Columbia v. Haley
Decision Date | 16 December 2013 |
Docket Number | No. 13–1258.,13–1258. |
Citation | 738 F.3d 107 |
Parties | OCCUPY COLUMBIA; Walid Hakim; Melissa Harmon; Bradley Powell; Timothy Liszewski; David Bland; Ashley Blewer; David Arroyo; Gadson Bennett; Joshua Anderson; Sebastian Pena; Justine Woods; Johanna Caple; John Rutledge; L. Shaw Mitchell, Plaintiffs–Appellees, v. Nikki HALEY, Governor of South Carolina; Leroy Smith, Director of the South Carolina Public Safety; Zachery Wise, Chief of Police of the South Carolina Bureau of Protective Services; James Carr; Joe Hodge; Andrew Schmidt; Marvin Harris, III, Defendants–Appellants, and State of South Carolina; Harvey S. Peeler, Jr., Chairman of the South Carolina State House Committee; M Richbourg Roberson, Divison of General Services; Sterling L. Morrison, Division of General Services; Curtis Loftis, State Treasurer; Richard Eckstrom, Comptroller General; Hugh Leatherman, Chairman Senate Finance Committee; Brian White, Chairman House Ways and Means Committee; South Carolina Budget and Control Board; Marcia Adams, Executive Director of the South Carolina Budget and Control Board; Carla Griffin, Division of General Services, Defendants, Marie Therese Assa'ad–Faltas, Intervenor. |
Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED:Kevin Alan Hall, Womble Carlyle Sandridge & Rice, LLP, Columbia, South Carolina, for Appellants. Andrew Sims Radeker, Harrison & Radeker, PA, Columbia, South Carolina, for Appellees. ON BRIEF:M. Todd Carroll, Karl S. Bowers, Jr., Womble Carlyle Sandridge & Rice, LLP, Columbia, South Carolina, for Appellant Governor Nikki R. Haley. Michael S. Pauley, Vinton D. Lide, Lide and Pauley, LLC, Lexington, South Carolina, for All Remaining Appellants. Robert J. Butcher, Deborah J. Butcher, Ronald Wade Moak, The Camden Law Firm, PA, Camden, South Carolina, for Appellees.
Before TRAXLER, Chief Judge, and KING and THACKER, Circuit Judges.
Affirmed by published opinion. Judge THACKER wrote the opinion, in which Chief Judge TRAXLER and Judge KING joined.
For 31 continuous days, a group of individuals, referring to themselves as “Occupy Columbia,” conducted a 24–hour per day protest on the grounds of the South Carolina State House in Columbia, South Carolina. On November 16, 2011, South Carolina Governor Nikki Haley directed law enforcement to remove any individual associated with Occupy Columbia who remained on State House grounds after 6:00 p.m. that day. Shortly after 6:00 p.m. on the evening of November 16, 2011, 19 members of Occupy Columbia remained on State House grounds. They were all arrested.
Appellees, Occupy Columbia and 14 individual protestors (collectively, “Occupy Columbia”), brought this action against a number of individuals, including Governor Haley; Leroy Smith, Director of the Department of Public Safety; Zachary Wise, Chief of Police of the Bureau of Protective Services; and four South Carolina law enforcement officers (collectively, “Appellants”),seeking injunctive relief and damages pursuant to 42 U.S.C. § 1983, the South Carolina Constitution, and South Carolina's common law.1 Appellants sought dismissal pursuant to Rule 12(b)(6) or Rule 12(c) of the Federal Rules of Civil Procedure. In granting in part and denying in part Appellants' motion, the district court rejected Appellants' assertions of qualified immunity at this stage in the proceedings.
In this appeal, Appellants seek review of the district court's denial of qualified immunity. Because Occupy Columbia has alleged a violation of a clearly established First Amendment right—that is, the right to protest on State House grounds after 6:00 p.m. in the absence of a valid time, place, and manner restriction—we affirm.
On October 15, 2011, Occupy Columbia began a 24–hour per day protest on the grounds of the South Carolina State House in Columbia, South Carolina. Occupy Columbia alleges that its “occupation” consisted of “protesting around-the-clock” at the State House. J.A. 114 (Third Am. Compl. (“Compl.”) ¶ 34). 2 According to Occupy Columbia, “[p]hysically occupying the State House grounds, including sleeping overnight on the grounds, is the only effective manner in which Occupy Columbia members can express their message of taking back our state to create a more just, economically egalitarian society.” Id. (Compl.¶ 35).
