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UNITED STATES DISTRICT COURT


DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

NATIONAL ASSOCIATION FOR THE


ADVANCEMENT OF COLORED PEOPLE, Civil Action No. 4:18-cv-00554-MGL
INC., et al.,

Plaintiffs, DEFENDANTS’ RESPONSE TO


PLAINTIFFS’ SECOND
v. PRELIMINARY INJUNCTION
MOTION
CITY OF MYRTLE BEACH, et al.,

Defendants.

Defendants City of Myrtle Beach (“City”) and the City of Myrtle Beach Police

Department oppose Plaintiffs’ second Motion for a Preliminary Injunction.

STATEMENT OF THE CASE

In a second attempt to prevent the Bikefest Task Force’s public safety traffic plan from

operating during Memorial Day Weekend, Plaintiffs have moved for the extraordinary and

drastic remedy of a preliminary injunction. The Honorable A. Marvin Quattlebaum denied

Plaintiffs’ first attempt in an order dated May 23, 2018. (Quattlebaum Order, ECF 50). Judge

Quattlebaum issued a thorough and cogent order stating the reasons why a preliminary injunction

was not an appropriate remedy for Plaintiffs in the above captioned lawsuit. For the reasons

stated in Judge Quattlebaum’s Order, together with the additional reasons stated hereinbelow,

Defendants respectfully oppose Plaintiffs’ second Motion for a Preliminary Injunction.

Plaintiffs’ second Motion seeks to limit the scope of its request for a preliminary

injunction to Defendants’ participation in the implementation of the Bikefest Task Force’s one

way 23.1 mile traffic control plan (“traffic loop”). The Court is asked to note that only 6.1 miles

of the multijurisdictional traffic loop (35%) are controlled by Defendants. (Ex. 1 Prock Aff., ¶ 7).

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The remaining 17 miles (65%) are located on State roads controlled by the South Carolina

Department of Transportation (“SCDOT”). (Ex 1)

Defendants contend that consideration of the rights of the other governmental

stakeholders operating the traffic loop should be part of the Court’s adjudication of the Plaintiffs’

claims. However, Plaintiffs have chosen to ignore the roles played by the other government

entities in creating and implementing the traffic loop, and Plaintiffs have not addressed how their

motion will affect those entities’ or their residents. The SCDOT is not a party to the lawsuit and

would not be affected by an order issued on Plaintiffs’ motion by this Court. Further, the other

government entities that are affected by the traffic loop, such as Horry County, are not parties to

the lawsuit.

In their second Motion for a Preliminary Injunction, Plaintiffs do not present any

evidence or arguments that are substantially different from those presented to Judge Quattlebaum

in their first unsuccessful attempt to obtain a preliminary injunction. The 23.1 mile traffic loop

was main the focus of Plaintiffs’ first motion for a preliminary injunction. [ECF 6]

FACTUAL BACKGROUND

In 2003, the NAACP filed a lawsuit similar to the above captioned lawsuit against

Defendants seeking to enjoin one-way traffic on Ocean Boulevard. (Ex 2 2003 Amended

Complaint). The premise of the first lawsuit was that Memorial Day Weekend and Harley Week

were substantially the same except for the races of the majority of the visitors. Id. Plaintiffs

claimed the traffic patterns implemented should be the same. Id. The Honorable Terry L. Wooten

made preliminary findings that because the two different weeks appeared to have the same

characteristics the traffic safety plans employed by the Defendants should be the same. (Ex 3

Wooten Order). Judge Wooten’s order was summarily stayed by the Fourth Circuit Court of

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Appeals. [Ex 4 Fourth Circuit Order to Stay].

The facts existing when Plaintiffs first lawsuit was filed have changed substantially. [Ex

6, Ellenburg Dec.] At the time of the first lawsuit, two large similar motorcycle rallies were held

in the City of Myrtle Beach. The first rally was called “Harley Week” which occurred during the

middle of May. The majority of its attendees were white. The second rally was called Memorial

Day Bikefest or Black Bike Week (“MDW”) and occurred during Memorial Day Weekend. The

majority of its attendees were African-American. Those facts changed in 2009 when the City

enacted several ordinances designed to make motorcycle riding in the City safer. The ordinances

did not offend MDW attendees as much as the Harley Week attendees who filed three separate

lawsuits to overturn the ordinances. [Ex 6 Aff. Thomas E. Ellenburg, City Attorney]. During this

same time period, no lawsuits by the NAACP were filed on behalf of MDW attendees. Id.

One of the City’s ordinances required all bikers wear motorcycle helmets while riding in

the City. The helmet ordinance, which was later declared unlawful on the grounds of state law

preemption in Aakjer v. City of Myrtle Beach, 388 S.C. 129, 694 S.E.2d 213 (2010), offended the

motorcyclists participating in Harley Week. Those motorcyclists decided that if the City did not

want them to come to Myrtle Beach, they would boycott the City. The Harley Week

motorcyclists adopted the slogans “Not a dime in ‘09” and “Do it again in 2010.” Id. The Harley

Week attendees moved their activities to the south and north – outside the city limits of the City

of Myrtle Beach. Id. While many Harley Week attendees still stay in hotels located inside the

City, all of their main activities occur outside the City. Id. As a result, the similarities between

Harley Week and MDW have vanished. Id.

Memorial Day Weekend draws one of the largest crowds of the year to the City. The

reason is Memorial Day Weekend is the first week of the summer, and it draws approximately

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350,000 MDW attendees to Myrtle Beach on Memorial Day Weekend on top of the normal

influx of summer visitors. (Ex. 7 Lazarus Depo., 166:19-23 (Horry County Council Chairman

2013-2018) (“I mean, we already have three to 500,000 people here on a given week day. When

you add that on top of another two or 300,000 people for an event, that stresses our

infrastructure.”)).

One feature of Memorial Day Weekend that makes it unique from other busy summer

weekends is that a large segment of the MDW attendees congregate and cruise along a 6 mile

stretch of Ocean Boulevard between 29th Avenue North and Harrelson Boulevard. (Ex 8 Report

of Traffic Engineer Mark Teague & Plaintiffs’ Amended Complaint, ECF 84, ¶ 38 (“It is

common for Black Bike Week attendees to drive or ‘cruise’ through the City of Myrtle Beach

along Ocean Boulevard.”).

During past Memorial Day Weekends, MDW attendees created massive traffic gridlock

throughout the City including Kings Highway and side streets between Kings Highway and

Ocean Boulevard. (Ex 9 2005 MDW Helicopter Video; Ex 10 2005 MDW Street Video, Ex 11

Jeff Thomas Depo., 116:21-117:4 (City Traffic Engineer Coordinator 1985-2016)] (“Once the

bike event shifted from Atlantic Beach down to Myrtle Beach over that one specific weekend,

we could have 40 or 50 blocks of congestion. And it goes from one road, then it goes onto the

side streets and there’s just – it just keeps filling up. It’s like you take a pipe and you start putting

water, everything starts to fill up and eventually there’s nowhere – it’s not moving at all.”)).[Ex

11, Thomas Depo pp 116-117]

In response to the gridlock and other public safety problems during Memorial Day

Weekend, Defendants began considering and implementing various traffic control safety plans.

Defendants’ traffic safety control plans during Memorial Day Weekend were expensive and

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required a tremendous allocation of manpower and resources to properly implement. [Ex 5 Leath

Depo. 210:11-12]. Those measures included creating an emergency vehicle lane, restricting

traffic to one-way on Ocean Boulevard and placing extra police officers at various intersections

in the City. [Ex 1 Amy Prock Aff., ¶ 2; Chief of Police 2017-present)].

In 2010 traffic safety problems showed a decline during MDW. In 2011, Defendants tried

relaxing traffic restrictions on Ocean Boulevard to save City resources and expenses. (Ex 5 Leath

Depo., 143:16-19 & 210:11-12). One-way traffic restrictions and emergency lane restrictions on

Ocean Boulevard were lifted. The unrestricted traffic plan during MDW was allowed to exist for

four years – 2011 to 2014. [Id. at 104:25-105:3]

During those four years, public safety conditions on Ocean Boulevard and surrounding

areas deteriorated with an increase in the numbers of people congregating on Ocean Boulevard,

an increase in criminal activities, and an increase in traffic gridlock throughout the City. [Ex 12

Prock Depo., 92:2-22]. In 2013, Police Chief Warren Gall approached Mr. Leath and requested

that he reinstitute a previous traffic safety plan that established an emergency vehicle lane and

permitted only one-way traffic on Ocean Boulevard. Mr. Leath refused to reinstate the Memorial

Day traffic restrictions. [Ex 5 Leath Depo., 210:1-6)].

One of the reasons Mr. Leath resisted Chief Gall’s request was that Ocean Boulevard had

changed its features. Pedestrian safety islands had been installed in the center of Ocean

Boulevard to protect pedestrians crossing from hotel parking areas to the oceanfront hotel. The

installation of the pedestrian safety islands cut down on the space allowed for vehicles on Ocean

Boulevard. The pedestrian safety islands affected the flow of traffic. [Ex 5 Leath Depo. at 90-

94].

In 2014, public safety conditions deteriorated to the point that Mr. Leath recognized that

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something had to be done to improve public safety during Memorial Day weekend. [Ex 5 Leath

Depo. at 146; Ex 13 Block Party Video; Ex 14; Shooting Video 2014; ; Ex 15 Balcony Video].

Nine separate shooting incidents involving Memorial Day Weekend visitors occurred in the City.

Three of those shootings were homicides. [Ex 16 USA Today Article]. The governor of South

Carolina, Niki Haley, got involved and declared that something had to be done to stop the

violence and make Memorial Day weekend safer. [Ex 17 Sun News Article].

With the assistance of the Department of Justice’s Community Relations Service,

Defendants called together a summit of all government entities who were affected by Memorial

Day Weekend events together with other government entities outside of South Carolina who had

extraordinary events similar to Memorial Day Weekend. [Ex 18 Gall Depo., 161:18-163:3]. The

purpose of the summit was to address public safety in Myrtle Beach and surrounding areas

during Memorial Day Weekend and develop a best practices for law enforcement. [Ex 18 Gall

Depo., 159:2-12 & 229:10-230:17; Ex 19 2014 Summit Agenda]. To date, the City continues to

host a yearly summit on managing and policing large events. [Ex 6 Ellenburg Declaration]

Around the same time a group mayors and managers of local governments around the

Grand Strand called the Coastal Alliance formed a Bikefest Task Force to address the same

issue. [ Ex 20 Coastal Alliance Minutes & Ex 21 Webster Aff.]. The Bikefest Task Force

assumed the role of coordinating and managing the present traffic safety plans that Plaintiffs seek

to enjoin. (Ex 22 Webster Depo. 184:14-24). The Bikefest Task Force is led by Horry County’s

Director of Emergency Operations, Randy Webster. Other members of the Bikefest Task Force

include representatives from the City of North Myrtle Beach, City of Myrtle Beach, City of

Atlantic Beach, Town of Briarcliffe Acres, Town of Surfside Beach, Horry County, South

Carolina Law Enforcement Division, South Carolina Department of Public Safety, South

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Carolina Department of Transportation, South Carolina Department of Natural Resources, South

Carolina Department of Commerce, Coastal Carolina University, South Carolina Emergency

Management Division, Myrtle Beach Chamber of Commerce, Myrtle Beach Hospitality

Association, City of Conway, City of Loris and Town of Aynor. [Ex 23 2015 Bikefest Task

Force After Action Report].

