Memphis Lawyer Magazine - Summer 2022 Vol. 39 Issue 2 by Memphis Bar Association

the magazine of the Memphis Bar Association | Vol. 39, Issue 2, Summer 2022

THIS ISSUE:

The Faithful Few: African-American Female Partners in Majority-Owned Law Firms THE RIGHT TO VOTE: A RIGHT WORTH PRESERVING AND RESTORING

Voting Rights and Responsibilities: How to Avoid Becoming Disenfranchised

Our customers are talking . . . BankTennessee has a sincere interest in helping the Memphis Bar and our members achieve success. Their proactive approach is always centered on finding a solution or creating new ideas to help their clients be the best they can be. They have a unique understanding of the legal community and our needs that is undeniable. BankTennessee is the perfect fit for us.

Mary Ann Upchurch Executive Director, Memphis Bar Association

The Bank for the Legal Community PROUD PARTNER OF THE MEMPHIS BAR ASSOCIATION SINCE 2006

Mary Ann, Thank you for your kind words! We appreciate you and all of our customers. 30 North Second at Court Square

901.525.5533

www.banktennessee.com

We also have offices in East Memphis, Germantown, Collierville, Munford & Ripley.

MEMBER FDIC NMLS #441426

Volume 39, Issue 2, Summer 2022

FEATURES 6 10

2022 Memphis Bar Association Judicial Qualification Poll e Faithful Few: African-American Female Partners in Th Majority-Owned Law Firms BY MELISA MOORE

12 Why I Keep Going Back to Bench Bar

(And Why You Should Join Me!) BY NICOLE M. GRIDA

16 Voting Rights and Responsibilities: How to Avoid

Becoming Disenfranchised BY AUDREY CALKINS

The Right to Vote: A Right Worth Preserving and Restoring BY JUDGE JERRY STOKES JUDGE GINA HUGGINS JUDGE RHYNETTE HURD

26 A Picture Is Worth A Thousand Words, But A Video

Is Case Dispositive: Summary Judgment For Police Officers In The Age of BodyCams BY E. LEE WHITWELL AND JASEN M. DURRENCE

COLUMNS 5

President’s Column

BY TANNERA GIBSON

CLC Corner: State of Immigration

Court Report: United States District Court

Bar Scene

People in the News

BY BRITTANY BANE

BY DEAN DECANDIA

MEMPHIS LAWYER

2022 MBA Officers

the magazine of the Memphis Bar Association

Memphis Bar Association Publications Committee Nicole M. Grida, Chair Audrey Calkins Dean DeCandia Maureen Holland Marlinee Iverson Steve Leffler Halle Priester

The Memphis Lawyer is a quarterly publication of the Memphis Bar Association, Inc. with a circulation of 2,000. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact info@memphisbar.org. The MBA reserves the right to reject any advertisement or article submitted for publication.

Tannera Gibson President

Jennifer Sink Vice President

Peter Gee

Past President

2022 Board of Directors Justin Bailey Taurus Bailey Dawn Campbell Lisa Gill Hon. M. Ruthie Hagan Marlinee Iverson Hon. JoeDae Jenkins Justin Joy Lani Lester Andrea Malkin Bobby Martin Matt May Patrick Morris Steve Mulroy

Hon. Gadson William Perry Edd Peyton Hon. Shayla Purifoy Billy Ryan Zayid Saleem Joseph Smith Section Representatives Anne Davis Thomas Greer Thomas Henderson Maureen Holland Ashley Jefferson Daryl Smith

ABA Delegate Lucian Pera AWA Representative April Bostick Law School Representative Donna Harkness NBA Representative Laquita Stokes YLD President Chris Williams

MBA STAFF

Mary Ann Upchurch Executive Director

The Memphis Bar Association 145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 www.memphisbar.org

Adam Johnson

Secretary/Treasurer

Lauren Gooch Membership & CLE Director

Kelly Swan

Communications Director

PRESIDENT'S COLUMN

By TANNERA GIBSON, MBA 2022 President

The Biggest Little Things

n December, I outlined a vision of a year focused on diversity, equity, inclusion, and community. “We are one bar” had become a bit of a mantra for me and as the year has progressed, some have asked what that means. Initially, I envisioned a bar association where we all work toward a common purpose of doing what is right and good, together. Since serving as president, however, I have had an opportunity to give that perspective more thought. I grossly underestimated the number of concerns I would hear, questions I would answer, and issues I would become aware of this year. I have learned that many people believe the MBA is a one-stop shop for bar complaints, ethics questions, endorsements, advertising, business development, legal advice, and the like, with no room for anything that feels political, too risky, or too forward. I have learned that decisions we have made for the good of the MBA might have unintended consequences for some of our members, and that we should look deeper at the effect of some of our initiatives and changes. The more I learned, the more I questioned how we could possibly be “one bar” with so many moving parts. Eventually, I thought of an experience I had a few years ago and it occurred to me that I should go back to the basics, and focus on the common core of our work. A few years ago, I was hurriedly walking to the courthouse when a homeless gentleman approached me. I was raised to “always give if you have it,” but on this particular day I was certain I had no cash. So, I apologized to the gentleman and started to walk away. Before I could get going, he looked at me incredulously and said, “you didn’t even look.” I was, candidly, a bit annoyed by the comment because I was sure that I had no cash and certainly had no time to debate about it, but I stopped to dig through my purse to prove that I wasn’t making excuses. Much to my surprise, and embarrassment,

I found a five dollar bill floating around. I apologized again, told him I was shocked to find the money and handed it to him. He gave me a bit of an “I told you so” smirk, thanked me and went on his way. I did not give the encounter another thought, but apparently, he did. Over a year later, I was walking downtown and the same gentleman approached me. I did not recall his face so I had no idea who he was. I assume that I looked puzzled because he almost immediately said, “you don’t remember me, do you?” I shrugged. He commenced to recount the story of the five dollar bill, and he told me that my five dollars was the difference between him sleeping on the street and being able to pay for a bed that night. He shared that he appreciated the gesture, told me about how well he was doing, and he told me that getting off the street that night changed his outcome. (I did not probe) When he walked away, I was shocked that we ran into each other, and even more so that he actually remembered me. It was in that moment I fully appreciated the phrase, “small things mean the most.” The core of our work is service. Service to our clients. Service to the community of which our clients are a part. And, for those who so choose, service to the community directly. Whether we are handling a divorce, multimillion dollar business litigation, a pro bono case for our neighbor, aiding in the passage of legislation, running a deal, prosecuting or defending a crime, or trying a case for a small business that might not make it without our help, we are serving. Every stride we make in this regard makes an impact we might not appreciate. All of us contribute some of the “biggest little things,” with ripple effects we will likely never see. In that sense, we are one bar. I know that there must be others, but let’s begin at the beginning. As always, we would love to hear from you. We appreciate your support, and we want to support you.  5

2022 Memphis 2022 Bar Association Memphis Bar Association Judicial Qualification Poll What candidate is best qualified to serve? Judicial Qualification Poll

Only contested and retention races were polled. 1199 active Shelby County attorneys participated in this survey. They were instructed if they did not know the candidates’ qualifications or had no opinion as to whom is best qualified, please mark “no opinion”.

On June 30, 2022, the Memphis Bar Association of judicial candidates, and we believe it is an important Circuit Court, Division Part 1 said Memphis Bar Association released the results of its Judicial Qualification Poll for II service to the community,”Chancellor, Option Vote Totals Option Vote Totals President Tannera Gibson. “The poll was distributed the candidates in contested judicial and court Carlos Bibbs*clerks’ 484 Gadson William Perry* 798 2022 Memphis Barlicensed Association JudicialNo Qualification Poll to all attorneys in Shelby County, regardless No Opinion 308 Opinion 215 races on the August 4th ballot. Carol Chumney 234 Melanie Taylor Jefferson of candidate MBA membership, and represents their collective 186 What is best qualified to serve? Kenneth attorneys Margolis 173 The poll was sent to all licensed, practicing TOTAL 1199 opinion regarding judges and candidates.” Only contested activesitting Shelby County attorneys participated in this survey. TOTAL and retention races were polled. 1199 1199 in Shelby County. The poll askedThey attorneys to select were instructed if they did not know the candidates’ qualifications or had no opinion as to whom is best “The work of our judges ranks at the very top of qualified, please opinion”. the one candidate in each race whom they mark felt “no was Chancellor, Part III importance for the stability of the American System of Vote Totals best qualified to serve. If an attorneyCircuit didCircuit notCourt, know Division Court, Division IIthe VI Chancellor, Part 1 Option Justice. Lawyers day our courts and are 867 JoeDaeOption "Joe"in Jenkins* Option Vote Totals appear every Option Vote Totals Vote Totals candidates’ qualifications or had no opinion, he/she was No Opinion Stuart Breakstone* 605 best able484 to determine whoWilliam is most Carlos Bibbs* Gadson Perry*qualified to preside 798 259 instructed to mark “no opinion.” Richard Parks 73 Cedrick Wooten 310 No Opinion 308 No Opinion 215 over the cases284 brought by TOTAL citizens seeking justice,” added No Opinion Carol Chumney 234 Melanie Taylor Jefferson 186 1199 “The Memphis Bar Association isTOTAL in a unique David Wade, chair ofTOTAL the Judicial Practice & Procedures Kenneth Margolis 173 1199 1199 TOTAL 1199 which oversaw the poll. position to give the public insight into the qualifications Committee

