                           NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 19a0375n.06

                                                No. 18-5753


                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

 JOHN BRINDLEY,                                                    )                           FILED
                                                                   )                     Jul 24, 2019
            Plaintiff-Appellant,                                   )                DEBORAH S. HUNT, Clerk
                                                                   )
 v.                                                                )
                                                                   )       ON APPEAL FROM THE
 CITY OF MEMPHIS; MICHAEL RALLINGS, in his                         )       UNITED STATES DISTRICT
 official capacity as Director for the Memphis Police              )       COURT FOR THE WESTERN
 Department; DANIEL BARHAM, individually and in                    )       DISTRICT OF TENNESSEE
 his official capacity as Lieutenant for the Memphis               )
 Police Department,                                                )                     OPINION
                                                                   )
            Defendants-Appellees.                                  )



BEFORE:           STRANCH and DONALD, Circuit Judges.*

        JANE B. STRANCH, Circuit Judge. Virginia Run Cove is a privately owned street that

offers access to the parking lots of several businesses, including a Planned Parenthood clinic, in

Memphis, Tennessee. John Brindley seeks a preliminary injunction requiring the City of Memphis

to let him stand near the entrance to this clinic and spread his pro-life message. He argues that

Virginia Run Cove is a traditional public forum and that his exclusion from the street violates the

First Amendment. The district court denied his motion for a preliminary injunction, and he now

appeals.




        *
          The Honorable Damon J. Keith, a member of the original panel, passed away on April 28, 2019. Judge
Stranch and Judge Donald act as a quorum pursuant to 28 U.S.C. § 46(d).
No. 18-5753, Brindley v. City of Memphis, et al.


       The Supreme Court has long held that public streets are traditional public fora. And even

when a street is privately owned, it remains a traditional public forum if it looks and functions like

a public street. The roadway at issue here—which connects directly to a busy public thoroughfare,

displays no sign of private ownership, and is used by the general public to access many nearby

buildings, including the clinic, a gas station, a church, and a U.S. Immigration and Customs

Enforcement (ICE) office—has all the trappings of a public street. We therefore REVERSE the

district court’s denial of Brindley’s preliminary injunction motion.

                                     I.    BACKGROUND

   A. Factual History

       In 1999, 5325 Summer Avenue Properties, LLC (SAP) bought the land on which Virginia

Run Cove (the Cove) and its surrounding businesses now sit. In January 2007, SAP signed a final

plat that subdivided the land into six units. On the last page of the plat, Curtis Wegener, SAP’s

property manager, signed an “owner’s certificate” that stated:

       We, 5325 Summer Ave. Prop., the undersigned owner of the property shown hereon,
       hereby adopt this plat as [our] plan of subdivision, and dedicate the streets, right-of-ways,
       easements and rights of access as shown to the public use forever . . . .

A few weeks after he signed the final plat, Wegener also signed a quitclaim deed that transferred

ownership of the Cove—but not the rest of the land—from SAP to 5325 Summer Avenue Property

Owners Association, Inc. That deed described the Cove this way:

       A Private Drive designated as COMMON AREA SPACE on the Final Plan of 5325
       Summer Avenue P.D., as shown on plat of record in Plat Book 230, Page 56, in the
       Register’s Office of Shelby County, Tennessee, to which plat reference is hereby made for
       a more particular description of said property . . . .




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No. 18-5753, Brindley v. City of Memphis, et al.


In the ensuing years, several businesses bought lots on either side of the Cove. Those businesses

now include a gas station, an auto repair shop, a church, an ICE office, and the Planned Parenthood

clinic.

