Occupy Columbia v. Nikki Haley , 738 F.3d 107 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1258
OCCUPY COLUMBIA; WALID HAKIM; MELISSA HARMON; BRADLEY
POWELL; TIMOTHY LISZEWSKI; DAVID BLAND; ASHLEY BLEWER; DAVID
ARROYO; GADSON BENNETT; JOSHUA ANDERSON; SEBASTIAN PENA;
JUSTINE WOODS; JOHANNA CAPLE; JOHN RUTLEDGE; L. SHAW
MITCHELL,
Plaintiffs – Appellees,
v.
NIKKI HALEY, Governor of South Carolina; LEROY SMITH,
Director of the South Carolina Public Safety; ZACHERY WISE,
Chief of Police of the South Carolina Bureau of Protective
Services; JAMES CARR; JOE HODGE; ANDREW SCHMIDT; MARVIN
HARRIS, III,
Defendants – Appellants,
and
STATE OF SOUTH CAROLINA; HARVEY S. PEELER, JR., Chairman of
the South Carolina State House Committee; M RICHBOURG
ROBERSON, Divison of General Services; STERLING L. MORRISON,
Division of General Services; CURTIS LOFTIS, State
Treasurer; RICHARD ECKSTROM, Comptroller General; HUGH
LEATHERMAN, Chairman Senate Finance Committee; BRIAN WHITE,
Chairman House Ways and Means Committee; SOUTH CAROLINA
BUDGET AND CONTROL BOARD; MARCIA ADAMS, Executive Director
of the South Carolina Budget and Control Board; CARLA
GRIFFIN, Division of General Services,
Defendants,
MARIE THERESE ASSA'AD-FALTAS,
Intervenor.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:11-cv-03253-CMC)
Argued: October 31, 2013 Decided: December 16, 2013
Before TRAXLER, Chief Judge, and KING and THACKER, Circuit
Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Chief Judge Traxler and Judge King joined.
ARGUED: Kevin Alan Hall, WOMBLE CARLYLE SANDRIDGE & RICE, LLP,
Columbia, South Carolina, for Appellants. Andrew Sims Radeker,
HARRISON & RADEKER, PA, Columbia, South Carolina, for Appellees.
ON BRIEF: M. Todd Carroll, Karl S. Bowers, Jr., WOMBLE CARLYLE
SANDRIDGE & RICE, LLP, Columbia, South Carolina, for Appellant
Governor Nikki R. Haley. Michael S. Pauley, Vinton D. Lide,
LIDE AND PAULEY, LLC, Lexington, South Carolina, for All
Remaining Appellants. Robert J. Butcher, Deborah J. Butcher,
Ronald Wade Moak, THE CAMDEN LAW FIRM, PA, Camden, South
Carolina, for Appellees.
2
THACKER, Circuit Judge:
For 31 continuous days, a group of individuals,
referring to themselves as “Occupy Columbia,” conducted a 24-
hour per day protest on the grounds of the South Carolina State
House in Columbia, South Carolina. On November 16, 2011, South
Carolina Governor Nikki Haley directed law enforcement to remove
any individual associated with Occupy Columbia who remained on
State House grounds after 6:00 p.m. that day. Shortly after
6:00 p.m. on the evening of November 16, 2011, 19 members of
Occupy Columbia remained on State House grounds. They were all
arrested.
Appellees, Occupy Columbia and 14 individual
protestors (collectively, “Occupy Columbia”), brought this
action against a number of individuals, including Governor
Haley; Leroy Smith, Director of the Department of Public Safety;
Zachary Wise, Chief of Police of the Bureau of Protective
Services; and four South Carolina law enforcement officers
(collectively, “Appellants”), seeking injunctive relief and
damages pursuant to 42 U.S.C. § 1983, the South Carolina
Constitution, and South Carolina’s common law. 1 Appellants
1
Occupy Columbia also sued State Senator Harvey S. Peeler,
Jr. and the State of South Carolina. The claims against Senator
Peeler and the State of South Carolina were dismissed without
prejudice on December 14, 2011. Finally, Occupy Columbia sued
various members of the Budget and Control Board and the Division
(Continued)
3
sought dismissal pursuant to Rule 12(b)(6) or Rule 12(c) of the
Federal Rules of Civil Procedure. In granting in part and
denying in part Appellants’ motion, the district court rejected
Appellants’ assertions of qualified immunity at this stage in
the proceedings.
In this appeal, Appellants seek review of the district
court’s denial of qualified immunity. Because Occupy Columbia
has alleged a violation of a clearly established First Amendment
right -- that is, the right to protest on State House grounds
after 6:00 p.m. in the absence of a valid time, place, and
manner restriction -- we affirm.
I.
A.
On October 15, 2011, Occupy Columbia began a 24-hour
per day protest on the grounds of the South Carolina State House
in Columbia, South Carolina. Occupy Columbia alleges that its
“occupation” consisted of “protesting around-the-clock” at the
of General Services, including the State Treasurer, the State
Comptroller General, the Chairman of the Senate Finance
Committee, and the Chairman of the House Ways and Means
Committee (the “Budget and Control Board Defendants”). The
claims against the Budget and Control Board Defendants were
dismissed as moot on August 17, 2012.
4
State House. J.A. 114 (Third Am. Compl. (“Compl.”) ¶ 34).2
According to Occupy Columbia, “[p]hysically occupying the State
House grounds, including sleeping overnight on the grounds, is
the only effective manner in which Occupy Columbia members can
express their message of taking back our state to create a more
just, economically egalitarian society.” Id. (Compl. ¶ 35).
