ALETA A. TRAUGER, District Judge.
The parties have filed cross-motions for summary judgment under Fed.R.Civ.P. 56. The defendants have filed a Motion for Summary Judgment (Docket No. 69), to which the plaintiffs filed a Response in opposition (Docket No. 79), and the defendants filed a Reply (Docket No. 82). The plaintiffs have also filed a Motion for Summary Judgment (Docket No. 72), to which the defendants filed a Response in opposition (Docket No. 77), and the plaintiffs filed a Reply (Docket No. 86). For the reasons stated herein, both motions will be granted in part and denied in part, and the court will order further submissions concerning damages.
In October 2011, a group of protestors, styling themselves as the "Occupy Nashville" movement, maintained a 24-hour per day protest on Legislative Plaza in Nashville, Tennessee, a traditional public forum. On October 27, 2011, the Tennessee Department of General Services ("DGS"), for which defendant Steven Cates serves as Commissioner, issued a so-styled "Use Policy" that, inter alia, purported to ban "overnight occupancy" of the Plaza from that day forward. (See Docket No. 72, Ex. 3 to Ex. 1, Use Policy, at p. 1.) William Gibbons, Commissioner of the Department of Safety ("DOS"), and Tennessee Governor Bill Haslam (via a subordinate) assented to the issuance and implementation of the "Use Policy."
The plaintiffs in this action are comprised of two protestors who were arrested on the Plaza both nights (plaintiffs Paula Painter and Marie Plummer), three plaintiffs who were arrested on the first night only (plaintiffs William Howell, Adam Knight, and Darria Hudson), one plaintiff who was arrested on the sidewalk while approaching the Plaza on the second night (plaintiff Malia Shannon), and one plaintiff who left the Plaza on the first night after being threatened with arrest for violating the newly imposed curfew requirement (plaintiff Katy Savage). Aside from the defendants' arguments specific to plaintiff Shannon, the parties have not drawn any meaningful distinctions among these individual plaintiffs with respect to the pending motions.
On October 31, 2011, the plaintiffs filed a Verified Complaint against (1) Governor Haslam in his official capacity only, (2) Commissioner Cates in his official and individual capacities, and (3) Commissioner Gibbons in his official and individual capacities. The plaintiffs asserted nine counts, including (1) federal constitutional challenges under § 1983 for violation of the plaintiffs' First and Fourteenth Amendment rights (Counts I (facial challenge to the Use Policy) and II (selective enforcement)), due process violations (Count V), unlawful search and seizure of property (Count VII), unlawful arrest (Count VIII), and retaliation for exercising constitutional rights (Count IX); and (2) state law claims for violations of the Tennessee Constitution (Counts III and IV) and the Tennessee Uniform Administrative Procedures Act ("UAPA"), Tenn. Code Ann. § 4-5-101 et seq. (Count VI).
From Governor Haslam, Commissioner Cates, and Commissioner Gibbons, the plaintiffs demanded (1) equitable relief, including a declaratory judgment, an injunction (including an immediate temporary restraining order), and the return of all
On the afternoon of October 31, 2011— the date that the plaintiffs filed the Verified Complaint—the court held a hearing on plaintiffs' demand for a Temporary Restraining Order ("TRO") against enforcement of the Use Policy. (Docket No. 13, Transcript of TRO hearing.) The defendants, represented by the Tennessee Attorney's General Office, did not contest the plaintiffs' position and consented to the TRO. (Id.) Accordingly, the court granted the requested TRO, which enjoined the defendants from enforcing the Use Policy. (Id.; Docket No. 11 (TRO).) The court also observed that it would have granted the TRO regardless of the defendants' position. (Docket No. 13.)
On November 16, 2011, the parties filed a Joint Agreed Order Establishing Preliminary Injunction (Docket No. 14), which the court granted on November 17, 2011 (Docket No. 17). In essence, the Preliminary Injunction converted the TRO into an indefinite injunction against enforcement of the Use Policy without a bond requirement. (Id.)
On January 5, 2012, the plaintiffs filed an Amended Complaint, which remains the operative pleading in this case. For purposes of the instant motions, the demands set forth in the Amended Complaint were essentially the same as those in the Verified Complaint.
In April 2012, the DGS withdrew the Use Policy. Thereafter, pursuant to required agency rulemaking procedures set forth in the UAPA, the DGS promulgated a set of new rules ("Current Rules") governing use of the Plaza and Capitol grounds. See Tenn. Comp. R. & Regs. 0690-06-01-.01-.01 to .04 (effective Nov. 20, 2012) ("Rules of the Tennessee Department of General Services, Procedures for Use of the Tennessee War Memorial and Courtyard").
In the fall of 2011, protestors formed in New York City to protest perceived disparities in wealth and power between the wealthiest 1% of the country's citizens and the other 99%. By October 8, 2011, a group of protestors had gathered on the Plaza in Nashville to express similar concerns.
At the time the protestors began utilizing the Plaza for their free speech activities, the DGS was operating under a so-styled "Public Use of War Memorial Plaza Policy" (Docket No. 72, Ex. 2 to Ex. 1). The parties acknowledge that the record contains no indication as to when or how the DGS issued that "policy." Regardless, for reasons explained further herein, the court will refer to that document as the "Old Rules" governing use of the Plaza. The Old Rules stated that the "Plaza is State property which is open for use by the public as a place for expressive activity such as, but not limited to, formal and informal political or social gatherings...." The Old Rules contained provisions governing exclusive and non-exclusive use of the Plaza. With respect to non-exclusive uses, it stated that the "[t]he Plaza may be used free of charge by any person or group for expressive activity on a first come first serve basis." With respect to reserved/exclusive use, it required users to pay a daily administrative fee, to secure $1,000,000 in liability insurance coverage, and to pay for security services (if necessary) at its own expense. Thus, in most relevant part: the Old Rules did not ban overnight use of the Plaza and placed no requirements (fees, insurance, or security) on non-reserved use of the Plaza, subject only to the caveat that non-reserved users
Approximately one year before the Occupy Nashville "occupation" of the Plaza, the DGS had already been made aware that the Old Rules permitted overnight use of the Plaza. At that time, the Nashville Davidson County Metro Government had urged the DGS to issue a curfew and other rules for the Plaza in an effort to reduce urination, defecation, and vandalism from homeless individuals who, at times, had used the Plaza as a "sanctuary" for overnight accommodation. The DGS did not amend the Old Rules in response to Metro's urging.
