Occupy Nashville, et al v. William Haslam, et al

Filing

OPINION and JUDGMENT filed: The district court's order of June 12, 2012 is REVERSED, and the case is REMANDED. Decision for publication. The Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia Circuit, the Honorable Duane Benton, United States Circuit Judge for the Eighth Circuit, and the Honorable Kent A. Jordan (AUTHORING), United States Circuit Judge for the Third Circuit, were designated by the Committee on Intercircuit Assignments of the Judicial Conference of the United States to comprise the panel for this appeal.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0253p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

OCCUPY NASHVILLE, et al.,
Plaintiffs,

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No. 13-5882
PAULA ELAINE PAINTER; LAUREN MARIE PLUMMER;
ADAM KENNETH KNIGHT; WILLIAM W. HOWELL; >
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DARRIA HUDSON; KATY SAVAGE,
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Plaintiffs-Appellees, │
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v.
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WILLIAM HASLAM, et al.,
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Defendants, │
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WILLIAM L. GIBBONS, Commissioner of the
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Tennessee Department of Safety; STEVEN G. CATES, │
Commissioner of the Tennessee Department of │
General Services,
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Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:11-cv-01037—Aleta Arthur Trauger, District Judge.

Argued: August 25, 2014
Decided and Filed: October 8, 2014
Before: SENTELLE, BENTON and JORDAN, Circuit Judges*

*

The Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia Circuit, the
Honorable Duane Benton, United States Circuit Judge for the Eighth Circuit, and the Honorable Kent A. Jordan,
United States Circuit Judge for the Third Circuit, were designated by the Committee on Intercircuit Assignments of
the Judicial Conference of the United States to comprise the panel for this appeal.

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_________________
COUNSEL
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.
_________________
OPINION
_________________
JORDAN, Circuit Judge. 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.1 Occupy 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

1

Occupy Nashville was one of many such movements manifesting themselves in several major cities in the
United States. Occupy Nashville v. Haslam, 949 F. Supp. 2d 777, 785 (M.D. Tenn. 2013).
2

The Protesters are Paula Elaine Painter, Lauren Marie Plummer, Adam Kenneth Knight, William W.
Howell, Darria Hudson, and Katy Savage. A seventh plaintiff, Malina Shannon, also filed suit but was dismissed
from the case and has not appealed. Occupy Nashville, 949 F. Supp. 2d at 806-07.

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Department of General Services (“DGS”) (collectively, the “State Officials”) – 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.
I.

BACKGROUND3
A. Factual Background
1. The Plaza and the Old Policy
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. See
3

Consistent with our standard of review, see infra note 15, we “view the facts and draw reasonable
inferences ‘in the light most favorable to the part[ies] opposing the [summary judgment] motion,’” Scott v. Harris,
550 U.S. 372, 378 (2007), which, for purposes of the qualified immunity analysis here, are the Protesters.
4
5

We will use the abbreviation “D.I.” to refer to docket items on the District Court’s docket.

The porous granite stones can only tolerate certain weight and will break if impacted or loaded for long
periods of time beyond their capacity. “The walk-able roof/Plaza is designed to accommodate only light to medium
volume of dispersed weight … . Usage outside this parameter must be controlled, or it could cause … failure to the
roof ….” (D.I. 80 at 8.)

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Tenn. Code Ann. § 4-3-2006 (creating within DOS a “division of protective services” to provide
police services for state buildings, including the Capitol Complex).

