that the City “carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street” prior to and on or after June 14, 2012, (DE 141, ID 1899-1900), that the custom was “the cause of persons being prevented from standing and/or walking on the sidewalk or street of Beale Street” (id. at 1900), and that the practice occurred “without consideration to whether conditions throughout the [area] pose[d] an existing, imminent or immediate threat to public safety.” (Id.) Further, the jury found that, since 2007, thousands of persons were cleared pursuant to the practice.

As for Cole, the jury found that the practice was the cause of his arrest, and that on the night of Cole’s arrest, conditions on Beale Street did not pose an existing, imminent, or immediate threat to public safety. Cole was awarded $35,000 in compensatory damages for his arrest pursuant to the policy.

After trial, the district court granted plaintiffs’ motion for class-wide declaratory and injunctive relief, permanently enjoining the City and its employees from “engaging in ‘the Beale Street Sweep’ [as previously defined],” but the court specifically noted that the injunction did not “prevent the MPD from conducting normal police work or clearing Beale Street under appropriate circumstances where an imminent threat exists to public safety throughout the Beale Street area.” (DE 161, ID 2092-93.) In addition, the court ordered other equitable relief, including officer training and the distribution of bulletins to officers explaining that the practice is unconstitutional. The City timely appeals.

II.

A.

The City first argues that the district court erred in finding that the Beale Street Sweep infringed the fundamental right to intrastate travel and in subjecting the policy to strict scrutiny. In the City’s view, the policy does not implicate the right to intrastate travel, and even if it does, the infringement is slight and, therefore, it should be reviewed for a rational basis.

In 2002, we became one of a few circuits to recognize the right to intrastate travel as “fundamental.” In Johnson v. City of Cincinnati, our court held that the Due Process Clause of the Fourteenth Amendment protects the “right to travel locally through public spaces and roadways.” 310 F.3d 484, 495 (6th Cir. 2002). At issue in Johnson was a city ordinance that banned individuals arrested for certain drug offenses from entering designated “drug-exclusion zones” (such as Cincinnati’s Over the Rhine neighborhood) for up to ninety days. Id, at 487-88. The ordinance’s- exclusion extended for up to one year upon conviction. Id. at 488. Two plaintiffs, one of whom was prohibited from entering the neighborhood where her daughter and five minor grandchildren lived, challenged the ordinance as an unconstitutional infringement on their right to “freedom of movement in the form of their right to intrastate travel.” Id. at 489.

We began by asking whether the right to intrastate travel was “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty,” id. at 495 (quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)), and concluded that “the right to travel locally through public spaces and roadways enjoys a unique and protected place in our national heritage.” Johnson, 310 F.3d at 495-98. We noted:

Although the Supreme Court has not expressly recognized a fundamental right to intrastate travel, as early as the Articles of Confederation, state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.”

Id. at 496-97 (quoting United States v. Wheeler, 254 U.S. 281, 293, 41 S.Ct. 133, 65 L.Ed. 270 (1920)).

After concluding that “the right to travel locally through public spaces and roadways” was a “fundamental liberty interest,” we considered the appropriate degree of scrutiny. Id. at 502. For guidance, we turned to the Third Circuit’s decision in Lutz, which concerned a challenge to the City’s anti-cruising ordinance that prohibited repetitive driving through a few-block portion of downtown York. Id. (citing 899 F.2d at 256) The court in Lutz, drawing heavily from First Amendment time, place, and manner doctrine, observed that “[n]ot every governmental burden on fundamental rights must survive strict scrutiny” and concluded that “reviewing all infringements on the right to travel under strict scrutiny is just as inappropriate as applying no heightened scrutiny.” Id. at 269. Just as in the speech context, the “right to travel cannot conceivably imply the right to travel whenever, wherever and however one pleases—even on roads specifically designed for public travel” because “[ujnlim-ited access to public ... roadways would result not in maximizing individuals’ opportunity to engage in protected activity, but chaos.” Id. To avoid such disorder, state and local governments should be afforded “some degree of flexibility to regulate access to, and use of, the publicly held instrumentalities of ... travel.” Id. The court ultimately reviewed the ordinance under intermediate scrutiny, a test the ordinance passed because its scope was limited to a specific location—“a distance of no more than several blocks” that was “undisputedly affected by the current cruising problem”—and left ample alternative routes to travel through town. Id. at 270.