In its Third Amended Complaint, Occupy Columbia alleges that after its members “inquired as to permitting requirements” for the State House grounds, they were given a handout from the Budget and Control Board's Division of General Services (the “Division of General Services”) and were “told they would probably not receive a permit if they applied.” J.A. 117 (Compl.¶ 50). 3 In any event, Occupy Columbia alleges, “no application for a permit is available on any public source such as the internet or at the front counter of the Division of General Services.” Id. (Compl.¶ 51). Moreover, a member of the Division of General Services allegedly later informed Occupy Columbia “that under no circumstances would any permission to sleep or use tents on the State House grounds” have been given. Id. (Compl.¶ 50).
On November 16, 2011, after 31 days of Occupy Columbia's continuous “occupation” of State House grounds, State Senator Harvey S. Peeler, Jr. sent a letter to Governor Haley asking “what the Budget and Control Board will be doing about the Occupy Columbia group” in light of the approaching holiday season “and with the Governor's Carol Lighting on November 28th.” J.A. 135. Governor Haley responded that very day by sending a letter to the Director of the Department of Public Safety and to the Chief of Police of the Bureau of Protective Services seeking their “assistance in removing any individual associated with the ‘Occupy Columbia’ group, as well as his or her belongings, who remains on Statehouse grounds after 6:00 p.m. without written authorization from the Budget and Control Board.” Id. at 133. In her letter, Governor Haley cited a Budget and Control Board policy “requir[ing] any individual or organization that wishes to remain at the Statehouse after 6:00 p.m. to receive written permission from the agency.” Id. at 132.
In support of this purported 6:00 p.m. policy, Governor Haley relied on a document entitled “Conditions for Use of South Carolina State House Grounds” (the “Conditions for Use”). Paragraph 8 of the Conditions for Use provided:
All activities on the grounds or in the State House must strictly adhere to the times as scheduled to insure that the activities will not conflict with any other scheduled activities. Activities will not be scheduled beyond 5:00 p.m. in the State House and 6:00 p.m. on the grounds unless special provisions in writing have been made to extend the time.
Id. at 250 (Compl.Ex.7) (“Condition 8”).
Governor Haley's letter continued by explaining, “no one associated with the ‘Occupy Columbia’ group appears to have even sought such permission, much less received it, yet they have essentially taken to living on Statehouse property.” J.A. 132. Finally, Governor Haley's letter indicated that there were a number of problems associated with Occupy Columbia, including damage to the State House grounds and the need for extra security. In addition to her letter, Governor Haley held a press conference on November 16, 2011, during which she explained that anyone present on State House grounds after 6:00 p.m. that evening would be removed.
Shortly after 6:00 p.m. on the evening of November 16, 2011, 19 members of Occupy Columbia remained on State House grounds. They were all arrested. Occupy Columbia alleges that at the time of the arrests, its members “were assembled on the [S]tate [H]ouse grounds, protesting and petitioning our government, and [they] were not violating any law.” J.A. 122–23 (Compl.¶ 83). During the early morning hours of November 17, 2011, those members of Occupy Columbia who were arrested were released from the detention center on their personal recognizance. All charges against them were ultimately dismissed.
On November 23, 2011, Occupy Columbia filed suit in state court against a number of individuals, including Appellants. The lawsuit sought an order enjoining Appellants from interfering with Occupy Columbia's 24–hour occupation of the State House grounds. The state court issued an ex parte temporary restraining order (“TRO”), authorizing Occupy Columbia to continue occupying the State House grounds. On November 30, 2011, Appellants removed this case to federal court, and the parties agreed to extend the state court's TRO until 5:00 p.m. on December 15, 2011.
On December 14, 2011, the district court granted Occupy Columbia's motion for a preliminary injunction, finding that Appellants' “6:00 p.m. policy” and any unwritten or informal rules prohibiting camping or sleeping on State House grounds were not valid time, place, and manner restrictions on Occupy Columbia's First Amendment rights. The district court explained that although Appellants were permitted to regulate camping and sleeping on State House grounds with reasonable time, place, and manner restrictions, no such restrictions existed in October or November of 2011.
After the district court granted Occupy Columbia's motion for preliminary injunction, the Budget and Control Board passed an emergency regulation on December 20, 2011, pursuant to its authority under S.C.Code §§ 10–1–30 and 1–23–130.4 This emergency regulation prohibited the “use of the State House grounds and all buildings located on the grounds for camping, sleeping, or any living accommodation purposes” (“Regulation 19–480”). J.A. 106.5 In light of Regulation 19–480, Occupy Columbia and Appellants filed cross-motions to modify the preliminary injunction order. The district court denied both motions, concluding that amendments to the preliminary injunction order were unnecessary because the order only enjoined any current policy, not any new policy or regulation, such as Regulation...
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