          Today, the Cove is a two-lane asphalt street that provides access to the parking lots of these

buildings. The street has no sidewalks, and grassy medians with manicured hedges separate the

Cove from the parking lots. The Cove turns directly off Summer Avenue, a busy public

thoroughfare. There are no signs or other indicators notifying the public that the Cove is privately

owned.1

          Planned Parenthood opened its clinic adjacent to the Cove on May 1, 2017. Early that

morning, Brindley stood near the entrance to the clinic’s parking lot and began promoting his pro-

life message. A Planned Parenthood employee met him outside, told him that the Cove was a

private street, and asked him to leave. He refused to leave, and eventually a Memphis police

officer arrived at the scene. The officer spoke to the Planned Parenthood employee, who repeated

that the Cove was a private street. After Brindley disputed that characterization, the officer

contacted his supervisor, Lieutenant Daniel Barham. Barham spoke to his own superior about the

Cove’s status and confirmed that it was privately owned. He then drove to the scene and ordered

Brindley to relocate to Summer Avenue, which lies several hundred feet away from the clinic.

Brindley abandoned his effort and left the area.


    B. Proceedings Below

          Brindley filed this suit against the City of Memphis, Michael Rallings in his official

capacity as Director of the Memphis Police Department, and Barham in his individual capacity



          The Appellees note that the Cove’s street sign is blue, whereas publicly owned streets ordinarily
          1

have green signs. But apart from this difference in color, nothing on the sign indicates that the Cove is
privately owned.
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No. 18-5753, Brindley v. City of Memphis, et al.


(collectively, the Appellees). He claimed that (1) his exclusion from the Cove violated his First

Amendment rights because the Cove is a traditional public forum, and (2) the City of Memphis

violated his due process rights by adopting an unconstitutionally vague “policy” of excluding

certain speakers from traditional public fora.2 Shortly thereafter, Brindley sought a preliminary

injunction requiring the Appellees to give him access to the Cove. The district court found that

Brindley had not demonstrated a strong likelihood of success on the merits and denied his motion.

He timely appeals.


                                          II.    ANALYSIS

    A. Preliminary Injunction Standard

        District courts weigh four factors when deciding whether to grant a preliminary injunction:

“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant

would suffer irreparable injury absent the injunction; (3) whether the injunction would cause

substantial harm to others; and (4) whether the public interest would be served by the issuance of

an injunction.” Hall v. Edgewood Partners Ins. Ctr., 878 F.3d 524, 526–27 (6th Cir. 2017)

(citation omitted).

        We typically review a district court’s weighing of these factors for abuse of discretion and

its legal conclusions, including its assessment of the plaintiff’s likelihood of success on the merits,

de novo. Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012). But in First Amendment

cases, “the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success



        2
          Brindley relegates his due process claim to a footnote. He has forfeited this argument on appeal
by failing to develop it. See, e.g., Hensley v. Gassman, 693 F.3d 681, 687 n.6 (6th Cir. 2012) (“Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed [forfeited].” (citation omitted)). At any rate, because we find that his exclusion likely violated the
First Amendment—and because a due process violation would require an identical remedy—we need not
reach his due process claim.


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No. 18-5753, Brindley v. City of Memphis, et al.


on the merits. This is so because . . . the issues of the public interest and harm to the respective

parties largely depend on the constitutionality of the [challenged action].” Id. (citation and internal

quotation marks omitted). For that reason, our review of the district court’s decision here—which

rests on its conclusion that Brindley is unlikely to succeed on the merits of his First Amendment

claim—is de novo. Id.

   B. First Amendment Claim

               1.      Traditional Public Forum

                       a.      The test

       All parties agree that Brindley’s speech is protected under the First Amendment; this

dispute turns on the Cove’s forum classification. “Forum analysis requires a court first to

categorize a location (or forum) to which a speaker seeks access for the purpose of expressive

activity, and then to analyze the government’s restriction on speech against the constitutional

standard that governs in that forum.” Agema v. City of Allegan, 826 F.3d 326, 335 (6th Cir. 2016)

(Merritt, J., dissenting in part) (citation and internal quotation marks omitted). Courts recognize

four types of fora: (1) the traditional public forum, (2) the designated public forum, (3) the limited

public forum, and (4) the nonpublic forum. Miller v. City of Cincinnati, 622 F.3d 524, 534–36

(6th Cir. 2010). Restrictions on speech in traditional or designated public fora receive strict

scrutiny, which means they must be “necessary to serve a compelling state interest” and “narrowly

drawn to achieve that interest.” Id. at 534 (citation and internal quotation marks omitted).