In its Third Amended Complaint, Occupy Columbia
alleges that after its members “inquired as to permitting
requirements” for the State House grounds, they were given a
handout from the Budget and Control Board’s Division of General
Services (the “Division of General Services”) and were “told
they would probably not receive a permit if they applied.” J.A.
117 (Compl. ¶ 50). 3 In any event, Occupy Columbia alleges, “no
application for a permit is available on any public source such
as the internet or at the front counter of the Division of
General Services.” Id. (Compl. ¶ 51). Moreover, a member of
the Division of General Services allegedly later informed Occupy
Columbia “that under no circumstances would any permission to
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
The Division of General Services is responsible for
“maintain[ing] the grounds surrounding the State House.” J.A.
340 (Answer ¶ 15).
5
sleep or use tents on the State House grounds” have been given.
Id. (Compl. ¶ 50).
On November 16, 2011, after 31 days of Occupy
Columbia’s continuous “occupation” of State House grounds, State
Senator Harvey S. Peeler, Jr. sent a letter to Governor Haley
asking “what the Budget and Control Board will be doing about
the Occupy Columbia group” in light of the approaching holiday
season “and with the Governor’s Carol Lighting on November
28th.” J.A. 135. Governor Haley responded that very day by
sending a letter to the Director of the Department of Public
Safety and to the Chief of Police of the Bureau of Protective
Services seeking their “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.” Id. at 133. In her letter, Governor Haley cited a
Budget and Control Board policy “requir[ing] any individual or
organization that wishes to remain at the Statehouse after 6:00
p.m. to receive written permission from the agency.” Id. at
132.
In support of this purported 6:00 p.m. policy,
Governor Haley relied on a document entitled “Conditions for Use
of South Carolina State House Grounds” (the “Conditions for
Use”). Paragraph 8 of the Conditions for Use provided:
6
All activities on the grounds or in the State House
must strictly adhere to the times as scheduled to
insure that the activities will not conflict with any
other scheduled activities. Activities will not be
scheduled beyond 5:00 p.m. in the State House and 6:00
p.m. on the grounds unless special provisions in
writing have been made to extend the time.
Id. at 250 (Compl. Ex. 7) (“Condition 8”).
Governor Haley’s letter continued by explaining, “no
one associated with the ‘Occupy Columbia’ group appears to have
even sought such permission, much less received it, yet they
have essentially taken to living on Statehouse property.” J.A.
132. Finally, Governor Haley’s letter indicated that there were
a number of problems associated with Occupy Columbia, including
damage to the State House grounds and the need for extra
security. In addition to her letter, Governor Haley held a
press conference on November 16, 2011, during which she
explained that anyone present on State House grounds after 6:00
p.m. that evening would be removed.
Shortly after 6:00 p.m. on the evening of November 16,
2011, 19 members of Occupy Columbia remained on State House
grounds. They were all arrested. Occupy Columbia alleges that
at the time of the arrests, its members “were assembled on the
[S]tate [H]ouse grounds, protesting and petitioning our
government, and [they] were not violating any law.” J.A. 122-23
(Compl. ¶ 83). During the early morning hours of November 17,
2011, those members of Occupy Columbia who were arrested were
7
released from the detention center on their personal
recognizance. All charges against them were ultimately
dismissed.
B.
On November 23, 2011, Occupy Columbia filed suit in
state court against a number of individuals, including
Appellants. The lawsuit sought an order enjoining Appellants
from interfering with Occupy Columbia’s 24-hour occupation of
the State House grounds. The state court issued an ex parte
temporary restraining order (“TRO”), authorizing Occupy Columbia
to continue occupying the State House grounds. On November 30,
2011, Appellants removed this case to federal court, and the
parties agreed to extend the state court’s TRO until 5:00 p.m.
on December 15, 2011.
On December 14, 2011, the district court granted
Occupy Columbia’s motion for a preliminary injunction, finding
that Appellants’ “6:00 p.m. policy” and any unwritten or
informal rules prohibiting camping or sleeping on State House
grounds were not valid time, place, and manner restrictions on
Occupy Columbia’s First Amendment rights. The district court
explained that although Appellants were permitted to regulate
camping and sleeping on State House grounds with reasonable
time, place, and manner restrictions, no such restrictions
existed in October or November of 2011.
8
After the district court granted Occupy Columbia’s
motion for preliminary injunction, the Budget and Control Board
passed an emergency regulation on December 20, 2011, pursuant to
its authority under S.C. Code §§ 10-1-30 and 1-23-130. 4 This
emergency regulation prohibited the “use of the State House
grounds and all buildings located on the grounds for camping,
sleeping, or any living accommodation purposes” (“Regulation 19-
480”). J.A. 106. 5 In light of Regulation 19-480, Occupy
Columbia and Appellants filed cross-motions to modify the
preliminary injunction order. The district court denied both
motions, concluding that amendments to the preliminary
4
Pursuant to S.C. Code § 10-1-30, the Director of the
Division of General Services “may authorize the use of the State
House lobbies, the State House steps and grounds, and other
public buildings and grounds in accordance with regulations
promulgated by the board.” S.C. Code § 10-1-30. Any such
“regulations must contain provisions to insure that the public
health, safety, and welfare will be protected in the use of the
areas including reasonable time, place, and manner restrictions
and application periods before use.” Id. Finally, “[o]ther
restrictions may be imposed on the use of the areas as are
necessary for the conduct of business in those areas and the
maintenance of the dignity, decorum, and aesthetics of the
areas.” Id.
In addition, pursuant to S.C. Code § 1-23-130(A), “[i]f an
agency finds that an imminent peril to public health, safety, or
welfare requires immediate promulgation of an emergency
regulation before compliance with the procedures prescribed in
this article . . . , the agency may file the regulation with the
Legislative Council and a statement of the situation requiring
immediate promulgation.” S.C. Code § 1-23-130(A).