Probate Court Judge, Division II Vote Totals Circuit Court, Division VII Chancellor, Part IIIOption Only contested and retention Option races were polled. 1199 active Shelby County Karen Webster* 465 Vote Totals Option Vote Totals Circuit Court, Division VI 2022 Memphis Bar Association Judicial Qualification Poll Judicial Qualification Poll No Opinion 368 Mary 898 attorneys participated inWagner* this survey. They were instructed if they did not JoeDae "Joe" Jenkins* 867 Option Vote Totals Joe Townsend 366 No Opinion to 172 qualified to serve? No Opinion 259 Stuart Breakstone* 605 What candidate is best qualified serve? know the candidates’ qualifications or had no opinion as to whom is best TOTAL 1199 Paul Robinson, Jr. Richard Parks 73 Cedrick Wooten 310 129 Only contested and retention races were polled. 1199 active active Shelby County County attorneys participated inthis thissurvey. survey. qualified, please mark “no opinion”. Shelby attorneys participated in TOTAL TOTAL 1199 No Opinion 284 1199 They were instructed if they did not know the candidates’ candidates’ qualifications qualifications or or had had no no opinion opinionas asto towhom whomisisbest best TOTAL 1199 qualified, please mark “no opinion”. Criminal Court Judge, Division I Option Vote Totals Circuit Court, Division II Chancellor, PartVIII CircuitChancellor, Court, Division Part 11 Probate Court Judge, Division II Paula Skahan* 868 Option Option Vote Totals Option Vote Totals Vote Totals Circuit Court, Division Option Vote Totals Option Vote Totals VII No Opinion 265 Carlos Bibbs* Gadson William Perry* 798 RobertGadson Weiss* 779 484 William Perry* 798 Karen Webster* 465 2022 Memphis Bar Association JudicialOption Qualification PollVote Totals Michael Floyd 66 No Opinion No Opinion 215 No Opinion Dandridge 308 Mary Damita No Opinion 368 Wagner* 898 190 215 TOTAL 1199 Carol Chumney 234 Melanie Taylor Jefferson 186 No Opinion 171 Taylor Jefferson 186 Joe Townsend 366 Noqualified Opinion Melanie 172 What candidate is best to serve? Kenneth Margolis Larry Parrish 173 Paul Robinson, TOTAL 1199 TOTAL TOTAL 1199 Jr. 129 59 1199 Only contested Shelby County attorneys participated in this survey. TOTAL and retention races were polled. 1199 1199active TOTALTOTAL 1199 1199 They were instructed if they did not know the candidates’ qualifications or had no opinion as to whom is best qualified, please mark “no opinion”. Chancellor, Part Part III III Chancellor, Criminal Court Judge, Division I Option Vote Totals Option Vote Totals Option Vote Totals Division VI CircuitCircuit Court,Court, Division II Chancellor, Part 1 Circuit Court, Division VIII JoeDae "Joe" JoeDae "Joe" Jenkins* Jenkins* Vote Totals 867 Paula Skahan* 868 Vote Totals Option Option Vote Totals Vote Totals 867 OptionOption No Opinion NoWilliam OpinionPerry* 259 No Opinion 265 CarlosStuart Bibbs*Breakstone* 484 605 RobertGadson Weiss* 779 798 259 Richard Richard Parks Parks 73 Michael Floyd 66 Cedrick Wooten No Opinion 308 310 DamitaNo Opinion Dandridge 190 215 73 1 TOTAL TOTAL 1199 TOTAL Opinion 1199 Carol No Chumney 234 284 No Opinion Melanie Taylor Jefferson 171 186 1199 Kenneth Margolis 173 1199 Larry Parrish TOTAL TOTAL 59 1199 TOTAL 1199 TOTAL 1199 Probate Probate Court Court Judge, Judge,Division DivisionIIII Criminal Court Judge, Division II Vote Option VoteTotals Totals Chancellor, Part IIIOption Circuit Court, Division VII Option Vote Totals Karen Karen Webster* Webster* 465 No Opinion* Vote Totals Option Vote Totals 465 Circuit Court, Division VI Option 417 No Opinion No"Joe" Opinion 368 Joe Ozment Mary Wagner* JoeDae Jenkins* 867 368 Option Vote Totals 898 284 Joe Joe Townsend Townsend 366 Jennifer Fitzgerald No Opinion 259 366 StuartNo Breakstone* 605 172 Opinion 190 TOTAL TOTAL 1199 Gregory Carman Richard Parks 73 1199 Cedrick Wooten 310 129 Paul Robinson, Jr. 137 TOTAL 1199 No Opinion 284 1199 TOTAL Samuel D. Winnig 105 1 TOTAL

Circuit Court, Division VIII Option Circuit Court, Division VII Option RobertOption Weiss* Robert Weiss* Damita Dandridge Mary Damita Wagner* Dandridge No Opinion Opinion No Opinion No Larry Parrish Parrish Paul Robinson, Jr. 6Larry TOTAL TOTALTOTAL

1199

Vote Vote Totals Totals 779 Vote Totals 779 898 190 190 172 171 171 129 59 59 1199 1199 1199

Criminal Criminal Court Court Judge, Judge,Division DivisionII Option Vote Option VoteTotals Totals Probate Court Judge, Division II Paula Paula Skahan* Skahan* 868 Option Vote Totals 868 Opinion No Opinion 265 KarenNo Webster* 465 265 Michael Michael Floyd Floyd 66 No Opinion 368 66 TOTAL Joe Townsend 366 1199 TOTAL 1199 TOTAL 1199

Amy G. Mayne TOTAL

Criminal Court Judge, Division III Option No Opinion* Michael R. McCusker James Jones

66 1199

Vote Totals 465 461 273

1199 TOTAL 1199 TOTALTOTAL 1199 1199 TOTAL 1199 366 1199 TOTAL Criminal Court Judge, Division VIII 270 Option Vote Totals 188 Chris Craft* 841 1199 General Sessions Civil Division 55 General Sessions Criminal Court Judge, Division 10 General Sessions Civil Court Court Judge, Division General Civil Judge, Court Judge, Division 3 NoSessions Opinion 193 General Sessions Criminal Court Judge, Division 10 OptionOption Vote Totals Option Vote Totals Vote Totals Sanjeev Memula 165 Vote Totals Betty Thomas Moore* 736 373 Douglas "Greg" Gilbert* 334 Betty Danielle Mitchell Sims* 465 TOTAL 1199 No Opinion 300 No Opinion No Opinion 317 No Opinion 354 461 Varonica R. Cooper 163 232 Erim Sarinoglu 166 Lincoln Hodges 273 Varonica Kevin Reed TOTAL 1199 138 118 TOTAL William M. Larsha, Jr 1199 Rhonda Wilson Harris 118 Lisa N.Criminal Stanley Court Judge, Division IX 102 Option Vote Totals Patience "Missy" Branham 98 TOTAL 1199 Mark Ward* 888 Cathy Anderson 48 General Civil Court Judge, Division 6 General Sessions No Opinion 217 TOTAL Criminal Court Judge, Division V 1199 Option Vote Totals A. Melissa Boyd Option Vote Totals 2 94 Lonnie Thompson* 750 4 Sessions Civil Court Judge, Division General Sessions Criminal Court Judge, Division 9 LonnieGeneral Christopher J. Lareau* 513 TOTAL 1199 No 309Totals Option Vote Option Vote Totals No Opinion Opinion No Opinion 422 Deborah Means Henderson* Gerald Skahan* Kim Sims 140 783 General Kim Gilmore Gilmore Sessions Criminal Court Judge, Division 11 815 Carlyn Addison 264 No Opinion TOTAL 1199 316 TOTALNo Opinion Option Vote Totals 288 TOTAL 1199 Eran E.General Julian Sessions Civil Court Judge, Division 100 1 Bruce-Renfroe Karen Sheila L. Massey* 488 96 Option Vote TOTAL 1199Totals No Opinion TOTAL 431 1199 Lynn Cobb* 688 Terita M. Hewlett 167 General Criminal Court Judge, Division 7 General Sessions No Opinion 238 Jimmy Thomas Criminal Court Judge, Division VI 113 Option Vote Totals Lawrence A. Pivnick 183 TOTAL Option Vote Totals 1199 Bill 563 5 General Sessions Civil Court Judge, Division General Sessions Criminal Court Judge, Division 10 Bill Anderson* Anderson* No Opinion* 375 Victoria Gillard 90 No 334Totals Option Vote Option Vote Totals No Opinion Opinion David L. Pool 366 TOTAL 1199 ThomasJrMoore* Douglas "Greg" Gilbert* 334 Handel R. Durham, 302 736 HandelBetty Reginald Henderson 270 No Opinion 300 No Opinion TOTAL 1199 General Sessions Criminal Court Judge, Division 12 317 TOTAL Ross Sampson 188 Varonica R. Cooper 163 Erim Sarinoglu Option Vote Totals 166 TOTAL 1199 Kevin Reed TOTALGeneral Sessions Civil Court Judge, Division 1199 3 Silvio Ronald Lucchesi* 660 118 Option Vote Totals No Opinion Rhonda Wilson Harris 340 118 General General Sessions Criminal Court Judge, Division 8 Danielle Mitchell Sims* 373 Patience "Missy" Branham Mischelle Alexander-Best 199 98 Criminal Court Judge, Division VII Option Vote Totals Criminal Court Judge, Division VII No Opinion 354 Cathy Anderson 48 TOTAL 1199 Option Vote Totals Lee General Sessions Civil Court Judge, Division 526 6 Lee Wilson* Wilson* Option Vote Totals Lincoln Hodges 232 TOTAL 1199 Lee V. Coffee* 741 No Option Vote 450Totals No Opinion Opinion Lee V. Coffee* 741 William M. Larsha, Jr 138 No Opinion 327 John Lonnie H. ParkerThompson* II 119 750 John H. No Opinion 327 Lisa N. Stanley 102 General Sessions Criminal Court Judge, Division 13 Kenya Brooks 131 Perry S.NoHayes Opinion Judge, Division 13 104 309 Kenya Brooks 131 Perry TOTAL 1199 Option Vote Totals TOTAL 1199 TOTAL Kim Gilmore Sims 140 Vote Totals General Sessions Criminal Court Judge, Division 11 1199 TOTAL TOTAL 1199 Louis Montesi* 754 754 TOTAL 1199 Option Vote Totals No Opinion 239 239 488 Karen L. Massey* 2 Terrance 206 Terrance Tatum 206 3 431 No Tatum Opinion Criminal Court Judge, Division VIII Criminal Court Judge, Division VIII TOTAL 1199 Terita M. Hewlett 167 TOTAL 1199 Option Vote Totals General Sessions Criminal Court Judge, Division 7 Vote Totals Jimmy Thomas 113 Chris Craft* Option 841 Option Vote Totals Chris Craft* 841 TOTAL 1199 No Opinion 193 Bill Anderson* 563 No Opinion 193 Sanjeev Memula 165 Environmental No Opinion 334 Environmental Court Court Judge, Judge, Division Division 14 14 Sanjeev Memula 165 TOTAL 1199 Option Vote Totals Handel R. Durham, Jr 302 Option Vote Totals TOTAL 1199 Patrick M. PatrickGeneral M. Dandridge* Dandridge* 684 TOTAL 1199 Sessions Criminal Court Judge,684 Division 12 No 264 No Opinion Opinion 264 Option Vote Totals Danny W. 220 Ronald Lucchesi* DannySilvio W. Kail Kail 220 660 Criminal Court Judge, Division IX Criminal Court Judge, Division IX Addie 31 No Opinion Addie M. M. Burks Burks 31 340 Option Vote Totals General Sessions Criminal Court Judge, Division 8 Option Vote Totals TOTAL 1199 Mischelle Alexander-Best 199 TOTAL 1199 Mark Ward* 888 Option Vote Totals Mark Ward* 888 TOTAL 1199 No Opinion 217 Lee Wilson* 526 No Opinion 217 A. Melissa Boyd 94 No Opinion 450 A. Melissa Boyd 94 TOTAL 1199 General John H. Parker II 119 General Sessions Sessions Criminal Criminal Court Court Judge, Judge, Division Division 15 15 TOTAL 1199 Option Vote Perry S. Hayes 104 Option Vote Totals Totals Loyce 678 TOTAL 1199 Loyce Lambert-Ryan* Lambert-Ryan* 678 No Opinion 424 No Opinion 424 General Sessions Civil Court Judge, Division 1 General Sessions Civil Court Judge, Division 1 Christian 97 Christian Johnson Johnson 97 Option Vote Totals Option Vote Totals 3 TOTAL 1199 Lynn Cobb* 688 TOTAL 1199 General Sessions Civil Court Judge, Division 4 General Sessions Criminal Court Judge, Division 9 Lynn Cobb* 688 No Opinion 238 Option Vote Totals 238 Option Vote Totals No Opinion Lawrence A. Pivnick 183 Deborah Means Henderson* 783 Gerald Skahan* 815 Lawrence A. Pivnick 183 Victoria Gillard 90 Juvenile No Opinion 316 No Opinion 288 Juvenile Court Court Judge Judge Victoria Gillard 90 1199 Option Vote Eran E.TOTAL Julian 100 Sheila Bruce-Renfroe 96 Option Vote Totals Totals TOTAL 1199 Dan 568 TOTAL 1199 TOTAL 1199 Dan H. H. Michael* Michael* 568 Tarik B. Sugarmon 365 Tarik B. Sugarmon 365 No 237 No Opinion Opinion 237 General Sessions Civil Court Judge, Division 3 General Sessions Civil Court Judge, Division 3 William "Ray" Glasgow 23 William "Ray" Glasgow 23 Option Vote Totals General Sessions Civil Court Judge, Division 5 Totals General Sessions Criminal Court Judge, Division 10 Option Vote Dee Shawn Peoples 66 Danielle Mitchell Sims* 373 Dee Shawn Peoples Option Vote Totals 373 Option Vote Totals Danielle Mitchell Sims* TOTAL 1199 No Opinion 354 TOTAL 1199 Betty Thomas Moore* 736 354 Douglas "Greg" Gilbert* 334 No Opinion Lincoln Hodges 232 No Opinion 300 232 No Opinion 317 Lincoln Hodges William M. Larsha, Jr Jr 138 Varonica R. Cooper 163 138 Erim Sarinoglu 166 William M. Larsha, Lisa N. Stanley 102 City 1 Kevin Reed 118 TOTALLisa N. Stanley 1199 102 City of of Memphis, Memphis, Municipal Municipal Court Court Judge, Judge, Division Division 71 TOTAL 1199 Option Vote Totals Rhonda Wilson Harris 118 TOTAL 1199 Option Vote Totals No 612 Patience "Missy" Branham 98 No Opinion* Opinion* 612 David TOTAL L. Pool Reginald Henderson Ross Sampson TOTAL Criminal Court Judge, Division III Option No Opinion* Michael R. McCusker James Jones TOTAL