The DGS, which

“exercise[s] general custodial care of real property of the state,” Tenn. Code Ann. § 4-31105(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 (“However, a person or group having previously
entered into a User Agreement … shall have first rights for use of the Plaza as provided in the
User Agreement.”).) To secure reserved use of the Plaza, an organization needed to pay a fee
and obtain liability insurance, among other administrative requirements.
2. The protest and growing health and safety concerns
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
6

The District Court refers to the “Old Policy” as the “Old Rules,” despite the fact that “neither side knows
the origin” of the policy or “whether or not it was actually promulgated pursuant to the [state’s UAPA].” Occupy
Nashville, 949 F. Supp. 2d at 796. Given that the designation of something as a “rule” is sometimes taken as
reflecting a legal determination dependent upon procedural requirements, we will refer to the document as it is
referred to in its own text, i.e., as a “policy.”
7

The State Officials asserted in their statement of undisputed facts in the District Court that the protesters
“set up tents to sleep in, set up a food tent with a Coleman stove, set up a donation area for tents, sleeping bags,
food, water, and other donated items, [and] brought sleeping bags with the intention of sleeping there to demonstrate
their alleged property right in the Plaza, the right to ‘occupy.’” (D.I. 71 at 11.) In response, the Protesters disputed
whether the demonstrators “ever claimed to have a property right in the Plaza” but did not – and clearly could not,
on this record – dispute the fact that participants in the protest slept on the Plaza overnight on an ongoing basis.
(See, e.g., Appellees’s Br. at 7 (describing themselves as having “set up tents and sleeping bags for overnight
accommodation, utilized cooking stoves and laptops, and set up a food and drink tent... .”)

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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 “some bad problems with being attacked by
the homeless or gangs in the middle of the night. One woman [was] assaulted and this weekend
one person was sent to the hospital.” (Id., ex. 23 at 39.) Lieutenant Donaldson also described
receiving complaints regarding indecent exposure, public fornication, and possible drug activity.

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3. The State’s response: the Use Policy
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 (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 restriction on the time, place, and manner of speech in a public
forum. Commissioner Cates described the meeting as a conversation about the problems on the
Plaza and the proposed policy. The group discussed whether anyone thought the proposed
policy was “not a good idea,” and no one expressed any concerns with implementing it. (D.I. 72,
ex. 7 at 28.)
The Governor’s Counsel made some suggestions following Watkins’s presentation about
the Use Policy, which Watkins incorporated into the document. It is undisputed that no public
hearings were held, nor was there a notice and comment period. Although the UAPA provides
procedures for implementing rules on an emergency basis, those procedures were not utilized
either.
Relevant to this appeal, the Use Policy included a curfew provision which directed that,
notwithstanding new permitting requirements, the Plaza would close to the public from 10:00

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p.m. until 6:00 a.m. daily.8 The same day as the meeting at which the Use Policy was effectively
adopted, Carpenter distributed copies of it to people who were on the Plaza, and signs were
posted on the Plaza with notice of the curfew. Additionally, Watkins emailed a copy of the new
requirements to Hunt. Occupy Nashville participants did not seek permission to remain on the
Plaza overnight.
4. Arrests under the Use Policy
At 3:00 a.m. on October 28, 2011, officers of the Tennessee Highway Patrol enforced the
Use Policy’s curfew.9 They surrounded the Plaza and told those present to vacate the Plaza
within ten minutes or face arrest. After ten minutes, they began arresting people, including five
of the six Protesters who brought this suit, all of whom were taken to the Davidson County Jail.10
The sixth Protester before us was not arrested but left when the officers arrived and gave the tenminute warning. The local magistrate on duty that night at the jail refused to sign the arrest
warrants, stating that the demonstrators had not been given sufficient notice of the new policy.
The police nevertheless detained the arrestees while they prepared citations for criminal trespass
and then released them. The arrestees then returned to the Plaza to resume their occupation.
The following night, October 29, 2011, shortly after midnight, police officers repeated
the process, arresting several demonstrators, and the magistrate again refused to sign the
warrants.
B. Procedural History
On October 31, 2011, the Protesters filed their Complaint in the District Court asserting,
among other things, § 1983 claims against Governor Haslam, Commissioner Cates, and
Commissioner Gibbons in their official capacities, and against unidentified highway patrol
officers in their official and individual capacities, for violating the Protesters’ rights under the
8

The Use Policy also provided that, “[e]ffective immediately and until further notice, all assemblies and
gatherings of persons on the ... Plaza ... shall require a use permit from the Tennessee Department of General
Services.” (D.I. 18, ex. 3 at 1.) The permitting provisions were never enforced and thus are not part of this appeal.
9

The District Court concluded that the arrests at issue in this case “only related to purported violations of
the new curfew requirement.” Occupy Nashville, 949 F. Supp. 2d at 802.
10

Plaintiff Shannon asserted that she “was not part of the protest, but was taking photographs on the
sidewalk” by the Plaza. (D.I. 18 at 13.)