The NAACP was invited to participate in the Bikefest Task Force planning process. [Ex

22 Webster Depo., 183:1-10]. In May of 2016, one of the Plaintiffs’ experts, Former Police Chief

Willie Williams, submitted a traffic safety plan. [Ex 24 NAACP Traffic Plan]. His plan

contained a traffic loop that was rejected by the Bikefest Task Force because it was believed,

among other things, to prevent adequate access to the local hospital. (Ex 25, Pederson E-mail).

The Bikefest Task Force’s traffic loop has two main purposes. [Ex 5 Leath Depo. Pp

131- 133] The first purpose is to keep traffic moving along Ocean Boulevard. The second

purpose to is keep traffic on Ocean Boulevard from being dumped back into the City or dumped

into residential areas located outside of the City. The Bikefest Task Force traffic loop was first

implemented Memorial Day Weekend 2015. [Ex 6 Ellenburg Dec.] The traffic loop plan calls

for implementation of the loop from 10 pm to 2pm on Friday, Saturday and Sunday of Memorial

Day Weekend. Those hours of operation were chosen because that is when the volume of motor

traffic is the heaviest. The maximum time planned for the traffic loop to be operational during

Memorial Day weekend is 12 hours. [Ex 26 Capt. Crosby Video Loop Explanation]

From a public safety perspective, the Bikefest Task Force safety plans including the

traffic loop have been successful. [Ex 27 Alpert & McLean Report & Ex 23 BTF After Action

Report] Emergency and police vehicle response times are down. Residents are able to move

more easily around the City. [Ex 28 Violet Lucas Affidavit & Ex 29 Fannie Brown Affidavit]

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Violent crimes have gone down and no one has been murdered since 2015. [Ex 27] In addition,

the plan allows the Defendants the flexibility to not implement the traffic loop or to end the

traffic loop earlier than 2 pm, if the existing traffic conditions do not present public safety

hazards. [Ex 8 Teague Report; Ex12 Prock Depo. p. 213]

For three years the Bikefest Task Force plans were implemented without legal opposition

from Plaintiffs. In 2018, Plaintiffs filed suit and sought a temporary injunction. As indicated

above, Plaintiffs’ motion for temporary injunction was denied by Judge A. Marvin Quattlebaum.

STANDARD OF REVIEW FOR A PRELIMINARY INJUNCTION

A court may issue a preliminary injunction upon notice to the adverse party. Fed. R. Civ.P.

65(a). It is well settled law that “[a] preliminary injunction is an extraordinary remedy never

awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008).

A movant seeking a preliminary injunction must establish (1) that he is likely to succeed on the

merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that

the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Id. at 20.

See also Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013). Critically, each of the four elements

must be satisfied. Winter, 555 U.S. at 20. Moreover, a plaintiff must make a “clear showing” both

that he is likely to succeed on the merits at trial and that he is likely to suffer irreparable harm

absent relief. Id.; The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346-47 (4th Cir. 2009),

vacated on other grounds, 559 U.S. 1089 (2010). [ECF 50 Order of Judge Quattlebaum]

The City contends the injunction Plaintiffs seek is a mandatory preliminary injunction

and not a prohibitory injunction because Plaintiffs seek to have the Court intervene and assume

control of existing traffic control strategies that have been in existence for over four years.

Plaintiffs seek to have the court change the status quo by changing the existing traffic control

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plans that have been finalized for 2019 and which existed in similar iterations for the past four

years. When a preliminary injunction is mandatory rather than prohibitory in nature, a court’s

application of the preliminary injunction standard set forth in Winter is “even more searching.”

Pashby, 709 F.3d at “[A] preliminary injunction’s tendency to preserve the status quo determines

whether it is prohibitory or mandatory.” Id. at 320. A prohibitory preliminary injunction aims to

maintain the status quo and prevent irreparable harm while a lawsuit is pending, while a

mandatory preliminary injunction does not preserve the status quo. Id. at 319-20. The Fourth

Circuit has defined the status quo as the “last uncontested status between the parties which

preceded the controversy.” Id. at 320 (internal citations omitted).

Defendants contend the mandatory standard of burden of proof should be applied to

Plaintiffs’ request to enjoin the implementation of the traffic loop during Memorial Day

weekend. Implementation of the loop represents the status quo as it has existed for the past four

years. Logistical planning is in place and State and local governments have been assigned their

respective duties. The public has been notified about what to expect during Memorial Day

Weekend 2019. [Ex 8, Mark Teague Report]

The City further contends that the stricter burden of proof for a mandatory preliminary

injunction should be applied to Plaintiffs’ claims of damages. [ECF 76-1] The City contends that

the Plaintiffs’ alleged damages do not meet the extreme or serious damage standards required for

granting a mandatory preliminary injunction. As stated by Judge Quattlebaum, Plaintiffs waited

for more than three tears before seeking a preliminary injunction to stop the implementation of

the Bikefest Task Force’s traffic loop safety plan parties which preceded the controversy.”

Pashby 709 F 3d. at 320 (internal citations omitted). However, Judge Quattlebaum did not reach

the issue of which burden of proof applied. He did find that even applying the Winter test for

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prohibitory injunctions, Plaintiffs failed to make the showing required for a prohibitory

injunction. [ECF 50]

ANALYSIS

DISCUSSION OF FOUR REQUIREMENTS FOR PRELIMINARY INJUNCTION


LIKELIHOOD OF SUCCESS ON THE MERITS

Plaintiffs must first make a clear showing that they are likely to succeed on the merits of

the case. Winter, 555 U.S. at 20. In their amended complaint, the Plaintiffs allege that the entire

MDW safety plan violates their rights under the United States Constitution. In the present motion

Plaintiffs’ claim focuses only on the traffic loop and equal protection under the Fourteenth

Amendment.

EQUAL PROTECTION CLAIM

The Plaintiffs claim that the traffic loop instituted during Memorial Day Weekend (MDW)

violates the rights of MDW participants under the Equal Protection Clause of the Fourteenth

Amendment. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State

shall . . . deny to any person within its jurisdiction equal protection of the laws.” U.S. Const.

amend. XIV, § 1. The Equal Protection Clause limits all state action and prohibits a state from

denying a person equal protection through enactment, administration, or enforcement of its laws

and regulations. Sylvia Development Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.

1995). However, the Equal Protection Clause does not remove all power of classification from

the States. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Rather, it “keeps

governmental decisionmakers from treating differently persons who are in all relevant respects

alike[.]” Id. (quoting Nordinger v. Hahn, 505 U.S. 1, 10 (1992)) (internal citations omitted).

Therefore, to succeed on an equal protection claim, a plaintiff must clearly demonstrate (1) that

she has been treated differently from others who are similarly situated and (2) that the unequal

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treatment resulted from intentional or purposeful discrimination. Id. If the Plaintiff makes the

requisite showing, the court then proceeds to determine whether the disparity in treatment is

justified under the appropriate level of scrutiny. Id.

A. Memorial Day Weekend in the City of Myrtle Beach is unique.

Plaintiffs claim that except for the race of a majority of the MDW visitors and the

implementation of the traffic loop, MDW is the same as other busy weekends in Myrtle Beach.

Plaintiffs claim Defendants use a traffic loop pattern to discourage African Americans from

visiting the City during MDW. They claim the use of the traffic loop makes traveling along

Ocean Boulevard more frustrating and unpleasant for African Americans. Plaintiffs do not claim

that enforcement of the traffic loop within the weekend itself is applied in a discriminatory

manner against African Americans. The traffic loop is applied equally to everyone. Instead

Plaintiffs claim any use of the traffic loop during Memorial Day weekend is a discriminatory act

because of the racial status of a majority of the MDW visitors in the City at that time.

Defendants contend that Memorial Day weekend is a unique weekend for the City. [Ex

30, Robert Stewart, Police Expert Report] MDW is considered to be the start of the summer

tourist season. In addition, a motorcycle rally held in Atlantic Beach Memorial Day weekend

attracts an additional 250,000 to 350,000 young African American who spill over into the City

because Atlantic Beach is small community that cannot accommodate all of the visitors attracted

to its motorcycle rally. [Ex. 7 Lazarus Depo., 166:19-23 ] A large segment of the African

American visitors who spill over into the City cruise and gather on Ocean Boulevard during the

weekend causing traffic congestion and traffic gridlock throughout the City. In past years

serious violence and public safety issues have occurred during Memorial Day weekend that

Defendants link to the traffic congestion and gridlock.

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Defendants have retained a police practices expert who supports their contention that

Memorial Day weekend is unique. Police Chief Robert Stewart concluded from his

investigation: “ This (Memorial Day Weekend) is a unique event and demographic activity and

attendance measures used to compare one against another do not transfer in a way that produces

objective or valid results.” [Ex 30 Robert Stewart Report] (Parentheses added).

Defendants have retained a traffic engineer who supports the same contention that

Memorial Day weekend is unique, Mark Teague, PE, CPM, found in his investigation:

The Bike Fest has established itself as a major motorcycle event that is
concentrated in a small area (approximately 0.5 square miles). Based on prior
year's observations this intense population and presence of event participants has
caused extreme congestion of both vehicles and pedestrians which has impeded
emergency vehicles, created undue delay for non-event users, and created a risk
for the health and safety of all event stakeholders. [Ex 8 Mark Teague Report]

Defendants have retained criminology experts who have observed the weekend and analyzed the

statistics for past MDW years in the City. Those experts support Defendants position. Geoff

Alpert, Ph.D.. and Kyle McLean, PhD., found from their investigation:

“Two very important conclusions are drawn from the data analyses. First, from
2011 to 2018, MDW has had an outsized impact on public safety resources
compared to other busy weekends in Myrtle Beach. Whether measured through
calls for service, motor vehicle collisions, motor vehicle collisions with injury,
serious violent crime, serious property crime, or Fire/Rescue responses, MDW
had a greater number of public safety activities than the comparison weekends.
Second, trend lines for each of these categories of activities suggest that the public
safety burden on MDW has been reduced in recent years. Specifically, since the
formation of the Bike Week Task Force, MDW has seen decreases in calls for
service, motor vehicle collisions, motor vehicle collisions with injury, serious
violent crime, and serious property crime.” [Exhibit 27 Alpert & McLean Report]

Plaintiffs’ initially focused on a comparison for the traffic safety plans implemented

during Bike fest and Harley Week. Plaintiffs appear to have abandoned that comparison in their

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memorandum in support of their motion. In his preliminary order in 2005, Judge Wooten’s focus

was also limited to a comparison of Bikefest and Harley Week traffic safety plans and found that

the traffic plans for both times should be the same. That comparison of MDW to Harley Week is

no longer valid. While some Harley Week visitors may stay in City hotels, all of their bike

activities occur outside the City. Harley Week visitors have continued to boycott the City.