TOTAL

1199

City of Memphis, Municipal Court Judge, Division 1 Option Vote Totals No Opinion* 612 Kenya Hooks 325 Carolyn S. Watkins 262 TOTAL 1199

Probate Court Clerk Tennessee Court Option Vote Totals Tennessee Supreme Supreme Court -- Sarah Sarah K. K. Campbell Campbell Vote No Opinion* 766 Vote Option Totals Eddie Jones 310 Option Totals Yes* 55.87% Yes* Dewayne Jackson 55.87% 123 No 34.02% TOTAL No Opinion Opinion 34.02% 1199 No 10.09% No 10.09%

District District Attorney Attorney General General Option Option Amy Amy Weirich* Weirich* Steve Steve Mulroy Mulroy No No Opinion Opinion TOTAL TOTAL

Vote Vote Totals Totals 584 584 535 535 80 80 1199 1199

Circuit Circuit Court Court Clerk Clerk Option Option No No Opinion* Opinion* Soheila Soheila Kail Kail Jamita Jamita E. E. Swearengen Swearengen TOTAL TOTAL

Vote Vote Totals Totals 532 532 360 360 307 307 1199 1199

Criminal Criminal Court Court Clerk Clerk Option Vote Option Vote Totals Totals Heidi Kuhn* 590 Heidi Kuhn* 590 No 456 No Opinion Opinion 456 Tennessee Supreme Court - Jeffrey S. Bivens Paul 153 Paul Houston Houston 153 Vote TOTAL 1199 TOTAL Option 1199 Totals

Tennessee Tennessee Supreme Supreme Court Court -- Holly Holly Kirby Kirby

Vote Vote Totals Totals 79.89% 79.89% 14.42% 14.42% 5.67% 5.67%

Court of Arnold Court of Appeals - Kristi --Davis Court of Appeals Appeals Arnold B. B. Goldin Goldin Vote Vote Vote Totals OptionOption Totals Option Totals Yes* Yes* 49.29%77.39% Yes* 77.39% No Opinion No Opinion 45.53%17.01% No Opinion 17.01% No No 5.17% 5.58% No 5.58%

Tennessee Tennessee Supreme Supreme Court Court -- Sharon Sharon Gail Gail Lee Lee Vote Vote Option Totals Option Totals Yes* 67.13% Yes* 67.13% No Opinion 26.35% No Opinion 26.35% No 6.50% No 6.50%

Court of -- Carma Dennis McGee Court of Appeals - Thomas R. "Skip" Frierson Court of Appeals Appeals Carma Dennis McGee Vote Vote Vote Option OptionOption Totals Totals Totals Yes* Yes* 49.12%51.04% Yes* 51.04% No Opinion No Opinion 45.62%42.11% No Opinion 42.11% No No 6.83% No 5.25% 6.83%

Yes* Yes* No No opinion opinion No No

Option Option

Tennessee Supreme Court - Roger A. Page Vote Option Totals Yes* 62.21% No Opinion 29.44% No 8.34%

Yes* 60.88% No Opinion 30.44% No Juvenile 8.67% Juvenile Court Court Clerk Clerk Option Vote Option Vote Totals Totals No 566 No Opinion* Opinion* 566 Rob White 382 Rob White 382 Court of Appeals - Steve Stafford Janeen Fullilove-Gordon 251 Janeen Fullilove-Gordon 251 Court of Appeals - Steve- Stafford Tennessee Supreme Court - Sarah K. Campbell Court of Appeals Kenny Armstrong Vote TOTAL 1199 Vote TOTAL 1199 Vote Option Totals Vote Option Totals Option Totals Option Totals Yes* 59.38% Yes* Yes* 59.38% Yes* 55.87% No Opinion 34.11%77.81% No Opinion 34.11%17.68% Probate No Opinion 34.02% No No opinion 6.50% Probate Court Court Clerk Clerk No 6.50%4.50% Option Vote No 10.09% No Option Vote Totals Totals No Opinion* 766 No Opinion* 766 Eddie 310 Eddie Jones Jones 310 Dewayne 123 Dewayne Jackson Jackson 123 Court of Appeals - Kristi Davis TOTAL 1199 Court of Appeals - Kristi- Davis TOTAL 1199 Tennessee Supreme Court - Holly Kirby Court of Appeals Arnold B. Goldin Vote Vote Vote Option Totals Vote Option Totals Option Totals Option Totals Yes* 49.29% Yes* Yes* 49.29% Yes* 79.89% 77.39% No Opinion 45.53% 44 No Opinion Tennessee Supreme Court - Roger Tennessee Supreme Court - Jeffrey S. Bivens A. Page 45.53% No opinion 14.42% No Opinion No 5.17%17.01% Vote Vote No No 5.17%5.58% No 5.67% Option Totals Option Totals

Yes* No Opinion No

Court of Kenny Court of Appeals - Steve--Stafford Court of Appeals Appeals Kenny Armstrong Armstrong Vote Vote Vote OptionOption Totals Totals Option Totals Yes* Yes* 59.38%77.81% Yes* 77.81% No opinion No Opinion 34.11%17.68% No opinion 17.68% No No 6.50% 4.50% No 4.50%

