Nashville v. Haslam

• Decision Date: 12 June 2013
• Docket Number: Case No. 3:11–cv–01037.
• Parties: OCCUPY NASHVILLE, Paula Elaine Painter, Malina Chavez Shannon, Lauren Marie Plummer, Adam Kenneth Knight, William W. Howell, Darria Hudson, and Katy Savage, Plaintiffs, v. William Edward (“Bill”) HASLAM, Governor of the State of Tennessee, William L. Gibbons, Commissioner of the Tennessee Department of General Safety, Steven G. Cates, Commissioner of the Tennessee Department of General Services, and Tennessee Highway Patrol Officers Does 1–210, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

949 F.Supp.2d 777

OCCUPY NASHVILLE, Paula Elaine Painter, Malina Chavez Shannon, Lauren Marie Plummer, Adam Kenneth Knight, William W. Howell, Darria Hudson, and Katy Savage, Plaintiffs,

v.William Edward (“Bill”) HASLAM, Governor of the State of Tennessee, William L. Gibbons, Commissioner of the Tennessee Department of General Safety, Steven G. Cates, Commissioner of the Tennessee Department of General Services, and Tennessee Highway Patrol Officers Does 1–210, Defendants.

Case No. 3:11–cv–01037.

United States District Court,

M.D. Tennessee,

Nashville Division.

June 12, 2013.

Clifton David Briley, Bone, McAllester & Norton, PLLC, Patrick G. Frogge, Bell, Tennent & Frogge, PLLC, Thomas H. Castelli, ACLU Foundation of Tennessee, Tricia Herzfeld, Law Offices of Elliott Ozment, Nashville, TN, for Plaintiffs.

Dawn Marie Jordan, Heather Cairns Ross, William Joseph Marett, Jr., Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

The parties have filed cross-motions for summary judgment under Fed.R.Civ.P. 56. The defendants have filed a Motion for Summary Judgment (Docket No. 69), to which the plaintiffs filed a Response in opposition (Docket No. 79), and the defendants filed a Reply (Docket No. 82). The plaintiffs have also filed a Motion for Summary Judgment (Docket No. 72), to which the defendants filed a Response in opposition (Docket No. 77), and the plaintiffs filed a Reply (Docket No. 86). For the reasons stated herein, both motions will be granted in part and denied in part, and the court will order further submissions concerning damages.

BACKGROUND

I. Overview and Procedural History

A. General Overview and the Verified Complaint

In October 2011, a group of protestors, styling themselves as the “Occupy Nashville” movement, maintained a 24–hour per day protest on Legislative Plaza in Nashville, Tennessee, a traditional public forum. On October 27, 2011, the Tennessee Department of General Services (“DGS”), for which defendant Steven Cates serves as Commissioner, issued a so-styled “Use Policy” that, inter alia, purported to ban “overnight occupancy” of the Plaza from that day forward. ( See Docket No. 72, Ex. 3 to Ex. 1, Use Policy, at p. 1.) William Gibbons, Commissioner of the Department of Safety (“DOS”), and Tennessee Governor Bill Haslam (via a subordinate) assented to the issuance and implementation of the “Use Policy.” ¹ In the early hours of the morning on October 28, 2011 (several hours after DGS issued the Use Policy) and again the following night, Tennessee Highway Patrol (“THP”) officers enforced the curfew portion of the Use Policy by arresting en masse those protestors who refused to leave the Plaza during the newly designated curfew hours.

The plaintiffs in this action are comprised of two protestors who were arrested on the Plaza both nights (plaintiffs Paula Painter and Marie Plummer), three plaintiffs who were arrested on the first night only (plaintiffs William Howell, Adam Knight, and Darria Hudson), one plaintiff who was arrested on the sidewalk while approaching the Plaza on the second night (plaintiff Malia Shannon), and one plaintiff who left the Plaza on the first night after being threatened with arrest for violating the newly imposed curfew requirement (plaintiff Katy Savage). Aside from the defendants' arguments specific to plaintiff Shannon, the parties have not drawn any meaningful distinctions among these individual plaintiffs with respect to the pending motions.²

On October 31, 2011, the plaintiffs filed a Verified Complaint against (1) Governor Haslam in his official capacity only, (2) Commissioner Cates in his official and individual capacities, and (3) Commissioner Gibbons in his official and individual capacities. The plaintiffs asserted nine counts, including (1) federal constitutional challenges under § 1983 for violation of the plaintiffs' First and Fourteenth Amendment rights (Counts I (facial challenge to the Use Policy) and II (selective enforcement)), due process violations (Count V), unlawful search and seizure of property (Count VII), unlawful arrest (Count VIII), and retaliation for exercising constitutional rights (Count IX); and (2) state law claims for violations of the Tennessee Constitution (Counts III and IV) and the Tennessee Uniform Administrative Procedures Act (“UAPA”), Tenn.Code Ann. § 4–5–101 et seq. (Count VI).