The Johnson court then compared the ordinance at issue in Lutz to Cincinnati’s drug-exclusion zone ordinance and concluded that strict scrutiny was the more appropriate standard. 310 F.3d at 502. We noted that, unlike York’s anti-cruising rule, the drug-exclusion ordinance did not regulate the time or the manner in which people accessed the Over the Rhine neighborhood. Rather, it broadly prohibited access to the entire neighborhood for an extended period of time—ninety days after a drug arrest and one year after a drug conviction. Id. at 494, 502. Our decision to apply strict scrutiny in Johnson was based entirely on this cogent difference in the scope of the ordinances, and we were quick to “acknowledge the strength of the Third Circuit’s reasoning” in Lutz and noted the possibility that intermediate scrutiny could be applied to a “less severe regulation of localized travel.” Id. at 502. In a footnote, we cautioned that First Amendment jurisprudence concerning “place” regulations would be difficult to translocate to the travel context because “regulating the place of speech does not foreclose speech or association in the same way as regulating the place of travel might.” Id. at 502 n.7. Nonetheless, we emphasized the “possibility that a narrow ‘place’ restriction might be more appropriately analyzed under intermediate scrutiny.” Id.

In support of its argument that we should review the policy for a rational basis, the City draws a parallel between this case and our decision in LULAC v. Bredesen, 500 F.3d 523 (6th Cir. 2007). We fail to see any similarity. LULAC involved a Tennessee law that prohibited non-citizens and unlawful permanent residents from receiving or renewing their driver’s licenses, but which did allow for the issuance of non-photographic driving certificates to non-resident aliens. Id. at 535. There, we held that “[a] state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right.” Id. We reasoned that the driver’s license law did not implicate the right to travel because it resulted merely in inconvenience, namely the need for nonresident aliens to carry multiple identification papers while driving. Id. “To the extent this inconvenience burden[ed] exercise of the right to travel at all, the burden [was] incidental and negligible, insufficient to implicate denial of the right to travel.” Id. Because the infringement was at most minor, we affirmed the district court’s analysis under the rational-basis standard. Id. at 535-36. By contrast, the primary purpose of the Beale Street Sweep was to impede travel, and it resulted in the broad denial of access to a popular, two-block area of a public roadway and sidewalk. This is much more than an incidental or negligible inconvenience; it clearly implicates the right to travel and should be subject to heightened scrutiny.

B.

As noted above, in Johnson we applied strict scrutiny because the drug-exelusion zone ordinance “impose[d] a more severe restriction” than “regulating the manner in which affected individuals access Over the Rhine (i.e., an anti-cruising ordinance), or the time of access (i.e,, a curfew)” by “broadly prohibiting individuals to access the entire neighborhood, which [Cincinnati] advertises as .the largest national historic district in the nation, the City’s fastest growing entertainment district and home to nearly 10,000 City residents.” 310 F.3d at 502. The Beale Street Sweep, on the other hand, implicated a mere two-block stretch for limited periods of time between 3 and 5 a.m., typically on weekend mornings and sometimes after special events. Although the jury did not make a specific factual finding, it heard undisputed evidence that the MPD normally reopened Beale Street after the Sweep. The evidence at trial established that around thirty minutes before the Sweep, MPD officers used flashing blue lights and a PA announcement to warn visitors that the street would be swept. Officers instructed visitors to either enter a business along Beale Street or leave the barricaded street area. Posted signs also indicated that the street would be cleared at 3 a.m. Visitors were not prohibited from patronizing businesses altogether, but they were temporarily cleared from the street and adjacent sidewalks. Accordingly, the Beale Street Sweep was considerably more .limited in time and place than the broad drug-exclusion zone ordinance in Johnson.