5
Regulation 19-480 was codified at S.C. Code § 10-1-35 on
March 29, 2012. See 2012 S.C. Acts 134.
9
injunction order were unnecessary because the order only
enjoined any current policy, not any new policy or regulation,
such as Regulation 19-480. The district court further held that
Regulation 19-480 was a valid time, place, and manner
restriction.
On January 5, 2012, Occupy Columbia filed a Second
Amended Complaint, adding a claim for damages pursuant to 42
U.S.C. § 1983. 6 On January 19, 2012, the Budget and Control
Board Defendants moved to dismiss the Second Amended Complaint
pursuant Federal Rule Civil Procedure 12(b)(1), arguing that
Regulation 19-480 mooted the claims against them. During
briefing of that motion, Occupy Columbia revealed that the
Budget and Control Board had revised Condition 8 on January 10,
2012. The revised Condition 8 deleted any references to
specific time limitations for the use of State House grounds.
Therefore, on August 17, 2012, the district court granted the
Budget and Control Board Defendants’ motion to dismiss, holding
that Occupy Columbia’s claims for injunctive relief against the
Budget and Control Board Defendants were mooted by S.C. Code
6
The caption in Occupy Columbia’s First Amended Complaint,
which was filed on January 3, 2012, “failed to accurately
reflect the Defendants” in the case. J.A. 21. As such, the
district court directed Occupy Columbia “to file a Second
Amended Complaint no later than January 6, 2012, making only
this correction.” Id.
10
§ 10-1-35 (formerly Regulation 19-480) and the removal of the
6:00 p.m. policy from Condition 8.
Occupy Columbia filed a Third Amended Complaint on
September 20, 2012, adding additional plaintiffs to the case.
On October 1, 2012, Appellants moved to dismiss the Third
Amended Complaint or for judgment on the pleadings pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 12(c), arguing
that Occupy Columbia’s claims for injunctive relief were moot,
and that Appellants were entitled to qualified immunity as to
Occupy Columbia’s claims for damages. On February 7, 2013, the
district court dismissed as moot Occupy Columbia’s claims for
injunctive relief. However, the district court denied the
motion to dismiss Occupy Columbia’s claims for damages,
concluding that Appellants were not entitled to qualified
immunity at this stage.
In addressing Appellants’ qualified immunity
arguments, the district court first agreed with Appellants “that
it was not clearly established at the time of [Occupy
Columbia]’s arrests that there was a constitutional right to
camp, sleep, or live continuously on the State House grounds.”
J.A. 423-24. However, the district court then reviewed the
allegations in the Third Amended Complaint and concluded that
Occupy Columbia had also alleged that their “constitutional
rights were violated when they were arrested for their presence
11
and protests on the State House grounds after 6:00 p.m.” Id. at
424. As to this separately alleged constitutional violation,
the district court rejected Appellants’ qualified immunity
argument and held that “it was clearly established that [Occupy
Columbia] had a First Amendment right to protest absent a valid
time, place, and manner restriction.” Id. at 431. Therefore,
the district court concluded Appellants were not entitled to
qualified immunity on the § 1983 claims for damages as alleged
in the Third Amended Complaint.
II.
On February 25, 2013, Appellants filed a notice of
appeal, seeking review of the district court’s qualified
immunity ruling. Ordinarily, we do not possess appellate
jurisdiction over interlocutory orders -- such as the denial of
a Rule 12(b)(6) motion to dismiss or the denial of a Rule 12(c)
motion for judgment on the pleadings -- because such decisions
are not final judgments within the meaning of 28 U.S.C. § 1291.
See Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292,
304 (4th Cir. 2006) (explaining that generally, a district
court’s denial of a Rule 12(b)(6) motion is not an appealable
ruling); Coleman by Lee v. Stanziani, 735 F.2d 118, 120 (3d Cir.
1984) (“An order denying a Rule 12(c) motion . . . is a prime
example of an interlocutory order.”). A district court’s denial
of qualified immunity, however, “is immediately appealable under
12
the collateral order doctrine to the extent that the
availability of this defense turns on a question of law.”
Ridpath, 447 F.3d at 305 (citing Mitchell v. Forsyth, 472 U.S.
511, 530 (1985)). “This principle applies whether qualified
immunity was rejected at the dismissal stage (as in these
proceedings), or at the summary judgment stage.” Id.
Therefore, because the district court’s decision here turned on
a question of law, we possess jurisdiction under the collateral
order doctrine to review the denial of qualified immunity.
III.
A.
A motion for judgment on the pleadings under Rule
12(c) is assessed under the same standards as a motion to
dismiss under Rule 12(b)(6). See Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). As such, we review de novo a
district court’s denial of qualified immunity raised in a motion
under either Rule 12(b)(6) or Rule 12(c). See id.; Ridpath v.
Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir.
2006).
A motion to dismiss tests the sufficiency of a
complaint. See Butler v. United States, 702 F.3d 749, 752 (4th
Cir. 2012). To survive such a motion, the complaint must
contain facts sufficient “to raise a right to relief above the
speculative level” and “state a claim to relief that is
13
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007). “Although a motion pursuant to Rule
12(b)(6) invites an inquiry into the legal sufficiency of the
complaint, not an analysis of potential defenses to the claims
set forth therein, dismissal nevertheless is appropriate when
the face of the complaint clearly reveals the existence of a
meritorious affirmative defense.” Brockington v. Boykins, 637
F.3d 503, 506 (4th Cir. 2011) (internal quotation marks
omitted). One such defense is qualified immunity. See id.
