CAMERON McGOWAN CURRIE, District Judge.
This matter came before the court on December 14, 2011, for oral argument on Plaintiffs' motion for preliminary injunction to enjoin Defendants from interfering with Plaintiffs' 24-hour occupation of the State House grounds, including sleeping on the State House grounds, and the use of sleeping bags and tents. By order entered that same day, the court granted Plaintiffs' motion and indicated that it would issue a separate memorandum opinion setting forth its reasons for the decision no later than December 19, 2011. The court now issues its supporting memorandum opinion.
Plaintiff Occupy Columbia is part of the Occupy Movement that began with Occupy Wall Street in Manhattan's Financial District on September 17, 2011. Occupy Columbia was organized in early October 2011, and protestors began occupying the State House grounds on October 15, 2011.
Dkt. No. 1-1 at 15. Occupy Columbia alleges that it is a peaceful movement and that the occupation of the State House grounds has caused no damage to the property. The group alleges that it keeps the sidewalks clear of clutter, uses a portable bathroom or the public bathroom at the State House, and does not cook on the grounds. Id. at 14. Further, the group alleges it has developed a security committee to ensure that protestors and their belongings are safe and secure during the night. Id. The group also alleges that it works with the horticulturist who maintains the grounds to minimize its impact on the lawn and with the Bureau of Protective Services ("BPS"),
During the first week of the occupation, Plaintiff Timothy Liszewski, Occupy Columbia's Police Liaison, approached the Division of General Services ("General Services") to determine whether the group needed a permit. Dkt. No. 1-7 at 3 (Liszewski Affidavit). General Services is a division of the State Budget and Control Board ("Board") and provides a variety of services, including facilities management, to the state. According to Mr. Liszewski, an employee of General Services stated that the group would need a permit, especially if the group intended to use the electrical outlets on the Gervais Street side of the Capitol. The General Services' employee provided a copy of a two-page document entitled "Conditions for Use of South Carolina State House and Grounds" ("Conditions").
Dkt. No. 1-5 at 29 ("6:00 p.m. policy"). Plaintiff Liszweski allegedly asked the General Services' employee if the group "could have open-ended permission to stay on the grounds beyond 6 p.m." and "she said probably not."
Although "special provisions in writing" to extend the 6:00 p.m. limitation have not been received by Occupy Columbia, the group alleges it received permission from the Budget and Control Board's State House and Grounds Committee to sleep under a portico on the Gervais Street side of the State House when there is inclement weather. Dkt. No. 1-7 at 4. The group alleges it has agreed to leave the portico by 8:00 a.m. when the portico is used. Id.
At 4:00 p.m. on November 16, 2011, over a month after the occupation began, Governor Haley announced in a press conference that Plaintiffs were required to leave the State House grounds every night by 6:00 p.m. and could return at 6:00 a.m. every morning. Dkt. No. 1-5 at 5. On the same date, Governor Haley sent a letter to the Interim Director of the Department of Public Safety ("DPS") and the Chief of Police of BPS requesting assistance "in removing 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. without written authorization from the Budget and Control Board." Dkt. No. 1-2 at 3. At 6:15 p.m., after allegedly removing their belongings from the State House grounds,
On November 22, 2011, 2011 WL 6698990, Plaintiffs — Occupy Columbia, Walid Hakim, Melissa Harmon, Bradley Powell, Timothy Liszewski, David Bland, Ashley Blewer, and David Arroyo (collectively, "Plaintiffs" or "Occupy Columbia") — filed a Complaint in state court and sought temporary relief to enjoin Defendants, including but not limited to South Carolina Governor Nikki Haley, the members of the State Budget and Control Board, and the Director of BPS, from interfering with Plaintiffs' 24-hour occupation of the State House grounds, including sleeping on the State House grounds, and the use of sleeping bags and tents. On November 23, 2011, a state circuit court judge granted Plaintiffs' motion for a temporary restraining order ("TRO") to restrain "Defendants from preventing the Plaintiffs from being on the grounds of the South Carolina State House (including using sleeping bags and tents) 24 hours a day."
This civil rights action under 42 U.S.C. § 1983 seeks injunctive relief
A preliminary injunction is "an extraordinary remedy ... which is to be
The Winter-Real Truth standard requires the party seeking the injunction to make a "clear showing" that he is likely to succeed on the merits. Real Truth, 575 F.3d at 345; see also Winter v. NRDC, 555 U.S. at 22, 129 S.Ct. 365. This standard compels the moving party to show that he is likely to prevail. Regardless of the balance of hardships, it is insufficient for the party to show only that "grave or serious questions are presented" in the litigation. Compare Real Truth, 575 F.3d at 346 with Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189, 196 (4th Cir.1977).
