(CN) - South Carolina officials may be liable for trying to snuff out Occupy protesters after a month-long campout on government property, the 4th Circuit ruled.
The dispute stems from the "around-the-clock" protest Occupy Columbia started on the grounds of the State House in Columbia, S.C., on Oct. 15, 2011.
Occupy had said that campout was "the only effective manner" available to transmit its message "of taking back our state to create a more just, economically egalitarian society." To that end, the group established medical, food service and security committees for the continuous protest.
The "occupation" lasted only 31 days, however, ending shortly after state Sen. Harvey Peeler Jr. wrote the governor a Nov. 16 letter that noted the approaching holiday season and a carol lighting scheduled for Nov. 28.
Gov. Nikki Haley wrote to Department of Public Safety and the Bureau of Protective Services that same day, saying that a Budget and Control Board policy known as Condition 8 that requires written permission for anyone who wishes to remain at the State House after 6 p.m.
Haley said that "no one associated with the 'Occupy Columbia' group appears to have even sought such permission, much less received it, yet they have essentially taken to living on State House property," damaging the grounds.
In a press conference, the governor warned that Occupier who remained on House grounds after 6 p.m. would face removal.
Police arrested 19 protesters that evening and released them early the next morning.
Occupy Columbia and 14 protesters sued the governor, Public Safety Director Leroy Smith, Protective Services Police Chief Zachary Wise and four state police officers, seeking injunctive relief and damages under Section 1983 and the state constitution and common law.
They claimed to have previously "inquired as to permitting requirements" for the event, but found that "no application for a permit is available on any public source such as the internet or at the front counter of the Division of General Services."
After the state court issued an ex parte temporary restraining order authorizing the group to continue occupying House grounds, the defendants removed the case to federal court.
U.S. District Judge Cameron Currie then granted Occupy Columbia a preliminary injunction in December 2011, finding that the "6 p.m." and other unwritten policies were invalid time, place and manner restrictions on the group's First Amendment rights.
South Carolina met the injunction by passing an emergency regulation that bars the "use of the State House grounds and all buildings located on the grounds for camping, sleeping, or any living accommodation purposes."
Currie later upheld the restriction but found that the defendants might still owe damages because they cannot claim qualified immunity grounds.
A three-judge panel of the Richmond, Va.-based federal appeals court affirmed Monday.
Rejecting claims that Occupy merely alleged a violation of its "right to squat indefinitely," the court found that the protesters also emphasized their rights to free speech, assembly and petition.
"Crucially, these paragraphs do not allege that members of Occupy Columbia were arrested for their continued occupation and camping on the State House grounds," Judge Stephanie Thacker wrote for the panel. "Rather, they state that the arrests occurred when Occupy Columbia was simply assembled on State House grounds for the purpose of protesting and petitioning the government. Thus, Occupy Columbia has pleaded a separate constitutional violation arising solely out of their arrest for assembling."
Qualified immunity is unavailable since Condition 8 "imposed no limit on when the State House grounds were open to the public and, even if it had restricted the time during which protesters could assemble, it did not contain any standards to guide the official's decision regarding when to grant special permission to continue such activities beyond closing time," the 38-page ruling states.
Though South Carolina and its state officials indisputably "could have restricted the time when the State House grounds are open to the public with a valid time, place, and manner restriction," no such restrictions existed at the time of arrest of Occupy Columbia protesters, Thacker added.
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