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McGlone v. Metropolitan Government of Nashville and Davidson County

United States District Court, M.D. Tennessee, Nashville Division

September 28, 2017

JOHN MCGLONE, and JEREMY PETERS, as individuals, Plaintiffs,
v.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant.

          MEMORANDUM

          WAVERLY D. CENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         This litigation arose out of events during the Nashville Pride Festival in 2015. Pending are the fully briefed Motions for Summary Judgment filed by Defendant the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”) (Doc. No. 54) and by Plaintiffs John McGlone and Jeremy Peters (Doc. No. 60). The Court heard oral argument on the cross motions on September 27, 2017. For the reasons that follow, Metro's Motion will be granted and Plaintiffs' Motion will be denied.

         I. Factual Background

         The parties have filed separate Statements of Fact in support of their respective Motions (Doc. Nos. 56, 62), as well as responses (Doc. Nos. 67, 69). Although their presentations differ, the relevant facts are not in dispute and are as follows:

         On June 26 to 27, 2015, the Nashville Pride Festival (“Festival”) was held at Public Square Park, which sits directly in front of the historic Metro Courthouse in downtown Nashville. Nashville Pride's “message or mission” is “to celebrate the culture and community of the LGBTQ[1] people in Nashville in a safe space.” (Doc. No. 69 ¶ 1). The Festival is used to disseminate that message to the public. (Id. ¶ 2).

         Promoter Jack Davis, through his company J.D. Events and Festivals, applied for and received a special events permit for the Festival by submitting an application to Metro and completing a checklist. (Id. ¶ 8). Among the items on the checklist was a security action plan, which was completed by Comprehensive Security (“Comprehensive”), a private security company, and approved by the Metropolitan Nashville Police Department (“MNPD”). (Id.; Doc. No. 67 ¶ 27). The placement of fencing, barricades and street closures was a part of the security action plan that was approved. (Doc. No. 67, ¶¶ 33, 34, 37).

         Also as part of the application process for the Festival permit, J.D. Events was required to provide a community notification letter. That letter identified MNPD Lieutenant David Corman (who was involved in the security action plan approval) as a contact person for any questions related to security, and Rory Rowan of Metro Nashville Public Works as a contact person for questions related to street closures. (Id. ¶¶ 32, 33).

         The security officers provided by Comprehensive were either retired or active duty police officers from other jurisdictions. (Id. ¶ 39). No Metro Police Department officers worked off duty for Comprehensive to provide security for the Festival. (Doc. No. 69, ¶ 10). Nevertheless, all of these officers wore uniforms that identified them as police or law enforcement officers, and they were required to comply with MNPD's policies and procedures. (Doc. No. 67, ¶¶ 40, 41).

         The Festival was a ticketed event, with ingress and egress made through several gates around the perimeter of Public Square. Fencing and barricades were placed at various locations to control access, but the permitted area expanded beyond those points to allow queuing lines to form. This included the sidewalk plaza area near the fountains in front of Public Square Park (Doc. No. 69 ¶¶ 21, 22).

         Plaintiffs McGlone and Peters are street preachers who believe that homosexuality is a sin. (Doc. No. 69 ¶ 3, 4, 6). They regularly engage in activities to share their religious message with others, and preach using bullhorns and amplification equipment to get their message across. (Doc. No. 69, ¶ 7). They went to the Festival on June 27, 2015 to share a message that was contradictory to the message of Nashville Pride and the Festival. (Doc. No. 67, ¶¶ 2-3).

         After meeting in a parking garage adjacent to the Festival grounds, Plaintiffs took an elevator to the plaza area, but did not attempt to enter the ticketed area. Instead, they stopped on the public sidewalk area outside the gate. This area was permitted (that is, within the permit area) but not inside the barricaded, gated area. The public was not banned from this sidewalk area, nor did anyone have to pay to enter this area. (Id. ¶¶ 5, 7, 8-10).

         After preaching for a matter of minutes, Plaintiffs were approached by Josh Crowe who was employed by Comprehensive. (Id. ¶ 6). Crowe told Plaintiffs that they were not allowed to be in the public area outside the gate and told them to leave the sidewalk area or they would be arrested. (Id. ¶ 10).

         Crowe did not direct anyone other than the Plaintiffs to leave, even though others were standing around in the same vicinity. Those expressing a viewpoint favorable to the festival were allowed to stay on the sidewalk area in front of the event. (Id. ¶¶ 11, 12).

         Faced with the threat of arrest, Plaintiff eventually retreated to the sidewalk corner of Third Avenue and Union Street. (Id. ¶ 13).[2] Enroute to the sidewalk of Third and Union Street, they stopped at a triangular area and marks the turning lane for motorists turning right from Union onto Third. It has no benches or gazebos, and no plaques or displays related to Nashville's history. (Doc. No. 69, ¶ 27).

         At this point it is useful to display the map from the Festival that illustrates the venue:

         (Image Omitted)

         (Doc. No. 54-5, Festival Map).

         Returning to the narrative, upon moving to the median, Plaintiffs were again approached by Crowe who told them they could not preach there either and that they would be arrested if they remained. (Doc. No. 69, ¶ 14).[3] No one from Metro or the MNPD spoke to Plaintiffs about moving either from the plaza, or the median. (Id. ¶ 13). With regard to Crowe's handling of the situation and the instructions that were provided by the MNPD, Loyd Poteete, the owner of Comprehensive, testified:

Q. What sort of instructions do you offer?
A. We ask the police department for their guidance on how they want to handle it. They tell us what's permitted, people cannot be in the streets blocking traffic. They can only stop traffic to help people back and forth across, but no one can stay in the street. And if they can't go in the event, they can't go in the event, but that's it. And then we make sure nobody gets hurt.
Q. Uh-huh. What if they can't go into the event or they're not choosing to go into the event? Is that a situation where they have to be - A. They have to go out of the street. And if the street is permitted and blocked off, they can't be in the street; they have to go to the far side.
Q. And those are instructions that you would receive on how to handle that situation from the ...

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