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The Protesters sought equitable relief,

including a declaratory judgment, and also sought monetary damages. By agreement of the
parties, the District Court issued a Temporary Restraining Order on the same day, which
prevented enforcement of the Use Policy. An agreed-upon preliminary injunction was entered
by the Court on November 17, 2011. Therefore, as of November 17, 2011 at the latest, the Use
Policy was no longer in effect.11
The Protesters then filed an Amended Complaint on January 5, 2012, which asserted
claims against the same defendants named in the original complaint but also named the State
Officials – Commissioners Gibbons and Cates – as defendants in their individual capacities.12
The Amended Complaint contains nine counts – essentially mirroring those in the initial
Complaint – including § 1983 claims for violations of the Protesters’ constitutional rights.
The parties filed cross-motions for summary judgment, and the District Court granted in
part and denied in part both motions. Occupy Nashville, 949 F. Supp. 2d at 782. The Court
determined that declaratory and injunctive relief were no longer at issue, as the offending policy
was no longer in effect. Id. at 790. Furthermore, the Court granted summary judgment in favor
of the State Officials on the Protesters’ claims alleging violations of the Tennessee Constitution
and the UAPA and seeking the return of personal property, because the Protesters had implicitly
abandoned those claims. Id. at 791.13 The District Court thus determined that the “only
remaining claims at issue … [were] the § 1983 claims asserted against Commissioners Gibbons

11

On April 27, 2012, the DGS withdrew the Use Policy entirely and implemented the rules that are
currently in effect. “Although the parties did not file a copy of the Current Rules” with the District Court, the Court
took judicial notice of them because they were referenced in the State Officials’ submissions. Occupy Nashville,
949 F. Supp. 2d. at 784 n.4. The Court determined that the Current Rules were promulgated “pursuant to required
agency rulemaking procedures set forth in the UAPA.” Id. at 784. Those rules provide, in part, that “[c]amping or
sleeping overnight on the Plaza or Courtyard is not permitted.” Procedures for Use of the Tennessee War Memorial
Plaza and Courtyard, Tenn. Comp. R. & Regs. 0690-06-01-.03 (Nov. 20, 2012).
12

In the amended complaint, the Protesters again named as defendants Governor Haslam in his official
capacity and “John Doe” officers of the Tennessee Highway Patrol. The District Court noted that the Protesters
were not entitled to relief against Governor Haslam in his individual capacity because they had only sued him in his
official capacity and did not seek monetary damages from him. Occupy Nashville, 949 F. Supp. 2d at 790. The
District Court also noted that the Protesters “never identified th[e] [Highway Patrol] officers and do not dispute that
the claims against those officers are no longer viable.” Id. at 784 n.3.
13

The Court also noted that the Protesters did not dispute that their Fifth Amendment claim was untenable
“because the [State Officials] are not federal officials.” Occupy Nashville, 949 F. Supp. 2d at 784 n.3. The Court
thus dismissed that claim with prejudice –a ruling which the parties do not challenge. Id. at 806.

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and Cates in their individual capacities, which seek monetary damages for” violation of the
Protesters’ First, Fourth, and Fourteenth Amendment rights. Id. at 791.
As to those remaining claims, the District Court granted summary judgment for the
Protesters, holding that the State Officials were not entitled to qualified immunity. Id. at 806.
Specifically, the District Court granted summary judgment to the Protesters for liability under
§ 1983 on Count I (violation of First Amendment rights), Count V (violation of the right to be
free from a deprivation of liberty without due process), and Count VIII (unlawful arrest).14 Id. at
783-84, 806. The District Court reserved judgment on the issue of damages. Id. at 806. This
timely appeal followed.
II.