Second, the moving party must make a clear showing that he is likely to be irreparably harmed if preliminary relief is denied. To meet this test, the party must show more than a mere possibility of harm. Winter, 555 U.S. at 21, 129 S.Ct. 365. Third, the moving party must show that the balance of equities tips in his favor. Id. at 21, 26, 129 S.Ct. 365. Fourth, the district court must consider whether grant or denial of the injunction is in the public interest. The court must give "particular regard" to the public consequences of granting a preliminary injunction. Id. at 24, 129 S.Ct. 365; Real Truth, 575 F.3d at 347. The Fourth Circuit no longer recognizes a "flexible interplay" among these criteria. Instead, each requirement must be fulfilled as articulated. Real Truth, 575 F.3d at 347 (quoting Blackwelder, 550 F.2d at 196).
The first factor — likelihood of success on the merits — takes on greater significance "in the context of an alleged violation of First Amendment rights[.]" WV Ass'n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th
The court considers Plaintiffs' state court memorandum filed in support of their motion for TRO and preliminary injunction as Plaintiffs' opening brief. Plaintiffs argue that there is no law or regulation that prohibits Plaintiffs from occupying the State House grounds 24 hours a day or using sleeping bags and tents on the grounds. Plaintiffs argue that, pursuant to S.C.Code Ann. § 10-1-30, the Director of General Services may only limit use of the State House grounds in accordance with regulations promulgated by the State Budget and Control Board, and that the Board has not promulgated any regulations restricting the use of the grounds. Neither has the Board promulgated an emergency regulation under S.C.Code Ann. § 1-23-130.
Defendants filed their briefs in opposition to the motion for preliminary injunction on December 8, 2011. Governor Haley, sued as Governor and as Chairwoman of the State Budget and Control Board, filed a brief and stipulation containing the Governor's "prospective enforcement policy" ("Stipulation"). The Stipulation provides,
Dkt. No. 17-1. The Stipulation then defines "camping."
Governor Haley indicates that she has no intention of enforcing the 6:00 p.m. policy against Occupy Columbia in the future. Governor Haley explains that she is no longer concerned with the 24-hour occupation, but rather with sleeping and camping on the State House grounds. She states that when participants of Occupy Columbia returned to the State House grounds on November 17, 2011, after the arrests, the 6:00 p.m. policy was not enforced because they returned "without
Governor Haley also argues that the Board need not promulgate regulations to restrict use of the State House grounds. She submits that government agencies cannot be expected to promulgate regulations in anticipation of every situation, and that all government agencies rely on internal policies to fulfill their duties.
Defendants Curtis Loftis, Richard Eckstrom, Hugh Leatherman, and Brian White ("Board Defendants") are the four remaining members of the State Budget and Control Board.
Board Defendants argue that, pursuant to S.C.Code Ann. § 10-1-30, the State Budget and Control Board is permitted to pass regulations and impose restrictions regarding use of the State House grounds to ensure the public health, safety, and welfare will be protected. Section 10-1-30 provides,
S.C.Code Ann. § 10-1-30. Although the Board has never passed any regulations relating to the use of the State House grounds, Board Defendants argue that § 10-1-30 allows the Board to create restrictions or regulations regarding use of the State House grounds, and that the Board created restrictions on the use of the State House grounds when it created the document entitled "Conditions."
Board Defendants also argue that camping and sleeping on the State House grounds are not protected expression under the First Amendment. Should the court find that Plaintiffs' camping and sleeping on the State House grounds is expressive conduct protected by the First Amendment, Board Defendants argue that the Conditions impose permissible time, place, and manner restrictions on Plaintiffs' right to camp and sleep on the State House grounds. Dkt. No. 13 at 14-15.
Defendants Leroy Smith, Director of the South Carolina Department of Public Safety; Zachary Wise, Chief of Police of the South Carolina Bureau of Protective Services; James Carr; Joe Hodge; Andrew Schmidt; and M.E. Harris, III ("Law Enforcement Defendants") filed a brief stating that they agreed with Governor Haley's brief. Dkt. No. 14 at 2.