Witnesses who are present during MDW and Harley week support the Defendants’

position. Violet Lucas, who has attended both rallies as a biker for the past five years, states that

she would disagree with the assertion that both of the events are the same. [Ex 28, Lucas Aff.]

Fannie Brown a long time resident of Myrtle Beach supports the Defendants position that

Memorial Day weekend is different. [Ex 29 Brown Affidavit] The majority of the witnesses who

have been deposed or have given statement support Defendants’ position that Memorial Day

weekend is unique.

Plaintiffs claim through their expert David Clarke that Memorial Day Weekend traffic

counts and hotel occupancy are the same as every other busy weekend in Myrle Beach.

Clarke’s claims are based on hotel occupancy numbers from surveys of certain large hotels and

limited SCDOT traffic counts outside of the City. Defendants dispute the Clarke’s data sources

and observations. [Ex 27 Report of Alpert and McLean and Ex 30 Stewart report] Further,

Clarke focuses only on Ocean Boulevard and the path of the traffic loop. He does not consider

the benefits of the traffic loop for relieving gridlock inside the City when the loop did not exist.

He does not consider the important factors regarding location, demographics and activities of the

MDW weekend visitors. [Ex 30, Stewart Report & Ex 8 Teague Report] As alleged in

Plaintiffs’ complaint a large segment of MDW visitors want to cruise and gather on Ocean

Boulevard. [ECF 84] MDW visitors’ activities are concentrated in a small area (approximately

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0.5 square miles). [Ex 8, Teague Report] Videos depict where the where traffic and crowds

congregated during the 2014 MDW and past MDW events. [Ex 9,10, 13,14, &15]

As noted by Judge Quattlebaum in his order Plaintiffs have not carried their burden in

making a “clear showing” that they are likely to succeed on the merits as to similar events of

their equal protection claim. [ECF 50] Defendants contend that Plaintiffs have not presented any

substantial new evidence in their second motion for preliminary injunction in connection with

the MDW crowd size, demographics or activities on Ocean Boulevard that would differentiate

Plaintiffs’ second motion from Plaintiffs’ first motion. Plaintiffs’ second motion should be

denied.

B. The Bikefest Task Force traffic loop resulted from public safety planning not intentional
discrimination.

Even if the Court assumed for the sake of argument that Memorial Day Weekend is the same

as every other busy weekend in Myrtle Beach, Plaintiffs cannot show that the Bikefest Task

Force’s traffic loop resulted from intentional or purposeful discrimination. Even when a

government action disproportionately impacts members of a particular racial group, the

government action will not be found to violate the Equal Protection Clause unless the plaintiff

shows that the government action was motivated by discriminatory intent. Sylvia Dev. Corp. v.

Calvert Cty., Md., 48 F.3d 810, 818 (4th Cir. 1995).

The question of Defendants’ discriminatory intent was addressed directly to the President of

the Myrtle Beach Branch of the NAACP in a deposition. [Ex 41, Mickey James Dep. pp 13-18]

He testified that he had no opinion on whether Defendants were motivated by a discriminatory

intent in their connection with MDW. He further testified that the Myrtle Beach Branch of the

NAACP never discussed filing the above captioned lawsuit and that he did not realize the lawsuit

had been filed. [Ex. 41 Mickey James Dep. p. 8]

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In the absence of direct evidence of discriminatory intent, the Fourth Circuit has recognized

several factors that are probative of whether a decision making body was motivated by a

discriminatory intent, including: (1) evidence of a consistent pattern of actions by the decision

making body; (2) historical background of the decision, which may take into account any history

of discrimination by the decision making body or the jurisdiction it represents; (3) the specific

sequence of events leading up to the particular decision being challenged, including any

significant departures from normal procedures; and (4) contemporary statements by

decisionmakers on the record or in minutes of their meetings. N.C. State Conference of NAACP

v. McCrory 831 F 3rd 204 (4th Cir, 2016); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) .

Judge Quattlebaum examined Plaintiffs’ claims using the “Arlington Heights” factors and

he found that Plaintiffs had not made a clear showing that Defendants were motivated by

discriminatory intent. [ECF 50] Defendants contend that their experts’ analysis and reports

together with discovery conducted thus far has strengthened their contention that Defendants

were not motivated by discriminatory intent. Defendants were motivated by the public safety

concerns expressed by professionally trained police officers who had experienced first hand the

public safety problems arising during past Memorial Day weekends.

1. History and operation of the traffic loop.

A history of the origin and reasons for the Bikefest Task Force’s traffic loop are set forth

in the deposition of former City Manager Tom Leath. [Ex 5 Leath Depo.p115-144] By way of

summary, Ocean Boulevard runs north and south. On the east of Ocean Boulevard are large

multi-story hotels which border the Atlantic Ocean. On the west of Ocean Boulevard are other

businesses and parking facilities that serve the hotels. The separation of the hotels from the

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businesses and parking facilities by Ocean Boulevard created a safety issue with visitors crossing

four lanes of traffic on Ocean Boulevard to get back and forth from their hotels. Tom Leath

addressed that issue before 2014 by installing pedestrian islands at various locations in Ocean

Boulevard. The pedestrian islands narrowed Ocean Boulevard to two lanes in the area where

most Bikefest visitors cruise and congregate. Id.

In 2014 the need for a dedicated emergency access lane became obvious when 9

shootings including three homicides occurred in the City. Police cars and emergency vehicles

were unable to reach the scenes of the incidents in time. The cause of the response delays was

due to the massive influx of people and traffic along Ocean Boulevard. [Ex 12 Prock Depo. p.

42]. The dedication of the emergency access lane together with the presence of public safety

islands on Ocean Boulevard caused the City to return to one way traffic on Ocean Boulevard.

[Ex 5, Leath Depo. p 118] One way traffic led to a question of where to send all of the traffic

once it reached the south end of Ocean Boulevard. Id. In past years, directing the traffic back

into the City along Kings Highway caused massive gridlock on Ocean Boulevard, Kings

Highway and side streets in the City. Id.

In the planning stage for the emergency lane and one way traffic, Chief Gall

recommended sending the traffic from the south end of Ocean Boulevard to nearby Highway 544

and Socastee. [Id. at 123] Mr. Leath recognized a problem with sending the traffic to another

residential area outside of the City. Id. Mr. Leath asked the Chief to communicate with Horry

County government about where to send the traffic from Ocean Boulevard. [Id. at 219]

Defendants did not think it was fair to other entities to cause the traffic to go into residential

areas outside the City near Highway 544. [Id. at p. 219] At that point a traffic loop designed to

send traffic through sparsely populated areas began to be seriously considered. The City had

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considered traffic loop patterns in the past years as a solution to the massive influx of traffic.

For various reasons the City did not implement a traffic loop. Traffic loops are common public

safety techniques and are used in many areas with similar traffic congestion and cruising

conditions. [Ex 8 Teague Report & Ex 30 Stewart report]

What distinguished Defendants’ traffic planning after 2014 MDW, was that the Coastal

Alliance had established the Bikefest Task Force to address the problems that arose throughout

Horry County in 2014. [Ex 7, Lazarus Depo. p. 153] The Bikefest Task Force members

included representatives of all the stakeholders or government entities that would be affected by

traffic planning for the MDW traffic. The Bikefest Task Force coordinated communications

among all the stakeholders. Several traffic loop patterns were considered by the stakeholders.

The 23.1 mile traffic loop was finally chosen by consensus of all the stakeholders. Actually,

SCDOT drew out the final traffic loop pattern. [Ex 7, Lazarus Depo. p. 180] The traffic loop

chosen by the Bikefest Task Force and the Coastal Alliance includes 6.1 miles of roads

controlled by the City and 17 miles of roads by SCDOT. Id.

The traffic loop pattern was first implemented before the occurrence of the very next

Memorial Day weekend in 2015. [Ex 6 Ellenburg Dec.] Some initial problems arose with traffic

flow going to and from the airport 2015. Those problems were addressed and other adjustments

have been made over the four years the loop has been in operation. The consensus of the

stakeholders in the Bikefest Task Force is that the traffic loop works and it serves its intended

public safety purpose. [Ex. 23, BTF After Action Report]

One of the key reasons the traffic loop works is that local police officers have the

flexibility to adjust to the dynamics of any given situation in real time during the operation of the

loop. [Ex 8, Mark Teague report] Officially, the traffic loop pattern operates from 10 pm to 2 am

17
4:18-cv-00554-MGL Date Filed 03/08/19 Entry Number 102 Page 18 of 25

on Friday Saturday and Sunday Nights. [Ex 26, Crosby Video] Those times were chosen because

in past years those time were when traffic concerns were most prevalent on Ocean Boulevard.

[Ex12, Prock Dep. p. 195] During the loop times all side streets of Ocean Boulevard are blocked

to prevent motorists from creating their own traffic loops and locking the City down with

gridlock. [Ex. 8 Teague Report & Ex 26, Crosby Video]. Police officers have the discretion to

lift barriers on streets in certain circumstances to allow visitors to get to their hotels. [Ex 8,

Teague report] Further if the traffic volume on Ocean Boulevard does not justify use of the

traffic loop, the Police Chief in consultation with the other stakeholders has the authority to end

the operation of the traffic loop before 2 am or to not implement the traffic loop on a given

night. [Ex 12, Prock Dep p. 209]

The existence of the traffic loop plan and its details are communicated extensively to the

general public though news media, pamphlets, apps, and social media postings. [Ex. 8 Teague

Report & Ex 26, Crosby Video] Defendants have created an app to show MDW visitors how to

navigate through the City during hours when the loop is in operation. Id. Defendants efforts to

communicate to the general public and MDW visitors information about navigating in the City

cuts against Plaintiffs’ claims that the purpose of the traffic loop is to frustrate MDW visitors or

to make MDW as unpleasant as possible.