DISCUSSION15
The State Officials argue that the Protesters had no First Amendment right to “occupy”

the Plaza indefinitely and therefore, because there was no constitutional violation, qualified
immunity applies. The Protesters, in response, argue that the First Amendment right at issue is
simply the freedom to air grievances on public property – a right they contend was most
assuredly violated by enforcement of the Use Policy, which they describe as a facially invalid
regulation of speech and one promulgated in violation of state procedures. The District Court
did not define the right in question, and instead provided several different characterizations of it.
Compare Occupy Nashville, 949 F. Supp. 2d at 797 (asking “[w]hether the Plaintiffs Had a
Clearly Established Right to Occupy the Plaza”) with id. at 798 (characterizing the right as
“utiliz[ing] the Plaza for free speech activity”), and id. at 798 (stating that “the plaintiffs here
were not arrested for ‘camping’ as such; they were arrested for being present on the Plaza
14

The District Court dismissed Plaintiff Malina Shannon from the suit entirely and dismissed with
prejudice Plaintiff Katy Savage’s claim for unlawful arrest (Count VIII) because she was not arrested. Occupy
Nashville, 949 F. Supp. 2d at 783, 806. The Protesters have not challenged those portions of the District Court’s
ruling.
15

The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction pursuant to
28 U.S.C. § 1291. See also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that that denial of qualified
immunity is an appealable final decision within the meaning of § 1291). We review a denial of qualified immunity
de novo. Sample v. Bailey, 409 F.3d 689, 695-96 (6th Cir. 2005). We also review a district court’s grant of
summary judgment de novo, “using the same standard of review applicable in the district court.” Gecewicz v. Henry
Ford Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir. 2012). Summary judgment is proper where there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. We have pendent
appellate jurisdiction to review the grant of summary judgment on liability, to the extent that issue is “inextricably
intertwined” with our ruling on qualified immunity. Brennan v. Twp. of Northville, 78 F.3d 1152, 1157-58 (6th Cir.
1995).

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between the hours of 10 p.m. and 6 a.m., regardless of whether they were among the protestors
who had set up sleeping arrangements”), id. at 799 (stating that “the plaintiffs had a clearly
established right to utilize the Plaza for their free speech activities.”), id. at 799 (characterizing
the right as “overnight free speech activities”). For reasons more fully described herein, we
agree with the State Officials that the claimed right must be defined as one of indefinite
occupation of a public park, and that, even if the Protesters had a First Amendment right to
occupy the Plaza indefinitely, that right certainly was not, and is not, clearly established.
A. Qualified Immunity
Qualified immunity operates “to ensure that before they are subjected to suit, officers are
on notice their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citations and
internal quotation marks omitted). While qualified immunity can protect government officials
for actions taken in the course of their duties, that protection is forfeited when an official’s
conduct violates “clearly established statutory or constitutional rights of which a reasonable
person would have known.” Wilson v. Layne, 526 U.S. 603, 614 (1999) (internal citations
omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity gives
government officials breathing room to make reasonable but mistaken judgments, and protects
all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 S.
Ct. 3, 5 (2013) (per curiam) (internal citations and quotation marks omitted).
To determine whether a government official is entitled to qualified immunity, we
consider the two-part test described in Saucier v. Katz, which asks whether “a constitutional right
would have been violated on the facts alleged” and, if so, whether the right was “clearly
established.” 533 U.S. 194, 200-01 (2001).16 We are free to address the second question first,
16