The Occupy Nashville protestors essentially benefitted, at least initially, from these deficiencies in the Old Rules. That is, no existing law governing the Plaza prevented them from maintaining a non-exclusive 24-hour-per-day protest or from sleeping overnight while doing so.
During the continuous Occupy Nashville protest, the protestors held signs and made speeches to express their viewpoints. The protestors also set up tents and sleeping bags for overnight accommodation, utilized cooking stoves and laptops, and set up a food and drink tent from which free food and drinks were distributed to any individuals who joined the protest.
The first few weeks of the Occupy Nashville protest went without any major incidents. Facility Administrator David Carpenter and TBP Capital Police Lieutenant Preston Donaldson (either on his own or through subordinate officers) periodically checked on the status of the Plaza and the protestors to monitor the situation. Although the Occupy Nashville movement did not contain a "leader" as such, it did establish a line of communication between local attorney Tripp Hunt (acting as a voluntary liaison for the protestors) and DGS General Counsel Thaddeus Watkins. In an effort to avoid conflict, Watkins kept Hunt apprised of other events scheduled to occur on the Plaza, such as the Southern Book Festival scheduled to take place on October 14-16, 2011. Through this line of communication, the protestors reached an accommodation with the Southern Book Festival that permitted both groups to utilize the Plaza simultaneously.
However, as the protest continued, serious problems began to surface. Although the protest movement was initially relatively small and manageable, the population "occupying" the Plaza began to swell as homeless individuals joined the protestors, likely drawn by the availability of free food and overnight sleeping accommodations. The protestors welcomed at least some of the homeless individuals into the movement, while other homeless individuals may have simply capitalized on the situation. At any rate, by late October, there was no way to distinguish the independent homeless population on the Plaza from the "true" Occupy Nashville protestors (who may have included some homeless individuals).
As the occupation continued, Facilities Administrator Carpenter and Lieutenant Donaldson observed and/or received reports of increasing health, safety, and sanitation issues at the Plaza. By October 25, 2011, Donaldson and Carpenter collectively had reported a host of issues: individuals
Carpenter also observed jugs of human feces and urine in and around some of the tents, which individuals were dumping in the bushes on the Plaza. Carpenter reported that "[i]t is my opinion that the protestors have lost control of the situation with the homeless and the environment has become unsanitary and unsafe." (Watkins Aff., Ex. B, 10/25/11 Email from Carpenter, at p. 2.) Also, in an October 25, 2011 email to DGS Counsel Watkins, Attorney Hunt himself reported that the protestors "have had some bad problems with being attacked by the homeless or gangs in the middle of the night. One woman has been assaulted and this weekend one person was sent to the hospital." (Watkins Aff., Ex. A.).
Having been alerted to these mounting concerns, DGS Counsel Watkins reported the issues to Commissioner Cates. It does not appear that Commissioner Cates had any knowledge of serious issues at the Plaza before October 25, 2011, nor does it appear that he had contemplated taking any drastic action with respect to the Plaza before that date. At Occupy Nashville's request, Watkins arranged a meeting for October 26, 2011 with liaisons from Occupy Nashville to discuss the mounting issues.
On October 26, 2011, Attorney Hunt and Jane Hussain, appearing on behalf of Occupy Nashville, met with DGS Commissioner Cates, DGS Counsel Watkins, Facilities Administrator Carpenter, and Don Johnson (Carpenter's superior within the DGS), along with DOS General Counsel Roger Hutto, THP Colonel Trott, and Lieutenant Donaldson. Hunt and Hussain reiterated that acts of violence and criminal activity were taking place on the Plaza and asked for the State to provide, at its own expense, portable toilets and additional security. Commissioner Cates denied both requests. Commissioner Cates told the Occupy Nashville representatives that the protestors would be permitted to return to the Plaza every day, but that, as a matter of health and safety, he would have to close the Plaza at night. At some point during or right after the meeting, Commissioner Cates directed Watkins to draft a new "policy" that would incorporate a curfew
Following Commissioner Cates' directive, Watkins performed limited legal research on his own. He testified that he pulled up First Amendment-related cases using Google, but did not independently perform any research on Westlaw or Lexis. He determined that, under Clark v. Cmt'y for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), and other unspecified cases, the State could impose "time, place, or manner" restrictions on overnight use of the Plaza. Watkins then began drafting a document erroneously styled as a "Use Policy." He received unspecified "assistance" from staff attorney Abigail Lipshie. He did not prepare a legal memorandum concerning his findings.
On October 27, 2011, Attorney Hunt met with Commissioner Cates, Watkins, Lieutenant Donaldson, and Carpenter. Hunt reported that the Occupy Nashville protestors would not leave the Plaza as requested. After that meeting, Watkins completed a first draft of the Use Policy, which purported to impose a curfew and a new permit requirement, among various other conditions.