2. Pattern of actions by the decision making body.

Plaintiffs claim that the Bikefest Task Force traffic loop is just the latest iteration of

Defendants’ long history of discriminatory treatment of Black Bike Week. Setting aside the fact

that Defendants were not the sole decision makers on the traffic loop and setting aside the fact

that SCDOT made the final decision on the traffic loop, Plaintiffs have omitted the important fact

that for three years immediately before the creation of the traffic loop (2011 – 2014) two way

18
4:18-cv-00554-MGL Date Filed 03/08/19 Entry Number 102 Page 19 of 25

traffic was allowed Ocean Boulevard and side streets were open. That traffic pattern is the same

pattern that Plaintiffs have requested in the present lawsuit. Plaintiffs have omitted the fact that

that traffic pattern was a tragic failure which caused the traffic loop adopted by the Bikefest Task

Force and the approved by the Coastal Alliance. [Ex 7, Lazarus Depo. p. 214]

Plaintiffs’ references to political statements made 15 years ago by Mark McBride and /or

Judge Wooten’s preliminary order are not relevant to the Court’s consideration of current traffic

loop. Different standards and different facts existed in 2005. Mark McBride was not mayor

when the decision to create a traffic loop was made. Judge Wooten’s order only directed that

traffic patterns should be equal for both MDW and Harley Week in the month May. The Court

should note that Judge Wooten’s preliminary injunction order was summarily stayed by the

Fourth Circuit Court of Appeals. As Judge Quattlebaum noted, the facts were substantially

different and the elements for obtaining a preliminary injunction were different in 2005. [ECF 50

fn 6]

The 2009 ordinance decisions including the helmet ordinance made by the City show that

the City was not motivated by racial considerations. The ordinances applied equally to both

Harley Week and Bikefest. Many of the same claims of discrimination made by the Plaintiffs in

the present lawsuit were made by the white bikers who attended Harley Week. [Ex 6, Ellenburg

Decl.] White Harley Week visitors were so offended by the acts of the City that they declared a

boycott of the City. That boycott continues to the present. Id.

3. The sequence of events leading up to the creation of the traffic loop


demonstrates Defendants public safety concerns.

Plaintiffs have ignored and omitted the actual sequence of events from the initial police

summit through the decision making process of the Bikefest Task Force stated hereinabove from

their arguments of intentional discrimination. Instead, Plaintiffs claim Defendants did not do any

19
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meaningful studies or analysis of the effect of the traffic loop. Therefore, Plaintiffs’ claim is

intentional discrimination is shown by default. Defendants dispute Plaintiffs’ claim that all the

planning, analysis and considerations done by the Defendants together with the Bikefest Task

Force were not meaningful.

Defendants have filed expert reports from experts in three different fields who have

analyzed Defendants’ planning and the experts have demonstrated the effect he implementation

of the traffic loop has had since was implemented in 2015. Those experts considered films of

traffic conditions before the loop was implemented and they have observed either in person or

investigated the effect of the traffic loop on MDW. Defendants experts have all concluded that

planning that led to the traffic loop was proper. [Ex. 8, 27 & 30]

Traffic engineer Mark Teague concluded: “The traffic management plan was designed,

prepared, and implemented through extensive stakeholder input (event participants, local

residents, government officials, event observers, and local businesses).” “The traffic

management plan extension that is in effect during the most intense hours of the event serves as a

way to mitigate potential congestion on other north - south routes such as Oak Street, Kings

Highway, and US 17. All of which serve critical community and regional facilities such as

medical, law enforcement, fire stations, or pharmacies.” [Ex 8 Teague report]

Police Safety expert Robert Stewart found: “The employment of a ‘loop’ traffic pattern

during ‘peak’ evening and night times during the Bikefest event is necessary for the safe

movement of the motoring public along Ocean Boulevard and the protection of pedestrians and

event goers on the adjacent sidewalks and intersections. Preventing motor vehicle gridlock is

one of the biggest public safety goals for the event.” [Ex 30, Stewart report]

Even if the court were to set aside all of the training, expertise planning and empirical

20
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observations of the Defendants’ police officers who have worked MDW for decades, Plaintiffs

have not shown how the traffic loop’s effect on MDW visitors could have been analyzed

differently before it was implemented. Plaintiffs experts focus solely on the amount of time it

took for their witnesses to navigate the traffic loop after it was in effect. They have no data for

traffic times on Ocean Boulevard before the loop was implemented. Defendants’ witnesses

dispute Plaintiffs’ claims on the amount of time it takes to navigate the loop. Further just getting

from point A to point B on Ocean Boulevard is not the only purpose of the traffic loop. [Ex 8,

Teague report]

Defendants contend the results of the traffic safety plan show that it accomplished the

true intent of the decision makers i.e. the Bikefest Task Force. Criminology experts Geoff Alpert

and Kyle McLean concluded: “An analysis of activities between MDW and other weekends

show that the public safety burden on MDW has been reduced in recent years, 2015 - 2018.

Since the formation of the Bike Week Task Force, MDW has seen decreases in multiple events

including calls for service, motor vehicle collisions, motor vehicle collisions with injury, serious

violent crime, and serious property crime. It is likely that operational plan for MDW by the Bike

Week Task Force has influenced these changes.” [Ex 27 Alpert & McLean report]

4. Legislative history leading to decision.

Defendants contend there is no legislative history and there are no contemporary

statements by legislators showing a discriminatory intent because there were no legislative acts.

Defendants contend that the Bikefest Task Force public safety officials who created the traffic

loop were trained public safety professionals and not popularly elected government officials.

The decision makers were public safety officials who were not concerned with getting re-elected.

Their sole responsibility is to keep the public safe. If public safety officials perform their jobs

21
4:18-cv-00554-MGL Date Filed 03/08/19 Entry Number 102 Page 22 of 25

properly, they will be secure in keeping their jobs. If public safety officials create unlawful and

unenforceable public safety plans or fail to keep the public safe, they will be replaced.

Plaintiffs have produced a 2014 e-mail from then Assistant City Manager John Pederson

who was of the opinion that the public safety issues of the large influx of traffic and vehicles

MDW could be improved if less people came to the City during MDW. Plaintiffs claim this was

a comment that depicted Defendants’ discriminatory intent. Plaintiffs have omitted the fact that

at the time of the e-mail, Assistant City Manager Pederson’s e-mail had no effect on Defendants

planning and decision making. [Ex 5 Leath Dep. p158] Further, Pederson’s e-mail does not

mention or suggest creating a traffic loop. [Ex. 40]

Plaintiffs assumption that Mr. Pederson’s use of the phrase “sucking the fun out of the

event” depicts a discriminatory intent is not supported by other evidence. When Mickey James,

President of the Myrtle Beach Branch of the NAACP, was asked if he believed Mr. Pederson

was motivated by discriminatory intent, he stated he had no opinion on that issue. [Ex 41,

Mickey James Dep p 14]

For the above stated reasons, Defendants respectfully contend that Plaintiffs have not

shown that they will likely succeed on the merits of their claims that Bikefest Task Force traffic

loop violated their equal protection rights.

IRREPARABLE HARM IN THE ABSENCE OF PRELIMINARY RELIEF

Defendants agree that any deprivation of constitutional rights is harmful. However,

whether such harms are irreparable is not clearly established. See City of Memphis v. Greene,

451 U.S. 100, 101 S. Ct. 1584, 67 L. Ed. 2d 769 (1981); Justice Res. Ctr. v. Louisville-Jefferson

Cty. Metro. Gov't, No. CIV A 07-209-C, 2007 WL 1302708, at *1 (W.D. Ky. Apr. 30, 2007).

Plaintiffs do allege additional claims of inconvenience, exhaustion, and frustration resulting from

22
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the traffic loop. However, as again noted by Judge Quattlebaum those claims are not the kinds

of harm that warrant a preliminary injunction. A preliminary injunction is not normally available

where the harm at issue can be remedied by money damages. Bethesda Softworks, L.L.C. v.

Interplay Entm't Corp., 452 F. App'x 351, 353 (4th Cir. 2011). Typically, injunctions are sought

and granted on an emergency basis to prevent a change in the status quo and to preserve the

court’s ability to render a meaningful judgement on the merits. Pashby v. Delia, 709 F.3d 307,

318 (4th Cir. 2013). Here, the Plaintiffs brought a lawsuit and filed their first request for a

temporary injunction in February 2018, to change a traffic plan that has been used since 2015.

Judge Quattlebaum found that Plaintiffs’ delay cuts against their claims of irreparable harm. See

De La Fuente v. South Carolina Democratic Party, 164 F.Supp.3d 794, 804 (D.S.C. 2016).

BALANCE OF EQUITIES.

The balance of equities tip strongly in favor of the Defendants. Defendants contend the

favorable balance by the exhibits, the testimony of Myrtle Beach Police Chief Amy Prock and

the testimony of Captain Joey Crosby that traffic gridlock, disorderly crowds, and violence has

occurred over past Memorial Day Weekends in the area of Ocean Boulevard governed by the

traffic plan that the Plaintiffs seek to enjoin. [ECF 95-70, pp 94 -132]

For the Plaintiffs, the most serious actual injury would be inconvenience, exhaustion, and

frustration resulting from the traffic loop for a possible total of twelve hours during MDW. [ECF

76] That inconvenience would only occur between the hours of 10 pm and 2 am. In contrast,

forcing Defendants to police a potentially unsafe extraordinary event with an inadequate public

safety plan and deny Defendants the use of techniques used by other jurisdictions under similar

conditions, jeopardizes the safety of the MDW visitors, City residents and the police. See Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 26, 129 S. Ct. 365, 378, 172 L. Ed. 2d 249 (2008).

23
4:18-cv-00554-MGL Date Filed 03/08/19 Entry Number 102 Page 24 of 25

PUBLIC INTEREST

The Plaintiff must also show that the injunction is in the public interest in order to be

granted preliminary injunctive relief. Winter, 555 U.S. at 20. “In exercising their sound discretion,

courts of equity should pay particular regard for the public consequences in employing the

extraordinary remedy of injunction.” Id. at 24 (internal citations omitted). For similar reasons

stated above Defendants contend that the public’s interest is more likely served if the Plaintiffs’

motion for injunctive relief is denied.

As Judge Quattlebaum noted in his order, this case is similar to the case of Justice Res.

Ctr. v. Louisville-Jefferson Cty. Metro. Gov't, 2007 WL 1302708 (W.D. Ky. 2007). In that case,

the plaintiffs requested a preliminary injunction of a traffic plan in place for the 2007 Kentucky

Derby Festival which called for the closure of Broadway from 9th Street West to 34th Street,

a section of the road that runs through a predominantly African-American area of the city.

Id. at *1. The plaintiffs alleged that the road closure would cause profit loss and irreparably harm

African-American owned businesses located along the stretch of road subject to closure under

the traffic plan. Id. The plaintiffs also alleged that the road closure constituted racial

discrimination and disparate treatment in violation of their rights under the 14th Amendment. Id.

The defendants in that case claimed that the traffic plan was developed in reaction to cruising, the

act of driving up and down the boulevard to be seen. Id. They further claimed that Derby Day

cruising developed into excessive gridlock, large crowds, and deadly violence. Id.

In considering whether to grant the plaintiffs request for preliminary injunction in Justice

Resource Center, the Court assumed that the plaintiffs met their burden of showing a likelihood

of success on the merits and a likelihood of irreparable harm. Id. at *6. Even with that assumption,

the Court found that the balance of the equities tipped in favor of the Defendants and that the public

24
4:18-cv-00554-MGL Date Filed 03/08/19 Entry Number 102 Page 25 of 25

interest favored denial of the injunction. Id. The Court based this decision primarily on the risk of

harm to the public if the traffic plan were enjoined where there was evidence of unacceptable level

of criminal behavior in the absence of a traffic plan during past Derby weekends including a

homicide, shootings, and sex offenses. Id.