Restrictions on speech in limited or nonpublic fora, however, need only be “reasonable in light of

the purpose served by the forum and . . . viewpoint neutral.” Id. at 535 (citation and internal

quotation marks omitted). The first question, then, is whether the Cove is a traditional public

forum; Brindley says it is, and the Appellees say it is not.



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No. 18-5753, Brindley v. City of Memphis, et al.


       Two considerations guide our analysis. The first is that the Supreme Court has “repeatedly

referred to public streets as the archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S.

474, 480 (1988); see also Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d 506, 517 (6th Cir. 2012)

(noting that “streets and parks” have for “time out of mind . . . been used for purposes of assembly,

communicating thoughts between citizens, and discussing public questions” (citation and internal

quotation marks omitted)). In fact, the presumption that streets are traditional public fora is so

strong that, ordinarily, “[n]o particularized inquiry into the precise nature of a specific street is

necessary” because “all public streets are held in the public trust and are properly considered

traditional public fora.” Frisby, 487 U.S. at 481; see also Dean v. Byerley, 354 F.3d 540, 549–50

(6th Cir. 2004) (recognizing that “the Supreme Court considers streets . . . to be public fora for

purposes of First Amendment scrutiny” and assuming that the street at issue was a traditional

public forum without further analysis).

       The second consideration is that a street does not lose its status as a traditional public forum

simply because it is privately owned. If the street looks and functions like a public street, then it

is a traditional public forum regardless of who holds title to the street. See, e.g., Denver Area

Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727, 792 (1996) (Kennedy, J.,

concurring in part) (noting that public fora are not “limited to property owned by the government”

and, in many cases, “title to some of the most traditional of public fora, streets and sidewalks,

remains in private hands”); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (“Wherever

the title of streets and parks may rest, they have immemorially been held in trust for the use of the

public . . . .”); McGlone v. Bell, 681 F.3d 718, 733 (6th Cir. 2012) (finding sidewalk was a public

forum even though it was privately owned because it looked and functioned like a public




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No. 18-5753, Brindley v. City of Memphis, et al.


sidewalk); United Church of Christ v. Gateway Econ. Dev. Corp. of Greater Cleveland, 383 F.3d

449, 452–53 (6th Cir. 2004) (same).

       There are some exceptions to these rules in a very limited number of cases. In Greer v.

Spock, the Supreme Court found that a sidewalk inside a military compound was a nonpublic

forum. 424 U.S. 828, 837–38 (1976). The Court emphasized the “special constitutional function

of the military in our national life” and the military’s associated “special interest” in regulating

speech “within the confines of [a] military reservation.”         Id. at 837.    The Court further

distinguished the compound’s internal sidewalks from “a municipality’s open streets, sidewalks,

and parks.” Id. at 835. Similarly, in United States v. Kokinda, the Court decided that an internal

sidewalk owned by the Postal Service, which led “only from the parking area to the front door of

the post office,” was a nonpublic forum. 497 U.S. 720, 727 (1990). The Court rejected the

plaintiff’s claim that this internal sidewalk was “not distinguishable from the municipal sidewalk

across the parking lot from the post office’s entrance,” noting that “[t]he mere physical

characteristics of the property cannot dictate forum analysis.” Id. The Court reasoned that the

internal sidewalk “was constructed solely to assist postal patrons to negotiate the space between

the parking lot and the front door of the post office, not to facilitate the daily commerce and life

of the neighborhood or city.” Id. at 728. The sidewalk on the opposite end of the parking lot, by

contrast, ran “parallel to the road” and served as “a public passageway.” Id. at 727.