60.88% Yes* 62.21% 30.44% No Opinion 29.44% 8.67% Court of Appeals No - Thomas R. "Skip" Frierson 8.34% Court of Appeals - Thomas R. "Skip" Frierson Tennessee Supreme Court - Sharon Gail Lee Court of Appeals - Carma Dennis McGee Vote Vote Vote Option Totals Vote Option Totals Option Totals Option Totals Yes* 49.12% Yes* Yes* 49.12% Yes* 67.13% No Opinion 45.62%51.04% Tennessee Supreme Court - Sarah K. Campbell No Opinion Court of Appeals - Kenny Armstrong 45.62%42.11% No Opinion 26.35% No No Opinion 5.25% Vote Vote No 5.25%6.83% No 6.50% No Option Totals Option Totals Yes* 55.87% Yes* 77.81% No Opinion 34.02% No opinion 17.68% No 10.09% Court of Appeals No - John W. McClarty 4.50% Court of Appeals - John W. McClarty Vote Vote Option Totals 8 Option Totals Yes* 50.29% Yes* 50.29%

Court of Appeals - John W. McClarty Yes* No Opinion No

Option

Vote Totals 50.29% 44.95% 4.75% 5 5

Court of Appeals - Mike Swiney Court of Appeals - Mike Swiney Yes* Yes* No Opinion No Opinion No No

Option Option

Court of Appeals - Andy D. Bennett Court of Appeals - Andy D. Bennett Yes* Yes* No Opinion No Opinion No No

Option Option

Court of Appeals - Frank Clement Court of Appeals - Frank Clement Yes* Yes* No Opinion No Opinion No No

Option Option

Court of Appeals - Neal McBrayer Court of Appeals - Neal McBrayer Yes* Yes*

Option Option

Vote Vote Totals Totals 48.62% 48.62% 46.28% 46.28% 5.08% 5.08%

Vote Vote Totals Totals 50.87% 50.87% 44.70% 44.70% 4.42% 4.42%

Vote Vote Totals Totals 56.79% 56.79% 38.69% 38.69% 4.50% 4.50%

Vote Vote Totals Totals 49.95% 49.95%

Court Court of Criminal Appeals - Robert H. Montgomery, of Appeals --Robert H. Montgomery, Court of Criminal Criminal Appeals James C. Witt, Jr Jr Jr Vote Vote Vote Option Totals Option Totals Option Totals No 49.12% No Opinion* 49.12% No Opinion* Opinion* 49.29% 46.03% Yes Yes 46.03% Yes 45.62% No No 4.83%4.83% No 5.08%

of Appeals - Neal McBrayer CourtCourt of Criminal Appeals - John W. Campbell Vote Vote Option Option TotalsTotals 49.95% Yes* Yes* 64.22% No Opinion 45.12% No Opinion 31.10% No No 4.67%4.92%

CourtCourt of Criminal Appeals - J. Ross DyerW. Campbell of Criminal Appeals - John Court of Criminal Appeals - John W.Vote Campbell Vote Vote Option Totals Option Totals Option Totals Yes* Yes* 58.96% 64.22% Yes* 64.22% No Opinion 36.19% No Opinion 31.10% No Opinion 31.10% No No 4.83%4.67% No 4.67%

Court of Criminal Appeals - Jill Bartee Ayers Court of Criminal Appeals - James C. Witt, Jr Court of Criminal Appeals - James C.Vote Witt, Jr Vote Vote OptionOption Totals Totals Option Totals No Opinion* 49.70% No Opinion* 49.29% No Opinion* 49.29% Yes Yes 45.62%45.62% Yes 45.62% No No 4.67% 5.08% No 5.08%

CourtCourt of Criminal Appeals - Robert L. Holloway, Jr. Jr. of Criminal Appeals - Robert L. Holloway, VoteVote Option Totals Option Totals No Opinion* 49.70% No Opinion* 49.70% 45.45% Yes Yes 45.45% 4.83% No No 4.83%

Court of Criminal Appeals - Robert W. Wedemeyer Vote Option Totals No Opinion* 49.79% Yes 45.37% No 4.83% 7 7

Court of Criminal Appeals - John Everett Williams Vote Option Totals No Opinion* 51.10% Yes 45.67% No 3.22%

CourtCourt of Criminal Appeals - Camille R. McMullen of Criminal Criminal Appeals Ross Dyer Court of Appeals --J.J.Ross Dyer Vote Vote Vote Option TotalsTotals Option Option Totals Yes* Yes* 63.55% 58.96% Yes* 58.96% No Opinion 30.69% No Opinion 36.19% 36.19% No No 5.75%4.83% 4.83%

Court of Criminal Appeals - Timothy L.Bartee EasterAyers Court Criminal Appeals - Jill Court ofof Criminal Appeals - Jill Bartee Ayers Vote Vote Vote OptionOption Totals Totals Option Totals No Opinion* 47.70%49.70% NoOpinion* Opinion* No 49.70% Yes Yes 47.20%45.62% Yes 45.62% No No 5.08% 4.67% No 4.67%

CourtCourt of Criminal Appeals - Robert H. Montgomery, Jr of Criminal Appeals R.R.McMullen Criminal Appeals Camille McMullen Court of Criminal Appeals - John--Camille W. Campbell Vote Vote Vote Vote Option TotalsTotals Option Option Option TotalsTotals No Opinion* 49.12% 63.55% 63.55% Yes* Yes* 64.22% Yes 46.03% Opinion 30.69% No 30.69% No Opinion 31.10% No No 4.83%5.75% No No 4.67%5.75%

CourtCourt of Criminal Appeals - Robert L. Holloway, Jr. ofof Criminal Appeals - Timothy L. Easter Criminal Appeals - Timothy L. Easter Court Court of Criminal Appeals - James C. Witt, Jr VoteVote Vote Vote Option Totals Option Totals Option Totals Option Totals No Opinion* 49.70% No 47.70% NoOpinion* Opinion* 47.70% No Opinion* 49.29% Yes Yes 45.45% 47.20% 47.20% Yes Yes 45.62% No No 4.83% 5.08% 5.08% No No 5.08%

Court of Appeals --Robert CourtCourt of Criminal Appeals - J. Ross Dyer H. of Criminal Criminal Appeals Robert H.Montgomery, Montgomery,JrJr VoteVote Vote Option Totals Option Totals Option Totals No Opinion* 49.12% Yes* No 58.96% Opinion* 49.12% Yes 46.03% No Opinion 36.19% Yes 46.03% No 4.83% No No 4.83% 4.83%

ofof Criminal Appeals Robert L. Holloway, Jr. Jr. CourtCourt of Criminal Appeals - Jill-Bartee Ayers Court Criminal Appeals - Robert L. Holloway, VoteVote Vote Option Totals Option Totals Option Totals No Opinion* 49.70% No Opinion* 49.70% No Opinion* 49.70% 45.45% Yes Yes 45.62% Yes 45.45% 4.83% No No 4.67% No 4.83%

7 Court of Criminal Appeals - Camille R. McMullen Vote Option Totals Yes* 63.55% No Opinion 30.69% No 5.75%

Court of Criminal Appeals - Timothy L. Easter Vote Option Totals No Opinion* 47.70% Yes 47.20% No 5.08% 7

Court of Criminal Appeals - Robert H. Montgomery, Jr Vote Option Totals No Opinion* 49.12% Yes 46.03% No 4.83%

Court of Criminal Appeals - Robert L. Holloway, Jr. Vote Option Totals No Opinion* 49.70% Yes 45.45% No 4.83%

The Faithful Few:

African-American Female Partners in Majority-Owned Law Firms

By MELISA MOORE

he year I had to decide whether or not to proceed with the equity membership track at my firm, Burch, Porter & Johnson, was one of the most difficult years of my life. The previous year, in 2017, my colleague and friend, Tannera George Gibson, had become the first AfricanAmerican female partner in our law firm’s history. My peers expected I would follow the same path. Me— a first-generation college graduate, a first-generation law student, with no generational wealth and only a modest book of business, amassed since I joined the firm in 2011. Partnership was the next logical step. To most AfricanAmerican lawyers, partnership at a majority-owned firm equates to the ultimate success: You have “arrived” in the legal profession. As I considered my decision, I researched the statistics on African-American female partners in law firms and the numbers were beyond shocking. In 2018, fewer than 1% of partners in majority-owned law firms in the United states were African-American women. This statistic struck fear in me. I kept thinking, “Do I want to be a part of that miniscule number?” And if I did, “What if I fail?” Today, I’ve been an equity member at BPJ for nearly five years. Every year, I am humbled that I am still in this position when the statistics in this country for African-American female partners are still the same, still miniscule. According to the 2020 National Association for Law Placement (NALP) Report on Diversity in Law Firms, only 0.80 percent of African-American women have attained partnership status at their respective law firms.1 Although female and minority representation in law firms saw historical increases during the COVID-19 pandemic, the ABA reported in February of 2021 that those increases were relatively small,2 especially among women and people of color at the partnership level. “This pattern holds true across all firm sizes and most jurisdictions,” said the NALP report.3 10