It is not entirely clear from the record how the attendees purported to ratify the "Use Policy" at the October 27, 2011 meeting. For example, DGS Commissioner Cates called it a "team decision" but could not recall anyone voting on it, while Watkins testified that the Governor's representative had essentially indicated that the Governor would defer to the DGS's judgment on how to deal with the issue. At any rate, apparently everyone involved ultimately understood that the "Use Policy" would be implemented the next day in substantially the form discussed at the meeting. Apparently, Watkins subjectively believed that the "Use Policy" would only be temporary, but he did not communicate this belief to the other participants at the meeting. The other defendants understood the new requirements to be permanent; indeed, they maintain that Watkins was the only person who understood otherwise. (See, e.g., Docket No. 77, Defs. Resp. to Pltfs. Mot. for SJ, at p. 9 ("Mr. Watkins was the only one who was of the opinion that the Use Policy was temporary").)
No member of the public was informed about or attended the October 27, 2011 meeting, nor did the meetings' attendees provide Occupy Nashville the opportunity to comment on the Use Policy before its immediate implementation. No public hearings were held concerning the Use Policy, and there is no indication that it was posted to the Tennessee Secretary of
Ultimately, on October 27, 2011, the day after this meeting, Carpenter distributed copies of the Use Policy to people who were on the Plaza, the State posted signs on the Plaza about the new requirements, and Watkins emailed a copy of the new requirements to Hunt, stating that "[w]e hope that the protest participants will abide by this new policy and will work with us in obtaining permits to gather at the Legislative Plaza." (Watkins Aff., Ex. C.) Watkins sent a follow-up email to Hunt with a copy of the application for a permit requirement, noting that he would look into whether a security fee would be required. Hunt did not respond to Watkins. That night, the Occupy Nashville protestors decided not to seek a permit as the DGS had requested. The Tennessee Performing Arts Center ("TPAC"), which is accessible by walking across the Plaza, also learned of the new purported categorical ban on Plaza use after 10 p.m. Notwithstanding the Use Policy's unequivocal language, Watkins decided that TPAC patrons would be permitted to utilize the Plaza after 10 p.m. as a means of egress from TPAC events.
At 3 a.m. on October 28, 2011 (just several hours after DGS purported to issue the Use Policy), THP officers surrounded the Plaza and informed the protestors that they had ten minutes to vacate the Plaza or otherwise face arrest for violating the Use Policy. Within that time frame, approximately 30 people, including plaintiff Savage, left the Plaza voluntarily to avoid arrest. Most if not all of the remaining protestors locked arms and awaited their arrest. Troopers then arrested the remaining protestors, tied their hands with zip ties, and put them in a Department of Corrections bus, which transported them to the Davidson County jail. While they were being arrested, these protestors sang "We Shall Overcome" and recited the Declaration of Independence.
The Judicial Commissioner on duty that night, Tom Nelson, refused to sign the warrants for the protestors' arrests, stating that the arrestees had not been given sufficient notice. Notwithstanding this ruling, the officers detained the arrestees for 3-4 hours while they prepared arrest citations for "criminal trespass." During that time frame, Colonel Trott spoke with Commissioner Gibbons about Judicial Commissioner Nelson's refusal to issue the arrest warrants. Commissioner Gibbons attempted to call the District Attorney at about 4 A.M. regarding the issue, but the District Attorney did not answer. The arrestees were ultimately released, at which point they returned to the Plaza to resume their occupation.
Just after midnight on October 29, 2011 (i.e., the next night), essentially the same set of events transpired: THP officers gave a ten-minute warning, after which they arrested the remaining protestors and transported them to jail. Again, Judicial Commissioner Nelson refused to sign the arrest warrants, this time stating that probable cause was lacking. Following this ruling, the officers again issued misdemeanor citations to the protestors and released them.
The record requires clarification as to which claims and forms of relief remain at issue in this lawsuit.
Plaintiffs already prevailed on their demand for injunctive relief against enforcement of the Use Policy. Although the defendants argue that the plaintiffs have "abandoned" their claims for injunctive and declaratory relief, that characterization is misleading. The plaintiffs do not presently need declaratory or injunctive relief because they already successfully opposed enforcement of the Use Policy, which the DGS rescinded in April 2012 and formally replaced with the Current Rules on November 20, 2012. Under these circumstances, declaratory relief would not resolve this case and would not settle the legal relations between the plaintiffs and the defendants going forward. See Grand Trunk W. R.R. Co. v. Consol Rail Corp., 746 F.2d 323, 326 (6th cir.1984).
Therefore, only claims seeking money damages relief remain for the court's resolution at this stage, including compensatory damages, punitive damages, and attorney's fees. Put another way, the plaintiffs have already prevailed on their official capacity claims and now seek money damages against the defendants in their individual capacities.
The court has identified one issue not addressed in the parties' respective submissions: the plaintiffs sued Governor Haslam in his official capacity only and do not seek monetary damages from him under § 1983. (See Am. Compl. ¶ 12 and at pp. 18-19). Thus, the court's analysis concerning whether "the defendants" can be held individually liable for money damages under § 1983—including the court's analysis of whether the circumstances justify qualified immunity with respect thereto—is inapplicable to Governor Haslam. The plaintiffs defined the scope of their claims and are not entitled to relief against Governor Haslam that they never requested.
In response to the defendants' Motion for Summary Judgment, the plaintiffs do not contest that the following claims are subject to dismissal: (1) claims for monetary damages for violations of the Tennessee Constitution (Count III and IV), which are not available under Tennessee law in the first place, see Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.1996) (citing Lee v. Ladd, 834 S.W.2d 323, 324-25 (Tenn.Ct.App. 1992)); (2) claims for monetary damages for violations of the UAPA (Count VI), which Tennessee does not recognize as an independently actionable claim, see Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 850 (Tenn.2008); and (3) claims for the return of personal property (Count VII). The court construes the plaintiffs' silence as implicit abandonment of those specific claims and/or demands for particular forms for relief. See Gibson-Homes v. Fifth Third Bank, 661 F.Supp.2d 905, 912 (M.D.Tenn.2009); Dage v. Time Warner Cable, 395 F.Supp.2d 668, 679 (S.D.Ohio. 2005).