B.
Occupy Columbia relies on several exhibits and
affidavits -- all of which were “incorporated . . . by
reference” to the Third Amended Complaint, see J.A. 109 (Compl.
¶ 7) -- in support of its argument that Appellants are not
entitled to qualified immunity. Specifically, Occupy Columbia
cites a number of affidavits to explain that, in response to
Governor Haley’s November 16, 2011 letter and press conference,
members of Occupy Columbia removed all camping supplies from the
State House grounds by 5:15 p.m. See Appellees’ Br. 9-10
(citing J.A. 233-34, 238-39, 245-46, 304). We must therefore
define the universe of documents we may consider in evaluating
this appeal.
In resolving a motion pursuant to Rule 12(b)(6) or
Rule 12(c), a district court cannot consider matters outside the
14
pleadings without converting the motion into one for summary
judgment. Fed. R. Civ. P. 12(d). A court may, however,
consider a “written instrument” attached as an exhibit to a
pleading, see Fed. R. Civ. P. 10(c), “as well as [documents]
attached to the motion to dismiss, so long as they are integral
to the complaint and authentic.” Philips v. Pitt Cnty. Mem’l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Rule 10(c) states,
“[a] copy of a written instrument that is an exhibit to a
pleading is part of the pleading for all purposes.” Fed. R.
Civ. P. 10(c) (emphasis supplied). There is no uniform rule
among the circuits with respect to whether an affidavit attached
as an exhibit to a pleading is a “written instrument” such that
it may be considered by a district court in resolving a Rule
12(b)(6) or Rule 12(c) motion.
The Third Circuit has held that an affidavit does not
constitute a “written instrument” within the meaning of Rule
10(c). Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989).
“To hold otherwise,” the court reasoned, “would elevate form
over substance by drawing a distinction between an affidavit
filed with [a pleading] and an affidavit filed with a motion to
dismiss under Rule 12(b)(6).” Id. The court noted, “the types
of exhibits incorporated within the pleadings by Rule 10(c)
consist largely of documentary evidence, specifically,
contracts, notes, and other writing[s] on which [a party’s]
15
action or defense is based.” Id. (internal quotation marks
omitted). Finally, the court explained that considering
affidavits “would further blur the distinction between summary
judgment and dismissal for failure to state a claim upon which
relief could be granted.” Id.
In contrast, the Seventh Circuit “has interpreted the
term ‘written instrument’ as used in Rule 10(c) to include
documents such as affidavits,” N. Ind. Gun & Outdoor Shows, Inc.
v. City of South Bend, 163 F.3d 449, 453 (7th Cir. 1998),
explaining that it “believe[s] the broader interpretation
comports with the traditionally generous nature in which [the
court] view[s] pleadings,” id. at 453 n.4; see also Schnell v.
City of Chicago, 407 F.2d 1084, 1085 (7th Cir. 1969), overruled
on other grounds by City of Kenosha v. Bruno, 412 U.S. 507
(1973).
We need not decide the propriety of considering an
affidavit attached as an exhibit to a pleading in the instant
appeal. Here, the district court refused to consider any of the
“affidavits purportedly incorporated by reference in the Third
Amended Complaint” in making its qualified immunity
determination. J.A. 417 n.1. In fact, to avoid converting
Appellants’ motion under Rule 12(b)(6) or Rule 12(c) into a
motion for summary judgment, the district court explained it was
“rely[ing] solely on the allegations in the Third Amended
16
Complaint and those documents that are integral to the
complaint.” Id. 7 We will do the same.
Appellants argue that, despite the district court’s
explicit statement to the contrary, the court did in fact rely
on materials outside of the Third Amended Complaint in denying
Appellants’ motion to dismiss. See Appellants’ Br. 8.
Specifically, Appellants contend that the district court’s order
incorporated by reference its earlier rulings on Occupy
Columbia’s motion for preliminary injunction, which contained
evidentiary evaluations. In addition, Appellants note the
district court’s order referenced the Budget and Control Board
Defendants’ previous statements in this litigation concerning
how the Budget and Control Board regulated the State House
7
According to the district court, the following documents
were integral to the complaint: (1) Governor Haley’s letter to
Appellants Smith and Wise; (2) Senator Peeler’s letter to
Governor Haley; and (3) the Budget and Control Board’s
Conditions for Use. J.A. 417 n.1. We agree and note that, even
at the Rule 12(b)(6) or Rule 12(c) stage, the district court
properly considered these documents. Not only can they be
fairly characterized as written instruments attached to the
Third Amended Complaint, see Fed. R. Civ. P. 10(c), but they
were also explicitly relied on by the parties in briefing the
Rule 12(b)(6) or Rule 12(c) motion, and their authenticity has
not been disputed, see Philips, 572 F.3d at 180; Blankenship v.
Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006).
The district court further noted that even if it were to
consider the affidavits, it “would reach the same result as the
affidavits support [Occupy Columbia]’s position.” J.A. 417 n.1.
17
grounds. After carefully reviewing the district court’s order
below, we are not persuaded by Appellants’ contentions.
To the extent the district court mentioned materials
beyond the Third Amended Complaint and attached exhibits, it
appears the court was doing so for illustrative and background
purposes only -- the court did not rely on those materials in
making its qualified immunity determination. Indeed, the
district court referred to its earlier rulings on Occupy
Columbia’s motion for preliminary injunction through footnotes
in its “Background” section, simply explaining that it “assumes
familiarity” with these orders. J.A. 419 n.4. As for the
Budget and Control Board Defendants’ previous statements in this
litigation, the court’s “find[ing] that there was no time
restriction on protests on State House grounds,” id. at 426, is
supported simply by the text of Condition 8. See id. at 425-26
(characterizing Condition 8 as a method for obtaining
reservations and explaining that “[t]he text of Condition 8
neither purported to close the State House grounds to protestors
after 6:00 p.m. ‘unless special provisions in writing’ were
obtained, nor to authorize the arrests of protestors for their
presence on the grounds after 6:00 p.m. if they did not receive
‘special provisions in writing’”).
