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Tenn. Officials Not Liable in Occupy Nashville Lawsuit: 6th Cir.

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By Mark Wilson, Esq. on October 14, 2014 3:10 PM

Back in August, the Sixth Circuit Court of Appeals heard oral arguments in Occupy Nashville v. Haslam. On October 8, the court issued its opinion reversing the district court's order. The Sixth Circuit found that Nashville police and city officials were entitled to qualified immunity.

Facts in Brief

With no public notice, comment, or even the presence of the public, the City of Nashville, Tennessee, unilaterally changed city policy to establish a 10 p.m. curfew in the city's War Memorial Plaza, which previously had no curfew. Nashville then distributed copies of the new curfew to protesters and posted signs on the plaza. At 3 a.m., police enforced the newly crafted rule against Occupy Nashville protesters.

1st Amendment Rights to 'Occupy'?

The Sixth Circuit faulted the district court for "not [defining] the right in question and instead provid[ing] several different characterizations of it." This is one of those cases where characterizing the right is important: In this case, the Sixth Circuit decided to frame the right "as one of indefinite occupation of a public park."

As you might expect, characterizing the right that way doesn't require much of a First Amendment discussion, because the officers were entitled to qualified immunity. Both parties relied on Clark v. Community for Creative Non-Violence, a U.S. Supreme Court decision upholding a National Park Service rule prohibiting camping outside designated campgrounds. That case is sort of a wash for the parties in this case: The Court said there might be First Amendment value in a 24-hour vigil, but even if there were, the Court also said NPS rules were reasonable restrictions.

No Clearly Established Right to Occupy for 24 Hours

Consequently, the Sixth Circuit acknowledged that, even if there were a First Amendment right to occupy War Memorial Plaza 24 hours a day, the City's actions were reasonable, especially given that the right in Clark was in "serious[] doubt." This led the Sixth Circuit to conclude that the right the protesters claimed was not clearly established.

Qualified immunity follows from this premise because it protects state officials who act in the absence of clear legal guidance to the contrary, as long as their actions are reasonable. As the Sixth Circuit explained, "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 promptly 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."

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