We note that, in this Circuit, there is a question of whether the qualified-immunity analysis includes an
additional, third step. After reviewing the first two steps, Circuit panels have at times further considered “whether
the plaintiff offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable
in light of the clearly established constitutional rights.” E.g., Drogosch v. Metcalf, 557 F.3d 372, 378 (6th Cir.
2009) (internal citations and quotation marks omitted). The Protesters argue that the District Court erred in applying
a three-step analysis. Given our conclusion that their rights were not clearly established, we need not reach that
question. We note, however, that “[r]egardless of how the test is articulated, a defendant will only be held liable if
his or her actions were objectively unreasonable in view of clearly established law.” Robertson v. Lucas, 753 F.3d
606, 615 n.4 (6th Cir. 2014); see also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (emphasizing that the
“crucial question” is “whether the official acted reasonably in the particular circumstances that he or she faced”);
Anderson v. Creighton, 483 U.S. 635, 639 (1987) (emphasizing that “objective legal reasonableness” is the

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analyzing whether the constitutional right that purportedly prohibited a defendant’s conduct was
clearly established, without addressing whether there was a constitutional violation at all.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). To avoid potentially “difficult questions that
have no effect on the outcome of the case,” id. at 236-37, and being mindful of the unusual
circumstances under which we preside,17 we will focus on Saucier’s second step – whether the
alleged constitutional right was clearly established at the time of the Use Policy’s adoption.18
1. Clearly Established
For a right to be clearly established, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right. [I]n the light
of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). In other words, “existing precedent must have placed the statutory or constitutional
question ... beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal
quotation marks omitted) (quoting Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083 (2011). “[B]inding
precedent from the Supreme Court, the Sixth Circuit, [or] the district court itself” can provide
such clarity; persuasive authority from “other circuits that is directly on point” may also
demonstrate that a law is clearly established. Holzemer v. City of Memphis, 621 F.3d 512, 527
(6th Cir. 2010). Notwithstanding those helpful indicators, “[a] court need not have previously
held illegal the conduct in the precise situation at issue because officials can still be on notice
that their conduct violates established law even in novel factual circumstances.” Sutton v. Metro.
Gov’t of Nashville, 700 F.3d 865, 876 (6th Cir. 2012) (internal quotation marks omitted).
a. Accurately defining the claimed right
The level of generality at which the constitutional right in question is defined is of great
importance. See Anderson, 483 U.S. at 639 (“The operation of [the qualified immunity] standard

“touchstone of Harlow”).
17

All of the judges of the Sixth Circuit have recused themselves in this appeal, and this panel of judges
from other circuits is therefore sitting by designation.
18

The District Court described the Use Policy as including two discrete pieces: the “curfew” and the
“permit requirement.” Occupy Nashville, 949 F. Supp. 2d at 788-89. As previously noted, supra n. 8, the permit
requirement was not applied to the Protesters, so the question of its constitutionality is not before us and we decline
to address it, despite the Protesters’ desire that we do so.

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Occupy Nashville, et al. v. Haslam, et al.

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… depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be
identified.”). The Supreme Court has “repeatedly told courts … not to define clearly established
law at a high level of generality, since doing so avoids the crucial question whether the official
acted reasonably in the particular circumstances that he or she faced.” Plumhoff, 134 S. Ct. at
2023 (omission in original) (citation and internal quotation marks omitted). The State Officials
here define the right claimed by the Protesters as a “24-hour occupation” of the public square,
which they argue is not a “right” at all. (Appellants’ Opening Br. at 23.) The Protesters, by
contrast, argue that the constitutional right at issue is not a right to “occupy” the Plaza, but a
“clearly established First Amendment right to be present on the Plaza to air their grievances
against the government.” (Appellees’ Br. at 24 n.6.) The more specific and accurate framing of
the issue is the one provided by the State Officials.
To support their respective definitions of the claimed right, both Parties rely heavily on
Clark v. Community for Creative Non-Violence, a case in which the Supreme Court upheld a
National Park Service ban on overnight camping on the National Mall, even though the ban
restricted a homelessness-awareness protest. 468 U.S. 288 (1984). In Clark, the precise issue
before the Supreme Court was “whether a National Park Service regulation prohibiting camping
in certain parks violate[d] the First Amendment when applied to prohibit demonstrators from
sleeping in [two of those parks] ... in connection with a demonstration.” 468 U.S. at 289. The
Court refused to be drawn into a debate about whether camping or sleeping in a park could be
called “expressive conduct.” Id. at 293. It assumed it could be but then observed that “this
assumption only begins the inquiry.” Id. The Court emphasized the well-established principle
that “[e]xpression, whether oral or written or symbolized by conduct, is subject to reasonable
time, place, or manner restrictions.” Id. In a passage key to the case at bar, the Court declared
that, “[i]f the Government has a legitimate interest in ensuring that the National Parks are
adequately protected, which we think it has, and if the parks would be more exposed to harm
without the sleeping prohibition than with it, the ban is safe from invalidation under the First
Amendment as a reasonable regulation of the manner in which a demonstration may be carried
out.” Id. at 297. Importantly, the Clark Court also expressed “serious doubt that the First
Amendment requires the [government] to permit a demonstration involving a 24-hour vigil and
the erection of tents to accommodate 150 people.” 486 U.S. at 296.