18
IV.
Appellants argue that they are entitled to qualified
immunity. Qualified immunity is an affirmative defense that
“shields government officials performing discretionary functions
from personal-capacity liability for civil damages under § 1983,
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Ridpath v. Bd. of Governors Marshall Univ.,
447 F.3d 292, 306 (4th Cir. 2006) (internal quotation marks
omitted). Qualified immunity does not protect government
officials when they are “plainly incompetent or . . . knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
“But, in gray areas, where the law is unsettled or murky,
qualified immunity affords protection to [a government official]
who takes an action that is not clearly forbidden -- even if the
action is later deemed wrongful.” Rogers v. Pendleton, 249 F.3d
279, 286 (4th Cir. 2001) (internal quotation marks omitted).
Government officials are entitled to the defense of
qualified immunity unless a § 1983 claim satisfies the following
two-prong test: “(1) the allegations underlying the claim, if
true, substantiate a violation of a federal statutory or
constitutional right; and (2) this violation was of a clearly
established right of which a reasonable person would have
19
known.” Ridpath, 447 F.3d at 306 (internal quotation marks
omitted).
A.
Before proceeding to the two-prong qualified immunity
test, “our first task is to identify the specific right that
[Occupy Columbia] asserts was infringed by the challenged
conduct, recognizing that the right must be defined at the
appropriate level of particularity.” Winfield v. Bass, 106 F.3d
525, 530 (4th Cir. 1997) (en banc). Appellants’ primary
contention on appeal is that the district court “incorrectly
defined the alleged right at issue” as a generalized right to
protest on public property, rather than a right to live
continuously on State House grounds. Appellants’ Br. 13. This
threshold error, according to Appellants, caused the district
court to misapply both prongs of the qualified immunity analysis
outlined above. We disagree.
A careful examination of the Third Amended Complaint
and the attached exhibits (excluding the affidavits) leads us to
conclude that Occupy Columbia has alleged two separate First
Amendment violations, arising out of: (1) the requirement that
Occupy Columbia vacate State House grounds by 6:00 p.m. on
November 16, 2011; and (2) the arrest of members of Occupy
Columbia when they were assembled on State House grounds after
6:00 p.m. on November 16, 2011.
20
1.
There is no doubt Occupy Columbia’s pleadings more
than sufficiently allege that Appellants violated Occupy
Columbia’s First Amendment rights by requiring Occupy Columbia
to vacate State House grounds by 6:00 p.m. on November 16, 2011.
The Third Amended Complaint is clear that Occupy Columbia’s
“occupation” consisted of “protesting around-the-clock” at the
State House. J.A. 114 (Compl. ¶ 34). Occupy Columbia alleges,
“[p]hysically occupying the State House grounds, including
sleeping overnight on the grounds, is the only effective manner
in which Occupy Columbia members can express their message of
taking back our state to create a more just, economically
egalitarian society.” Id. (Compl. ¶ 35). Indeed, as part of
its occupation, Occupy Columbia established a “medical
committee,” a “food service committee,” and a “security
committee.” Id. at 118 (Compl. ¶ 57). Throughout its Third
Amended Complaint, Occupy Columbia asserts that its First
Amendment rights were violated when Appellants prevented members
of Occupy Columbia from engaging in the expressive conduct of
living continuously on State House grounds. Therefore, Occupy
Columbia has unquestionably alleged that its First Amendment
rights were violated when Appellants required its members to
remove their camping equipment and vacate the State House
grounds by 6:00 p.m. on November 16, 2011.
21
With this first alleged constitutional violation in
mind, the district court briefly analyzed Appellants’ qualified
immunity defense and held that, at the time of Occupy Columbia’s
removal from State House grounds, it was not clearly established
that camping, sleeping, or living continuously on public
property was expressive conduct protected by the First
Amendment. The district court explained there are no Supreme
Court or Fourth Circuit cases that clearly establish a First
Amendment right to camp or sleep on public property in
connection with protests. See J.A. 424 n.9 (citing Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)
(assuming without deciding, for purposes of its time, place, and
manner analysis, that “overnight sleeping in connection with the
demonstration is expressive conduct protected to some extent by
the First Amendment”)). 8
8
At least one federal district court has reached the
opposite conclusion. See Occupy Nashville v. Haslam, ––- F.
Supp. 2d –––-, 2013 WL 2644081, at *15 (M.D. Tenn. June 12,
2013) (denying qualified immunity for state officials and
holding that “plaintiffs had a clearly established right to
utilize the Plaza to engage in overnight protest activity”). In
Occupy Nashville, the United States District Court for the
Middle District of Tennessee explained, “[t]he plaintiffs’
protests contained a fundamental constitutional core, regardless
of the secondary effects that resulted from the manner in which
they chose to exercise it.” Id. “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
. . . prevented them from being present there.” Id. (emphasis
in original).
22
The district court did not decide whether Occupy
Columbia’s allegations would in fact substantiate a First
Amendment violation because, assuming a right to camp and sleep
on public property as part of a protest exists, it was not
clearly established. Accordingly, the court held that the
defense of qualified immunity barred any claims for damages
against Appellants arising out of the first alleged
constitutional violation. This holding is not the subject of
the instant appeal. 9
2.
