WALDROP v. CITY OF JOHNSON CITY TENNESSEE (2021)

United States Court of Appeals, Sixth Circuit.

Jeremiah WALDROP, Individually; Phillip Self, Individually, Plaintiffs-Appellants, v. CITY OF JOHNSON CITY, TENNESSEE, Defendant-Appellee.

Case No. 20-6434

Decided: August 16, 2021

BEFORE: SUTTON, Chief Judge; COLE and READLER, Circuit Judges. Frederick H. Nelson, David Markese, American Liberties Institute, Orlando, FL, Kristin Fecteau Mosher, Law Offices of Kristin Fecteau, Nashville, TN, for Plaintiffs-Appellants. Kent E. Herrin, Thomas J. Garland, Jr., Milligan & Coleman, Greeneville, TN, for Defendant-Appellee.

OPINION

Street preachers Jeremiah Waldrop and Phillip Self sued the city of Johnson City, Tennessee, alleging that the city authorized its police officers to move them from the main grounds of an LGBTQ pride festival based on their anti-gay speech.

The plaintiffs moved for a preliminary injunction, and after conducting discovery the parties cross-filed for summary judgment. The district court awarded summary judgment to Johnson City, but did so on grounds the city had not advanced, namely, that the officers’ conduct was a permissible, content-neutral restriction based on the plaintiffs’ blocking an entrance to the festival. The court summarily denied the plaintiffs’ motion for a preliminary injunction as well.

On appeal, both parties agree that the district court erred in granting summary judgment on grounds that neither party argued below. Because the district court did not consider the parties’ arguments and record evidence on an issue going to the heart of the plaintiffs’ claims, we reverse the district court's grant of summary judgment to Johnson City and its denial of the plaintiffs’ preliminary injunction motion and remand the case for further proceedings consistent with this opinion.

PER CURIAM.