No Immunity for You
The U.S. Court of Appeals for the Fourth Circuit denied qualified immunity to the Governor of South Carolina in a lawsuit filed by the protest group Occupy Columbia.
South Carolina State House by Brandon Davis
On October 15, 2011, the group “Occupy Columbia” began a thirty-one day protest, “physically occupy[ing] the state house grounds, including sleeping overnight” in order to take back the State of South Carolina to create a more economically just society. The group’s protest consisted of sleeping in tents on the lawn of the South Carolina State House of Representatives in an effort to bolster support for their movement.
In response to the continued protests, on November 16, 2011, the Governor of South Carolina sent a letter to the Director of the Department of Public Health and the Chief of Police ordering the removal and arrest of the protesters that remained on the state House property after 6:00 p.m. The Governor’s basis for their removal was that the protesters were littering state House grounds and using the bushes for bathrooms, in addition to costing the state thousands of dollars in officer overtime and security costs. Later that day, nineteen protesters were arrested for violating the Governor’s order, but the charges were later dropped.
On November 23, 2011, Occupy Columbia, along with fourteen other protesters, sued numerous state officials.
On November 23, 2011, Occupy Columbia, along with fourteen other protesters, sued numerous state officials. Governor Nikki Haley, the Director of the Department of Public Health, the Chief of Police of the Bureau of Protective Services, and four police officers were named as defendants in the complaint. The protesters initially sought an order enjoining government officials from interfering with their twenty-four hour occupation, but later amended the complaint to include a claim for damages based on 42 U.S.C. § 1983. The judge issued a temporary restraining order which turned into a preliminary injunction after the state officials removed the case to federal court.
On October 1, 2012, the state officials filed a motion to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6), or in the alternative Rule 12(c), arguing the claims for injunctive relief were moot and the officials were entitled to qualified immunity. The District Court granted the motion to dismiss on the injunction because after the suit was filed, the State Budget and Control Board removed any time limitations on the use of House grounds based on South Carolina Code § 10-1-35, which was initially passed as an emergency regulation and prohibits camping on House grounds. The District Court denied the officials’ qualified immunity claim, however, which was appealed to the U.S. Court of Appeals for the Fourth Circuit.
On review, the U.S. Court of Appeals for the Fourth Circuit affirmed the denial of qualified immunity for the state officials.
Qualified immunity is an affirmative defense that government officials may assert as a shield from being sued for damages in their individual capacities. Generally, government officials are immune (pdf) from being sued for out of pocket damages unless the allegations underlying the claim, if true, substantiate a violation of a federal statutory or constitutional right, and, the violation was a clearly established right of which a reasonable person would have known.
In this case, the Fourth Circuit found (pdf) that the state officials violated two separate First Amendment rights. The first was requiring the Occupy Columbia protesters to vacate the State House grounds by 6:00 p.m., and the second was arresting the Occupy Columbia protesters when they refused to leave the State House grounds.
The Fourth Circuit did not rule on the first violation because it was not subject to review on appeal. The Court found that a violation of this right was not immediately appealable because a denial of the protesters’ claim did not dispose of all the claims against the state officials and thereby end the case on the merits. Despite this, the Court did note that there was no doubt that state officials violated the protesters’ First Amendment rights by requiring Occupy Columbia to vacate the premises. Because the protesters’ “clearly established First Amendment right” to “protest on State House Grounds after 6:00 p.m. in the absence of a valid time, place, and manner restriction” was violated, the Court affirmed the District Court’s ruling on this issue.
Because the protesters were assembled and were participating in protected speech, any restriction other than a content-neutral time, place, and manner restriction was impermissible.
A critical concern regarding qualified immunity is specifically defining the particular right at issue. In this case, the Fourth Circuit sided with the protesters in defining that right. The Court defined the protesters’ right as being arrested simply because the protesters were exercising their fundamental constitutional rights of free speech, assembly, and petition. In contrast, the state officers argued that the actual right at issue was whether there was a right to squat indefinitely on public property.
The Court found that the protesters sufficiently pled violations of the U.S. Constitution solely from their arrest for assembling on House grounds after 6:00 p.m. In this decision, the Fourth Circuit relied on Edwards v. South Carolina and United States v. Grace in finding that the South Carolina State House grounds constituted a public forum. Because the protesters were assembled and were participating in protected speech, any restriction other than a content-neutral time, place, and manner restriction was impermissible.
In defending the arrests, the state officials unsuccessfully relied on three South Carolina criminal statutes and ‘Condition 8’ as valid time, place, and manner restrictions. They argued that the arrests were justified based on S.C. Code 10-11-20 (making it unlawful to use the State House for any purpose not authorized by law), S.C. Code 10-11-30 (making it unlawful to trespass on the flowerbeds or mutilate statutes, trees, shrubs, grasses or flowers), and S.C. Code 10-11-330 (prohibiting the impediment of passage within the State House grounds). Condition 8 provides that activities will not be scheduled on the State House grounds after 6:00 p.m. The Fourth Circuit found none of these persuasive because the protesters had not violated any of the criminal provisions. In addition, the Court did not hold that Condition 8 was a valid time, place, or manner restriction because it was simply a mechanism to prevent conflicts in scheduled activities.
Whether a right is clearly established (pdf) is based on whether, in light of the pre-existing law, it would be clear to a reasonable official that an individual’s conduct was unlawful. Here, the Fourth Circuit held that, based on the “bedrock” First Amendment principles of being able to dissent from governmental policies and the fundamental right to free speech, the Occupy Columbia protesters’ right to petition without being arrested was a clearly established right. Therefore, the Fourth Circuit denied the government officials’ qualified immunity.
Despite the Fourth Circuit’s holding that these officials may be sued based on what was included in the pleadings, the ultimate decision of liability will be left to the jury.
Although the denial of qualified immunity was a win for the protesters, it will not end this case outright. Despite the Fourth Circuit’s holding that these officials may be sued based on what was included in the pleadings, the ultimate decision of liability will be left to the jury. The lawyers representing Occupy Columbia and the arrested protesters have indicated that they intend to depose Governor Haley before the upcoming trial scheduled to begin on September 15, 2014. Andit is possible that in the nearer future this case could end up before the Supreme Court of the United States if the State requests that the Court grant certiorari. According to Governor Haley’s spokesman, “[t]here are still several steps to go in order to resolve this matter in the courts.”