The only remaining claims at issue in the pending motions are the § 1983 claims asserted against Commissioners Gibbons and Cates in their individual capacities, which seek monetary damages relief for (1) violation of the plaintiffs' First Amendment rights (Count I); (2) selective enforcement of the Use Policy (Count II); (3) violation of the plaintiffs' right to be free from a deprivation of liberty without due process (Count V); (4) unlawful arrest (Count VIII) and (4) retaliation for exercising First Amendment rights (Count IX).
"[O]n cross-motions for summary judgment, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Dixon v. Univ. of Toledo, 702 F.3d 269, 273 (6th Cir.2012). Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. (quoting Fed. R.Civ.P. 56(a)).
The plaintiffs demand retroactive compensation from Commissioners Cates and Gibbons under § 1983 for alleged deprivations of the plaintiffs' rights under the United States Constitution.
The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); accord Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013);
Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. Id. The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id.; see also Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d
There is some tension among Sixth Circuit panel decisions as to whether courts should apply a two-part inquiry or a three-party inquiry in determining whether a defendant is entitled to qualified immunity. Under the two-part test, the court considers only whether (1) the facts show that the officers violated a plaintiff's constitutional rights; and (2) whether that right was "clearly established." See Martin, 712 F.3d at 957 ("In determining whether a government official is entitled to qualified immunity, the court applies a two-tiered inquiry.") (citing Austin v. Redford Twp. Police Dep't, 690 F.3d 490, 496 (6th Cir.2012)). In other cases, the Sixth Circuit has stated that, if the first two conditions are met, courts may also consider "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." Drogosch v. Metcalf, 557 F.3d 372, 377 (6th Cir.2009) (stating that the Sixth Circuit has "occasionally" considered this third element to "`increase the clarity' of the analysis") (quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 311 n.2 (6th Cir.2005)); Sample v. Bailey, 409 F.3d 689, 696, 696 n.3 (6th Cir.2005) (providing detailed rationale for application of three-step approach).
Here, the defendants posit that the three-part test applies, whereas the plaintiffs directly address only whether their rights were "clearly established" without addressing whether the court is obligated to consider the "objective reasonableness" of the defendants' actions. Here, unlike other cases in which courts have applied only the two-part inquiry, it would be unfair to the defendants to deny them qualified immunity simply based on the conclusion that they violated the plaintiffs' clearly established First Amendment rights, because the defendants were attempting to respond to a pressing public policy issue. Thus, the court finds that, under the circumstances presented, the three-part inquiry is appropriate. The plaintiffs must establish each of these elements to defeat the defendants' assertion of qualified immunity. Sample, 409 F.3d at 695-96 (citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005)).
Here, the application of the qualified immunity doctrine turns on matters relating to an interplay among the Old Rules, the Use Policy, the UAPA, and the First Amendment. Thus, to properly frame the qualified immunity analysis, the court will address the relationships among the foregoing.
By statute, the DGS has authority to preserve the Plaza and to issue regulations concerning its usage. See Tenn. Code Ann. § 4-3-1105 ("The department of general services has the power and is required to... (8) Supervise the maintenance of public
In exercising its authority, the DGS (as well as any other state agency) can issue "policies" or "rules." As defined in the UAPA, a "policy" is "a set of decisions, procedures and practices pertaining to the internal operation or actions of an agency." Tenn.Code Ann. § 4-5-102(10) (emphasis added). By contrast, a "rule" means "each agency statement of general applicability that implements or prescribes law or policy," expressly including an "amendment or repeal of a prior rule ... [,]" but excluding "[g]eneral policy statements that are substantially repetitious of existing law" and "[s]tatements concerning only internal management of state government and not affecting private rights, privileges or procedures available to the public." Id. §§ 4-5-12, 12(A) (emphases added), and 12(D). Thus, "a policy is not a rule under the UAPA if the policy concerns internal management of state government and if the policy does not affect the private rights, privileges, or procedures available to the public." Mandela v. Campbell, 978 S.W.2d 531, 534 (Tenn. 1998) (emphasis in original).
"Rulemaking is essentially a legislative function because it is primarily concerned with considerations of policy." Tenn. Cable Television Assoc. v. Tenn. Pub. Serv. Comm'n, 844 S.W.2d 151, 161 (Tenn.Ct.App.1992). "It is the process by which an agency lays down new prescriptions to govern the future conduct of those subject to its authority." Id.
Under the UAPA, when an agency seeks to promulgate regulations that constitute a "rule", "[a]n agency shall precede all its rulemaking with notice and a public hearing unless ... [t]he rule is adopted as an emergency rule...." Tenn. Code Ann. § 4-5-202(a)(1).
"Any agency rule not adopted in compliance with the provisions of [the UAPA] shall be void and of no effect and shall not be effective against any person or party nor shall it be invoked by the agency for any purpose." Cosby, 2005 WL 2217072, at *3 (quoting Tenn.Code. Ann. § 4-5-216). Thus, "failure to promulgate a rule as contemplated by the UAPA renders the rule void." Mandela, 978 S.W.2d at 533 (citing Tenn.Code Ann. § 4-5-216); see also Tenn. Op. Atty. Gen. No. 99-213, 1999 WL 1013010, at *3 (Oct. 27, 1999).