Intermediate scrutiny is appropriate in this case. The Beale Street Sweep has much more in common with the anti-cruising ordinance at issue in Lutz than the broad drug-exclusion zone ordinance in Johnson. It was limited in scope to a specific, two-block radius, and it was limited in time to specific two hours periods on weekend mornings and following special events. The policy appears to be exactly the type of “narrow ‘place’ restriction” the Johnson court contemplated would be appropriately reviewed under intermediate scrutiny. 310 F.3d at 502 n.7.

C.

Before assessing the Sweep under intermediate scrutiny, we first recognize two errors identified by the dissent. The dissent believes that the district court erred in subjecting the Beale Street Sweep to strict scrutiny and that the court compounded this error by asking the jury whether the City carried out its policy “without consideration to whether conditions throughout the Beale Street area pose[d] an existing, imminent, or immediate threat to public safety.” (Op. at 539.) (DE 141, Page ID 1899-1900.) In the dissent’s view, the language of Jury Question 4, and therefore the jury’s factual findings, are inextricably intertwined with strict scrutiny and can support a judgment under only that standard. (Op. at 544-45.)

We generally “review! ] a district court’s jury instructions for an abuse of discretion.” EEOC v. New Breed Logistics, 783 F.3d 1057, 1074 (6th Cir. 2015). We assess “whether, taken as a whole, the instructions adequately inform the jury of the relevant considerations and provide the jury with a sound basis in law with which to reach a conclusion.” Id. (quoting Pivnick v. White, Getgey & Meyer Co., 552 F.3d 479, 488 (6th Cir. 2009)). “Erroneous jury instructions require reversal only if they are confusing, misleading, and prejudicial,” not “where the error is harmless.” Id. at 1074-75.

While the district court was incorrect to apply strict scrutiny in analyzing the Beale Street Sweep, that error was ultimately harmless. Jury Question 4’s language did not require the City to meet a strict scrutiny standard, and even if so, the evidence adduced at trial and the jury’s other factual findings support our conclusion that the Beale Street Sweep does not pass muster under either strict or intermediate scrutiny.

To survive intermediate scrutiny, the Beale Street Sweep must be “narrowly tailored to meet significant city objectives.” Lutz, 899 F.2d at 270; see Neinast v. Bd. of Trs. of Columbus Metro. Library, 346 F.3d 585, 594 (6th Cir. 2003). Unlike strict scrutiny, however, intermediate review does not require that the practice be the “least restrictive or least intrusive means” of serving the government’s objectives. Neinast, 346 F.3d at 594 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). Rather, “all that is required is ‘a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.’ ” Id. (quoting Bd. of Trs. of State Univ. of New York v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)).

Under intermediate scrutiny, the City bears the burden of identifying a “significant” government interest that was furthered by the Beale Street Sweep. Ross v. Early, 746 F.3d 546, 552 (4th Cir. 2014) (citing Fox, 492 U.S. at 480, 109 S.Ct. 3028 (1989)); see also Lutz, 899 F.2d at 270. The City has identified public safety, which we have recognized as a “compelling” interest. See, e.g., Johnson, 310 F.3d at 502. Therefore, the outcome-determinative question is whether the Beale Street Sweep bears a reasonably close relationship to the City’s stated goal of public safety.

The jury found that MPD officers “carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street” both prior to and after June 14, 2012. (See DE 141, Page ID 1899-1900.) This finding alone strongly supports the conclusion that the Sweep was not tied to public safety concerns but rather to a specific, arbitrary time on certain nights. Importantly, the City points to no evidence in the record showing that the decision to sweep Beale Street at or around 3 a.m. was in any way related to conditions or potential conditions on the ground, and the testimony of Arley Knight, a deputy chief with the MPD, precludes a presumption that the timing and execution of the sweeps was related to public safety. Knight observed that the City’s policy was to sweep Beale Street at 3 a.m. “irrespective of emergencies.” (DE 210, Page ID 2861.) Other officers also testified that the Sweep was a routine practice that occurred at 3 a.m. on weekend nights, regardless of conditions on the street. There were also signs posted around the area, noting that the street was cleared on weekend nights at 3 a.m.