From Governor Haslam, Commissioner Cates, and Commissioner Gibbons, the plaintiffs demanded (1) equitable relief, including a declaratory judgment, an injunction (including an immediate temporary restraining order), and the return of all seized items; and (2) attorney's fees and costs under 42 U.S.C. § 1988. From Commissioner Cates and Commissioner Gibbons—but not from Governor Haslam—the plaintiffs also demanded (1) monetary damages for infringement of their First Amendment rights, unlawful detention, and/or retaliation for exercising First Amendment rights, and (2) punitive damages. ³ (Docket No. 1.) Neither the Verified Complaint nor the Amended Complaint delineated between forms of relief sought pursuant to the official capacity claims (asserted against all three defendants) as opposed to the individual capacity claims (asserted against Commissioners Cates and Gibbons only).

B. TRO Hearing and Associated Injunctive Relief

On the afternoon of October 31, 2011—the date that the plaintiffs filed the Verified Complaint—the court held a hearing on plaintiffs' demand for a Temporary Restraining Order (“TRO”) against enforcement of the Use Policy. (Docket No. 13, Transcript of TRO hearing.) The defendants, represented by the Tennessee Attorney's General Office, did not contest the plaintiffs' position and consented to the TRO. ( Id.) Accordingly, the court granted the requested TRO, which enjoined the defendants from enforcing the Use Policy. ( Id.; Docket No. 11(TRO).) The court also observed that it would have granted the TRO regardless of the defendants' position. (Docket No. 13.)

On November 16, 2011, the parties filed a Joint Agreed Order Establishing Preliminary Injunction (Docket No. 14), which the court granted on November 17, 2011 (Docket No. 17). In essence, the Preliminary Injunction converted the TRO into an indefinite injunction against enforcement of the Use Policy without a bond requirement. ( Id.)

On January 5, 2012, the plaintiffs filed an Amended Complaint, which remains the operative pleading in this case. For purposes of the instant motions, the demands set forth in the Amended Complaint were essentially the same as those in the Verified Complaint.

In April 2012, the DGS withdrew the Use Policy. Thereafter, pursuant to required agency rulemaking procedures set forth in the UAPA, the DGS promulgated a set of new rules (“Current Rules”) governing use of the Plaza and Capitol grounds. SeeTenn. Comp. R. & Regs. 0690–06–01–.01–.01 to .04 (effective Nov. 20, 2012) (“Rules of the Tennessee Department of General Services, Procedures for Use of the Tennessee War Memorial and Courtyard”). ⁴ The Current Rules became effective on November 20, 2012. The plaintiffs have challenged the constitutionality of the now-superseded Use Policy, but they do not challenge the Current Rules.

II. Detailed Background Facts⁵A. The 24–Hour Occupy Nashville Protest and the Old Rules Permitting It

In the fall of 2011, protestors formed in New York City to protest perceived disparities in wealth and power between the wealthiest 1 % of the country's citizens and the other 99%. By October 8, 2011, a group of protestors had gathered on the Plaza in Nashville to express similar concerns. ⁶ Styling themselves as the “Occupy Nashville” movement, these protestors maintained a 24–hour per day presence on the Plaza from about October 8, 2011 forward.

At the time the protestors began utilizing the Plaza for their free speech activities, the DGS was operating under a so-styled “Public Use of War Memorial Plaza Policy” (Docket No. 72, Ex. 2 to Ex. 1). The parties acknowledge that the record contains no indication as to when or how the DGS issued that “policy.” Regardless, for reasons explained further herein, the court will refer to that document as the “Old Rules” governing use of the Plaza. The Old Rules stated that the “Plaza is State property which is open for use by the public as a place for expressive activity such as, but not limited to, formal and informal political or social gatherings....” The Old Rules contained provisions governing exclusive and non-exclusive use of the Plaza. With respect to non-exclusive uses, it stated that the “[t]he Plaza may be used free of charge by any person or group for expressive activity on a first come first serve basis.” With respect to reserved/exclusive use, it required users to pay a daily administrative fee, to secure $1,000,000 in liability insurance coverage, and to pay for security services (if necessary) at its own expense. Thus, in most relevant part: the Old Rules did not ban overnight use of the Plaza and placed no requirements (fees, insurance, or security) on non-reserved use of the Plaza, subject only to the caveat that non-reserved users would need to defer to reserved users when using the Plaza.

Approximately one year before the Occupy Nashville “occupation” of the Plaza, the DGS had already been made aware that the Old Rules permitted overnight use of the Plaza. At that time, the Nashville Davidson County Metro Government had urged the DGS to issue a curfew and other rules for the Plaza in an effort to reduce urination, defecation, and vandalism from homeless individuals who, at times, had used the Plaza as a “sanctuary” for overnight accommodation. The DGS did not amend the Old Rules in response to Metro's urging.⁷

The Occupy Nashville protestors essentially benefitted, at least initially, from these deficiencies in the Old Rules. That is, no existing law governing the Plaza prevented them from maintaining a non-exclusive 24–hour–per–day...