A DGS time, place, or manner regulation for the Plaza necessarily restricts the public's First Amendment right to utilize the Plaza for free speech activity, among other freedoms. Because such a regulation "impacts the private rights and privileges of the public," it constitutes a "rule." See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and ... have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens."); see also Cosby, 2005 WL 2217072, at *3 (where State Department of Human Services issued a so-styled "policy" that resulted in rescission of welfare benefits to potential recipient, its implementation "clearly affects private rights and privileges, so is not subject to the exception for statements affecting only the internal management of state government.") By the same token, these types of restrictions do not relate to the "internal" management of state government—i.e., they do not constitute policies. Thus, under the test articulated in Mandela pursuant to the plain language of the UAPA, DGS regulations concerning the time, place, and manner under which the public may utilize the Plaza constitute "rules" that must be promulgated in compliance with the UAPA. See also Tenn. Op. Atty. Gen. No. 11-63, 2011 WL 4907410, at *2 (Aug. 26, 2011) (finding that board of control of Tennessee Corrections Institute was required to comply with UAPA rulemaking procedures with respect to setting minimum jail standards); Tenn. Opp. Atty. Gen. No. 99-213, 1999 WL 1013010, at *2 (Oct. 27, 1999) (where Tennessee Department of Health sought to change licensing examination standards for nurse aides, department was required to utilize rulemaking procedures because changes "implemented" or "prescribed" law or policy).
The UAPA contains an "emergency" exception to the usual notice and hearing requirement. Under that exception, "[a]n agency may, upon stating its reasons in writing for making such findings, proceed without prior notice or hearing to adopt an emergency rule, if the agency finds that... [an] immediate danger to the public health, safety or welfare exists, and the nature of this danger is such that the use of any other form of rulemaking authorized by this chapter would not adequately protect the public." Tenn.Code Ann. § 4-5-208(a)(1).
An emergency rule "shall become effective immediately ... upon a copy of the rule and a copy of the written statement of the reasons for the rule being filed with the secretary of state." Id. § 4-5-208(b). The emergency rule may remain effective
Here, neither side knows the origin of the so-styled "Public Use of War Memorial Plaza Policy" that was in place before October 27, 2011. Because that document purported to be of general applicability to the public, the court will refer to it, as do the plaintiffs here, as constituting a set of "Old Rules," whether or not it was actually promulgated pursuant to the UAPA (as it should have been). At any rate, regardless of the manner in which the DGS issued it, the State and the public treated the Old Rules as the existing state of the law governing usage of the Plaza.
The defendants do not actually dispute that, under the Old Rules, the plaintiffs were not precluded from utilizing the Plaza on a non-exclusive basis without a permit, or that the Old Rules contained no limitation concerning overnight use of the Plaza (for free speech activities or otherwise). It does appear that, before October 2011, no group had actually sought to capitalize on this loophole in the usage restrictions; that is, every group seeking to utilize the Plaza for large-scale activities had sought a permit and had complied with existing "Rental Requirements" for its reserved use. Thus, it seems that the Occupy Nashville movement was the first organization to capitalize on these loopholes in the Old Rules to "occupy" the Plaza and to do so overnight on a non-exclusive basis. In this manner, Occupy Nashville utilized the Plaza for its occupation without violating the then-operative usage restrictions.
On October 26 and 27, 2011, the defendants sought to close the loophole by adopting a new "Use Policy" that would prohibit overnight use of the Plaza and that would require a permit for "gatherings" and "assemblies" to utilize the Plaza for any purpose. For the reasons stated in the previous section, the "Use Policy" was a "policy" in name only, because it affected the rights and privileges of the public—including the Occupy Nashville protestors—to utilize the Plaza for free speech activity.
The defendants' failure to comply with those procedures meant that, by operation of the UAPA's plain language, the Use Policy was void and of no effect ab initio.
As the Sixth Circuit has explained:
Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir.2010) (internal citations, quotation marks, and brackets omitted).
"[I]t is fundamental that the First Amendment prohibits governmental infringement on the right of free speech. Similarly, the Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states...." Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); see U.S. Const., Am. XIV ("No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) ("Although the test of the First Amendment states that "Congress shall make no law... abridging the freedom of speech, or of the press," the Amendment applies to the States under the Due Process Clause of the Fourteenth Amendment.") Free speech activity is a type of "liberty" interest that the government may not abridge without due process. Jackson v. City of Columbus, 194 F.3d 737, 749 (6th Cir. 1999).
As a general matter, although the government may restrict the public's right to utilize public spaces for assembly and communication "through appropriate regulations, that right remains unfettered unless and until the government passes such regulations." Dean v. Byerley, 354 F.3d 540, 551 (6th Cir.2004). Thus, although a state "may punish conduct" in a public place "which is in violation of a valid law," Jamison v. State of Tex., 318 U.S. 413, 416, 63 S.Ct. 669, 87 L.Ed. 869 (1943) (emphasis added) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed 1031 (1942)), a state may not restrict First Amendment rights, absent valid time, place, or manner restriction. See Dean, 354 F.3d at 551; Galvin v. Hay, 374 F.3d 739, 751 (9th Cir.2004) ("As speakers may generally control the presentation of their message by choosing a location for its importance to the meaning of their speech, speakers may ordinarily— absent a valid time, place and manner restriction—do so in a public forum."); Childs v. Dekalb Cnty., Ga., 286 Fed.Appx. 687, 693-94 (11th Cir.2008) (denying qualified
The defendants argue that, under Clark v. Cmt'y for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, the plaintiffs did not have a "clearly established right" to utilize the Plaza for free speech activity, thereby justifying issuance of the Use Policy. In Clark, the plaintiffs had sought to stage a demonstration on the District of Columbia's Lafayette Park and Mall that would involve protestors sleeping in symbolic "homeless tents." Id. at 291-92, 104 S.Ct. 3065. Under existing National Park Service regulations, overnight "camping" was permitted only in designated campgrounds, a definition that did not include Lafayette Park and the Mall, id. However, the regulations did permit overnight 24-hour vigils and the erection of tents (as apart from sleeping in them). Id. at 297, 104 S.Ct. 3065. Relying on these regulations, the National Park Service permitted the protestors to erect two symbolic tent cities on the federal properties at issue, but refused to permit them to sleep overnight in those tents pursuant to the existing camping restrictions. Id. at 292, 104 S.Ct. 3065. The plaintiffs challenged the federal National Park Service's application of these regulations, arguing that they violated the plaintiffs' First Amendment rights. The Supreme Court upheld the camping restrictions as reasonable time, place, and manner restrictions, because the regulation "narrowly focuses on the Government's substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition...." Id. at 296, 104 S.Ct. 3065.