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The State Officials argue that Clark supports their definition of the Protesters’ claimed
right, while the Protesters’ contend that Clark is inapplicable because, they say, it dealt with
camping, rather than mere violations of a curfew provision. (Appellee’s Br. at 26-27.) The
Protesters may be right that Clark does not stand for the proposition that overnight protest
activity is entirely unprotected, but that misses the point of the governing precedent on qualified
immunity. There must be specificity in the definition of the right at stake. Plumhoff, 134 S. Ct.
at 2023. Despite their insistence to the contrary, the Protesters’ activities were indeed, as their
group’s name suggests, fundamentally about occupation. They argue, and the District Court
agreed, that they were arrested not for camping, but only “for being present on the Plaza between
the hours of 10:00 p.m. and 6:00 a.m,” Occupy Nashville, 949 F. Supp. 2d at 798 (emphasis
omitted); (Appellee’s Br. at 26). Whether their conduct is called camping or not, however, their
late-night presence on the days of their arrest cannot be divorced from the continuous, 24-hour-aday, seven-day-a-week occupation of the Plaza, of which it was part. The State Officials were
confronted with the increasingly chaotic, unsanitary, and dangerous conditions caused by the
full-time occupation of the Plaza. The Protesters were arrested as part of a decision to address
those serious problems associated with the occupation, not as a result of some vague concern
with fleeting protests in the night. To claim, as the Protesters do, that they were merely seeking
the right to speak in a public forum is to ignore the actual scope and duration of the protest and
thus to express the First Amendment issue in unduly abstract terms. See Anderson, 483 U.S. at
639 (cautioning that “[p]laintiffs would be able to convert the rule of qualified immunity … into
a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights”).
b. Whether the right to indefinite occupation is clearly established
The record is undisputed that Clark was the primary guide in the drafting of the Use
Policy. 19 Watkins and a staff attorney studied it and understood that it permitted a curfew for
19

The District Court’s qualified immunity analysis was premised on its determination that the promulgation
of the Use Policy violated state administrative law and, thus, the Old Policy was the only policy in place at the
relevant time. The parties dispute whether questions of state administrative law are relevant to a qualified immunity
analysis. The State Officials take the position that the District Court improperly “treated th[e] violation of
Tennessee law as a violation of the Constitution for purposes of the § 1983 action.” (Appellants’ Opening Br. at
31.) To the extent the District Court may have considered a violation of state administrative law to amount to a
constitutional violation under § 1983, Occupy Nashville, 949 F. Supp. 2d at 797, such an analysis was
improper. This Circuit has clearly stated that “noncompliance [with state laws and administrative procedures] does