On December 12, 2011, Plaintiffs filed a reply brief. Plaintiffs first argue that Governor Haley acted without authority, and without consultation with the members of the Board, when she issued the 6:00 p.m. policy and ordered the arrests of any members of Occupy Columbia remaining on the State House grounds after 6:00 p.m. Dkt. No. 19 at 1-2. Plaintiffs contend that Governor Haley has no authority to create rules governing the public use of the State House grounds. Id. at 1-3, 12. As to the Conditions, Plaintiffs submit that they do not have the force and effect of law because they are not regulations promulgated
The parties do not dispute that Plaintiffs have a First Amendment right to speak and assemble on the State House grounds. However, the parties disagree as to whether Plaintiffs have a First Amendment right to camp and sleep on the State House grounds. The court, therefore, first determines whether Plaintiffs' camping and sleeping on the State House grounds is expression protected under the First Amendment. The court then considers whether Governor Haley's and the State Budget and Control Board's 6:00 p.m. and no-camping policies infringe Plaintiffs' First Amendment rights.
Plaintiffs argue that they have shown that they intend to convey a particularized message that "a more just, democratic, and economically egalitarian society, responsive to people rather than corporations, is possible." Dkt. No. 19 at 3. According to Plaintiffs, "[t]his social and political message can only be served by a constant and physical 24-hour occupation of the State House grounds, as it symbolically communicates that just as corporations occupy the inside of the State House via campaign contributions, influence, gifts, and lobbyists, Occupy Columbia will occupy the grounds surrounding it." Id. at 4. Finally, Plaintiffs argue that "because the State House grounds are `also the center for demonstrations and protests in South Carolina,' there is a substantial likelihood that this message will be understood by those who see the occupation of the State House grounds." Id.
Board Defendants argue that Plaintiffs cannot show that the First Amendment is implicated by Plaintiffs' decision to camp, sleep, and live indefinitely on State House grounds. Dkt. No. 13 at 14. Although Governor Haley argues in her brief that the "First Amendment does not authorize the plaintiffs to camp at the State House," her counsel would not take a position on
The Supreme Court has assumed that overnight camping in a public park may constitute expressive conduct and, therefore, may be protected by the First Amendment. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).
Similarly, other courts have recognized that camping or sleeping in a public place, while not otherwise protected by the Constitution, may amount to expressive conduct under certain circumstances. See Whiting v. Town of Westerly, 942 F.2d 18, 21 (1st Cir.1991) (recognizing that "[t]he act of sleeping in a public place, absent expressive content, is not constitutionally-protected conducted"); State v. Sturch, 82 Haw. 269, 921 P.2d 1170, 1176 (Haw.Ct. App.1996) (noting that there is "no authority supporting a specific constitutional right to sleep in a public place" unless it is expressive conduct within the ambit of the First Amendment or is protected by other fundamental rights). Although most courts addressing this issue have assumed without deciding that camping and sleeping in public areas may be expressive conduct, two district courts have recently held that camping in a city park as part of the Occupy Movement is protected by the First Amendment. Occupy Fort Myers v. City of Fort Myers, No. 2:11-cv-00608, ___ F.Supp.2d ___, 2011 WL 5554034 (M.D.Fla. Nov. 15, 2011) (holding that camping was symbolic conduct because "[t]he conduct of tenting and sleeping in the park 24 hours a day to simulate an `occupation' is intended to be communicative and in context is reasonably understood by the viewer to be communicative"); Occupy Minneapolis v. County of Hennepin, No. 11-3412, 866 F.Supp.2d 1062, 2011 WL 5878359 (D.Minn. Nov. 23, 2011) ("The Court agrees with that well-reasoned conclusion [in Occupy Fort Myers] and, hence, Plaintiffs may challenge the ban on sleeping and erecting structures under the First Amendment.").
As in the case involving Occupy Fort Myers and Occupy Minneapolis, this court finds that Plaintiffs are likely to establish that Occupy Columbia's camping on the State House grounds is expressive conduct, as defined by Spence. Plaintiffs have
The court recognizes that the State may properly regulate conduct on the State House grounds, including prohibiting camping and sleeping. In fact, S.C.Code Ann. § 10-1-30 specifically authorizes the State Budget and Control Board to promulgate regulations to restrict the use of the State House grounds. Twenty-two years ago, the Board advised a judge of this court that it was enacting regulations pursuant to this statute. GROW II, 704 F.Supp. at 652.