Here, the defendants' position inverts the holding of Clark. Clark did not find that the First Amendment forbids citizens from utilizing public property for overnight activity (camping or otherwise); it merely held that, because the government has a substantial interest in preserving public property, the government may forbid overnight sleeping on such property. Indeed, in Clark, the Court commented that the regulations at issue actually permitted 24-hour use of Lafayette Park and the Mall and the erection of tents thereupon. Id. at 297, 104 S.Ct. 3065. The court noted in dicta its "serious doubt" that the Constitution "required" the National Park Service to permit a 24-vigil and the erection of tents, id. at 296, 104 S.Ct. 3065. Notwithstanding that doubt as to what the National Park Service was constitutionally required to permit, the Court essentially found that it was appropriate for the Park to permit 24-hour vigils and the erection of tents on the Park and the Mall while simultaneously forbidding sleeping in those tents as a matter of general application. Thus, Clark did not abrogate the well-established principle that free speech activity is permitted in traditional public fora, absent the existence of a valid time, place, or manner restriction.
Furthermore, the plaintiffs here were not arrested for "camping" as such; they were arresting for being present on the Plaza 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. Thus, Clark's holding that the government may ban sleeping in tents on "non-campground" federal property maintained by the National Park Service is inapposite. Moreover, Clark involved a situation in which plaintiffs challenged an existing time, place, and manner regulation, that had been in place before the plaintiffs sought
Here, the Old Rules in effect through October 27, 2011 permitted the plaintiffs to utilize the Plaza, which is a traditional public forum, for overnight free speech activity. See Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir.1975) ("The right of an American citizen to criticize public officials and policies and to advocate peacefully for change is the central meaning of the First Amendment.") That is, no time, place, or manner restriction prevented the plaintiffs from utilizing the Plaza for overnight protest. Thus, the plaintiffs had a clearly established constitutional right to utilize the Plaza to engage in overnight protest activity. See Dean, 354 F.3d at 551; Jamison., 318 U.S. at 416, 63 S.Ct. 669; Galvin, 374 F.3d at 751; Childs, 286 Fed.Appx. at 693-94.
But the operative point is that no existing law prevented the plaintiffs from utilizing the Plaza for overnight free speech activities. The plaintiffs' protests contained a fundamental constitutional core, regardless of the secondary effects that resulted from the manner in which they chose to exercise it. At any rate, the plaintiffs were not arrested because of those secondary effects, they were arrested for their presence on the Plaza, even though no law (the "Use Policy" had no legal effect) prevented them from being present there. Thus, although the DGS could have regulated overnight use of the Plaza before October 2011 through validly issued reasonable time, place, and manner restrictions, it did not do so, even after being alerted to the issue nearly a year earlier. Thus, the plaintiffs had a clearly established right to utilize the Plaza for their free speech activities, unless and until the DGS issued a valid rule governing overnight use of the Plaza.
The defendants argue that, even if they violated the plaintiffs' clearly established rights, their actions were objectively reasonable
Construing the facts in the light most favorable to the defendants, the record shows that the situation on Legislative Plaza had reached a breaking point. The protestors and/or the homeless had already done physical damage to the Plaza and threatened to do more, including damage to the Plaza stones, to the protective membrane underneath it, and, perhaps, to the state offices below them, as well as damage to the Plaza lights. The defendants also received potentially credible reports of violent crimes, drug use, and public lewdness. Something needed to be done to preserve the physical integrity of the Plaza, to reduce or eliminate crime taking place there, and to alleviate the growing health and sanitation issues.
Be that as it may, the presence of a legitimate policy concern did not give the defendants carte blanche to respond in any manner they saw fit. Agencies in the State of Tennessee cannot make law by fiat: they are bound by laws, particularly the UAPA, that govern their ability to create and implement laws impacting members of the public. The UAPA prescribes that, to regulate the time, place, and manner by which the public may utilize the Plaza, the DGS must utilize rulemaking procedures or, at a minimum, utilize specific "emergency rule" procedures, both of which require consultation with the Tennessee Attorney General. The defendants did not utilize these procedures. Instead, without providing adequate notice to the public at large, they informally attempted to change the law overnight, made no record of the proceedings, and failed to consult with the Attorney General, who otherwise must pass on the constitutional validity of any rule (whether adopted through traditional or emergency procedures) before it becomes law.
The record does not indicate that imposing a rigid curfew by fiat was the only feasible option available to the State. The State could have (a) chosen to enforce (or requested local police authorities to enforce) existing laws against vandalism, public urination, and the like; (b) added additional security officers and provided portable toilets to the protestors, albeit at state expense; and/or (c) utilized the simple expedient of emergency rulemaking procedures under the UAPA, which would have permitted them to act, provided that the Attorney General approved of the action.