Here in Memphis, there are only three AfricanAmerican female partners in the entire city at majorityowned law firms: CeCe Drayton at Baker Donelson Bearman Caldwell & Berkowitz, and Gibson and myself at BPJ. Notably, Gibson and I are the only two African-American female litigation partners in the city and we are both at the same firm. Like the statistics for African-American female partners in the United States, the number of African-American female partners at majority-owned law firms in Memphis has not changed since I became an equity member. This pattern has to end. There aren’t enough pages in any law journal to write about why there are only a faithful few African-American female partners in the United States and what can be done to improve these numbers, so let’s start with what must change locally. Below, in no particular order, are a few suggestions of things the Memphis legal and business community can do to help improve the state of African-American female partners at majority-owned law firms: 1. Educate Black female associates about partnership early. Often in mid-size and large law firms, our white colleagues have had more exposure to law firm culture, finances, and the overall business of practicing law – or they are given opportunities to learn these things very early in their legal careers. It is the responsibility of every law firm to invest in ALL of their associates, but especially female associates of color and those who have not had the privilege of being exposed to law firm culture. Do not take for granted that someone else in the firm will do this. Managing partners/members need to ensure that someone in the firm is equally educating every associate about their partnership/membership track, partnership expectations, the firm’s compensation structure, available marketing strategies, and how associate billing practices impact firm finances. 2. Recognize the critical role mentorship provides for African-American female associates and junior partners. Create a mentorship program in your

firm and hold mentors accountable for educating and supporting the next generation of African-American female partners. I never had the benefit of a strong mentor relationship at my current firm, but my law partner Gibson did when she was an associate. As a result, she was given opportunities that propelled her legal practice and that in turn benefitted the both of us. Mentors must be candid, provide constructive criticism, and offer African-American female associates the same opportunities to handle major transactions or litigate cases that their white counterparts are offered. Invest in us. After all, that’s what inclusion is all about. 3. Remember that relationships matter. Help African-American female associates in your firm build meaningful relationships with existing firm clients and share ideas with them on how to attract new business. We all know that getting brand-new business is hard, but servicing existing clients as a new partner can help ease the burden of not having a large book of business, especially for an associate in BigLaw. One thing I was told before I made partner is that the first few years would be hard, but once my former classmates and colleagues rose to positions of power that allowed them to send me work, it would get easier. This is true in some regard, but what they did not emphasize is that relationships matter. If all an associate ever does is research and write and is never given opportunities to interact with clients, participate in RFPs, or network with prospective clients, they will never be able to become successful rainmakers. 4. Sponsor an African-American female associate or junior partner. Mentorship is important, but sponsorship, which is not discussed a lot in mid-size law firms, is absolutely essential if an associate wishes to attain partnership status. A sponsor has the resources and connections to help advance an associate’s and junior partner’s legal career and doesn’t necessarily have to be in the same firm to do so. If you’re reading this and are in a position to be a sponsor, start with building a relationship and giving us a chance to show you we’re worth the investment. 5. Be intentional. This one is for those who are in a position to send legal work our way. The way to be intentional about sending legal work to senior level African-American female associates and partners is by first providing us with opportunities to demonstrate that we can not only perform high-quality work, but we can also obtain great results. I am not suggesting that you send heavy volume from the outset. However, I am

suggesting that we be given the same chances as our male counterparts. So often, we are not. We are forgotten or given the one-off case or deal. There must be a certain level of intentionality by those who make decisions about sending work if we truly want to see more AfricanAmerican women at the partnership level in majorityowned law firms. Success in the legal profession is rarely achieved alone. I am grateful for those who have invested in me and given me opportunities when others would not. I don’t take for granted that I am in this role at this moment in time, a time when the first African-American woman has been appointed to the United States Supreme Court and, locally, the first African-American woman is serving as President of the Memphis Bar Association. However, as long as African-American female associates and partners are left alone in law firms to build successful and meaningful legal careers, the trend of a “faithful few” African-American female partners in majority-owned law firms will continue. I know there are young African-American women sitting where I once sat as an associate, wondering if the partnership journey is worth it. They’re feeling the same loneliness and fear that I once felt and sometimes still feel. I also know that by taking real action, we, the Memphis legal and business community, can change the narrative on this topic.  1

NALP 2020 Report on Diversity in U.S. Law Firms, https://www. law.berkeley.edu/wp-content/uploads/2021/02/2020_NALP_ Diversity_Report.pdf, p. 17 Table 2.

“Female and minority lawyers representation in firms reaches historic highs, but gains are small, new report says,” by Debra Cassens Weiss, https://www.abajournal.com/news/article/ female-and-minority-lawyer-representation-in-law-firmsreaches-historic-highs-but-gains-are-small.

Id. at NALP 2020 Report on Diversity in U.S. Law Firms, p. 4.

Melisa Moore is a Member at Burch, Porter & Johnson. Her practice focuses on municipal work, insurance defense, workers’ compensation and general civil litigation. Melisa has been involved with the MBA’s Summer Law Intern Program (SLIP) since 2011 and served as the Co-Chair in 2021. 11

Why I Keep Going Back to Bench Bar

(And Why You Should Join Me!) By NICOLE M. GRIDA

et me set the stage. It is the Summer of 2006. I am a recent graduate of The University of Tennessee, College of Law who had previously accepted a job at a regional insurance defense firm in the Fall of 2005. In late July, I move to Memphis after sitting for the Tennessee Bar Exam in Knoxville the week before. I know exactly one person here other than the lawyers from my firm who had interviewed me. On my first day at work, I learn I have been paired with an amazing woman as my mentor, Molly Glover. She quickly brings me under her wing and begins teaching me how to be the trial lawyer I always aspired to be. Fast forward to three years later, Molly encourages me to join the Bench Bar Committee as a way to get more involved with the Memphis Bar Association. I suspect it was because she had been going to the Bench Bar Conference for more years than I am sure she would care to admit, and wanted me to experience what she had over the years. You see, Molly is what some might call a Bench Bar “OG” who loved to share war stories. But what really struck me was how she spoke about the lasting connections she had developed with members of the bench and bar with whom she would not otherwise have had reason to interact in her daily practice as an insurance defense attorney. Molly also told me about how some of the best CLEs she had attended over the years were at the Bench Bar Conference. This last part was especially curious to me because I could not understand why the CLEs the Memphis Bar Association put on at the Bench Bar Conference were any better than the ones the MBA put on right here in the Bluff City. And then at my second or third (this is where my mind gets a bit fuzzy) Bench Bar Conference, it clicked. The reason why the CLEs are some of the crėme de la crėme is because this is one of the only legal conferences where you do not want to miss a single session even when it has nothing to do with your practice. I can recall countless years where I could not decide which concurrent session I wanted to attend. Then I would become instantly jealous of those who chose one of the other sessions only to rave about it in the hospitality suite where you could always find delicious snacks, drinks, and good conversation (especially back when Shayla Purifoy and I were in charge of stocking the suite). 12

So let’s fast forward to August 2016. I am planning to speak at the Bench Bar Conference to be held Labor Day Weekend at Tops’l about recent changes to the Tennessee Workers’ Compensation Law. My first nephew is also about to be born. And I am lying awake at night trying to find a way to be in Destin and Pennsylvania at the same time. About a week before the Conference (and of course only after I had spent hours preparing my presentation), I decided I simply could not miss being there for my nephew’s arrival. Thankfully, I was able to call on Jonathan May to present in my place. Not only did Jonathan happily agree to present the CLE, I heard he made sure everyone had a good time too. I also remember attending a CLE on Immigration presented by Retired Immigration Judge Charles Pazar one year. Even though I had never done any immigration work, I hung on every word of his session. I say all this to say that sometimes the CLEs that stick with you for years are the ones you did not even expect to attend (or present). Jonathan, if you are reading this, I am not sure I ever thanked you enough for stepping in for me at the last minute. (Oh yeah and Vinny Grida thanks you too!) For the last part of what I think has now officially turned into an article about my own war stories, I want to take you back to the beginning of 2018 when MBA Past President Annie Christoff asked me to serve as the Chair of the 2019 Bench Bar Conference. For the prior two years, we had made the rounds—holding the 2017 Conference in New Orleans and the 2018 Conference in St. Louis. After agreeing to be the Chair, I became determined to make a triumphant return to the beach for the 2019 Conference. (While I would like to say this was

all my idea, I would be remiss if I did not mention the “Back to the Beach” push was also a result of the urging of some of my favorite Bench Bar OGs like Judge Phyllis Gardner, Judge Bobby Carter, and Denise McCrary who will be presenting their own war stories in a few weeks. Also, are you noticing a theme here with their involvement in all things related to this Conference?).

to pay it forward and hope to provide another young attorney with the opportunity that so many of those Bench Bar OGs who I know sound like provided me with over the years—the opportunity to learn and grow. By building these lasting and meaningful connections within the bench and the bar, we can ensure that the Memphis legal community remains the best in the state!

Now let’s get back to the story. Thanks to the tireless work of the rest of the 2019 Bench Bar Committee, I was able to make our vision to return to the Emerald Coast a reality. It was also an added bonus that by returning to the beach we were able to host one of the best attended Bench Bar Conferences in recent memory! And once again, I was able to connect with lawyers that I would never encounter on a daily basis in my practice, such as Dawn Campbell who is now an incredible asset for securing Bench Bar Conference sponsorships. (So if you or your firm are interested in sponsoring the 2022 Bench Bar Conference, please email Dawn.) That year I remember having such great conversations with Dawn about her career before law school, and the plans she had for her legal career. And even though she may have been a member of the 2nd Place Team at the Volleyball Tournament while Judge Tommy Parker, Asia Diggs Meador, Janika White, Bryon Winsett and I were on the 1st Place Team, I have loved how our friendship has flourished since our time together in Destin.

So for those lawyers who have not attended in many years – will you join me and help show the next generation of attorneys why the Bench Bar Conference is so important and a staple of what we as members of the Memphis Bar Association stand for?

I count myself as one of the lucky ones because Molly Glover is a person I still call a friend and mentor to this day. The friends and colleagues I mentioned above are people who I can count on both professionally and personally. Very early on in my career, Molly instilled in me the importance of networking, making friends with other lawyers, and building connections with those practiced in areas you did not because let’s face it, you never know when your cousin is going to need a good divorce attorney! However, one of the best things she ever did was encourage me to get involved with the Bench Bar Committee. And for that, I am eternally grateful. So why do I keep going back to Bench Bar? That is the title of this article after all. I go back because I still remember every single connection I have made during my many years attending Bench Bar. I go back because I treasure the friendships I have made and strengthened at Bench Bar. I go back because I treasure the memories we have shared at the beach, in the rain in NOLA, and on The Hill in St. Louis. I go back because of each and every inspiring CLE. I go back to the Bench Bar Conference year after year no matter where it is held because I choose 14

For those lawyers who have never attended Bench Bar, will you join me at The Grand in Point Clear, Alabama to make that connection that is holding you back from taking the next step in your legal career or to attend an inspiring CLE that makes you realize you are not really doing what you are passionate about? For the Bench Bar OGs reading this article and all of my dear friends who I met, got to know better, and have countless memories with, will you join me this year so we can celebrate making it through the past 2+ years when we could not gather together? If I still have not convinced you to go to the 2022 Bench Bar Conference from September 29, 2022 through October 2, 2022, I invite you to visit our website to learn more about our CLE sessions, and networking, social, and wellness events. Also, do not forget to follow us on Facebook and Instagram as word on the street is we will be featuring some “Moments in Bench Bar History” over the coming months. And for the OGs, please email me your pictures of Bench Bars of yesteryear.  Nicole M. Grida is a long time member of the Publications Committee of the Memphis Bar Association and currently serves as its Chair. She is also a long time member of the Bench Bar Committee and currently serves as the Chair of the Marketing Subcommittee. An accomplished trial attorney with private firm and in-house experience who has been a long-time supporter of Access to Justice initiatives across the state, Nicole is still contemplating where the next phase of her legal career might take her.