The Board explains that the Conditions do not restrict camping or sleeping because General Services "has never received a request from any group or individual to set up residence or sleep or camp indefinitely on the State House grounds." Dkt. No. 13 at 9. Thus, Board Defendants' position is that there was no need for such a Condition. However, "when the Occupy Columbia participants arrived at the State House grounds, the Division of General Services was observing an unwritten policy — and until that moment, an unnecessary policy — that restricted it from authorizing persons to sleep or camp indefinitely overnight on State House grounds." Id.
Although the court finds that the Conditions do not expressly or implicitly prohibit camping or sleeping, the court considers whether Paragraph 8 of the Conditions, which purports to establish a 6:00 p.m. restriction on events without special provisions in writing, is a valid time, place, and manner restriction. See Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) ("It is also common ground, however, that the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired."). For the reasons below, the court
First, as this document is not accessible on the Internet or otherwise posted or available to the public, the Conditions fail to provide notice to the public of these restrictions to expression on the State House grounds. According to Board Defendants, any group seeking authorization for an event on the State House grounds would need to inform General Services by either email or letter about the group's intended use.
Second, there is no evidence that the 6:00 p.m. policy has been applied consistently to all organizations and groups seeking to use the State House grounds. See Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) ("government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"). For example, when Governor Haley sought enforcement of the 6:00 p.m. policy, she only sought enforcement with respect to violators who were participants in Occupy Columbia. Her letter specifically requested that law enforcement remove any member of Occupy Columbia who remained on the State House grounds after 6:00 p.m., and no other groups or individuals who remained after 6:00 p.m. without special provisions in writing. Further, there is evidence that General Services has applied the policy inconsistently, even to Occupy Columbia. Despite remaining on the State House grounds after 6:00 p.m. since October 15, 2011, the policy was not enforced against Occupy Columbia until November 16, 2011.
Third, the Conditions do not provide clear guidance to law enforcement to ensure compliance with the 6:00 p.m. policy. There is nothing within the Conditions to suggest that violation of the 6:00 p.m. policy would constitute trespassing or any other crime. See Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) ("A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it
Finally, to the extent the Conditions create an informal licensing or permitting scheme for use of the State House grounds, the Conditions are vague and give unbridled discretion to General Services to suppress speech on the State House grounds. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (explaining that lack of standards in licensing scheme allows licensing official to develop post-hoc rationalizations and make "it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression."). For example, the Conditions fail to explain what criteria General Services should use when evaluating requests to hold activities after 6:00 p.m.
The court acknowledges that "[t]he fact that a policy is not committed to writing does not of itself constitute a First Amendment violation." See Lebron v. National R.R. Passenger Corp., 69 F.3d 650, 658 (2d Cir.1995). However, to survive a First Amendment challenge, time, place, and manner restrictions must be content-neutral, narrowly-tailored to serve a significant government interest, and leave open ample, alternative channels of communication. See Clark, 468 U.S. at 294, 104 S.Ct. 3065; GROW II, 704 F.Supp. at 653. With respect to the unwritten "no-camping or sleeping" policy, the court is not convinced that this policy is content-neutral and is applied equally to all persons and groups on the State House grounds. See Consolidated Edison Co. of N.Y. v. Public Service Comm'n of N.Y., 447 U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (noting that a valid time, place and manner restriction "may not be based upon either the content or subject matter of speech."). Certainly the no-camping policy, as defined in Governor Haley's Stipulation and the Board Defendants' brief, is not content-neutral because it applies only to Occupy Columbia and provides no notice to other persons or groups who may wish to engage in expressive conduct involving camping or sleeping on the State House grounds. Further, the two written explanations of the unwritten no-camping policy offered to the court contain different definitions of what conduct is prohibited under the no-camping policy. Finally, there is no evidence that this policy has been applied to any person or group in the past. In fact, participants in Occupy Columbia slept on the grounds with sleeping bags and tarps for over 30 days before the State attempted to enforce this policy.
The court finds that Plaintiffs have made a clear showing they are likely to succeed on the merits in challenging the current unwritten policy prohibiting camping and sleeping on the State House grounds.
As explained earlier, "in the context of an alleged violation of First Amendment rights, a plaintiff's claimed irreparable harm is `inseparably linked' to the likelihood of success on the merits of plaintiff's First Amendment claim." WV Ass'n of Club Owners, 553 F.3d at 298. See also Newsom v. Albemarle County School Bd., 354 F.3d 249, 254-55 (4th Cir. 2003); Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (explaining that the loss of First Amendment freedoms, even for a short period of time, constitutes an irreparable injury); Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir.1978) ("Violations of [F]irst [A]mendment rights constitute per se irreparable injury.").