The defendants argue that, notwithstanding these issues, they are nevertheless entitled to qualified immunity because they followed advice of counsel. The Sixth Circuit "has determined that reliance on counsel's legal advice constitutes a qualified immunity defense only under `extraordinary circumstances,' and has never found that those circumstances were met." Silberstein v. City of Dayton, 440 F.3d 306, 318 (6th Cir.2006); see also Ross v. City of Memphis, 423 F.3d 596, 603-604, 604 n.3 (6th Cir.2005); York v. Purkey, 14 Fed.Appx. 628, 633-34 (6th Cir.2001); V-1
This case does not present "extraordinary circumstances" justifying the defendants' reliance on advice of counsel. The plaintiffs were engaging in core free speech activities, which traditionally have only been abridged under specific circumstances subject to heightened scrutiny by the courts in numerous published cases. In light of the potential for significant abridgement of those core constitutional rights by the proposed curfew and permitting requirements, the defendants should have appreciated that abridging those rights required due deliberation, utilization of mandated administrative procedures, consultation with the Attorney General as required for the promulgation of any rule, and, at a minimum, some sort of written record of the justification for their drastic actions. Indeed, the record contains no written memorialization (or for that matter, unequivocal testimony) as to what representations Watkins, Slatery, and/or Hutto made with respect to the legality of abridging the plaintiffs' free speech rights based on a private, unrecorded meeting. If the defendants could reasonably have acted without any formal process (which was not the case), there at least should have been some unequivocal, well-researched explanation from their counsel as to why no process was required.
From the record, it appears that the defendants essentially took the approach that, if the manner in which they created and adopted the Use Policy were made ultra vires, their attorneys would and should have told them. But that is not enough to make out extraordinary circumstances, because the defendants were presumptively aware of the law governing their conduct, including the UAPA and Mandela. Moreover, the Use Policy was, as a whole, patently unconstitutional for multiple reasons, including, inter alia, (1) purporting to vest unfettered discretion in the DGS to issue permits, see Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 132-33, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (permitting scheme "may not delegate overly broad discretion to a government official"); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 756-57, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) ("unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship"); (2) banning "assemblies or gatherings" from utilizing the Plaza for any purpose without a permit, thereby imposing an (unconstitutional) prior restraint subject to a "heavy presumption" against its validity, Forsyth, 505 U.S. at 132-33, 112 S.Ct. 2395; and (3) including unconstitutionally vague definitions regarding the Use Policy's scope, including what constitutes
Furthermore, the defendants have offered no coherent explanation as to why they failed to consult with the Attorney General on an issue of this magnitude, particularly where the Attorney General would be required to defend the defendants' unprecedented actions (if they could be defended). Even after the Judicial Commissioner refused to approve the warrants after the first wave of arrests, the defendants did not seek advice from the Attorney General. Generally, state agencies routinely seek opinions from the Attorney General as to whether proposed regulations constitute "rules" or "policies"; in fact, just one month before the defendants' actions here, the Attorney General had released an opinion on that precise question relative to a legal change proposed by the Tennessee Corrections Institute, which is governed by a board that includes the governor or his designee. See Tenn. Op. Atty. Gen. No. 11-63, 2011 WL 4907410 (Aug. 26, 2011).
For these reasons, the court finds that the plaintiffs have met their burden to show that Commissioners Gibbons and Cates are not entitled to qualified immunity.
Having determined that the defendants are not entitled to qualified immunity, the court next must determine whether the plaintiffs have proven (or established a genuine issue of material fact with respect to) their remaining claims.
Supervisory officials cannot be held liable under § 1983 on a respondeat superior basis. See Rizzo v. Goode, 423 U.S. 362, 373-77, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). However, a supervisory official can be held liable if that the official at least implicitly authorized, approved, or knowingly acquiesced in the alleged unconstitutional conduct. Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982); Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir.1993). The plaintiff must also establish a causal connection between the misconduct complained of and the official
Plaintiff Malina Shannon was arrested on the sidewalk. The defendants contend, with supporting declarations, that they specifically instructed officers to arrest only protestors present on the Plaza and nowhere else. They argue that, because the officers arrested Shannon on the sidewalk, the officers exceeded their authority when they arrested her and, therefore, the defendants cannot be held vicariously liable for her arrest. The plaintiffs have not responded to this argument and, therefore, have failed to identify facts showing that the defendants implicitly authorized, approved, or knowingly acquiesced in Shannon's arrest on the sidewalk. Therefore, the court finds that Shannon's claims will be dismissed with prejudice.
The court's resolution of the qualified immunity defense essentially resolves the plaintiffs' First Amendment claims. The plaintiffs' right to engage in constitutionally protected free speech activity was violated when they were arrested (or, in Savage's case, driven to abandon the Plaza) based on a "law" that, under Tennessee statutory law, had no actual legal effect.
"Sometimes the enforcement of an otherwise valid law can be a means of violating constitutional rights by invidious discrimination. To address this problem, courts have developed the doctrine of selective enforcement." Gardenhire v. Schubert, 205 F.3d 303, 318-19 (6th Cir. 2000). Selective enforcement claims are governed by the same analysis as selective prosecution claims. See Farm Labor Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 534-35 (6th Cir.2002). Consistent with Equal Protection standards under the Fourteenth Amendment, a plaintiff must show that the challenged enforcement action "had a discriminatory effect and that it was motivated by a discriminatory purpose." Id. at 533-34 (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). The plaintiffs must show: (1) that the official singled out "a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations"; (2) the official "must initiate the prosecution with a discriminatory purpose"; and (3) "the prosecution must have a discriminatory effect on the group which the [plaintiff] belongs to." Gardenhire, 205 F.3d at 319. "With regard to the first element, it is an absolute requirement that the plaintiff make at a least a prima facie showing that similarly situated persons outside her category were not prosecuted." Id. With regard to the discriminatory purpose element, the plaintiff must demonstrate that the defendant "selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." Farm Labor, 308 F.3d at 534 (quoting Wayte, 470 U.S. at 610, 105 S.Ct. 1524) (internal quotation marks omitted).