The jury further found that the sweep occurred “without consideration to whether conditions throughout the Beale Street area pose[d] an existing, imminent or immediate threat to public safety.” (DE 141, ID 1900.) Unlike the dissent, we do not believe that the language of Jury Question 4 improperly forced the City to prove that the Sweep was the least restrictive means of ensuring public safety on Beale Street. While there is no doubt that, prior to trial, the district court concluded that strict scrutiny applied, Jury Question 4 simply asked the jury to determine, as a factual matter, whether the City took public safety into consideration in carrying out the Beale Street Sweep, not whether the practice was narrowly tailored to serve a compelling government interest. While the jury’s finding that the policy occurred notwithstanding “existing, imminent or immediate threat[s] to public safety” supports the conclusion that the policy fails strict scrutiny, it likewise supports a finding that the Sweep lacks the connection to public safety necessary to survive intermediate scrutiny.

Although we discern no error in the wording of Jury Question 4, even assuming the question imposed too high a burden on the City, any mistake was ultimately harmless. Under both strict and intermediate scrutiny, the City bore the burden of justifying the Sweep to its stated goal of public safety. There is no indication in the trial transcript that the City lost at trial because it could not prove that the Sweep was the least restrictive means possible. Rather, the evidence adduced at trial and the jury’s factual findings show that the timing and execution of the Sweep policy was tied to an arbitrary time, not to existing conditions on the ground. And without the requisite connection to public safety, the policy fails under intermediate scrutiny. Moreover, the error in the district court’s analysis affected only its own legal analysis, not the reliability of the jury’s factual finding.

III.

Before the district court, Cole sought class certification based on either Rule 23(b)(2) or (b)(3) of a class comprised of “[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,” (DE 88, ID 780.) The district court analyzed whether the proposed class satisfied Rule 23(a), and concluded that the class was sufficiently numerous, that there were common questions of law or fact, that Cole’s claims typified the class’s claims, and that Cole and his counsel would fairly and adequately represent the interests of the class. The court went on to determine that although the proposed class did not satisfy Rule 23(b)(3), it did satisfy 23(b)(2). It observed that the “nature of the primary relief sought in 23(b)(2) class actions, injunctive or declaratory relief, does not require that the class be as narrowly confined as under either (b)(1) or (b)(3).” (Id. at 802 (quoting Weathers v. Peters Realty Corp. 499 F.2d 1197, 1200 (6th Cir. 1974)) (brackets omitted).) In its order denying the City’s motion to modify the class, the district court further noted that “the relief sought—an injunction against the further execution of the Beale Street Sweep—provide[d] & single remedy to protect all class members from future harm.” (DE 160, Page ID 2060.) The district court adopted the approach of the First Circuit in Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972), where the court found that because 23(b)(2) classes do not require notice, class membership need not be precisely ascertained. Accordingly, the district court held that ascertainability of class membership was not a requirement for Rule 23(b)(2) certification.

The City argues on appeal that ascer-tainability is an implicit requirement for class certification, even classes certified pursuant to Rule 23(b)(2). It argues further that the inclusion of the word “unlawfully” in the class definition means that the probable membership of the class cannot be ascertained without case-by-case determinations. Cole responds that, pursuant to Rule 23(b)(2), the class sought and won a single remedy that will protect all class members from future harm, and that thus, ascertainability was not necessary for certification.

We review class-certification decisions for an abuse of discretion. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013). “We will reverse the class certification decision ... only if [the party opposing certification] makes a strong showing that the district court’s decision amounted to a clear abuse of discretion.” Id. “An abuse of discretion occurs if the district court relies on clearly erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Id. (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 536 (6th Cir. 2012)). “We will not find an abuse of discretion unless we reach a definite and firm conviction that the district court committed a clear error of judgment.” Id. (citation and internal quotation marks omitted).

Although Rule 23(a) has--.no express as-certainability requirement, many courts,, including our own, have held that, it is an implicit requirement of class certification. See Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013); Young, 693 F.3d 532 (6th Cir. 2012). In Young, we adopted the as-certainability requirement-noting that certification necessitated “a class description [that is] sufficiently definite so that ;it is administratively feasible for the . court to determine whether a particular individual is a member.” 693 F.3d at 538; see also Rikos v. Procter & Gamble Co., 799 F.3d 497, 524-26 (6th Cir. 2015). However, Young involved a Rule 23(b)(3) ciass, 693 F.3d at 536, as have the other cases in which we analyzed this requirement. See, e.g., Rikos, 799 F.3d at 524-26; Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 545 (6th Cir. 2014). Thus, whether ascertainability is a requirement for (b)(2) actions is a question of first impression in our court.