       Relying on Kokinda’s recognition that “[t]he mere physical characteristics of the property

cannot dictate forum analysis,” the Appellees urge us to turn our attention away from the Cove’s

objective characteristics and focus instead on the references to private ownership in the Cove’s

underlying property records. In context, however, Kokinda stands for a much narrower principle:

the appearance of a street does not make it a traditional public forum if its function is not that of



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No. 18-5753, Brindley v. City of Memphis, et al.


a public street.    The Kokinda Court dismissed the plaintiff’s reliance on the “physical

characteristics” of the post office’s internal sidewalk because its function was simply to create a

passageway from the parking lot to the building’s entrance, not to facilitate the daily commerce

and life of the surrounding neighborhood. Id. at 728. But the Court identified that function using

a common-sense appraisal of the sidewalk’s location and purpose, not by resort to the precise

language used in the building’s property records.

       Our caselaw supports this common-sense approach. In United Church of Christ, we found

that a privately owned sidewalk encircling a sports complex was a traditional public forum for two

reasons. 383 F.3d at 452. First, the sidewalk’s appearance was indistinguishable from a public

sidewalk: it “blend[ed] into the urban grid, border[ed] the road, and look[ed] just like any public

sidewalk.” Id. Second, it functioned like a public sidewalk: rather than simply “leading to the rest

of the Complex,” it “contribute[d] to the City’s downtown transportation grid and [wa]s open to

the public for general pedestrian passage.” Id. For the same reason, we decided in McGlone that

a privately owned sidewalk on a university campus was a traditional public forum. 681 F.3d at

733. Citing Church of Christ, we held that “[b]ecause the perimeter sidewalks at [the university]

blend into the urban grid and are physically indistinguishable from public sidewalks, they

constitute traditional public fora.” Id. at 732–33.

        These cases carry a simple takeaway: if a privately owned street (1) is physically

indistinguishable from a public street and (2) functions like a public street, then it is a traditional

public forum. We next apply these criteria to the facts of this case.

       As in McGlone, the Cove is “physically indistinguishable” from a public street. 681 F.3d

at 733. It is a paved, two-lane roadway with no signs or other specific indicators signaling its

private ownership. Likewise, the Cove serves the same function as most public streets: it gives



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No. 18-5753, Brindley v. City of Memphis, et al.


cars and pedestrians access to the businesses on the Cove. And as in Church of Christ, it “blends

into the urban gird” by virtue of its direct intersection with Summer Avenue, a busy public

thoroughfare. 383 F.3d at 452. More fundamentally, the photos of the Cove in the record

demonstrate that a reasonable member of the public visiting one of the many buildings on the street

would encounter nothing to indicate that he or she had turned onto a private drive. See, e.g., United

States v. Grace, 461 U.S. 171, 180 (1983) (finding sidewalk next to the Supreme Court building

was a traditional public forum because “[t]here [wa]s no separation, no fence, and no indication

whatever to persons stepping from the street to the curb . . . that they ha[d] entered some special

type of enclave”). And that impression would apply equally to Brindley, to a patron of the gas

station, to a visitor at the nearby church, or to a protester outside the ICE office on the same street.

The Cove looks and functions like a public street, and that is enough to classify it as a traditional

public forum.

                        b.      The dedication in the final plat

        The district court also considered whether the Cove is a “dedicated public right-of-way”

under Tennessee property law. As an initial matter, we do not defer to state property law in

determining whether a contested forum deserves First Amendment protection. Evidence of the

Cove’s dedication to public use under Tennessee law is not necessary to show that the street is a

traditional public forum; but state property law can provide additional support for the conclusion

that the Cove deserves First Amendment protection. See, e.g., Venetian Casino Resort, L.L.C. v.

Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 947 (9th Cir. 2001) (finding that a sidewalk was

a traditional public forum because of the sidewalk’s “historically public character . . . , the

sidewalk’s continued use by the general public, the fact that the sidewalk is connected to and

virtually indistinguishable from the public sidewalks to its north and south, and the dedication of

the sidewalk to public use” (emphasis added)).
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No. 18-5753, Brindley v. City of Memphis, et al.