Determining whether official action was motivated by intentional discrimination "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. Furthermore, due to the strong presumption that state actors properly
Here, the plaintiffs have not met their burden to show selective prosecution. First, although the DGS permitted TPAC patrons to utilize the Plaza as a means of egress from the TPAC, those patrons were not similarly situated to the plaintiffs. The Occupy Nashville protestors refused to vacate the Plaza after being notified to do so on pain of arrest. There is no indication in the records that anyone other than the protestors was utilizing the Plaza at the time those warnings were issued on either night. Thus, they have not met their "absolute" prima facie requirement.
Second, even if they had met that requirement, the record contains no indication that the defendants acted with a discriminatory purpose. For example, the record contains no testimony that the defendants sought to target Occupy Nashville for special treatment because of its message; instead, the defendants imposed (albeit illegally) a curfew requirement designed to address pressing policy concerns, including the integrity of the Plaza and growing health and safety concerns. The record demonstrates that the defendants took action in spite of the plaintiffs' constitutional rights, not because of them.
Finally, even if the plaintiffs could meet their initial burden, the defendants have shown that they would have attempted to impose a curfew regardless of the plaintiffs' free speech activities. That is, if a group other than Occupy Nashville had "occupied" the Plaza to engage in activity unrelated to free speech resulting in the same attendant safety and sanitation issues, the record indicates that the defendants similarly would have attempted to impose a curfew to alleviate the negative consequences of that occupation (crime, sanitation, etc.).
The plaintiffs were arrested while engaging in a peaceful protest on the Plaza or deterred from engaging in such protest activities. As detailed above, the defendants did not follow necessary administrative procedures in adopting and enforcing the Use Policy, meaning that the law under which the plaintiffs were arrested was void when the State adopted and enforced it by fiat. Therefore, the plaintiffs have shown that they were deprived, without due process, of their liberty to be free from unlawful arrest and of their liberty to engage in free speech activity. Jackson v. City of Columbus, 194 F.3d at 749.
To arrest an individual based on "probable cause," an arresting officer must have probable cause to believe that the arrestee has committed or is committing a crime. United States v. Pearce, 531 F.3d 374, 380 (6th Cir.2008). To state a claim for false arrest, a plaintiff must show that the defendant lacked probable cause for such an arrest. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir.2010). The arresting officer's actual motivations are irrelevant to the probable cause analysis. Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir.1988).
"Retaliation for the exercise of constitutional rights is itself a violation of the Constitution." Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999). To show a claim of retaliation for exercising constitutional rights, a plaintiff must show that: (1) the plaintiff engaged in constitutionally protected activity; (2) the defendant's adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) the adverse action was motivated at least in part as a response to the exercise of the plaintiff's constitutional rights. Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998). "[E]ach step of the analysis is flexible enough to take into account the various contexts in which retaliation claims might be made." Thaddeus-X, 175 F.3d at 395. With respect to the third element, "[w]hen assessing motive in the context of a summary judgment motion, bare allegations of malice do not suffice to establish a constitutional claim." Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir.2010). However, "[c]ircumstantial evidence, like the timing of events or the disparate treatment of similarly situated individuals, is appropriate." Id. Temporal proximity, standing alone, is insufficient to establish a causal connection. Id.
The plaintiff must demonstrate that the speech at issue was a substantial or motivating factor in the adverse action. Id. A motivating factor is essentially but-for cause—"without which the action being challenged simply would not have been taken." Id. (quoting Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir.2007)). The court must utilize a burden-shifting analysis for this part of the claim: once the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant. Vereecke, 609 F.3d at 400. If the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on summary judgment. Id.
As with the selective enforcement claim, the plaintiffs have not demonstrated that their speech activities, as such, motivated the defendants' adverse actions. The uncontroverted evidence establishes that the Use Policy was intended to alleviate the negative secondary effects of the plaintiffs' continued overnight use of the Plaza, not to retaliate against members of Occupy Nashville for protesting against the government or to effectuate some other unlawful purpose. Indeed, the State appeared prepared to allow the plaintiffs to utilize the Plaza for free speech activities during the daylight hours. Thus, the defendants are entitled to summary judgment on the plaintiffs' retaliation claims.
The First Amendment cannot yield to the enforcement of state regulations that have no legal effect. The defendants had a number of options to respond to the legitimate policy issues created by Occupy Nashville's continued occupation of the Plaza. In choosing to adopt and implement new regulations by fiat without seeking necessary approval from the Attorney General, they made an unreasonable choice that violated the plaintiffs' constitutional rights in multiple respects. Had the defendants utilized the appropriate procedures—particularly consultation with the Attorney General—the court is confident that the "Use Policy," which was facially unconstitutional in multiple respects and which had no legal effect, would never have been enforced in the first place.
At the same time, although the defendants made an unreasonable decision, the record does not indicate that they did so maliciously or with some invidious discriminatory intent. For that reason, Commissioners Cates and Gibbons are entitled to summary judgment on the selective prosecution and retaliation claims.
For the reasons stated herein, the court finds as follows:
An appropriate order will enter.
For the reasons set forth in the accompanying Memorandum, the court hereby finds as follows:
In light of the foregoing findings, the trial date and pre-trial conference date are hereby removed from the court's calendar. With respect to claims on which the plaintiffs have prevailed, the court will reserve entering judgment in the plaintiffs' favor until issues related to damages are resolved.
It is so
(Donaldson Aff., Ex. D.)
