Nashville v. Haslam
| Citation | 769 F.3d 434 |
| Decision Date | 08 October 2014 |
| Docket Number | No. 13–5882.,13–5882. |
| Parties | OCCUPY NASHVILLE, et al., Plaintiffs, Paula Elaine Painter; Lauren Marie Plummer; Adam Kenneth Knight; William W. Howell; Darria Hudson; Katy Savage, Plaintiffs–Appellees, v. William HASLAM, et al., Defendants, William L. Gibbons, Commissioner of the Tennessee Department of Safety; Steven G. Cates, Commissioner of the Tennessee Department of General Services, Defendants–Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
OPINION TEXT STARTS HERE
ARGUED:Dawn M. Jordan, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants. C. David Briley, Bone McAllester Norton, PLLC, Nashville, Tennessee, for Appellees. ON BRIEF:Dawn M. Jordan, Heather C. Ross, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants. C. David Briley, Bone McAllester Norton, PLLC, Nashville, Tennessee, Thomas H. Castelli, ACLU Foundation of Tennessee, Nashville, Tennessee, Tricia Herzfeld, Ozment Law, Nashville, Tennessee, for Appellees.
Before: SENTELLE, BENTON and JORDAN, Circuit Judges.*
In October 2011, a group of protesters calling themselves “Occupy Nashville” established an around-the-clock presence on the Nashville War Memorial Plaza (the “Plaza”) in Nashville, Tennessee, with the aim of bringing attention to disparities in wealth and power in the United States. 1Occupy Nashville v. Haslam, 949 F.Supp.2d 777, 785 (M.D.Tenn.2013). After several weeks of occupying the Plaza, representatives of the protesters sought a meeting with state officials to discuss safety and health concerns that had developed in the course of the lengthy demonstration. The state agreed that the concerns had to be addressed and adopted a new policy that, in relevant part, imposed a curfew for the Plaza. Six individuals associated with the demonstration (the “Protesters”) were later arrested for violating that curfew,2 and they brought claims under 42 U.S.C. § 1983 against various state officials, alleging, in relevant part, violations of rights under the First, Fourth, Fifth, and Fourteenth Amendments of the United States Constitution.
Two of those officials—William L. Gibbons, Commissioner of the Tennessee Department of Safety (“DOS”), and Steven L. Cates, Commissioner of the Tennessee Department of General Services (“DGS”) (collectively, the “)—now appeal from a ruling of the United States District Court for the Middle District of Tennessee that they are not entitled to qualified immunity and are personally liable for damages. While this appeal raises a number of important First Amendment issues, the dispositive question before us is whether, pursuant to a policy that may have been promulgated in derogation of Tennessee's version of the Uniform Administrative Procedures Act (the “UAPA”), the State Officials violated clearly established constitutional rights by authorizing the arrest of people violating the curfew established for the Plaza. We hold that the State Officials are protected by qualified immunity because, regardless of the specifics of Tennessee's administrative law, the Protesters' claimed First Amendment right to unrestricted 24–hour access to the Plaza is not clearly established. We will therefore reverse the District Court's order.
The Plaza, site of the Occupy Nashville demonstration, serves as an open-air monument “to the soldiers who served for the State of Tennessee during World War I.” (D.I. 80 at 3.) 4 It is made up of the “surface above, or roof,” of the Legislative Plaza, an underground building that houses offices for the Tennessee legislature, as well as meeting spaces and parking facilities. ( Id. at 2.) The Plaza is part of a larger Capitol Complex, which is a set of interconnected buildings that includes the Tennessee State Capitol, the War Memorial Building, and accompanying grounds. The Plaza is covered with “porous granite” stones that are “approximately 3 inches thick and raised 12–18 inches above the roof membrane system” atop the underground facilities.5 ( Id. at 4.) The DOS is charged with providing a police force to maintain state property. SeeTenn.Code Ann. § 4–3–2006 (). The DGS, which “exercise[s] general custodial care of real property of the state,” Tenn.Code Ann. § 4–3–1105(12), is “charged with the care and maintenance of [the] Plaza,” and, pursuant to that charge, it may implement policy for the use of the Plaza. (D.I. 18, ex. 2 at 1.)