        The Cove’s property records reinforce the public character of the street. On the last page

of SAP’s final plat, Wegener signed an “owner’s certificate” that stated:

        We, 5325 Summer Ave. Prop., the undersigned owner of the property shown hereon,
        hereby adopt this plat as [our] plan of subdivision, and dedicate the streets, right-of-ways,
        easements and rights of access as shown to the public use forever . . . .

This dedication cuts against the Appellees’ claim that the Cove is for only limited, private use.

See Venetian Casino Resort, L.L.C., 257 F.3d at 945–46 (“Property that is dedicated to public use

is no longer truly private. Although the owner of the property retains title, by dedicating the

property to public use, the owner has given over . . . the right to exclude others.” (citation and

internal quotation marks omitted)).

        The Appellees try to sidestep this dedication in two ways. First, they argue that “if certain

language on the Final Plat is interpreted as a dedication to the public, such dedication is limited to

a specific public purpose, to wit, the City’s utility easements.” But this claim ignores the plain

language of the dedication, which includes not only the property’s easements but also its “streets,

right-of-ways . . . and rights of access as shown” in the plat.

        The Appellees next argue that even if the final plat dedicated the Cove to public use, the

quitclaim deed signed by Wegener a few weeks later revoked the dedication. The quitclaim deed

described the Cove as:

        A Private Drive designated as COMMON AREA SPACE on the Final Plan of 5325
        Summer Avenue P.D., as shown on plat of record in Plat Book 230, Page 56, in the
        Register’s Office of Shelby County, Tennessee, to which plat reference is hereby made for
        a more particular description of said property . . . .

The Appellees suggest that this language “could constitute a revocation of [the final plat’s]

dedication where, as here, the [deed]. . . refers to the Final Plat, but not explicitly to the dedication.”

But the case cited to support this claim, Smith v. Black, found only that the “conveyance of [a]

subject property may effect a revocation” if the conveyance does not “recognize[] the existence of
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No. 18-5753, Brindley v. City of Memphis, et al.


the dedication (offer), as by reference in the description of the property.” 547 S.W.2d 947, 951

(Tenn. Ct. App. 1976) (emphasis added). Even assuming that Smith’s inconclusive dicta is

persuasive authority, it does not help the Appellees. In Smith, the property owners acquired a deed

“that did not contain an express reservation of easements, but described the property as being the

same as that conveyed in the previous deed which did contain the express reservations.” Id. at

952. The Smith court found this language sufficient to preserve the dedication. Id. The court’s

note that a conveyance “may” need to recognize the dedication “as by reference in the description

of the property” meant only that the conveyance should refer to the record containing the

dedication, not that the conveyance must expressly include this dedication. See id. That is what

the deed’s language did here: it identified the dedicated plat and then stated, “[This] plat reference

is hereby made for a more particular description of said property.” The direct reference to the plat

served to incorporate its contents, including the dedication.          See, e.g., Brewer v. Brewer,

869 S.W.2d 928, 932 (Tenn. Ct. App. 1993) (defining “[i]ncorporation by reference” as “[t]he

method of making one document of any kind become a part of another separate document by

referring to the former in the latter, and declaring that the former shall be taken and considered as

a part of the latter the same as if it were fully set out therein”).

        The next question is whether the public “accepted” the final plat’s dedication. Ordinarily,

“[t]o establish a dedicated public right-of-way, there must be a showing of an offer of dedication

and a public acceptance of the offer. Both the offer of dedication and the public acceptance may

be express or implied.” Gentry v. McCain, 329 S.W.3d 786, 793–94 (Tenn. Ct. App. 2010)

(quoting West Meade Homeowners Ass’n, Inc. v. WPMC, Inc., 788 S.W.2d 365, 366–67 (Tenn.

