United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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.
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
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 people in Nashville in a safe
space.” (Doc. No. 69 ¶ 1). The Festival is used to
disseminate that message to the public. (Id. ¶
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).
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).
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).
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).
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, ¶¶
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).
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).
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).
with the threat of arrest, Plaintiff eventually retreated to
the sidewalk corner of Third Avenue and Union Street.
(Id. ¶ 13). 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,
point it is useful to display the map from the Festival that
illustrates the venue:
No. 54-5, Festival Map).
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). 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
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
Q. And those are instructions that you would receive on how
to handle that situation from the ...