At least three of our sister circuits have held that “ascertainability” is inapplicable to Rule 23(b)(2). Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015), Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004); Yaffe, 454 F.2d 1362. The Third Circuit, in Shelton, began its discussion of the requirement by noting that Rule 23(b)(2) and 23(b)(3) “create two remarkably different litigation devices.” 775 F.3d at 560. Rule 23(b)(3) “allows class certification in a much wider set of circumstances” than (b)(2). Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011)). It is such an “adventuresome innovation” that Congress included additional “procedural safeguards for (b)(3) class members beyond those provided for (b)(1) or (b)(2) class members.” Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (citation omitted). For instance, Rule 23(b)(3) requires certifying courts to find that ‘-‘the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action, -is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). And unlike (b)(1) and (b)(2) classes, (b)(3) class members are entitled to notice and are able -to opt-out of the class. Id. (c)(2)(B).

In the Rule 23(b)(3) context, ascertaina-bility aids the inherent efficiencies of the class device by ensuring administrative feasibility, and as we read our own precedent and the precedent of other courts, ascertainability is a requirement tied almost exclusively to the practical need to notify absent class members and to allow those members a chance to opt-out and avoid the potential collateral estoppel effects -of a final judgment. See, e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012) (noting that ascertainability “protects absent class members by facilitating the best notice practicable” and “protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable”). But “the requirement that the class be defined in a manner that allows ready identification of class members serves several important objectives that either do not exist or are not compelling in (b)(2) classes.” Shelton, 775 F.3d at 561. Since notice is not required for a (b)(2) class, the practical efficiencies that come with knowing the precise membership of the class are nonexistent. Likewise, without notice and an opportunity to opt-out, absent (b)(2) class members would not be es-topped by a final judgment for the defense.

As discussed above, administering a (b)(3) class is a more procedurally complicated task than overseeing a (b)(2) class. See Wal-Mart, 564 U.S. at 362-63, 131 S.Ct. 2541 (“When a class seeks an indivisible injunction benefiting all its members at once, there is no reason to undertake a ease-specific inquiry into whether class issues predominate or whether [a] class action is a superior method of adjudicating the dispute.”) The main the purpose of a (b)(2) class is to provide relief through a single injunction or declaratory judgment. Id. at 860, 131 S.Ct. 2541. “Because the focus in a (b)(2) class is more heavily placed on the nature of the remedy sought, and because a remedy obtained by one member will naturally affect the others, the identities of individual class members are less critical in a (b)(2) action than in a (b)(3) action.” Shelton, 775 F.3d at 561.

The advisory committee’s notes for Rule 23(b)(2) assure us that ascertainability is inappropriate in the (b)(2) context. See Fed. R. Civ. P. 23 advisory committee’s note to amendment 1966. The committee’s guidance states that (b)(2) is an appropriate device to use “even if [the action directed towards the class] has taken effect or is threatened only as to one or a few members- of the class.” Id. And the note further provides that “illustrative” examples of a (b)(2) class are civil-rights actions where members of the class “are incapable of specific enumeration.” Id. As the Third Circuit reasoned, “[i]n light of this guidance, a judicially created implied requirement of ascertainability—that the members of the class be capable of specific enumeration—is inappropriate for • (b)(2) classes.” Shelton, 775 F.3d at 561.

Here, the plaintiffs seek a single remedy: an injunction prohibiting the City from reenacting the Beale Street Sweep. As the district court observed, this injunction provides the sole remedy necessary to protect the affected class. The precise identity of each class member need not be ascertained here, particularly given that notice is not required as it would be in a (b)(3) class. The decisions of other federal courts and the purpose of Rule 23(b)(2) persuade us that ascertainability is not an additional requirement for certification of a (b)(2) class seeking only injunctive and declaratory relief.

IV.