Here, as in Justice Resource Center, Defendants contend it is in the public interest to

deny the preliminary injunction requested by the Plaintiffs. Although the Plaintiffs have raised

issues about the effectiveness of the Bikefest traffic plan, the evidence and expert reports

provided by the Defendants and together with the testimony of Chief Prock and Captain Crosby

indicate that the traffic plan in place for Memorial Day Weekend attempts to serve a legitimate

public interest in decreasing traffic congestion from Ocean Boulevard throughout the City,

providing a clear path for emergency response vehicles and providing for the public safety in

general. When considering the alleged injuries to the Plaintiffs with the demonstrated public

interest in preventing problems with traffic gridlock, disorderly crowds and violence that might

occur on Ocean Boulevard and surrounding areas if the City’s plan is enjoined, Defendants

contend that the public interest will be best served if the Defendants are allowed to proceed with

the Bikefest Task Force traffic plan for Memorial Day Weekend 2019. See Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 26, 129 S. Ct. 365, 378, 172 L. Ed. 2d 249 (2008).

CONCLUSION

For the forgoing reasons, Defendants respectfully request that Plaintiffs’ second Motion

for a Preliminary Injunction be denied.

_s/Michael W. Battle___________
Michael W. Battle Fed ID # 1243 (mbattle@battlelawsc.com)
James R. Battle Fed ID #10221 (jbattle@battlelawsc.com)
Battle Law Firm, LLC
Attorneys for Defendants

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FILED
fJtJL-2 2004
LARRY PROPES GLER
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLTNA
FLORENCE DIVISION

NATIONAL ASSOCIATION FOR


THE ADVANCEMENT OF COLORED
PEOPLE INC by Conway Branch
its

CRAIG WILLIAMS
LEWIS ELY JR Civil Action No 14 03 I13Z- 12
JOCELYN MERCER-BROWN
MERLE STEWART FIRST AMENDED
WASHICA LITTLE COMPLAINT
MIChAEL LITTLE JURY TRIAL DEMANDED
MICHAEL GOOD
CHRISTOPHER COLEMAN
BARBARA COLEMAN
ANTHONY TONIC

Plaintiffs

CITY OF MYRTLE BEACH municipal corporation


ithin the State of South Carolina

WARREN GALL in his official capacity as the

Chief of the Myrtle Beach Police Department

HURRY COUNTY body politic and subdivision of

the State of South Carolina

Defendants

_________

their and for their complaint allege as follows


Plaintiffs by attorneys

Nature of Action

This action arises from the Defendants discriminatory policies and conduct in

connection with motorcycle event called Black Bike Week held annually in the Myrtle Beach

Doc 1308925 v.2

DEF0001 7746
___ rb r16
4:18-cv-00554-MGL Date Filed 03/08/19 Entry
Fr rylNumber 102-2 Page2o
Page 223of 25

Week an annual of predominantly African American motorcyclists


area Black Bike is gathering

Black Bike
and motorcycle enthusiasts from locations throughout the United States During

and
Week in contrast to other significant events in Myrtle Beach Defendants adopt implement

traffic restrictions and tactics based on stereotyping of African


racially discriminatory police

Americans that interfere with and Plaintiffs of the exercise of constitutionally


unlawfully deprive

protected rights

Plaintiffs hereby request damages and declaratory and injunctive


relief to remedy

the deprivation of the Plaintiffs constitutional rights by Defendants the City of Myrtle Beach

of the Myrtle Beach and the County of Horry


Chief Gall Police Department

Jurisdiction And Venue

This Court has jurisdiction over this action pursuant to the provisions of 28 U.S.C

2201 and 28 U.S.C 1367


133128 U.S.C 1343a 28 U.S.C

Venue of this action is in the District of South Carolina Florence Division


proper

pursuant to 28 U.S.C 1391b

Parties

Plaintiff the NAACP Conway Branch is


membership based non-proflt

association whose parent body was organized under the laws of the State of New York in 1911

The Conway Branch NAACP the Branch is affiliated and charted by the National

Association for the Advancement of Colored People Inc NAACP The Branch is registered

to do business in the State of South Carolina

As one of the oldest and largest civil rights organization in the nation the purpose

of the NAACP is to ensure the elimination of all racial barriers that deprive AfricamAmerican

citizens of the privileges and burdens of civil and constitutional rights in the United States
equal

DEF0001 7747
01JT737TtVDaºThd
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Date Filed 03/08/19 Entry
Fr ry Number 102-2
16 Page 323of 25
Page

advocate for equal and due of African


The Branch has been leading protection process rights

Beach and North


American and other minority residents and visitors in Myrtle Beach Atlantic

South Carolina
Myrtle Beach

The Branch has been forced to divert resources away from its educational

and referral services in order to investigate and counteract the Defendants adoption
counseling

and of discriminatory policies and practices for Black Bike Week The Branch
implementation

retained the services of one or more persons to investigate the facts surrounding the
also has

Defendants discriminatory poll cies and practices

The Branch this action on its own behalf and on behalf of adversely
brings

affected members of the NAACP

Plaintiff Craig Williams is an African American resident of Maryland Plaintiff

affected and of Defendants and their


Williams has been adversely by the acts policies practices

agents As motorcyclist he attended Black Bike Week in 1998 1999 2000 and 2001 and was

restrictions and
offended and inconvenienced by the discriminatory traffic aggressive police

He Myrtle Beach over Memorial Day


by the Defendants to to
tactics implemented plans go

Weekend in 2003 for Black Bike Week

an African American resident of Maryland Plaintiff


10 Plaintiff Lewis Ely Jr is

and of Defendants and their


Ely has been adversely affected by the acts policies practices

Black Bike Week from 1997 to 2002 and was offended


As motorcyclist he attended
agents

traffic restrictions and police tactics


and inconvenienced by the discriminatory aggressive

implemented by the Defendants He plans to go to Myrtle Beach over Memorial Day Weekend

in 2003 for Black Bike Week

-3-

DEF0001 7748
4cvUt2TtWt
4:18-cv-00554-MGL Dateefl 07070
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Fr ry Number 102-2
16 Page 423of 25
Page

11 Plaintiff Jocelyn Mercer-Brown is an African American resident of New York

She is member of the Williamsbridge Branch of the NAACP Plaintiff Mercer-Brown has been

the acts and of Defendants and their agents As


adversely affected by policies practices

1999 2000 2001 and 2002 Black


motorcyclist enthusiast she was in Myrtle Beach in during

traffic restrictions and


Bike Week She was offended and inconvenienced by the discriminatory

aggressive police tactics implemented by the Defendants

12 Plaintiff Merle Stewart is an African American resident of New York Plaintiff

affected and of Defendants and their


Stewart has been adversely by the acts policies practices

As motorcyclist he attended Black Bike Week in 2002 and was offended and
agents

traffic restrictions and tactics


inconvenienced by the discriminatory aggressive police

implemented by the Defendants

Plaintiff Washica an African American resident of South Carolina She


13 Little is is

member of the NAACP Plaintiff Little has been adversely affected by the acts policies and

of Defendants and their agents She has been in Myrtle Beach over Memorial Day
practices

Weekend Black Bike Week for the past five years She was offended and inconvenienced
during

traffic restrictions and aggressive tactics implemented by the


by the discriminatory police

Defendants

14 Plaintiff Michael Little is an African American resident of South Carolina

Plaintiff Little has been affected by the acts policies and practices of Defendants and
adversely

Bike
their agents He has been in Myrtle Beach over Memorial Day Weekend during Black

Week for the past five years He was offended and inconvenienced by the discriminatory traffic

restrictions and aggressive police tactics implemented by the Defendants

-4-

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ry Number 102-2
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Page

15 Plaintiff Michael Good is an African American resident of Georgia Plaintiff

affected and practices of Defendants and their


Little has been adversely by the acts policies

agents He was in Myrtle Beach over Memorial Day Weekend during Black Bike Week in 2002

and 2003 He was offended and inconvenienced by the discriminatory traffic restrictions and

aggressive police tactics implemented by the Defendants

16 Plaintiff Barbara Coleman is an African American resident of Maryland Plaintiff

affected and of Defendants and their


Coleman has been adversely by the acts policies practices

agents She was in Myrtle Beach over Memorial Day Weekend during Black Bike Week in

2003 She was offended and inconvenienced by the discriminatory traffic restrictions and

aggressive police tactics implemented by the Defendants

17 Plaintiff Christopher Coleman is an African American resident of Maryland

affected and practices Defendants


Plaintiff Coleman has been adversely by the acts policies of

Black Bike
and their agents He was in Myrtle Beach over Memorial Day Weekend during

Week in 2003 He was offended and inconvenienced by the discriminatory traffic restrictions

and aggressive police tactics implemented by the Defendants

Plaintiff Anthony Tonic is an African American resident of Maryland Plaintiff

affected and of Defendants and their


Tonic has been adversely by the acts policies practices

He has been in Myrtle Beach over Memorial Day Weekend during Black Bike Week for
agents

the past six years He was offended and inconvenienced by the discriminatory traffic restrictions

and aggressive police tactics implemented by the Defendants

19 Defendant City of Myrtle Beach South Carolina City or Myrtle Beach is

and under the laws of South Carolina


municipal corporation duly organized existing

-5-

DEF0001 7750
4-93effl3-Ft-WfDateeIidU71
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210zr Entry
rily Number 102-2
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Page

of the
20 Defendant Warren Gall is the Chief of the Myrtle Beach Police Department

