City Officials Not Liable for Occupy Claims

     (CN) – Two Tennessee officials are not personally liable for damages in a weeks-long Occupy Nashville protest, the 6th Circuit ruled.
     The group and six protesters sued Gov. Bill Haslam, Safety Commissioner William Gibbons and General Services Commissioner Steven Cates in 2011 for constitutional rights violations. They claimed abuse of their First, Fourth, Fifth and Fourteenth Amendment rights.
     Occupy Nashville wealth inequality demonstrators kept a 24/7 presence on the Nashville War Memorial Plaza for most of October 2011.
     “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,” the ruling states. “There was also an increase in the number of assault complaints and damage to public property.”
     Sewage, trash and other health and safety conditions also concerned officials, according to the ruling. So, under Cates’ direction, a new policy was implemented that closed the plaza from 10 p.m. to 6 a.m.
     Police begin enforcing the new policy at 3 a.m. on Oct. 28, 2011. They began arresting demonstrators who did not leave the plaza, including five of the six plaintiffs. The sixth left before police arrived and was not arrested.
     But a judge did not cooperate with police and would not sign arrest warrants.
     “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,” according to the ruling. “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.”
     The protesters and Occupy Nashville filed a lawsuit two days later in federal court. They said that the new curfew policy was implemented without approval from the state attorney general. The curfew was abandoned in November after the protesters dispersed the plaza.
     The plaintiffs amended their complaint in January 2012 to sue Gibbons and Cates in their individual capacities in addition to their official roles.
     U.S. District Judge Aleta Trauger tossed declaratory and injunctive relief claims relating to the curfew policy, because it was no longer in effect, and also granted summary judgment to state officials for claims which protesters had abandoned.
     The lower court then denied qualified immunity for Gibbons and Cates, holding them liable to the protesters for monetary damages.
     Qualified immunity protects “government officials for actions taken in the course of their duties” as long as they do not violate an established constitutional right, according to the ruling.
     Gibbons and Cates appealed the district court’s decision, claiming that because protesters had no right to occupy the plaza, there were no violations and therefore immunity from liability applies.
     The appeals court agreed Wednesday, reversing and remanding the district court’s ruling.
     “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 adopt a 10:00 p.m. curfew that would allow them to clean the plaza and ensure the safety of the public in general and the protesters in particular,” wrote Judge Kent Jordan for a three-member panel. “The state officials are thus entitled to qualified immunity for their actions.”
     Because protesters’ rights in regard to occupation of the plaza are ambiguous, so are their constitutional rights regarding potentially wrongful arrests.
     “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,” Jordan wrote. “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.”

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