The City’s final claim of error is there was insufficient evidence that the Beale Street Sweep was the “moving force” behind Cole’s arrest. The City acknowledges that it failed to preserve this issue by failing to renew its Rule 50(a) motion for judgment as a matter of law as required by Rule 50(b). Accordingly, this issue is forfeited. See, e.g., Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006); CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 583-84 (6th Cir. 2015) (“[F]ailure to renew a motion for judgment as a matter of law following the jury verdict forecloses a party’s challenge to the sufficiency of the evidence.” (internal quotation marks omitted)).

Even assuming the issue is preserved, it fails on the merits. “If there is any credible evidence to support a verdict, it should not be set aside.” Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1395 (6th Cir. 1990). At trial, Officer Williams testified that the MPD performed the Beale Street Sweep on the night of Cole’s arrest and two officers, including one of Cole’s arresting officers, Chris Bing, testified that Cole was arrested because he did not leave the street when the police told him to move. This is sufficient credible evidence to support the jury’s express finding that the Beale Street Sweep “was the cause of Plaintiff Cole’s unlawful arrest.” (DE 141, ID 1903-04.)

V.

For these reasons, we affirm the judgment of the district court

CONCURRING IN PART AND DISSENTING IN PART

GRIFFIN, Circuit Judge,

concurring in part and dissenting in part.

This appeal implicates the right to intrastate travel, “an important and largely unexplained area of constitutional jurisprudence.” Lutz v. City of York, 899 F.2d 255, 256 (3d Cir. 1990). When our court last examined it, we declared the right fundamental but left open the question of whether strict or intermediate scrutiny governs laws burdening the right. Johnson v. City of Cincinnati, 310 F.3d 484, 496-98, 502 (6th Cir. 2002). Today, the majority and I agree that intermediate scrutiny is the appropriate legal standard for constitutional review of the City of Memphis’s practice of sweeping Beale Street. However, the district court judge and district court jury applied the more onerous legal standard of strict scrutiny. Despite the error of law and misdirected findings of fact, my colleagues affirm. I respectfully disagree and thus dissent in part.

Unlike my colleagues, I conclude that a reasonable juror could have rendered a different verdict with the ■ - instructions framed correctly in terms of a reasonable 'potential threat to public safety—as opposed to the narrower and erroneous “existing, imminent or immediate threat to public safety.” Here, applying the wrong legal standard of strict scrutiny, the district court relied wholly on the jury’s factual findings in ruling that the practice is unconstitutional. Absent findings of fact addressing the material factors of intermediate scrutiny, we lack a sufficient factual basis to decide the case. I therefore respectfully dissent on the issue of whether the practice survives intermediate scrutiny. In all other respects, I concur in the majority opinion.

To survive intermediate scrutiny, a municipal practice must be “narrowly tailored to meet significant city objectives.” See Lutz, 899 F.2d at 270; see also Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Unlike strict scrutiny, intermediate review does not require that the practice be the “least restrictive or least intrusive means” of serving the government’s objectives. See, e.g., Prime Media, Inc. v. City of Brentwood, 398 F.3d 814, 819-20 (6th Cir. 2005) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798-800, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).

Under intermediate scrutiny, the burden is on the City to identify a “significant” government objective that the Beale Street Sweep is narrowly tailored to achieve. Ross v. Early, 746 F.3d 546, 552 (4th Cir. 2014) (citing Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)) (“The City bears the burden of showing the Policy satisfies [intermediate] scrutiny.”); see also Lutz, 899 F.2d at 270. The City partially satisfied its burden by identifying its interest in protecting public safety, which we have recognized as a “compelling” interest. See, e.g., Johnson, 310 F.3d at 502.

In this case, the outcome-determinative question is whether the City’s practice was narrowly tailored to protect public safety. However, the district court instructed the jury using a different and more onerous standard and decided the case applying the wrong law. Because the jury’s factual findings and the district court’s legal ruling are inextricably intertwined and premised upon the incorrect legal standard of strict scrutiny, I would reverse and remand to the district court for further proceedings applying the correct law.