Voting Rights and Responsibilities

How to Avoid Becoming Disenfranchised

By AUDREY CALKINS

s other articles in this issue discuss, Shelby County’s upcoming August and November elections matter for us on both a local and national level. But you cannot exercise your fundamental right to vote in them 1 without registering at least 30 days before election day.

Did you vote in the May primary election? If so, you probably assume that you can rest easy knowing that you (1) are already registered to vote and (2) recently voted, so your name should still be on the active voter registration roll, right? Presumably yes...but I recommend that you check your registration 31 days before every election— and again one week before you plan to vote—to confirm that it is still valid. Why? Because I voted in an election in November 2015—and then when I tried to vote in the March 2016 election, I was turned away from the poll and told that I 2 was no longer a registered voter. I. How did I vote in November 2015 and become ineligible by March 2016? I moved back to Memphis from Texas in March 2014, and I registered to vote in January 2015, after I bought my house in Midtown. Sometime in late 2015, I got a letter from the Texas Elections Division asking whether I had moved out of Texas and whether I needed to cancel my Texas voter registration. I responded, indicated that I had moved out of Texas, and told Texas that it could cancel my Texas voter registration. Unbeknownst to me, Texas sent a letter to the Shelby County Election Commission (Elections Commission) indicating that I had canceled my Texas voter registration because I had moved to Memphis. The Election Commission misread the Texas letter and canceled my Tennessee voter registration—on February 11, 2016— less than 30 days before the March 2016 election. 3 The cancellation is reflected in the records system: 16

I did not receive any notice that the Election Commission had canceled my voter registration until I tried to vote on March 1, 2016. Even though I presented my driver’s license and my voter registration card at my designated polling place, the poll workers did not let me vote because I did not appear as a registered voter in the system. Nevertheless, I cast a provisional ballot on election 4 day. But the Election Commission decides whether a provisional ballot is valid based upon the information 5 already in their system. Of course, that incorrect information (which the Elections Commission had incorrectly entered after it misread the letter from Texas) said that I had moved out of Tennessee. About three weeks later, the Election Commission notified me—by mailing a letter to my address in Midtown—that my March 2016 provisional ballot did not count because I had ostensibly moved out of Shelby County.

I was disenfranchised without any recourse, as the 6 Election Commission eventually admitted.

II. Why should you check the status of your voter registration if you recently voted? If I could rewind to February-March 2016, I would do at least two things differently. First, I would check my voter registration status 31 days before the registration deadline. Second, I would check my voter registration again one week before I planned to vote—regardless of whether I planned to vote early or on election day. 1

Tenn. Code Ann. § 2-2-109(a) (“A qualified voter may register or have the voter’s registration altered at the commission office at any time the office is open, except that applications for registration shall not be processed for twenty-nine (29) days before an election.”).

I previously spoke about my experience at the University of Memphis Law Review’s symposium on voting rights in 2019. See Audrey M. Calkins, The Importance of Involvement on the Local Level, 49 U. Mem. L. Rev. 1291 (Summer 2019). A video of my presentation is available here.

I obtained documents and information related to the Election Commission’s actions by sending two public records requests to the Election Commission in the summer of 2016.

Tenn. Code Ann. § 2-7-112(a)(3)(A) (“A person shall be entitled to vote a provisional ballot under the procedures of this section if

While you may not have canceled your voter registration in another state since you last voted, clerical errors affecting your registration can happen anytime and without any intent to improperly cancel your voter registration. As such, I encourage you to check the status of your registration before the 30day registration deadline expires—and again shortly before the day you plan to vote. If these deadlines sound like a lot to remember, you can create calendar events right now to remind you to check your registration. Here are links to the Election Commission (https://www.electionsshelbytn.gov/) and the voter registration lookup website (https://tnmap. tn.gov/voterlookup/) to make it even easier. Does this repeated checking seem excessive and unnecessary? Perhaps. But a little extra diligence goes a long way to protect your rights and prevent problems when you go to the polls. Better to put in the work on the front end than to have your vote not count.  the voter claims to be properly registered in the county and eligible to vote at the precinct in the election, but whose eligibility cannot be determined by the computer signature list or by examination of the permanent registration records on file with the county election commission.”). 5

Tenn. Code Ann. §§ 2-7-112(a)(3)(B)(i)-(v) (listing the procedures that the central provisional ballot counting board follows when counts provisional ballots and which records the counting board considers).

I re-registered to vote on March 1, 2016 and submitted an application with my same address as my current and former address. The Election Commission accepted this application and returned my name to the list of registered voters. I have early voted in every election since my disenfranchisement, and I will never wait to vote on election day again.

Audrey Calkins has been an Assistant U.S. Attorney in the Civil Division of the U.S. Attorney’s Office for the Western District of Tennessee since April 2020. Before that, she practiced labor and employment defense at Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Memphis and commercial litigation at Susman Godfrey L.L.P. in Houston, Texas. Ms. Calkins is a member of the MBA Publications Committee and is the outgoing chair of the TBA’s Federal Law Section. Ms. Calkins wrote this article in her personal capacity only. All opinions and views in this article are personal and belong solely to Ms. Calkins and do not represent those of people, employers, institutions, or organizations she may or may not be associated with in any professional or personal capacity, unless explicitly stated. Any views or opinions are not intended to malign any group, association, company or individual. All opinions and statistics are based upon information Ms. Calkins considers reliable. 17

THE RIGHT TO VOTE

A RIGHT WORTH PRESERVING AND RESTORING BY

JUDGE JERRY STOKES

JUDGE GINA HIGGINS

JUDGE RHYNETTE HURD

‘T

is the season. We can hardly drive a block now without seeing political yard signs and other invitations to vote for someone. From the expressway, we see changing digital displays of smiling faces asking for our votes. Now consider for a moment that adult citizens of some countries have never had the right to vote. What if you lived where you can vote, but you know elections are sham exercises orchestrated by dictators obsessed with power? Consider also there was a time in this country that, through no fault of your own, you may have been disenfranchised – you were not a landowner, for example, or you were a person of color or a soldier stationed outside of your home state. Consider that day in August 1920 when a Tennessee representative responded “aye” to ratifying the 19th Amendment and American women got the right to vote. All of this reminds us of how important it is to make sure our votes count. With the Supreme Court’s interpretation of Constitutional provisions in Baker v. Carr, 369 U.S. 186 (1962), and its progeny - particularly Wesberry v. Sanders, 376 U.S. 1 (1964), and Reynolds v Sims, 377 U.S. 533 (1964) - as adult citizens of the United States, we are guaranteed the right to participate in our democracy by voting for the candidates and platforms of our choice. With the Voting Rights Act of 1965, state and local governments can no longer deny voting rights based on immutable characteristics like race. In 1966, the Court in Harper v Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966), declared states may not require citizens to pay a poll tax to vote. Five years later, the states ratified the 26th Amendment, thereby lowering the voting age to eighteen. Although states may deny the right to vote under certain limited circumstances, the general rule is “one 18

[person’s] vote . . . is to be worth as much as another’s.” Wesberry, 376 at 8. That means, the vote of someone who struggles to make ends meet each month and that of a multimillionaire count the same; the vote of an eighteenyear-old young woman and that of an eighty-year-old man count the same; and the vote of a private in the armed services counts the same as the vote of a five-star general. It means, even if you are immunocompromised during a pandemic and, therefore, cannot get to a poll site, your mail-in ballot will count just like the ballot of someone who went to the polls in person. In any representative form of government, voting is the principal means by which individuals can directly impact the laws under which they live. It is the means by which all other rights and privileges can be protected. Despite the essential function of voting, the Tennessee Constitution provides that "[l]aws may be passed

excluding from the right of suffrage persons who may be convicted of infamous crimes." Tenn. Const. Art. IV, § 2. Pursuant to this authority, a citizen can be adjudged "infamous" and disqualified from exercising the right to vote "[u]pon conviction for any felony." Tenn. Code Ann. 1 § 40-20-112. While the loss of the right to vote upon felony conviction may not be particularly surprising, the scale of disenfranchisement is. Research conducted prior to the 2020 presidential election revealed that "[m]ore than 20% of Tennessee's Black adults cannot vote due to a felony conviction, while an estimated 8% of the state's overall adult population is disenfranchised." Kimberlee Kruesi, Report: More than 1 in 5 Black Tennesseans 2 Disenfranchised, AP NEWS (October 15, 2020). The sheer number of Tennesseans who have lost their right to vote suggests that many of us, either directly or indirectly, know someone who has been disenfranchised and, in an ever more politicized climate, may be seeking information on how to regain the right. Therefore, it is important for attorneys to have at least a basic understanding of this area of the law, which for most is largely not encountered on a day-to-day basis. Tennessee has two separate statutory schemes for the restoration of voting rights. The first involves court intervention for restoration of full rights of citizenship, including voting rights. Specifically, Tenn. Code Ann. §§ 40-29-101 et seq., provides that "[p]ersons rendered infamous or deprived of the rights of citizenship," Tenn. Code Ann. § 40-29-101(a), "may petition [the circuit court] for restoration upon the expiration of the maximum sentence imposed for the infamous crime." Tenn. Code Ann. § 40-29-101(c); see also Tenn. Code Ann. § 40-29102 ("petition to the circuit court of the county in which the petitioner resides, or to the circuit court of the county in which the petitioner was convicted of an act depriving the petitioner of citizenship sustained by satisfactory proof that ever since the judgment of disqualification, the petitioner has sustained the character of a person of honesty, respectability and veracity, and is generally esteemed as such by the petitioner's neighbors"). While these provisions can impact the right to vote, pursuant to Tenn. Code Ann. § 40-29-105(c)(7), "[a]ny person whose citizenship rights have been restored by order of the court . . . shall submit a certified copy of the order to the administrator of elections of the county in which the person is eligible to vote.” The administrator of elections shall verify with the coordinator of elections that the court has issued a restoration order and, upon receiving the verification, shall issue the person a voter registration card entitling the person to vote. And yet, the Shelby County Circuit Court of Tennessee has