In October 2011, the use of the Plaza was governed by what was called the Public Use of War Memorial Plaza Policy (the “Old Policy”), as implemented by the DGS.6 (D.I. 18, ex.2 at 1.) Under the Old Policy, there was no limitation on overnight use of the Plaza, nor any requirement that a permit be obtained. Specifically, the Old Policy provided that “[t]he Plaza may be used free of charge by any person or group for expressive activity on a first come first serve basis.” ( Id.) Priority was given, however, to a person or group who had previously reserved the Plaza. ( See D.I. 18, ex. 2 at 1 ().) To secure reserved use of the Plaza, an organization needed to pay a fee and obtain liability insurance, among other administrative requirements.
By October 9, 2011, the Occupy Nashville participants had established a 24–hour–a–day protest on the Plaza. They brought food, drinks, supplies, and political signs, and set up tents for camping.7 State Capitol Complex Facilities Administrator David Carpenter was responsible for the day-to-day operations of the Plaza. Tennessee Highway Patrol Lieutenant Preston Donaldson also had responsibility for the Plaza, being the supervisor in charge of security. He asked his officers to periodically look in on Occupy Nashville “to check on [the demonstrators'] welfare.” (D.I. 80 at 13.) A local attorney, William “Tripp” Hunt, acted as a voluntary liaison for the demonstrators to establish a line of communication with DGS General Counsel Thaddeus Watkins. ( Id. at 14.)
Problems surfaced quickly: “[t]here were issues with human feces, urine, trash, damage to the Plaza, and other issues....” ( Id. at 17.) Nevertheless, the first weeks of the protest went “fairly smoothly.” ( Id.) For instance, Carpenter, Donaldson, and Watkins, communicated with Hunt about an event called the Southern Book Festival, which was scheduled to occur on the Plaza October 14–16, 2011, and, by cooperative effort, the protest and the festival were able to occur on the Plaza simultaneously.
By the end of October, however, the size of the protest had grown, and conditions had deteriorated. Many homeless people had moved onto the Plaza, “enjoying the sleeping bags and tents and food” of Occupy Nashville, and it became difficult to distinguish between Occupy Nashville participants and non-participants. (D.I. 72, ex. 4 at 15.) There was also an increase in the number of assault complaints and damage to public property. Carpenter noted increased problems from sewage, trash that was piling up, power cords that posed tripping hazards, damage to lighting, broken Plaza stones, the use of open flames, damaged electrical outlets, and other health and safety issues on the Plaza. According to Carpenter, there were “jugs of human feces in and around the tents, or jugs of human urine in and around the tents,” and sewage was being “dump[ed] ... into the bushes.” (D.I. 69, ex. 8 at 36.) Carpenter's observations led him to say in an e-mail at the time that the demonstrators “have lost control of the situation with the homeless and the environment has become unsanitary and unsafe.” ( Id., ex. 7 at 9.) Speaking through their attorney-liaison Hunt, the Occupy Nashville participants told Watkins in an e-mail dated October 25, 2011, that they had experienced ( Id., ex. 23 at 39.) Lieutenant Donaldson also described receiving complaints regarding indecent exposure, public fornication, and possible drug activity.
At the request of the demonstrators, a meeting was held on October 26, 2011, at which Occupy Nashville representatives—Hunt and a woman named Jane Hussain—discussed with Commissioner Cates, Watkins, Carpenter, Lieutenant Donaldson, and other state personnel the problems arising from the protest on the Plaza. Hunt and Hussain requested that the state provide portable toilets and additional security. Commissioner Cates denied those requests and said that, while the demonstrators would be allowed to return to the Plaza every day, a curfew would be necessary as a matter of health and safety. Commissioner Cates then directed Watkins to draft a new policy that would incorporate a curfew and a permit requirement for use of the Plaza.
Relying in part on the Supreme Court's decision in Clark v. Community for Creative Non–Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), Watkins determined that the State could impose restrictions on the timing and manner of use of the Plaza. He then drafted a new policy (the “Use Policy”), with assistance from a staff attorney. On October 27, 2011, Watkins met with Commissioner Cates, Commissioner Gibbons, DOS's General Counsel, Tennessee Governor Bill Haslam's Chief of Staff, Governor Haslam's Counsel, and other government officials to consider the duties of the DOS and DGS with respect to the protection of state property and whether the Use Policy would constitute a reasonable...
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