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No. 13-5882

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the Plaza. In discussions among the government personnel who gathered to consider the new
policy, Clark thus undisputedly – and reasonably– provided the background understanding of
what could and could not be done by the state to place a temporal limitation on use of the Plaza.
It does not matter, then, whether the Protesters have, as they seem to believe, a First Amendment
right to move into a public park and take it over for as long as they are doing something that
might be called expressive.20 What matters is that reasonable government officials could, like
the State Officials here, understand the law very differently. See Anderson, 483 U.S. at 639
(emphasizing that “objective legal reasonableness” is the “touchstone” of qualified immunity
analysis). It was neither “plainly incompetent,” Stanton, 134 S. Ct. at 5, nor was it “beyond
debate,” Plumhoff, 134 S.Ct. at 2023, to read Clark as permitting a curfew and to take steps to
implement that policy. Then and now, the Supreme Court’s analysis can be read that way. The
Clark Court’s “serious[] doubt” about the kind of right claimed here is the antithesis of being
“clearly established.” The few precedents available are generally contrary to the existence of the
“right” at issue. See, e.g., Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341, 347
(7th Cir. 1990) (“Public parks are certainly quintessential public forums where free speech is
protected, but the Constitution neither provides, nor has it ever been construed to mandate, that
any person or group be allowed to erect structures at will.”); Occupy Columbia v. Haley, 922 F.
Supp. 2d 524, 535 (D.S.C. 2013) (“It is undisputed that the state can restrict camping and
sleeping on the State House grounds, and that the state can restrict the time when the State House
grounds are open to the public”) (citations omitted), aff’d on other grounds, 738 F.3d 107 (4th

not state a claim under § 1983,” because “[e]ven if implemented in violation of state law, [a] policy [may] satisf[y]
the dictates of the First Amendment.” Boswell v. Mayer, 169 F.3d 384, 390 (6th Cir. 1999).
According to the Protesters, however, “the District Court had to determine whether the New [Policy] or
Old [Policy] w[as] controlling before the Court could assess the viability of [the] Constitutional claims”; it was, in
the Protesters’ view, “a necessary, preliminary decision.” (Appellees’ Br. at 22-23.) Whether that consideration
was necessary, or even permissible, in the qualified immunity analysis is a question which, as guests of the Sixth
Circuit, we leave for another day, because, even assuming that the District Court properly examined the
promulgation of the Use Policy and determined that it was void, we conclude that the right for Occupy Nashville
protesters to indefinitely occupy a public park in the manner that they did is not clearly established.
20

We join the Supreme Court in expressing “serious[] doubt,” Clark, 468 U.S. at 296, that the
First Amendment grants a right to engage in a protest that involves occupying a public space for 24 hours,
much less for weeks on end, and that, without question, threatens public health and safety. However,
because we sit by designation, we avoid weighing in on the constitutionality of that so-called right or
whether, as the District Court determined, the State Officials’ violation of state administrative procedures
rendered the Use Policy void ab initio.

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Cir. 2013); Occupy Fresno v. City of Fresno, 835 F. Supp. 2d 849, 864 (E.D. Cal. 2011)
(“Plaintiffs [Occupy Fresno and members thereof] are not entitled to remain in Courthouse Park
for 24 hours a day.”). 21
Nor was it, or is it, clear that the First Amendment gives one an unfettered right to
threaten the health and safety of the public or the security of public property. Cf. Adderly v.
Florida, 385 U.S. 39, 47-48 (1966) (“The State, no less than a private owner of property, has
power to preserve the property under its control for the use to which it is lawfully dedicated.”);
Schenck v. United States, 249 U.S. 47, 52 (1919) (“The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even
protect a man from an injunction against uttering words that may have all the effect of force.”).
The Protesters admit that the encampment had become so dangerous that they themselves asked
the authorities to step in and provide additional protection. Occupy Nashville, 949 F. Supp. 2d at
787; cf. In any event, the evidence of record demonstrates that the State Officials’ conduct was
objectively reasonable under the circumstances. Anderson, 483 U.S. at 639. In light of the
sanitation problems, the violent assaults, the damage to state property, and the generally unsafe
and deteriorating conditions, the State Officials were not objectively unreasonable in believing
that they could promptly adopt a 10:00 p.m. curfew that would allow them to clean the Plaza and