granted precious few of these petitions simply because, we believe, so few individuals (including lawyers) know of this remedy. It is baffling why more petitions under this section are not filed! A second statutory scheme to restore the right to vote is administrative and does not require court intervention. Tenn. Code Ann. §§ 40-29-201 et seq., directly addresses restoring the right to vote. See Tenn. Code Ann. § 4029-201(c) ("This part shall apply only to restoration of the right of suffrage. For restoration of all other rights 3 of citizenship forfeited as the result of a conviction for an infamous crime, [Tenn. Code Ann. §§ 40-29-101 et seq.] . . . shall apply"); see also O'Neal v. Goins, No. M2015-01337-COA-R3-CV, 2016 Tenn. App. LEXIS 549, at *15 (Ct. App. July 29, 2016) ("To the extent there is a conflict between the statutes . . . the reasonable construction is that the specific procedure at Tenn. Code Ann. § 40-29-201 et seq. is to be utilized when seeking restoration of the right to vote rather than the general "full rights of citizenship" provisions of § 40-29-101 et seq. for those whose right to vote has been revoked as a result of a criminal conviction"). One must first look to the law in effect at the time of the felony conviction, not just the law in effect at the time one seeks restoration of voting rights. For example, section 40-29-201 applies to "any person convicted of an infamous crime after May 18, 1981," Tenn. Code Ann. § 40-29-201(b), but not every 4 person convicted can seek restoration to vote. Those barred from restoration include: (1) Those convicted after July 1, 1986, of the offenses of voter fraud, treason, murder in the first degree, or aggravated rape; (2) Those convicted after July 1, 1996, but before July 1, 2006, of any of the offenses set out in subdivision (1) or any other degree of murder or rape; and (3) Those convicted on or after July 1, 2006, of: (A) Any of the offenses set out in subdivision (1) or (2); (B) Any other violation of title 39, chapter 16, parts 1, 4 or 5 designated as a felony or any violation containing the same elements and designated as a felony in any other state or federal court; or (C) Any sexual offense set out in § 40-39-202 or violent sexual offense set out in § 40-39-202 that is designated as a felony or any violation containing the same elements and designated as a felony in any other state or federal court and where the victim of the offense was a minor. Tenn. Code Ann. § 40-29-204. 19

Assuming that an individual is not categorically excluded, administrative restoration of voting rights cannot occur until an individual has paid all restitution to the victim(s) as part of his/her sentence, Tenn. Code Ann. § 40-29-202(b)(1); is current on all child support obligations, Tenn. Code Ann. § 40-29-202(c); and, beginning September 1, 2010, "unless the person has paid all court costs assessed against the person at the conclusion of the person's trial, except where the court has made a finding at an evidentiary hearing that the applicant is indigent at the time of application." Tenn. Code Ann. § 40-29-202(b)(2). If these prerequisites are met, the individual may have the right of suffrage restored upon: (1) Receiving a pardon, except where the pardon contains special conditions pertaining to the right of suffrage; (2) The discharge from custody by reason of service or expiration of the maximum sentence imposed by the court for the infamous crime; or (3) Being granted a certificate of final discharge from supervision by the board of parole pursuant to § 40-28-105, or any equivalent discharge by another state, the federal government, or county correction authority. Tenn. Code Ann. § 40-29-202(a). The restoration of voting rights process begins with the application for a certificate of voting rights restoration. Tenn. Code Ann. § 40-29-203(a). This form, along with instructions, is 5 available on the Tennessee Secretary of State website, and must be completed by "(1) The pardoning authority;

Any felony conviction on or after May 18, 1981, renders a person infamous. Prior to that date, "infamous crimes" were limited to "abusing a female child, arson and felonious burning, bigamy, burglary, felonious breaking and entering a dwelling house, felonious breaking into a business house, outhouse other than a dwelling house, bribery, buggery, counterfeiting, violating any of the laws to suppress the same, forgery, incest, larceny, horse stealing, perjury, robbery, receiving stolen property, rape, sodomy, stealing bills of exchange or other valuable papers, subornation of perjury, and destroying a will." Tenn. Code Ann. § 40-20-112, Code Commission Notes.

The Sentencing Project study referenced in the AP report outlines disenfranchisement figures across the country and can be found here.

See e.g., Tenn. Code Ann. § 40-20-114(a) (disqualification from "qualifying for, seeking election to or holding a public office in this state"); Tenn. Code Ann. § 40-20-115 ("The effect of a sentence of imprisonment in the penitentiary is to put an end to the right of the

(2) The warden or an agent or officer of the incarcerating authority; or (3) A parole officer or another agent or officer of the supervising authority." Tenn. Code Ann. § 40-29-203 (a). Once completed, this form serves as "sufficient proof that the person named on the certificate is no longer disqualified from voting by reason of having been convicted of an infamous crime," Tenn. Code Ann. § 40-29-203(c), and must be delivered to the administrator of elections for the county in which the person is eligible to vote. Tenn. Code Ann. § 40-29-203(d). Upon verification of this form, "the administrator shall grant the application for a voter registration card. The administrator shall issue a voter registration card and the card shall be mailed to the applicant in the same manner as provided for any newly issued card." Id. While not complicated, this process nevertheless involves multiple steps and the verification of a variety of bits of information. As a result, and as with any bureaucratic process, time can be a factor. With midterm elections fast approaching and the 2024 presidential election on its heels, while more disenfranchised Tennesseans will likely be seeking to regain their previously forfeited rights, any delays could result in yet another election without the right to vote. Maintaining a basic understanding of the restoration process, however, can ensure that Tennessee attorneys are doing their part to safeguard the rights of those who, but for uncertainty regarding the process, could once again be exercising their fundamental rights and performing an essential civic duty. So, come on attorneys, assist a disenfranchised individual in the restoration of this precious right! 

inmate to execute the office of executor, administrator or guardian, fiduciary or conservator, and operates as a removal from office"). 4

See generally, Tenn. Code Ann. § 40-29-105. Individuals convicted from between January 15, 1973 and May 17, 1981 " are eligible to vote . . . but the Division of Elections will need to verify [they] were convicted during this time period." Tennessee Secretary of State – Restoration of Voting Rights. Those convicted of felonies prior to January 15, 1973 are already eligible to vote unless convicted of earlier delineation of infamous crimes and, even if convicted of such a crime, may " still have the right to vote if [they] can show that at the time of [their] conviction the judge did not render [them] "infamous," if [their] conviction was reversed on appeal or expunged, if [they] received a full pardon, or if [they] have [their] voting rights restored." Id.

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CLC Corner: State of Immigration

he Immigrant Justice Program (IJP) began in 2006, and since that the Community Legal Center (CLC) has been steadily working to respond to the everevolving needs of immigrants within the jurisdiction of the Memphis Immigration Court by applying everevolving legal standards. The IJP team has joked about the rapidly changing nature of immigration law and how what we knew yesterday might be obsolete. As such, it is my pleasure to provide an update to the legal community at large about the state of immigration law and IJP’s work, because things may have changed since immigration was last on your radar. On a micro scale, the CLC has noticed trends in the needs of our clients. One trend is that many clients who have been approved for U-nonimmigrant status, an immigration benefit available to victims of certain violent crimes who are helpful to law enforcement, are now returning to apply for lawful permanent residence status. Because there is a limit to how many U-nonimmigrants can be approved per year, and three years of holding U-nonimmigrant status is required to apply for permanent residence, many of these clients have been working with CLC for almost a decade. Another trend is rather than only seeing asylum claims based purely on gang violence in clients’ home countries as we have been accustomed to handling, we are now seeing an uptick in asylum claims based on clients’ home governments persecuting them for their political beliefs or their LGBTQ+ identities . Finally, although not a new trend, we are seeing a steady flow of minors who qualify for a Special Immigrant Juvenile Status (SIJS), a form of immigration relief for non-citizen children who have been abused, abandoned, or neglected by one or both of their parents. Because SIJS involves obtaining a guardianship in a state court, it is an area ripe for pro bono participation. On a macro scale, the Biden administration’s approach to immigration policy is vastly different from that of the Trump administration. The difference in philosophy is best exemplified in their immigration 22

By BRITTANY BANE

enforcement priorities. While the Trump administration essentially made all undocumented immigrants a priority for removal from the United States, the Biden administration chooses to focus the government’s limited resources on removing people who are threats to national security, public safety, and border security. Pursuant to these enforcement priorities, Immigration and Customs Enforcement (ICE) attorneys are now authorized to exercise prosecutorial discretion in various forms, including dismissing Immigration Court proceedings against Respondents who are not enforcement priorities. By making requests for prosecutorial discretion, the CLC has obtained dismissal of dozens of cases against our clients, many of whom qualify for some form of immigration relief such as SIJS or U-nonimmigrant status. If you are interested in learning more about IJP’s work, please follow us on social media, where we keep followers updated about our community outreach events, CLEs, volunteer and pro bono needs, and client success stories. If you would like to support our work through donations or pro bono service, please visit our website at www.clcmemphis.org.  Brittany Bane first joined the Community Legal Center as a summer intern. She then served as a Equal Justice Works Fellow sponsored by International Paper for two years representing immigrants in civil cases. Brittany then transitioned to the Immigrant Justice Program where she assists immigrants with a variety of immigration applications and immigration court proceedings, including asylum, U-Visas for victims of violent crimes, and Special Immigrant Juvenile Status.