We next examine whether Occupy Columbia’s pleadings
sufficiently allege that Appellants violated Occupy Columbia’s
9
Nevertheless, Occupy Columbia asks us to “hold that the
camping and sleeping in which Occupy Columbia was engaged at the
State House was constitutionally protected speech.” Appellees’
Br. 45. This issue is not before us. Indeed, the district
court’s grant of qualified immunity with respect to the first
alleged constitutional violation was not a final appealable
order because it did not dispose of all of Occupy Columbia’s
claims against Appellants. See United States v. Myers, 593 F.3d
338, 344 (4th Cir. 2010) (“Generally, a final decision ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.” (internal quotation marks omitted)).
Moreover, Occupy Columbia has not asked us to exercise pendent
appellate jurisdiction to consider this issue. See Evans v.
Chalmers, 703 F.3d 636, 658 (4th Cir. 2012) (“Our exercise of
pendent appellate jurisdiction is proper only when an issue is
(1) inextricably intertwined with the decision of the lower
court to deny qualified immunity or (2) consideration of the
additional issue is necessary to ensure meaningful review of the
qualified immunity question.” (internal quotation marks
omitted)).
23
First Amendment rights by arresting them for their presence and
protest on State House grounds after 6:00 p.m. on November 16,
2011. Appellants contend Occupy Columbia’s pleadings allege
only a violation of “the right to live indefinitely on public
property.” Appellants’ Br. 17. According to Appellants, “the
Constitution does not guarantee a right to squat indefinitely on
public property, which is precisely what the [members of Occupy
Columbia] allege they were doing before and at the time they
were arrested.” Id. at 14 (emphasis supplied). Occupy Columbia
argues, however, “[w]hen the facts are viewed in Occupy
Columbia’s favor, the third amended complaint suggests that the
Occupy Columbia arrestees were arrested when they were simply
protesting as part of Occupy Columbia.” Appellees’ Br. 36.
It is true that at the heart of Occupy Columbia’s
Third Amended Complaint are allegations that Appellants violated
Occupy Columbia’s First Amendment rights by interfering with
Occupy Columbia’s ability to continuously camp and sleep on
State House grounds. Specifically, the complaint alleges that
Occupy Columbia was determined to establish a “24-hour-per-
day/7-days-per-week actual, physical occupation” of the State
House grounds. J.A. 113 (Compl. ¶ 27). According to Occupy
Columbia’s complaint, “literal occupation of the State House
grounds 24 hours a day is and . . . was a core component to the
Occupy Columbia movement.” Id. at 114 (Compl. ¶ 35).
24
Despite Appellants’ assertions to the contrary,
however, the “right to squat indefinitely on State House
grounds” is not the only right Occupy Columbia’s Third Amended
Complaint alleges was violated. At the time its members were
arrested, Occupy Columbia alleges they “were assembled on the
[S]tate [H]ouse grounds, protesting and petitioning our
government, and . . . were not violating any law.” J.A. 122-23
(Compl. ¶ 83) (emphasis supplied). In addition, the Third
Amended Complaint alleges that Appellants wrongfully arrested
members of Occupy Columbia while they “were exercising their
fundamental constitutional rights of Free Speech, Assembly, and
Petition.” Id. at 122 (Compl. ¶ 81). Occupy Columbia further
alleges that its members “had a constitutional right to protest,
petition the government, and assemble on [S]tate [H]ouse
grounds.” Id. at 123 (Compl. ¶ 85) (emphasis supplied).
Crucially, these paragraphs do not allege that members of Occupy
Columbia were arrested for their continued occupation and
camping on the State House grounds. Rather, they state that the
arrests occurred when Occupy Columbia was simply assembled on
State House grounds for the purpose of protesting and
petitioning the government. Thus, Occupy Columbia has pled a
separate constitutional violation arising solely out of their
arrest for assembling on State House grounds after 6:00 p.m. on
November 16, 2011.
25
Moreover, Governor Haley’s letter, which prompted the
arrests, did not generally order the removal of any individuals
who were camping, sleeping, or living on State House grounds.
Instead, it was focused solely on Occupy Columbia; it directed
Appellant Smith and Appellant Wise to “remov[e] 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.” J.A. 133; id. at 119 (Compl. ¶ 61). This further
supports Occupy Columbia’s allegations of a second
constitutional violation arising purely out of lawful protest
activity.
Accordingly, the district court correctly concluded
that Occupy Columbia’s complaint and exhibits thereto
sufficiently alleged that Appellants violated Occupy Columbia’s
First Amendment rights when they arrested them for their
presence and protest on State House grounds after 6:00 p.m. on
November 16, 2011.
B.
Having concluded that the district court correctly
defined the right at issue, we must next decide whether
Appellants are entitled to dismissal on the basis of qualified
immunity. As explained, qualified immunity provides government
officials who are performing discretionary functions a defense
26
from liability for § 1983 civil damages unless: “(1) the
allegations underlying the claim, if true, substantiate a
violation of a federal statutory or constitutional right; and
(2) this violation was of a clearly established right of which a
reasonable person would have known.” Ridpath v. Bd. of
Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)
(internal quotation marks omitted). It is within our discretion
to decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson v. Callahan, 555 U.S.
223, 236 (2009). Each prong is analyzed below.
1.
In reviewing the denial of qualified immunity, “the
nature of the right allegedly violated must be defined ‘at a
high level of particularity.’” Rogers v. Pendelton, 249 F.3d
279, 286 (4th Cir. 2001) (quoting Edwards v. City of Goldsboro,
178 F.3d 231, 250-51 (4th Cir. 1999)). Stated at the
appropriate level of particularity, the right allegedly violated
by Appellants is the right to be present and protest on State
House grounds after 6:00 p.m. Therefore, the qualified immunity
analysis must begin with this alleged constitutional violation
in mind, and we must simply determine “whether [Occupy
Columbia’s] allegations, if true, establish a constitutional
violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002).