21

The Fourth Circuit reached a somewhat different conclusion, albeit on distinguishable facts. In Occupy
Columbia v. Haley, the Fourth Circuit affirmed a district court’s denial of qualified immunity to state officials at the
motion to dismiss stage, stemming from their arrest of Occupy Columbia protesters who were present on State
House grounds shortly after 6:00 p.m. 738 F.3d 107, 111-12 (4th Cir. 2013). There, the district court held that there
was no clearly established right to camp on, sleep at, or otherwise occupy State House property. Id. at 115. The
district court went on, however, to read the plaintiffs’ complaint as alleging a second, separate violation of a right to
be present or protest on State House grounds, which was clearly established. Id.
The Fourth Circuit affirmed, holding that the protesters had a clearly established right to be present on the
property because there was no valid time, place, or manner restriction in effect. Id. at 120-25. Rather, the arrests
were pursuant to a letter the Governor issued specifically calling for the arrest of Occupy Columbia protesters
present on State House property after 6:00 p.m. Id. at 123 (quoting the Governor’s letter which ordered the removal
of “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.”). Here, although the parties disagree about how to characterize the right in
question, we have concluded it is properly described as the right to a continuous occupation of the Plaza.
Accordingly, the Fourth Circuit’s conclusion that there is a clearly established right to protest or assemble after 6:00
p.m. does not affect our determination. In any event, insofar as the Fourth Circuit’s holding would require only an
examination of the Protesters’ conduct at the precise moment of arrest, without acknowledging the circumstances in
which the conduct arose, we decline to follow that decision.

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ensure the safety of the public in general and the Protesters in particular. The State Officials are
thus entitled to qualified immunity for their actions.
Our qualified immunity conclusion also necessarily extends to the Protesters’ claims that
their Fourth and Fourteenth Amendment rights were violated. Again, the most that can be said
for the Protesters’ argument is that it is unclear whether they had a right to indefinitely occupy
the Plaza for their demonstration. It is therefore also unclear that the law forbade their arrest and
that they had any liberty interest that could be infringed by an alleged failure to provide adequate
procedural protections.
B. Liability Issues
In addition to contesting the denial of qualified immunity, the State Officials challenge
the District Court’s partial grant of summary judgment on the issue of liability. The District
Court’s ruling left open the issue of damages, which would ordinarily mean that the judgment on
liability would be a non-final and unappealable order. Woosley v. Avco Corp., 944 F.2d 313,
316-17 (6th Cir. 1991). In this case, though, we can exercise pendent appellate jurisdiction
because the liability issues are “inextricably intertwined” with the issue of qualified immunity,
over which we clearly do have jurisdiction. See Brennan v. Twp. of Northville, 78 F.3d 1152,
1157-58 (6th Cir. 1996) (applying doctrine of discretionary pendent appellate jurisdiction).
Given that equitable relief is no longer in question, Occupy Nashville, 949 F. Supp. 2d at 790,
our ruling that the State Officials are entitled to qualified immunity on the remaining claims for
damages necessarily resolves the case in its entirety. See Brennan, 78 F.3d at 1158 (noting that
qualified immunity is inextricably intertwined with the issue of liability when the two analyses
are “coterminous with, or subsumed in” each other) (internal quotation marks omitted); cf.
Williams v. Kentucky, 24 F.3d 1526, 1541-42 (6th Cir. 1994) (declining to exercise pendent
appellate jurisdiction when the issue of liability for injunctive relief remained).

We will

therefore reverse the District Court’s grant of partial summary judgment on the issue of liability
as well.

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III.

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CONCLUSION
For the foregoing reasons, the District Court’s order denying qualified immunity and

granting partial summary judgment of liability will be reversed and the matter remanded with
instructions to enter judgment for the State Officials.