A remand is warranted because “[reversal is appropriate when the trial court ‘applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.’” Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 577 (6th Cir. 2013) (citation omitted); see also Siding and Insulation Co. v. Aleo Vending, Inc., 822 F.3d 886, 901-02 (6th Cir. 2016); and National Hockey League Players’ Ass’n v. Plymouth Whalers Hockey Club, 325 F.3d 712, 717-20 (6th Cir. 2003).

In the district court, the City defended its sweep practice as furthering public safety, arguing that the City’s decision to direct pedestrians to either enter a club or leave the street in the early morning hours “on some Saturday and Sunday nights is a narrow and reasonable intrusion” on individual rights, designed to “protect[] the safety of persons and property” on Beale Street. Applying strict scrutiny, however, the district court denied summary judgment in favor of the City on the grounds that there were genuine issues of material fact regarding the nature of the practice. Fact-finding was therefore necessary. At the subsequent trial, the district court required the City to prove that it did not carry out the challenged practice “unless [the] conditions throughout the Beale Street area pose[d] an existing, imminent or immediate threat to public safety.” (Emphasis added.) The jury found as a matter of fact that the City failed to meet this burden, and, on this basis, the district court entered an injunction ruling the practice unconstitutional under the legal standard of strict scrutiny.

The majority agrees that the district court erred in its jury instructions and application of the law. Under the correct legal standard of intermediate scrutiny, the government was not required to prove that its practice was the least restrictive means to protect public safety. Thus, a reasonable potential risk to public safety, as opposed to an “existing, imminent or immediate threat to public safety,” was sufficient to justify a narrow time, place, and manner restriction like the Beale Street Sweep, which was limited to a two-block area for typically no longer than two hours in the early morning hours of some weekends.

As the City emphasizes, “Beale Street is a public roadway unlike any other” in the City of Memphis, the State of Tennessee, and perhaps the United States. By City ordinance, vendors may sell, and patrons may carry, alcoholic beverages on the sidewalks and street when the street is closed to motor traffic. See Tenn. Code Ann. § 57-4-102(27)(A)(iv); City of Memphis Ordinances §§ 7-4-15(C)(4), 7-8-23. Alcohol may be sold until 5:00 a.m. on Beale Street. See Tenn. Code Ann. §§ 57-4-102(27)(A), 57—4—203(d)(4). The City routinely uses barricades to restrict access to Beale Street, both to motor vehicle and foot traffic, and subjects patrons to identification and weapons checks.

Law enforcement is tasked every day with maintaining public safety on Beale Street among thousands of intoxicated persons concentrated in a two-block area with a history of disorderly conduct, stampedes, fights, sexual assaults, and gang violence. In that context, the City’s decision to clear a two-block section of Beale Street for fewer than two hours in the early morning hours of some weekends may be narrowly tailored (just not the least restrictive means) to protect public safety. Moreover, the record demonstrates that the City did not carry out the practice every weekend morning. Rather, officers awaited a real-time determination by a supervisor to sweep “if the lieutenants felt like ... there was a need to [do] it.” (Emphasis added.) Deputy Chief Arley Knight of the Memphis Police Department testified that the practice was usually carried out between 3:00 a.m, and 5:00 a.m. on weekends because that was the time when they “felt [the police] were having the most problems.” Rather than sweep Beale Street regardless of the conditions, Knight further testified that the practice was carried out at “the discretion of [the supervising] lieutenant” and that “the crowds dictated the safety.” (Emphasis added.) The jury’s finding that this practice occurred “mainly on weekends at or about 3:00 a.m.” (emphasis added) is consistent with the City’s position.

Given Beale Street’s unique context and history of incidents threatening public safety in the early morning hours, as well as the discretion that supervising officers exercised in carrying out the practice, a reasonable juror could have found that the City took into account reasonable potential threats to public safety. When I consider this possibility next to the limited time restriction (less than two hours on some weekends) and limited place restriction (two-block street), I disagree with the majority’s decision to affirm on the grounds of harmless error.

Here, the district court’s ruling is premised upon factual findings framed in terms of strict, as opposed to intermediate, scrutiny. Although not articulated in the majority opinion, my colleagues must conclude that the preserved constitutional errors did not affect the substantial rights of the City of Memphis. See Fed. R. Civ. P. 61. I respectfully disagree.