27
The First Amendment guarantees the right to free
speech. U.S. Const. amend. I; Rendell-Baker v. Kohn, 457 U.S.
830, 837 (1982) (“[I]t is fundamental that the First Amendment
prohibits governmental infringement on the right of free
speech.”). As the Supreme Court has stated, “[t]here is no
doubt that as a general matter peaceful picketing and leafleting
are expressive activities involving ‘speech’ protecting by the
First Amendment.” United State v. Grace, 461 U.S. 171, 176
(1983) (collecting cases). “It is also true that ‘public
places’ historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks,
are considered, without more, to be ‘public forums.’” Id. at
177 (collecting cases). The South Carolina State House grounds
are the “site of the State Government,” Edwards v. South
Carolina, 372 U.S. 229, 235 (1963), and comprise “an area of two
city blocks open to the general public,” id. at 230. As such,
we treat the area outside of the State House as a public forum
for First Amendment purposes. Cf. Grace, 461 U.S. at 180 (“The
public sidewalks forming the perimeter of the Supreme Court
grounds, in our view, are public forums and should be treated as
such for First Amendment purposes.”). 10
10
The district court also characterized the State House
grounds as a “public forum.” J.A. 11. The specific character
of property affects the government’s ability to limit expressive
(Continued)
28
As we have recognized, “[a] bedrock First Amendment
principle is that citizens have a right to voice dissent from
government policies.” Tobey v. Jones, 706 F.3d 379, 391 (4th
Cir. 2013). Moreover, speech regarding “matters of public
concern . . . is at the heart of the First Amendment’s
protection.” Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U.S. 749, 758-59 (1985) (internal quotation marks
omitted). “Speech deals with matters of public concern when it
can be fairly considered as relating to any matter of political,
social, or other concern to the community.” Snyder v. Phelps,
131 S. Ct. 1207, 1216 (2011) (internal quotation marks omitted).
Occupy Columbia’s Third Amended Complaint sufficiently alleges
that its members were engaged in protected speech at the time
they were arrested. Specifically, the complaint alleges Occupy
Colombia’s members were assembled on State House grounds (a
public forum) and were “protesting and petitioning our
government.” J.A. 122-23 (Compl. ¶ 83). Occupy Columbia’s
allegations thus satisfy the standards to qualify as protected
speech.
conduct. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45-46 (1983) (describing the differences between:
(1) “quintessential public forums;” (2) “public property which
the state has opened for use by the public as a place for
expressive activity;” and (3) “[p]ublic property which is not by
tradition or designation a forum for public communication”).
29
Although Occupy Columbia alleges it was engaged in
protected speech, this does not end the inquiry. Even protected
speech is subject to government regulation since “protected
speech is not equally permissible in all places and at all
times.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 799 (1985); see also id. at 799-800 (“Nothing in the
Constitution requires the Government freely to grant access to
all who wish to exercise their right to free speech on every
type of Government property without regard to the nature of the
property or to the disruption that might be caused by the
speaker’s activities.”). To that end, the state may “enforce
regulations of the time, place, and manner of expression which
are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample
alternative channels of communication.” Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(explaining that “even in a public forum the government may
impose reasonable restrictions on the time, place, or manner of
protected speech”). Therefore, in the absence of a valid time,
place, and manner restriction, Occupy Columbia had a First
Amendment right to assemble on State House grounds after 6:00
p.m., and its Third Amended Complaint sufficiently alleges that
this right was violated.
30
Appellants contend that, at the time of the arrests,
South Carolina had in place a series of criminal statutes
regulating the use of State House grounds and that those
statutes were valid time, place, and manner restrictions. See
S.C. Code § 10-11-20 (making it “unlawful to use the State House
or grounds for any purpose not authorized by law”); id. § 10-11-
30 (making it unlawful “to trespass upon the grass plots or
flower beds of the grounds of the State house” or to “cut down,
deface, mutilate or otherwise injure any of the statues, trees,
shrubs, grasses or flowers on the grounds”); id. § 10-11-330
(making it unlawful “to obstruct or impede passage within the
capitol grounds or building”). As valid time, place, and manner
restrictions -- the argument goes -- Appellants “could rightly
enforce them against [Occupy Columbia].” Appellants’ Br. 28
(emphasis supplied). Appellants’ argument misses the point.
It may well be that these statutes are in fact valid
time, place, and manner restrictions on an individual’s ability
to protest on State House grounds. It may also be true that,
under appropriate circumstances, Appellants could enforce these
statutes against individuals on State House grounds, including
members of Occupy Columbia. Yet, what Appellants “could” do is
irrelevant here. What matters, at this stage, is whether
Appellants can demonstrate an entitlement to the defense of
qualified immunity based on the Third Amended Complaint and the
31
exhibits attached thereto. See Brockington v. Boykins, 637 F.3d
503, 506 (4th Cir. 2011) (explaining that dismissal “is
appropriate when the face of the complaint clearly reveals the
existence of a meritorious affirmative defense” (emphasis
supplied)).
On the face of the Third Amended Complaint, members of
Occupy Columbia were violating no law when they were arrested.
Instead, the complaint alleges that members of Occupy Columbia
were arrested simply for their presence on State House grounds
after 6:00 p.m. The motivation for the arrests, according to
the complaint, was Governor Haley’s letter, which specifically
instructed Appellant Smith and Appellant Wise to “remov[e] 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.” J.A. 133. The Third Amended Complaint
contains no allegations to support the notion that Occupy
Columbia was violating S.C. Code §§ 10-11-20, 10-11-30, or 10-
11-330 when its members were arrested on November 16, 2011.