Ct. App. 1989)). But there is an exception to this rule. When a developer purchases a property,

records a final plat that dedicates the property to public use, and then sells the property to the



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No. 18-5753, Brindley v. City of Memphis, et al.


public, the sale itself creates “an irrevocable and immediate dedication” without any additional

showing of public acceptance. Varallo v. Metro. Gov’t of Nashville & Davidson Cnty., 508 S.W.2d

342, 345 (Tenn. Ct. App. 1973); see also Wolfe v. Jarnigan, No. C.A. 16, 1988 WL 138934, at *2

(Tenn. Ct. App. Dec. 30, 1988) (“[A] sale of lots with reference to such plat, or describing lots as

bounded by streets, etc., will amount to an irrevocable and immediate dedication, binding on both

vendor and vendee[] . . . without any act of acceptance on the part of the public.”). In this case,

SAP bought the land, subdivided it into lots for sale to businesses, recorded a final plat that

identified the Cove as running alongside each lot, dedicated the Cove to public use forever, and

then sold the Cove to the property owners’ association as common open space. On these facts, the

dedication became complete at the moment of transfer.

       Even if the quitclaim transfer had not made the dedication irrevocable, the public’s

longstanding use of the Cove would serve as an implied acceptance of the final plat’s dedication.

This is consistent with the purpose of a dedicated public right-of-way in the context of land

development. If a street is not dedicated to public use, then owners of adjacent lots—in many

cases, business owners whose lots are generally open to the public—lose the ability to facilitate

easy access to their properties. That is why developers typically dedicate common spaces to public

use in their final plats. See, e.g., Wolfe, 1988 WL 138934, at *2 (explaining that a street’s

dedication to public use “operates . . . not only in favor of those who buy from the donor, relying

upon the existence of the road, street or alley, but also in favor of all who buy on the general plan

of the locality” (quoting Long v. Garrison, 1 Tenn. App. 211, 216 (1925) (emphasis added))). This

interpretation is also in line with the settled expectations of the Cove’s property owners and

patrons. See, e.g., Payton v. Richardson, 49 Tenn. App. 514, 520 (1961) (noting that public

acceptance of a dedication is implied “where it was received and acted upon by the public for such



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No. 18-5753, Brindley v. City of Memphis, et al.


length of time that the public accommodation and private rights would be materially affected by a

denial or interruption of the enjoyment of the easement” and adding that “[t]he manner of its use

is more material than the length of time the use has continued”).

               2.      Conclusion

        For all the reasons explained above, the Cove is a traditional public forum. It looks and

functions like a public street, and the final plat dedicated the street to public use forever. Because

the Cove is a traditional public forum, the Appellees’ restriction on Brindley’s speech must be

“necessary to serve a compelling state interest” and “narrowly drawn to achieve that interest.”

Miller, 622 F.3d at 534 (citation and internal quotation marks omitted). The Appellees do not

claim on appeal that the restriction at issue here would survive strict scrutiny, nor could they.

There is no compelling state interest in excluding demonstrators from the Cove, and even if there

were, the Appellees offer no argument that the disputed restriction is narrowly tailored to that

interest.

    C. Remaining Preliminary Injunction Factors

        Because Brindley has shown a strong likelihood of success on the merits of his First

Amendment claim, the remaining preliminary injunction factors fall into place. “This is so because

. . . the issues of the public interest and harm to the respective parties largely depend on the

constitutionality of the [challenged action].” Bays, 668 F.3d at 819 (citation omitted). Restricting

a citizen’s “First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury,” and “no substantial harm to others can be said to inhere [in the

restriction’s] enjoinment.” Id. at 825 (citation and internal quotation marks omitted). And “it is

always in the public interest to prevent violation of a party’s constitutional rights.” Id. (citation

omitted).



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No. 18-5753, Brindley v. City of Memphis, et al.


                                III.       CONCLUSION

       We REVERSE the district court’s denial of Brindley’s preliminary injunction motion and

REMAND for proceedings consistent with this opinion.




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