April 01, 2015 Urban Lawyer

Case Notes

Occupy Nashville v. Haslam, 769 F.3d 434 (6th Cir. 2014).

State officials who implement a curfew on the use of public property are protected by qualified immunity, because the right of indefinite occupation is not “clearly established.” Appellants, Commissioners of the Tennessee Department of Safety and the Tennessee Department of General Services (“Officials”), appealed from a summary judgment entered in the United States District Court for the Middle District of Tennessee that held that Officials were personally liable and not protected by qualified immunity. Appellees were six individual protestors (“Protestors”) arrested for violating a curfew enacted after several weeks of round-the-clock protesting on public property. The protests occurred at an open-air monument, the Plaza, where the Department of Safety was responsible for providing a police force to maintain the property and the Department of General Services was tasked with the job of caring for and maintaining the property. Officials determined that a new curfew was necessary to address rising safety and health concerns, and the following day Protestors were arrested for violating the order. Protestors brought a § 1983 action alleging violations of their rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. Qualified immunity grants government officials acting in accordance with their duties immunity as long as they are not violating a “clearly established” law. Wilson v. Layne, 526 U.S. 603, 604 (1999). Such immunity is intended to protect the mistaken judgment of government officials who believe they are adhering to the law, as long as such judgment is not plainly incompetent. Stanton v. Sims, 134 S. Ct. 3, 5 (2013). To determine if qualified immunity applied, the United States Court of Appeals for the Sixth Circuit applied a two-step process first defining the right in question and then determining if such right was clearly established at the time. Protestors argued that the right in question was the right to air their grievances against the government on public property, as protected by the First Amendment. The court, however, adopted the Officials’ interpretation of the right: a twenty-four hour occupation of public property. The Supreme Court of the United States has made clear that a right must be defined as specifically as possible, while maintaining accuracy, in order that the court may properly decide if such a right is “clearly established.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). The Sixth Circuit determined that the arrests of Protestors did not occur because they were simply airing their grievances, but rather because they occupied the premises for twenty-four hours a day, creating health and safety concerns. Second, the Sixth Circuit had to determine if this right of indefinite occupation was clearly established. Clearly established simply means that the lawfulness is apparent; that current precedent placed the question beyond debate. Plumhoff, 134 S. Ct. at 2023. The court recognized that Officials relied on their interpretation of Clark v. Community for Creative Non- Violence, 468 U.S. 288 (1984), when creating and implementing the curfew. The Clark court held that a National Park Service regulation prohibiting camping in certain parks was not a violation of First Amendment rights when it prevented demonstrators from sleeping in those parks as part of a demonstration, because the government had a legitimate interest in ensuring the National Parks were safe. Id. at 297. Officials’ belief that Clark authorized the creation of this curfew is reasonable. Additionally, the court recognized that there was no clear guarantee that the right of expression provides an unfettered right to threaten the health and safety of the public or the security of public property. The conditions of the public property on which the protests were occurring had become so dangerous that health and safety concerns were legitimate. Because Officials had reasonable foundation to believe their actions were legal, and no precedent provided clear guidance to the contrary, an absolute right of indefinite occupation of public property was not clearly established. The decision of the district court that qualified immunity did not apply was reversed.
(Cody Hagan) 

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