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MALS Corner: MALS IS ON THE MOVE! By CINDY COLE ETTINGOFF, CEO and General Counsel, Memphis Area Legal Services, Inc.

he summer is going to be an incredibly exciting time for Memphis Area Legal Services, Inc. (MALS). We are moving to a smaller, more efficient space at 200 Jefferson. Our new location will be even closer to the courthouses, and will allow easier access for those who need us, many of whom rely on the public transportation that runs past our new building. We have also taken lessons learned during the pandemic to heart - MALS will continue to operate on a hybrid model, using less of our funds for office space and directing more of our dollars towards staff to assist clients. Very shortly, MALS will also be offering online intake while continuing to offer limited phone intake for those who are unable to navigate the online system. During the pandemic MALS, worked with the Legal Services Corporation to investigate means of gathering court data to enable us to better assist our clients. That collaborative approach has given rise to a new proposal for using technology to get information to clients more quickly. Although MALS has often partnered with other organizations such as MIFA, Catholic Charities, and ReStore Corp., the pandemic emphasized the value of existing partnerships and the need for additional partnerships. In light of increasing demand and limitations on resources, MALS is dedicated to helping our partner organizations by doing what MALS does best and relying upon our partners to enhance the ability of each organization to meet the needs of our community. That enhanced ability to serve is seen in the three areas of tremendous concern for our community – housing, domestic violence, and restoration of rights., Although the effects of the pandemic are fading for many, that is not the case for many of MALS clients with courts returning to full dockets and backlogs being cleared. A significant portion of backlogged cases are evictions for failure to pay rent. Once an individual has an FED (eviction), their ability to obtain subsequent housing is substantially decreased. With the shortage of affordable housing, there are many who have virtually no affordable options for rehoming. MALS is honored to remain a part of the Eviction Relief Assistance (ERA) program offering rental assistance for qualified individuals. Requests for assistance from domestic violence victims 24

soared when schools reopened, and warmer weather has provided victims greater opportunities to leave their dwellings and seek assistance. MALS is a member of the Elder Protection Coalition and has long had the privilege of partnering with the Family Safety Center to provide representation of domestic violence victims. MALS has also partnered with a variety of groups to make a long cherished initiative spearheaded by MALS Board member, Amber Floyd, widespread. As a result of collaborations and partnerships with the Ben F. Jones Chapter of the National Bar Association, the Shelby County Criminal Court Judges, the Shelby County Clerk’s Office, members of International Paper Signature Corporate Pro Bono Initiative, AutoZone, and Bass Berry & Sims, and individual volunteer attorneys, expungements, drivers’ license reinstatements, and voting rights restoration clinics are being offered throughout the City of Memphis and surrounding communities. MALS is on the move to do even greater good for our community, and we ask that you join us! First, mark your calendar for our Ribbon Cutting on July 29, 2022. Also, MALS will host its in-person Justice For All Ball (JFAB) on October 14, 2022 with the Memphis Flippers to lead us into a night of dancing to Stax musicians and DJ Cleveland Brasfield. JFAB will kick off our Annual Campaign for Equal Justice. Our goal is to do more and better for our community. We have a long range plan to achieve that goal. And with the help of the legal community, that goal will be reached!  Cindy Cole Ettingoff is the CEO and General Counsel for Memphis Area Legal Services, Inc. A long time legal services volunteer and supporter, Cindy joined MALS after thirty years of practicing law. In private practice, Ms. Ettingoff represented employers, employees, and unions in litigation, contract negotiations, arbitrations, and mediations.

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A Picture Is Worth A Thousand Words, But A Video Is Case Dispositive Summary Judgment For Police Officers In The Age of BodyCams By E. LEE WHITWELL AND JASEN M. DURRENCE

Excessive force lawsuits against police officers are undergoing a game-changing overhaul based upon the growing availability of video footage from dash cameras, body-worn cameras, and cell phones. This, in turn, is changing the legal landscape of summary judgment in lawsuits against police officers. The Sixth Circuit’s recent ruling in Gambrel v. Knox County illustrates that we still don’t quite know how far the video exception to summary judgment goes. But there is no question that video evidence can change the outcome of a case, and even change the standard of review. Normally, when a party moves for summary judgment, the court construes the facts in the light most favorable to the non-moving party. In civil rights cases, this usually means the court interprets various factual disputes in the plaintiff’s favor, rather than the defendant officer seeking summary judgment. For instance, if a plaintiff alleges a police officer pepper-sprayed him for no reason during a traffic stop, the officer’s argument that the plaintiff was actually reaching for a weapon at the time creates a classic triable issue of fact for the jury, precluding summary judgment. But in 2007, the Supreme Court carved out an exception to this general rule in Scott v. Harris, 550 U.S. 372 (2007). In that case, video captured the event in question. The plaintiff in Scott sued a police officer after the two engaged in a high-speed chase that ended with the plaintiff crashing and becoming paralyzed. The defendant officer effectively caused the crash and ended the chase by ramming the plaintiff’s car from behind in what is commonly referred to as a “PIT maneuver.” The plaintiff sued, claiming that the officer acted unreasonably. The lower court denied the officer’s motion for summary judgment based on the plaintiff’s version of the events. According to the plaintiff, he was not a threat to fellow motorists during the chase, and instead slowed down for turns and intersections (even using his turn signal), didn’t run anyone off the road, and did not otherwise pose such 26

a threat that the officer’s PIT maneuver was reasonable. As Justice Scalia put it, rather than fleeing from police, the plaintiff made it sound as though he was “attempting to pass his driving test.” Id. at 379. In contrast to the plaintiff’s version of the chase, the video in Scott told “quite a different story.” Id. The video showed a suspect forcing cars off the road, crossing double-lines, running red lights, and going at speeds you might see in a “Hollywood-style car chase.” Id. at 380. Because of what the video showed, the Scott Court did not defer to the plaintiff’s version of the facts. Instead, the Court recognized an exception to the typical summary judgment rule, finding: “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 380 (emphasis added). Instead, when video captures the event, courts review the facts “in the light depicted by the videotape.” Id. Since Scott, the Sixth Circuit and other courts have recognized that the summary judgment standard has an “added wrinkle” when video footage is present. Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th Cir. 2015). If a plaintiff’s version of the event is inconsistent with what the video shows, the court discounts that version and likely grants the defendant summary judgment. The question now is how far does the Scott exception go? What about audio recordings of the event? What about video that captures some but not all of the encounter between the plaintiff and the officer? Or video that is of poor quality or from an obscure angle? While the Sixth Circuit has noted that Scott is not limited to cases involving videotapes, Coble v. City of White House, Tenn., 634 F.3d 865, 868 (6th Cir. 2011), it has refrained from wading too deeply into many of the questions Scott left unanswered.

Most recently, the Sixth Circuit made that much clear in Gambrel v. Knox County, Kentucky, 25 F.4th 391 (6th Cir. 2022). In Gambrel, police officers used tasers, night sticks, and ultimately shot a suspect—Jessie Mills—after responding to the scene and finding Mills struggling with his daughter in the middle of the road. Originally, both the officers on the scene and the bystander witnesses told a version of events that may have made the officers’ uses of force reasonable. Under that version, Mills was kicking, biting, and “whoop[ing]” the two officers, who by the end were only trying to get away from him and shot him as he again charged at them. The twist, however, was that one of the bystanders later changed his story. While correcting his recollection of the incident during his deposition, the witness testified that Mills did not commit any of the violent acts he, and the rest of the witnesses, said he had. Further, the witness testified during his deposition that Mills was nearly unconscious, and did not pose a threat to the officers. The defendant officers argued that the lone witness’s claim that he had lied earlier was like the plaintiff’s testimony in Scott—so utterly discredited by the record that it did not warrant any deference. The Sixth Circuit disagreed, reasoning: “Circuit courts have debated Scott’s scope. Is it limited to situations in which a witness’s testimony blatantly contradicts unchallenged video evidence? Or is it a specific application of a general rule that allows courts to disregard ‘incredible’ testimony on the ground that the testimony does not create a ‘genuine’ dispute of material fact under Federal Rule of Civil Procedure 56? We need not enter this debate. Even under the broader view of Scott, [witness] Hobbs’s deposition testimony is not so ‘inherently incredible’ as to allow us to disregard it now. Hobbs seemingly is a disinterested witness. And his testimony does not conflict with objective (and indisputably authentic) evidence like a video or audio recording; it conflicts with other witnesses’ testimony.” Id. at 405. Thus, the Gambrel Court ruled against the officers for summary judgment purposes.

Lee Whitwell is the Chief Litigation Attorney for the Shelby County Attorney’s Office. He serves under County Attorney Marlinee Iverson, oversees all civil litigation for the County, and continues to handle civil rights and employment cases. He is also an adjunct professor at the University of Memphis, Cecil C. Humphreys School of Law, where he teaches Appellate Advocacy—a second-year class on appellate brief-writing and oral argument. Jasen Durrence is currently an Assistant County Attorney with the Shelby County Attorney’s Office. He practices in the areas of labor/employment disputes and civil rights issues with a focus on trial and appellate advocacy. Jasen is a 2014 graduate of the University of Memphis, Cecil C. Humphreys School of Law, and remains connected to his law school alma mater as an adjunct professor in the moot court advocacy program.

The Court’s description of the witness in Gambrel as “disinterested” leaves open the possibility that a different outcome may have been reached if the lone witness had been a party to the case or otherwise “interested.” We just don’t know. But we do know that cell phones and other kinds of cameras aren’t going away, so it’s likely only a matter of time until the Court has no choice but to “enter this debate.”  27

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