Carolina Chief Gall the chief executive of the Myrtle Beach


of Myrtle Beach South is
City

and is sued in both his official and individual capacities


Police Department

and subdivision of the


21 Defendant Horry County South Carolina body
is politic

within the boundaries of Horry


State of South Carolina The City of Myrtle Beach lies County

the City during the height of Black


and Horry County deploys its law enforcement officials to

Bike Week over Memorial Day Weekend

the federal District of South Carolina


22 All of the Defendants are located in judicial

of herein occurred within this District


and all of the actions complained

Factual Allegations

of Myrtle Beach has become focal for two motorcycle-related


23 The City point

white crowd and Black Bike


events Harley Davidson Week which attracts predominantly

African-American crowd In adopting and implementing


Week which attracts predominantly

have
and methods for these two special events the Defendants
traffic management plans policing

based on stereotyping of African Americans and deprived participants


engaged in discrimination

federal rights
in Black Bike Week of fundamental constitutionally protected

Harley Week

24 The Harley Davidson Week Harley Week or Harley Rally began in the

the town of North Myrtle Beach For many years this


l940s with small gathering of bikers in

down beach during the day


up and
hundred bikers racing the
consisted of several
gathering

beach bonfire
followed by an evening

the gradually increased over the years


25 The number of bikers attending rally

of hotels and resorts to accommodate them


fueled in part by growing willingness

-6-

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Page

and area merchants advertise their appreciation of the


26 Myrtle Beach resorts

that Welcome Hog Members or Welcome


Harley bikers and welcome the bikers Signs say

the City of Myrtle Beach during Harley Week The Myrtle


Bikers predominate throughout

color brochures for Harley Week


Beach Chamber of Commerce has provided 30-page

of police and visitors to


participants with Welcome Letter from the chief welcoming urging

return

more occur in the City of Myrtle


27 As Harley Week grew in size events began to

had become focal of Harley Week


Beach such that by the late 1980s Myrtle Beach point

and
28 common for Harley Davidson motorcyclists
Among other activities it is

drive or cruise the City of Myrtle Beach along Ocean


Harley Davidson enthusiasts to through

Myrtle Beach
to the beachfront of This
Boulevard major thoroughfare that travels parallel

of Harley Week because it


provides bikers an opportunity to
cruising is an important aspect

on the sidewalks and at hotels along


show off their motorcycles and allows spectators gathered

Ocean Boulevard to observe the motorcycles

estimated crowds of over


29 Harley Week convened mid-May drawing
in
is annually

Week with an additional 100000 tourists in the Myrtle Beach


200.000 participants in Harley

last weekend attracting the largest


area Harle Week typically extends over ten days with the

the vast majority of bikers and biker-enthusiasts


crowds and Since its inception
participants

attending the Harley Week have been white

Black Bike Week

black biker encouraged the creation


30 The Carolina Knight Riders organization

of the Atlantic Beach Bike Festival which is commonly called Black Bike Week in the small

Beach residents are predominantly African American


town of Atlantic Beach Atlantic

-7-

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ry Number 102-2
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Page

white communities of Myrtle


31 Atlantic Beach lies between the predominantly

Beach to its South and North Myrtle Beach to its North

continue to separate
32 Many vestiges of past government-enforced segregation

Atlantic Beachs 400 African-American residents from the two neighboring towns For example

and Ocean Boulevard which


chain link fences along Atlantic Beachs town boundaries
appear

the Atlantic Beach


and North Myrtle Beach
through Myrtle Beach stops at
runs along the coast

fences

around Memorial Day in the host town of


33 Black Bike Week is convened annually

Atlantic Beach with the height of Black Bike Week occurring over Memorial Day weekend

from over the United States has grown


This event which now attracts participants all

Approximately 100000 bikers and biker-enthusiasts now attend


significantly since it began

and most of these are African American


Black Bike Week each year participants

of Black Bike Week and the small size of Atlantic Beach


34 Due to the popularity

the participants in and enthusiasts of Black Bike Week congregate to or stay in Myrtle
many of

Beach

Bike Week and its


35 Like Harley Week it is common for Black motorcyclists

enthusiasts to drive or cruise through the City of Myrtle Beach along Ocean Boulevard

travels to the beachfront of Myrtle Beach This cruising is an


major thoroughfare that parallel

Black Bike Week because it provides bikers an opportunity to show off


important aspect of

allows on the sidewalks and at hotels along Ocean Boulevard to


their motorcycles and spectators

observe the motorcycles

36 As Black Bike Week expanded to the surrounding community of Myrtle Beach in

and leaders of Myrtle Beachs hospitality


Myrtle Beach officials
the mid-l990s white City

-8-

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Page

industry began to exhibit overt hostility toward Black Bike Week which is in sharp contrast to

attitudes towards Harley Week

and leaders have sought to the Black Bike


37 These City officials community prevent

rules and
Week activities from occurring in Myrtle Beach have implemented special policies

Americans from visiting Myrtle Beach and have


during Black Bike Week to discourage African

taken other actions to interfere with Black Bike Week visitors travel to Myrtle Beach

38 Government officials of Myrtle Beach as well as leaders of Myrtle Beachs

Black Bike Week from visiting


hospitality industry have sought to discourage participants

and fear that the festival would create an image that


Myrtle Beach based on racial stereotyping

Beach is black beach in the eyes of white tourists


Myrtle

39 Black Bike Weeks most vocal critics Myrtle Beach Mayor Mark
Among is

advocated the
McBride Prior to his election in 1998 Mark McBride as city councilman

elimination of Black Bike Week events in Myrtle Beach After taking office as Mayor Mr

Mc Bride lobbied the State of South Carolina to deploy the National Guard to Myrtle Beach

Black Bike Week and


during Black Bike Week in an attempt to intimidate participants

Myrtle Beach
from entering The has never reciucsted the
discourage participants Mayor

National Guard to police other significant events in Myrtle Beach

40 Tn 1998 The Myrtle Beach Sun Times quoted Mr McBride as saying that during

the height of Black Bike Week on Memorial Day Weekend felt uncomfortable

were some times when felt threatened

41 After his election as Mayor Mr McBride has demanded and obtained greater

same for Harley


during Black Bike \Veek but has not sought the police presence
police presence

Week or any other special events in Myrtle Beach

-9-

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Tc1O7702JG Entry
ry Number 102-2
16 PagPage
10 1023
of 25

Defendants Discriminatory Conduct

wide that runs parallel to the beachfront


42 Ocean Boulevard is two-way roadway

district
and through the heart of Myrtle Beachs entertainment

summer on weekends Ocean Boulevard becomes


43 Throughout the particularly

cruise both
Myrtle Beach to in
congested with traffic It is common activity for visitors to

Ocean Boulevard This cruising involves driving slowly along Ocean


directions along

Boulevard
Boulevard and around to cruise in the opposite direction along Ocean
turning

44 Prior to 1998 the City of Myrtle Beach permitted two-way traffic along Ocean

Black Bike Week 1998 however the


Harley Week
in
Boulevard throughout and Starting

with to
and discriminatory policies and practices respect
Defendants have adopted implemented

Black Bike Week as described below

for the height of


45 In March 1998 Myrtle Beach announced new traffic plan

Under of
Day weekend
traffic portions
Black Bike Week during Memorial this proposed plan

vehicular traffic and traffic-flow on other portions of Ocean


Ocean Boulevard would he closed to

said this
plan the City and the police that
Boulevard would he restricted When announcing this

for and for an escalating party


plan was intended to reduce opportunities traffic gridlock

atmosphere to develop

46 ln accordance with its announcement the following plan was implemented during

Ocean Boulevard was closed between


Black Bike Week on Memorial Day weekend in 1998

for emergency vehicles


7th Avenue North to 1th Avenue North to all vehicular traffic except

Avenue North to the Dunes Club


local traffic was allowed on Ocean Boulevard from 29th
only

Route 17 in the south end of the city


Area at the intersection of Ocean Boulevard and Business

the Dunes Club area was limited to


to Ocean Boulevard from Business Route at
entry

10-

DEF0001 7755
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northbound traffic was directed off Ocean Boulevard at


local traffic only any remaining

and 9th Avenue South and any southbound traffic was


17th Avenue South 13th Avenue South

2l Avenue North 16th Avenue North and Avenue North


directed off Ocean Boulevard at

closed traffic
47 For Black Bike Week in 1999 Ocean Boulevard was to two-way

flow southbound on Ocean Boulevard from 29 Avenue North to 29th

making traffic one-way

on the two
Avenue South the citys southern limits at Business 17 Kings highway Traffic

This traffic went into effect


lanes was restricted to emergency vehicles only plan
northbound

from 600 p.m Thursday May 27 1999 to 600 n.m Monday May 31 1999 Parking was

area and did not make available


prohibited anywhere along Ocean Boulevard in this one-way

travelers along this of Ocean Boulevard were


for parking Finally portion
areas motorcycle-only

make 16Ih Avenue North 14th Avenue North l2 Avenue North


not permitted to right turns at

9th Avenue North 8tb Avenue North and Avenue North

restrictions for Ocean


48 For Black Bike Week in 2000 2001 and 2002 the traffic

and southbound one-way traffic was permitted along Ocean


Boulevard continued only

700 am on the Thursday of


Boulevard from 29h1 Avenue North to 29th Avenue South starting at

and 600 pm on the Monday of Memorial Day Weekend


Day Weekend
to
Memorial continuing

right turns at 2l Avenue North


Right turns were further restricted by only permitting

Avenue South The northbound lanes were dedicated to emergency


Avenue South and

along Ocean Boulevard in the one


vehicles Again no parking was permitted anywhere
only

and no motorcycle-only parking areas were made available


way area

restrictions imposed during Black Bike Week the


49 As result of the traffic pattern

and the Chief of Police have received number of complaints including


City of Myrtle Beach

make Black Bike Week participants


feel
that the traffic patterns are racially discriminatory

-Il

DEF0001 7756
4O /2-HWDae
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Er ry Number 102-2
16 PagPage
12 1223
of 25

Ocean Boulevard and make the Black


unwelcome interfere with the enjoyment of driving along

Bike Week events over Memorial Day weekend unpleasant

the height of Black Bike


50 The traffic patterns imposed by the Defendants during

of and maximize traffic congestion needlessly


Week trap
vehicles in long lines traffic

Ocean Boulevard during Black Bike


and visitors from traveling along
discouraging preventing

are intended to and have the


Week In fact the traffic restrictions imposed by the Defendants

Bike Week enthusiasts from entering and driving through


known effect of discouraging Black

of Plaintiffs basic constitutional rights


the City of Myrtle Beach in violation

do not the same restrictive and congestion-causing


traffic
51 The Defendants impose

patterns at any other time of the year

52 In contrast to Black Bike Week for Harley Week in 1998 1999 and 2000

traffic was permitted along Ocean Boulevard and right turns along Ocean
unrestricted two-way

and
Boulevard were not restricted No new parking prohibitions were implemented special

motorcycle-only parking areas were offered

from the 61-year of the


53 For Harley Week in 2001 Myrtle Beach departed history

and traffic plan along Ocean Boulevard On information


harley event implemented one-way

traffic in to concerns that the


and belief the Defendants implemented this one-way plan response

Black Bike Week were


Harley Week
between and racially discriminatory
traffic plans
differing

54 the height of Harley Week from 700 a.m Thursday May 172001 to
During

closed traffic permitting


7OO a.m Sunday May 20 2001 Ocean Boulevard was to two-way

southbound traffic only from 29 Avenue North to 29t11 Avenue South Rights turns
one-way

with traffic including 2l Avenue North 16th


were permitted at every intersection light

Avenue North Avenue North Avenue North 1h Avenue North 3Td Avenue South

12

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16 PagPage
13 1323
of 25 ri

Avenue South qt1 Avenue South l3 Avenue South and 17th Avenue South Special areas

reserved for motorcycle parking were provided

restrictions during the Harley biker


55 After one day of these one-way traffic

weekend and in to surge of complaints Myrtle Beach Mayor McBride called an


response

the decision impose the one-way


of Myrtle Beachs City Council to reverse to
session
emergency

the restrictions on the morning of


traffic plan for Harley Week The Defendants lifted one-way

the Defendants implemented the one-way


Sunday May 20 2001 Despite these complaints

the following weekend for the height of Black Bike Week


traffic restrictions

southbound restrictions on Ocean


56 Although Defendants imposed one-way

be significant differences
Boulevard during both biker weekends in 2001 there continued to