Both Governor Haley and the Board Defendants have stated that they plan to enforce a no-camping policy should the injunction be denied. Although Governor Haley indicates that she has no intention of enforcing the 6:00 p.m. policy against Occupy Columbia in the future, the Board Defendants state that the Board would not enforce the policy if Occupy Columbia seeks authorization to hold an event after 6:00 p.m. As explained earlier, Plaintiffs should not have to rely on representations that certain State officials will not enforce the 6:00 p.m. policy, especially when those officials are saying different things. See City of Lakewood, 486 U.S. at 770, 108 S.Ct. 2138 (declining to accept City's representation that "mayor will act in good faith and adhere to standards absent from the ordinance's face" and refusing to "write nonbinding limits into a silent state statute"); Occupy Fort Myers, ___ F.Supp.2d at ___, 2011 WL 5554034 at *10 (rejecting Fort Myers' argument that its representation that it would not enforce an ordinance rendered the challenge moot).
Many of the Plaintiffs have stated that they "want to be more involved in Occupy Columbia, but ... do not desire financial burden, inconvenience, or unlawful detention for engaging in further occupation of the State House grounds." See, e.g., Dkt. Nos. 1-5 at 23 (Harmon Affidavit); 1-5 at 36 (Powell Affidavit); 1-6 at 20 (Bland Affidavit). Plaintiffs argue that they "are suffering an irreparable harm right now" as a result of the "enforcement of non-existent rules" and the threat of arbitrary and capricious action against them as a result of new rules that "may be created and enforced on the spot." Dkt. No. 1-5 at 11. The fear of inconsistent application of the policies creates a risk that Plaintiffs will be silenced in violation of the First Amendment. The court, therefore, finds that Plaintiffs have established an irreparable injury.
Board Defendants argue that the Board has a duty to "keep, landscape, cultivate and beautify the State House and State House grounds." S.C.Code Ann. § 10-1-10. They argue that if the court grants Plaintiffs' motion for preliminary
The State Budget and Control Board, not the court, has the ability to remedy this situation and may promulgate regulations governing use of the State House grounds under S.C.Code Ann. § 10-1-30. The Board has had this authority for over 22 years.
On the other hand, Plaintiffs have little remedy should their First Amendment rights be violated as a result of inconsistently applied and ever-changing policies regarding use of the State House grounds. The balance, therefore, tips in Plaintiffs' favor.
Defendants argue that Plaintiffs' encampment is having an adverse impact on the State House grounds. Dkt. No. 13 at 10-11. Defendants suggest that there has been damage to the grass and the flower and shrubbery beds. Id. at 11. Defendants also cite a concern that an increase in tents may impede pedestrian traffic on the State House grounds, as well as "public safety" concerns regarding sanitation, feeding of wildlife, and security. Id. at 11-12. The court finds that the public has an interest in having a properly-maintained State House grounds that may be enjoyed by everyone, including those not involved with Occupy Columbia, and that the Occupy Columbia encampment is causing at least some damage to the State House grounds.
However, the court also finds that the public has an interest in access to the State House grounds, including for the purpose of protesting. This interest, protected by the First Amendment, can only be limited by reasonable time, place, and manner restrictions. Because there are none, the public interest in the rights of its citizens under the First Amendment prevails.
It is for the above reasons that the court entered the Order of December 14, 2011 granting Plaintiffs' motion for preliminary injunction (Dkt. No. 27).
http://www.scdps.org/bps/who_we_are.asp (last accessed on December 15, 2012). A copy of this web page is attached to this Opinion.
Plaintiffs respond that the State House grounds are open to the public, see Edwards v. South Carolina, 372 U.S. 229, 230, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), and therefore "the public [has] the implied consent of the owner to enter the premises." Thus, Plaintiffs argue that there can be no trespass on the State House grounds by virtue of being on the property. Plaintiffs acknowledge that the defacing of monuments or destruction of vegetation could be a violation of § 10-11-30, but deny that Occupy members have committed such acts.
Plaintiffs argue that GROW II required the State of South Carolina to create a licensing scheme if the State chose to regulate the use of the State House grounds. The court does not interpret GROW II to require the creation of a licensing scheme to manage the use of the State House grounds. The court interprets GROW II as advising the State that it may create a licensing scheme to regulate the use of the State House grounds, but as a prior restraint, the State would need to create procedural safeguards in connection with the licensing scheme. The State, however, was advised that it could promulgate valid time, place, and manner regulations regarding the use of the State House grounds.
