Occupy Columbia v. Haley, No. 13-1258
Decided: December 16, 2013
The Fourth Circuit held that the appellants—a number of state officials including Governor Nikki Haley (Governor Haley)—were not entitled to qualified immunity at the Rule 12(b)(6) or Rule 12(c) stage with regard to a 42 U.S.C. § 1983 claim brought by the group Occupy Columbia and fourteen individual protestors (collectively, Occupy Columbia), as Occupy Columbia pled a constitutional violation arising solely out of the arrest of its constituent members for assembling on State House grounds after 6:00 p.m. on November 16, 2011; that Occupy Columbia’s relevant complaint sufficiently alleged that its members were partaking in protected speech at the time of their arrest; that there were no valid time, place, and manner restrictions on the speech of Occupy Columbia’s members at the time of their arrest; and that Occupy Columbia’s right to protest in this regard has been clearly established since the 1963 case Edwards v. South Carolina, 372 U.S. 229. The Fourth Circuit therefore affirmed the United States District Court for the District of Columbia’s denial of qualified immunity at this stage of the lawsuit.
In October 2011, Occupy Columbia members began “protesting around-the-clock” at the South Carolina State House in Columbia, South Carolina as a way to “express their message of taking back our state to create a more just, economically egalitarian society.” On November 16, 2011—after thirty-one days of continuous “occupation” by the Occupy Columbia protestors—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”? Governor Haley then sent a letter to the Director of the Department of Public Safety and the Chief of Police of the Bureau of Protective Services, asking for their assistance in removing Occupy Columbia members who remain on the State House grounds after 6:00 p.m. without certain written authorization. Governor Haley claimed that the Budget and Control Board requires “any individual or organization that wishes to remain at the Statehouse after 6:00 p.m. to receive written permission from the agency,” and cited paragraph 8 of a document titles “Conditions for Use of South Carolina State House Grounds” (Condition 8) as support for this purported policy. Certain members of Occupy Columbia were arrested shortly after 6:00 p.m. on November 16. Occupy Columbia alleged that, at the time its members were arrested, they “were assembled on the [S]tate [H]ouse grounds, protesting and petitioning our government, and [they] were no violating any law.”
On November 23, Occupy Columbia filed a lawsuit in state court, seeking to enjoin the appellants from interfering with the protest on State House grounds. The appellants removed the case to federal court. In December 2011, the district court granted Occupy Columbia’s motion for a preliminary injunction. The Budget and Control Board then passed an emergency regulation—codified at S.C. Code Ann. § 10-1-35—prohibiting the “use of the State House grounds and all buildings located on the grounds for camping, sleeping, or any living accommodation purposes.” The district court subsequently found that this regulation was valid with respect to time, place, and manner. In January 2012, Occupy Columbia filed a Second Amended Complaint and added a claim for damages under 42 U.S.C. § 1983. The district court granted the Budget and Control Board Defendants’ motion to dismiss the complaint as moot due to the enactment of § 10-1-35—as well as a revision to Condition 8 that removed the references to specific time limitations on the use of the State House grounds.
Occupy Columbia filed a Third Amended Complaint in September 2012. The appellants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) or for judgment on the pleadings under Rule 12(c), asserting that Occupy Columbia’s injunctive relief claims were moot and that the appellants were entitled to qualified immunity on the claims for damages. The district court dismissed the injunctive relief claims as moot. With regard to the qualified immunity issue, the district court found that, as the time of the arrests, there was no clearly established constitutional right “to camp, sleep, or live continuously on the State House grounds.” However, the district court also found that Occupy Columbia had made an allegation that its members’ “constitutional rights were violated when they were arrested for their presence and protests on the State House grounds after 6:00 p.m.”; the district court then and rejected the appellants’ qualified immunity arguments with regard to this separately alleged violation of constitutional rights. The appellants filed a notice of appeal to obtain review of the qualified immunity ruling.
Like the district court, the Fourth Circuit relied “solely on the allegations in the Third Amended Complaint and those documents that are integral to the complaint” in assessing qualified immunity. The Fourth Circuit noted that certain paragraphs of Occupy Columbia’s complaint “state[d] that the arrests occurred when Occupy Columbia was simply assembled on State House grounds for the purpose of protesting and petitioning the government,” and made no mention of continued occupation and camping. The court also noted that Governor Haley’s letter focused on removing Occupy Columbia protestors who remained on the grounds of the State House after 6:00 p.m. without certain written permission—rather than focusing more generally on the removal of people who were camping, sleeping, or living on the grounds of the State House. The Fourth Circuit also found that, according to the allegations in the Third Amended Complaint, the members of Occupy Columbia were “protesting and petitioning our government” in a public forum at the time they were arrested. Next, the Fourth Circuit found that, on the face of the Third Amended Complaint, Occupy Columbia’s members were not violating South Carolina law—specifically, S.C. Code §§ 10-11-20, 10-22-30, or 10-11-330—at the time they were arrested. Furthermore, the court found that Condition 8 is, on its face, “simply a mechanism for groups to obtain reservations to utilize the State House grounds” in ways that avoid scheduling conflicts—and that, even if Condition 8 imposed a time, place, and manner restriction, that restriction would be invalid.
Lastly, with regard to the “clearly established” prong of the qualified immunity analysis, the Fourth Circuit noted the Supreme Court and Fourth Circuit jurisprudence supporting the conclusion that “in the absence of a valid time, place and manner restriction, arresting members of Occupy Columbia for their presence and protest on State House grounds after 6:00 p.m. was a violation of their First Amendment rights.”
– Stephen Sutherland