Defendants continued
For Harley Week the to permit
between the two traffic patterns 2001

sections of Ocean Boulevard allowed right turns at every


parking along certain one-way

with traffic compared to the severe restrictions on right turns during Black
intersection light

Bike Week and lifted the one-way restrictions on Sunday morning during the main Harley

continued in effect the main Black Biker


hiker weekend while the one-way restrictions during

eckend until Monday evening

of Myrtle Beach received


57 Both during and after Harley Week 2001 the City

of complaints from Harley Week enthusiasts and Myrtle Beachs hospitality industry
surge

Boulevard and the negative impact


along Ocean
complaining about the restrictions
one-way

restrictions had on Harley Week enthusiasts visiting Myrtle Beach


those

from Harley Week enthusiasts


For Harley Week 2002 in response to complaints

the traffic
the Defendants returned to two-way pattern
city officials and the business community

Ocean Boulevard
along

13-

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16 PagPage 1423
of 25

Week 2002 Defendants two-way


59 During Harley from May 10-17 the permitted

traffic with no lane restrictions along Ocean Boulevard

2002 from May 17-19 2002 the two outside


60 During the height of Harley Week

of Ocean Boulevard were dedicated to emergency vehicles from 21 Avenue North


curb lanes

both directions on the two inside lanes in


to Avenue South Traffic was permitted to move in

that and there were no restrictions on right turns Parking was not permitted along Ocean
area

Boulevard from 30th Avenue North to 29th Avenue South in Myrtle Beach

in 2002 24 blocks of Ocean Boulevard were


61 Under the Defendants plan only

the weekend compared to 58 blocks


cordoned off for vehicles during Harley biker
emergency

under the plan for the height of Black Bike Week during Memorial Day weekend

and discriminatory traffic for the


In addition to different patterns
imposing vastly

and implement more aggressive


height of Black Bike Week the Defendants also adopt police

Week based on the stereotyping of African Americans


tactics during the height of Black Bike

63 The Defendants deploy up to three times more law enforcement officials during

of Harley Week
the height of Black Bike Week than those officers deployed during the height

numbers of law enforcement officials deployed during


For the years 2000 2001 and 2002 the

Black Bike Week were about 526 607 567 respectively

64 In contrast during the height of Harley Week for these same years the

220 law enforcement officials


Defendants deployed only about 200 to

number of law enforcement officials deployed during Black


65 With three times the

force and to
Bike Week the Defendants direct the intimidating police to police aggressively

harass Black Bike Week


enforce city ordinances The law enforcement officials
strictly

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Number
ryl 102-2 PagPage
1501523
of 25

and aggressively ticket and arrest


enthusiasts based on an over-extension of local ordinances

Black Bike Week participants for minor infractions

Unlike the policies implemented Harley Week and other significant


66 during

enforcement measures Black Bike Week


summer weekends in Myrtle Beach the zealous during

amount to zero-tolerance policy

of nearly 600 law enforcement officials and


67 The overwhelming police presence

known effect Black


the aggressive policing tactics are intended to and have the of intimidating

and Black Bike Week enthusiasts from entering Myrtle


Bike Week enthusiasts discouraging

basic constitutional rights In fact in responding to question


Beach in violation of Plaintiffs

after the 1998 festival The


having the Memorial Day festival
about how the City can discontinue

Beach Sun Times reported that Mayor McBride answered by stating To enforce the
Myrtle

laws If we enforce they wont come

law
68 The of Myrtle Beach and the Myrtle Beach Police Department rely upon
City

discriminatory policies and


enforcement officials from other jurisdictions to implement its

from the City of Myrtle Beach the County of Horry deploys


In to
practices response requests

law enforcement officials to the City of Myrtle Beach to implement the discriminatory policies

and practices described above

Week events in the City of


69 Black Bike Week and Harley are not the only special

Sun Fun Festival Fourth of July weekend and


Other special events include
Myrtle Beach

and Ocean
of these crowds to Myrtle Beach
Day Weekend All events attract
Labor significant

those crowds are equivalent in size to those experienced during


Boulevard specifically and

Black Bike Week

15

DEF0001 7760
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16o1623
of 25

events Sun Fun July 41h and


70 Throughout the summer and during these special

to and cruise along Ocean


common Myrtle Beach to congregate
Labor Day it is for visitors to

in significant
traffic congestion
Boulevard resulting

Bike Week however the visitors to Myrtle Beach during these


71 Unlike Black

white During these other special events which attract large


events are predominantly

any of the strict traffic restrictions


bite crowds the Defendants do not impose
predominantly

during Black Bike Week In particular two-way traffic is


permitted along
that are imposed

Ocean Boulevard

events is the overwhelming and intimidating


72 Also absent from these other special

tactics that are deployed during Black Bike


law enforcement and aggressive police
presence

Week

in the decision to adopt and implement


Defendant Gall was involved
73 personally

described above and intentionally authorized


polices and practices
the racially discriminatory

conduct including but not limited to


and in this unlawful discriminatory
directed or participated

the
traffic restrictions to deploy three times
the decisions to deploy racially discriminatory

and to implement tactics designed


number of police during Black Bike Week aggressive police

are in reckless disregard of


Defendant Galls actions
to harass Black Bike Week participants

the Plaintiffs constitutional rights


and callous indifference to

of Harry receive federal funding for


Defendants of Myrtle Beach and County
74 City

Title 42 Chapter 46 of the United States Code


law enforcement purposes as provided for under

remedies to seek Defendants


have and exhausted administrative
75 Plaintiffs sought

and Safe Streets


of the Onmibus Crime Control
with the nondiscrimination provision
compliance

for Plaintiffs has notified the Civil


counsel
Act of 1968 42 U.S.C 3789dc In particular

16

DEF0001 7761
---4evi
4:18-cv-00554-MGL Date Filed 03/08/19 Entry Number 102-2
/d9l9DaeTluitU11O1O4FiTy 16 PagPage
17 1723
of 25

of Justice of the Defendants conduct in oral


Division of the Department illegal
Rights

2003 The Department of


consultations in July 2001 and by letter dated April
beginning

has taken no action in to the Plaintiffs complaints


Justice response

and of Defendants conduct described herein


76 As direct proximate result

mental
Plaintiffs have and will continue to suffer damages humiliation embarrassment

harassment and annoyance


suffering

and justiciable exists between the parties


77 An actual substantial controversy

Defendants and
the constitutionality of the discriminatory practices policies
concerning

described above

COUNT

Violation of 42 U.S.C 1981

78 Plaintiffs hereby repeat and reallege each and every allegation of 1-73 as

though fuly set forth herein

79 Section 1981 in pertinent part that


provides

the jurisdiction of the United States shall have


All persons within

State to the full and benefit of all


the same right in every equal

for the security of persons and property as is


laws and proceedings
white citizens and shall be subject to like punishment
enjoyed by
and exactions of every kind and to
pains penalties taxes licenses
.Thc by this section are protected
no other. rights protected

of State law
impairment under color
against

42 U.S.C 1981

within the meaning of that term as it is used in 42 U.SC


80 Plaintiffs are persons

1981 and are within the jurisdiction of the United States

herein constitute of
81 The foregoing conduct of Defendants described deprivation

the full and benefit of all laws and proceedings for the security
the rights of the Plaintiffs to equal

17

DEF0001 7762
4:18-cv-00554-MGL Date Filed 03/08/19 Entry Number 102-2
16 PagPage 1823
of 25

violation of 42
of persons and on the same terms as are enjoyed by white persons in
property

USC 1981

and omissions of the Defendants under


82 For these and other reasons the actions

of the full benefits of afl laws and proceedings for the


color of law have deprived the Plaintiffs

Plaintiffs to
citizens and has subjected
security of all persons and property as is enjoyed by white

disparate punishment pain and penalties

COUNT II

of First Amendment Rights


42 U.S.C 1983 for Deprivation

83 Plaintiffs hereby repeat and reallege each and every allegation ofJ 1-78 as

though fully set forth herein

the of that term as it is used in 42


84 Defendants are persons within meaning

U.S.C 1983

85 Plaintiffs are citizens of the United States and are within the jurisdiction

thereof

as amended Plaintiffs certain rights


86 The United States Constitution grants

the of expression assembly and association


privileges and immunities including rights

guaranteed under the First Amendment

and omissions of the Defendants under


87 For these and other reasons the actions

and continue Plaintiffs of


law custom policy and usage have
to deprive
color of local deprived

which are enforceable under 42 U.S.C 1983


these Constitutional rights rights

COUNT Ill

1983 of Fourteenth Amendment Rights


42 U.S.C for Deprivation

18-

DEF0001 7763
U3c\rO1aT37TtWT Date
4:18-cv-00554-MGL FI1772/O
ate Filed 03/08/19 Entry
Fr ry Number 102-2
16 PagPage
19 1923
of 25

each and of111 1-83 as


88 Plaintiffs hereby repeat and reallege every allegation

set forth herein


though fully

of that term as it is used in 42


89 Defendants are persons within the meaning

U.S.C 1983

90 Plaintiffs are citizens of the United States and are within the jurisdiction

thereof

certain rights
91 The United States Constitution as amended grants Plaintiffs

of laws guaranteed under the


immunities including the rights of equal protection
privileges and

Fourteenth Amendment

and omissions of the Defendants under


92 For these and other reasons the actions

and contmue Plaintiffs of these


law custom and usage have
to deprive
color of local deprived

which are enforceable under 42 U.S.C 1983


Constitutional rights rights

COUNT IV

of Under the Dormant Commerce Clause


42 U.S.C 1983 for Deprivation Rights

each and ofJT 1-88 as


93 and reallegc every allegation
Plaintiffs hereby repeat

though fully set forth herein

of that term as it is used in 42


Defendants persons within the meaning
94 are

U.S.C 1983

citizens of the United States and are within the jurisdiction


95 Plaintiffs are

thereof

as amended Plaintiffs certain rights


96 The United States Constitution grants

under the Dormant Commerce Clause of Article


and immunities including the rights
privileges

Section of the Constitution

-19-

DEF0001 7764
4OSvQ17321t
4:18-cv-00554-MGL wr
Date Filedd1T1TJ2T04F
03/08/19 Entry Number 102-2 ry 16 PagPage
20 2023of 25

and omissions of the Defendants under


97 For these and other reasons the actions

and continue Plaintiffs of


color of local law custom policy and usage have deprived
to deprive

under 42 U.S.C 1983


these Constitutional rights which rights are enforceable

COUNT

Violation of 42 U.S.C 3789d

each and ofT 93 as


98 Plaintiffs hereby repeat and reallege every allegation

forth herein
though fully set

that
99 Section 3789d provides in pertinent part

of race color religion


No person in any State shall on the ground

national or sex be excluded from participation in be denied


origin
discrimination under or denied
the benefits of or be subjected to

in connection with any programs or activity funded in


employment
with funds made available under this chapter
whole or in part

42 U.SC 3789dcl

the of that term as it is used in 42 U.S.C


100 Plaintiffs are persons within meaning

3789d

described herein constitutes and


The conduct of Defendants pattern
101 foregoing

and/or of Plaintiffs rights


practice of discrimination on the basis of race deprivation

but not limited to the First and


guaranteed by the United States Constitution including

Amendments in violation of 42 U.S.C 3789d


Fourteenth

102 of Myrtle Beach and Horry County receive federal funding for
Defendants City

States Code
law enlbrcement purposes as provided for under Title 42 Chapter 46 of the United