As the district court previously ruled regarding the motions for summary judgment, genuine issues of material fact exist regarding the Beale Street Sweep at issue. In my view, the constitutional legal errors committed by the district court cannot be cured by the inappropriate fact-finding attempted by my appellate colleagues.

I would reverse and remand for further proceedings applying the correct law of intermediate scrutiny. In all other respects, I concur in the majority opinion.

      . The MPD arrested Edmond on Beale Street on May 5, 2012. At trial, witnesses testified that Edmond appeared to be highly intoxicated and had behaved.erratically, which.caused thé manager of Club 152 to call the police. Ultimately, the jury did not find that the municipal practice caused Edmond's arrest. Edmond does not appeal.

      . Plaintiffs voluntarily dismissed their claims against the individual officers.

      . The First, Sécond, and Third Circuits have also recognized a fundamental right to intrastate travel. See Cole v. Hous. Auth. of Newport, 435 F.2d 807 (1st Cir. 1970); Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003); Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990). Additionally, the Eighth Circuit has affirmed a district court's decision that assumed, without deciding, that a right to intrastate travel existed and laws burdening such rights were subject to intermediate scrutiny. See Townes v. City of St. Louis, 112 F.3d 514 (8th Cir. 1997) (per curiam) (unpublished table decision) ("[W]e conclude that the district court’s judgment was correct and that an extended discussion is not warranted.").

      . None of the officers testified to the exact length of time that Beale Street was closed. However, several witnesses testified that the Sweep occurred at approximately 3:00 a.m. and the street was reopened most nights. Merchants were allowed to stay open until 5 a.m., suggesting that the Sweep typically lasted no more than two hours.

      . At least one other court has applied strict scrutiny to intrastate travel restrictions, but that case is readily distinguishable. In Embry v. City of Cloverport, a district court applied strict scrutiny to a broad curfew ordinance making it "unlawful for any person to be on a street, alleyway, highway, roadway, sidewalk or any other public place in the city” from 12:00 midnight to 5:00 a.m. Sunday through Thursday and 1:00 a.m. to 5:00 a.m. on Friday and Saturday, No. 3:02CV-560-H, 2004 WL 191613, at *1 (W.D. Ky. Jan. 22, 2004). The regulation at issue in Embry is much broader in scope (all public places in the city) and in time (between four to five hours every night) than the Beale Street Sweep.
      The Second Circuit has intimated that it would apply strict scrutiny to a similar curfew. In Ramos v. Town of Vernon, the court analyzed a juvenile curfew under intermediate scrutiny but observed in dicta that it would have reviewed the curfew for strict scrutiny had it applied to adults. 353 F.3d 171, 176 (2d Cir. 2003). As in Embry, the curfew was considerably broader in time and place than the Beale Street Sweep. See id. at 172 (making it unlawful for "any person under 18 years of age” "to remain idle, wander, stroll or play in any public place or establish-

        merit in the Town” from 11 p.m. to 5 a.m. on Sunday through Thursday and 12:01 a.m. to 5 a.m. on Friday and Saturday nights (emphasis added)).

      . Because we conclude that intermediate scrutiny is appropriate and because the City bears the burden under that standard, we find no merit in the City's argument that the district court improperly shifted the burden of proof to the City in Jury Question 4. Under either strict or intermediate scrutiny, the City would have had tó show that the Sweep furthered its stated goal of increased public safety. We also point out that the City likely waived this argument on appeal because it, in fact, agreed to the language used in Jury Question 4.

      . While the majority does not specify its standard of review for these preserved, constitutional errors, the errors certainly affect the City’s substantial rights and are not harmless beyond a reasonable doubt. See O’Neal v. McAninch, 513 U.S. 432, 441-42, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 303, 127 S.Ct. 2489, 168 L.Ed.2d 166 (2007); and United States v. Reid, 751 F.3d 763, 767 (6th Cir. 2014) (“The civil and criminal harmless error rules after all spring from the same statute, use more or less the same language, and in general require courts to apply the same standard.” (citation omitted)).