3789d for the Office of Justice


violation of 42 U.S.C is grounds
The Defendants continuing

of Justice to withhold federal funding under Chapter


Programs of the United States Department

46 Title 42 of the United States Code

20

DEF0001 7765
4OrOTT37TLW13a
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Filed 03/08/19 Entry 16 PagPage
21 2123
of 25

administrative remedies
103 Plaintiff NAACP Conway Branch has fully exhausted its

of
to its and the other Plaintiffs constitutional rights arid any further pursuit
in seeking protect

administrative remedies would be futile

and omissions of the Defendants through


104 For these and other reasons the actions

whole and in with funds made available under Title 42


and actiities funded in part
programs

the of the full and equal benefits


have
Chapter 46 of the United States Code
Plaintiffs
deprived

have denied Plaintiffs rights guaranteed by the United States Constitution


of such programs

and have subjected Plaintiffs to disparate punishment pain and penalties

COUNT VI

S.C Stat 16-5-60

105 Plaintiffs hereby repeat and reallege each and every allegation of 1-98 as

though fully set forth herein

106 Section 16-5-60 that


provides

be hindered or obstructed in the


Any citizen who shall prevented

and secured to him by the


exercise of the rights privileges

Constitution and laws of the United States or by the Constitution

claim and the county in which


and laws of this State may prosecute

be committed for any damages he shall sustain


the offense shall

and the county shall be responsible


for the payment of
thereby
which be paid by the
may award
shall
such damages as the court

of such county on warrant drawn by the


county treasurer
thereof
governing body

SC Stat 16-5-60

term used in Section 6-5-60


107 Plaintiffs are citizens as that is

as amended Plaintiffs certain rights


108 The United States Constitution grants

of expression assembly and


and immunities including but not limited to the rights
privileges

-21-

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16 PagPage
22 2223
of 25

of of laws
under the First Amendment and the rights equal protection
association guaranteed

guaranteed under the Fourteenth Amendment

certain rights
109 Article of the Constitution of South Carolina grants Plaintiffs

of expression association and


but not limited to the rights
privileges and immunities including

and the rights to equal protection under the Jaw


assembly

and omissions of the Defendants


110 For these and other reasons the actions

of and privileges secured under the


the exercise
hindered prevented and obstructed rights

and the South Carolina Constitution which rights are enforceable


United States Constitution

under S.C Stat 16-5-60

Prayer For Relief

Court grants them the following relief


WHEREFORE the Plaintiffs pray
that this

that the foregoing actions of the


enter declaratory judgment finding

violate of 42 U.S.C 1981 1983 3789dc1 and S.C Stat 16-5-60


Defendants

the Defendants and


enter and permanent injunction directing
preliminary

to remedy the effects of the


and to take all affirmative steps necessary
their agents employees

and to similar occurrences in the future


conduct described herein prevent
illegal discriminatory

the
direct Defendants the City of Myrtle Beach and Horry County to notify

of Justice of this Courts finding to


Office of Justice Programs of the United States Department

of discrimination by Defendants in violation


effect that there has been and practice
the pattern

of 42 U.S.C 3789d

in an amount to be determined by the jury


award compensatory damages

that have been caused by the


would the Plaintiffs for their damages
that fully compensate

conduct of the Defendants alleged herein

-22-

DEF0001 7767
-4eE2-LW-
4:18-cv-00554-MGL Date Filed 03/08/19 Entry
atefrtud-Qi1U21O4Fflrry Number 102-2
16 PagPage
23 2323
of 25

the Plaintiffs in an amount to be determined by


award punitive damages to

for the willful wanton and reckless conduct alleged


punish Defendant
that would Gall
the jury

similar conduct in the


deter Defendant Gall from engaging in
herein and that would effectively

future

reasonable attorneys fees and costs and


award the Plaintiffs their

relief as this Court deems just and eqrntah1e


order such other

23

DEF0001 7768
403r iI732 Tt
4:18-cv-00554-MGL FfO77Y
Date Filed 03/08/19 Entry
Er ry Number 102-2
16 PagPage 2423
of 25

DEMAND FOR JURY TRIAL

Fed Civ 38b the Plaintiffs demand trial by jury of all issues so
Pursuant to

triable as of right

Respectfully submitted

Derfner

Ii PetersWilborn Jr ID
DERFNER ALTMAN WILBORN LLC
40 Calhoun Street Suite 410

P.O Box 600


Charleston SC 29402

Tel 843 723-9804

Fax 843 723-7446

Edmund Burke

Paul Hurst

Frank Griffin IV
STEPTOE JOHNSON LLP
1330 Connecticut Avenue NW
Washington DC 20036

Tel 202 429-8089

Fax 202 429-3902

Roderic Boggs
Reed Colfax

Richard Ritter

WASHINGTON LAWYERS COMMITTEE


FOR CIVIL RIGHTS URBAN AFFAIRS
liDupont Circle 400
Washington DC 20036

Tel 202 319-1000 x-103

Fax 202 319-1010

Joshua Rose
ROSE ROSE
1320 19th Street NW
Washington DC 20036

Tel 202 331-8556

-24-

DEF0001 7769
4:18-cv-00554-MGL Date
Da Filed 03/08/19
07/0210 Entry
Fr ry Number 102-2
16 PagPage
23 2523
of 25

Jeffrey Robinson

BAACH ROBINSON LEWIS


One Thomas Circle 200
Washington tC 20005

Tel 202 6597205

Dennis Courtland Hayes

Hannibal Williams II Kemerer

NATIONAL ASSOCIATION FOR THE


ADVANCEMENT OF COLORED
PEOPLE INC
4805 Mt Hope Drive

Baltimore MD 21215

Tel 410 580-5799 or 877 622-2798

Fax 410 358-9350

ATTORNEYS FOR PLAINTIFFS

Florence SC

January 29 2004

25

DEF0001 7770
403 01732 TIW
4:18-cv-00554-MGL Dae Filed
Date d0/12/0o
03/08/19 Entry rb r94
Fr ryFNumber 102-3PagPage
lo 1 of 2

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

NATIONAL ASSOCIATION FOR THE C.A No 403-1732-25TLW


ADVANCEMENT OF COLORED
PEOPLE INC BY ITS CONWAY
BRANCH ETAL

Plaintiffs

vs Written Opinion and Order

CITY OF MYRTLE BEACH ET AL


Defendants

This matter comes before the Court upon the defendants filing of correspondence dated May

10 2005 The defendants request that this letter be construed as being motion to stay
this Courts

May 2005 Order which granted the plaintiffs previous request for preliminary injunction The

plaintiffs oppose the defendants motion to stay

Pursuant to Rule 62a of the Federal Rules of Civil Procedure there is no automatic stay of

final judgment in an action for an injunction otherwise ordered by the court Rule 62c

further provides that court in its discretion may suspend. .an injunction during the pendency of

appeal upon such terms as to bond or otherwise as it deems proper.. Hence court has

Rule 62c has been interpreted as permitting consideration of request to suspend an

injunction pending appeal either prior to the filing of such an appeal when there is reason to

believe that an appeal will be taken or after filing of the appeal even though after the taking of

the appeal the district court no longer has jurisdiction over the case Wang Laboratories Inc

Toshiba Corp 1991 WL 333701 E.D Va 1991 citing Wright Miller Federal Practice

and Procedure 2905 at 324 1973

DEF0001 7846
403 01732 TIW
4:18-cv-00554-MGL Dae Filed
Date d0/12/0o
03/08/19 Entry rb r94
Fr ryFNumber 2o 2 of 2
102-3PagPage

discretion to stay the judgment and injunction pending consideration of post-judgment motions and

pending appeal Wang Laboratories Inc Toshiba Corp 1991 WL 333701 E.D Va 1991

In deciding whether to stay an injunction court should consider whether the stay

applicant has made strong showing that he is likely to succeed on the merits whether the

applicant will be irreparably injured absent stay whether issuance of the stay will substantially

injure the other parties interested in the proceeding and where the public interest lies Id citing

Standard Havens Products Inc Gecor Industries Inc 897 F.2d 511 512 Fed Cir 1990

Based upon the undersigneds consideration of the above-identified factors and for the

reasons detailed in this Courts May 2005 Order the undersigned concludes that stay of this

Courts May 2005 Order is not appropriate Therefore the defendants motion to stay is

DENIED

IT IS SO ORDERED

s/ Terry Wooten

Terry Wooten
United States District Court Judge

May 12 2005

Florence South Carolina

DEF0001 7847
cv 01732 TIW
4:18-cv-00554-MGL Date
Da Filed
Lct 03/08/19 Entry
ry Number 102-4
97 PagPage 1 of 1
05/17/05 0959 FAX 4ui IJQ CL

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT


FILED
May 17 2005

No 051517
CA03-1732--4TLW

NATIONAL ASSOCIATION FOP THE ADVANCEMENT OF COLORED PEOPLE __


INCORPORATED by its Conway Branch CRAIG WILLIAMS LEWIS
ELY JRJOCELYN MERCER-BROWN MERLE STEWART WASHICA
LITTLE MICHAEL LITTLE MICHAEL GOOD CHRISTOPHER COLEMAN
BARBARA COLEMAN ANTHONY TONIC

Plaintiffs Appellees

CITY OF MYRTLE BEACH SOUTH CAROLINA municipal


corporation within the State of South Carolina WARREN GALL
in his official capacity as the Chief of the Myrtle Beach
Police Department

Defendants Appellants

EDWARDS GREAT RIBS AND MORE

Party-in-interest

and

HORRY COUNTY body politic and subdivision of the State of


South Carolina

Defendant

ORDE

Appellants filed motion for stay to Rule of the


pursuant

Federal Rules of Appellate Procedure and the appellees responded


The Court grants the motion for The
stay panel expresses no view as

to the ultimate merits of the case

Entered at the direction of Judge with


Luttig the concurrence
of Judge Michael and Judge Traxier

Par the Court

Is Patricia Connor

CLERK

DEF0001 7843

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