Therefore, at the Rule 12(b)(6) or 12(c) stage, Occupy Columbia
has sufficiently alleged a First Amendment violation
notwithstanding the existence of these statutes and despite
32
Appellants’ contention that the statutes “could” rightly be
enforced against Occupy Columbia. 11
Appellants also argue that Condition 8 was a valid
time, place, and manner restriction, requiring Occupy Columbia
to receive permission to remain on State House grounds after
6:00 p.m. Again, we are not persuaded.
Condition 8 provides:
All activities on the grounds or in the State House
must strictly adhere to the times as scheduled to
insure that the activities will not conflict with any
other scheduled activities. Activities will not be
scheduled beyond 5:00 p.m. in the State House and 6:00
p.m. on the grounds unless special provisions in
writing have been made to extend the time.
J.A. 250 (Compl. Ex. 7). On its face, Condition 8 is simply a
mechanism for groups to obtain reservations to utilize the State
House grounds in ways that “will not conflict with any other
scheduled activities.” Id. It does not, as Appellants contend,
close the State House grounds to the public at 6:00 p.m., nor
does it authorize the arrest of individuals for their presence
on State House grounds after 6:00 p.m.
Even if we read Condition 8 as imposing a time, place,
and manner restriction, which would require individuals to
11
Occupy Columbia contends that Appellants’ argument
justifying the arrests under these statutes is not preserved for
this appeal. However, we need not decide the preservation issue
because, as explained, we do not find Appellants’ argument
compelling.
33
receive permission from the Division of General Services to
remain on State House grounds after 6:00 p.m., such a
restriction would be invalid. As the Supreme Court has made
clear, “a time, place, and manner regulation [must] contain
adequate standards to guide the official’s decision and render
it subject to effective judicial review.” Thomas v. Chicago
Park Dist., 534 U.S. 316, 323 (2002). The Court explained,
“[w]here the licensing official enjoys unduly broad discretion
in determining whether to grant or deny a permit, there is a
risk that he will favor or disfavor speech based on its
content.” Id. (citing Forsyth Cnty. v. Nationalist Movement,
505 U.S. 123, 131 (1992)). Here, we are unaware of any
standards to guide the Division of General Services in deciding
whether to grant or deny a permit to remain on State House
grounds after 6:00 p.m. Indeed, neither Condition 8 nor the
other Conditions of Use articulate any such standards.
Accordingly, Condition 8 was not a valid time, place, and manner
restriction that could have justified the arrests of the members
of Occupy Columbia.
2.
Having concluded that Occupy Columbia’s complaint
sufficiently alleges that arresting its members for their
presence and protests on State House grounds after 6:00 p.m.
constituted a violation of their First Amendment rights, we must
34
turn to the second prong of the qualified immunity analysis.
“The second prong is ‘a test that focuses on the objective legal
reasonableness of an official’s acts.’” Henry v. Purnell, 652
F.3d 524, 534 (4th Cir. 2011) (en banc) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982)). At this stage, we must
assess whether the First Amendment right allegedly violated by
Appellants was a “clearly established” right “of which a
reasonable person would have known.” Mellen v. Bunting, 327
F.3d 355, 365 (4th Cir. 2003) (internal quotation marks
omitted)).
When deciding whether a right is clearly established,
we ask “‘whether it would be clear to a reasonable [official]
that his conduct was unlawful in the situation he confronted.’”
Henry, 652 F.3d at 534 (quoting Saucier v. Katz, 533 U.S. 194,
205 (2001)). “This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must be
apparent.” Anderson v. Creighton, 483 U.S. 635, 239 (1987)
(internal citations omitted); see also Brockington, 637 F.3d at
508 (“Importantly, it is not required that the exact conduct has
been found unconstitutional in a previous case.”). Whether a
right is clearly established depends on the law of the relevant
jurisdiction. See Edwards, 178 F.3d at 250-51 (“In determining
35
whether a right was clearly established at the time of the
claimed violation, courts in this circuit [ordinarily] need not
look beyond the decisions of the Supreme Court, this court of
appeals, and the highest court of the state in which the case
arose.” (alteration in original and internal quotation marks
omitted)).
The question we must therefore ask is, on November 16,
2011, was it clearly established in Fourth Circuit and Supreme
Court precedent that, in the absence of a valid time, place, and
manner restriction, arresting members of Occupy Columbia for
their presence and protest on State House grounds after 6:00
p.m. was a violation of their First Amendment rights. In light
of the First Amendment case law described above (and again
briefly summarized below), we must answer this question in the
affirmative.
“A bedrock First Amendment principle is that citizens
have a right to voice dissent from government policies.” Tobey,
706 F.3d at 391 (citing Mills v. Alabama, 384 U.S. 214, 218
(1966)). Indeed, “it is fundamental that the First Amendment
prohibits governmental infringement on the right of free
speech.” Rendell-Baker, 457 U.S. at 837. Moreover, when that
speech takes place in a “quintessential public forum,” the
ability “of the state to limit expressive activity are sharply
circumscribed.” Perry, 460 U.S. at 45. Of course, “even in a
36
public forum the government may impose reasonable restrictions
on the time, place, or manner of protected speech.” Ward, 491
U.S. at 791.
It is not disputed that South Carolina and its state
officials could have restricted the time when the State House
grounds are open to the public with a valid time, place, and
manner restriction. However, as explained above, at the time of
Occupy Columbia’s arrest, no such restrictions existed. In
light of the case law from this circuit and from the Supreme
Court, it was clearly established on November 16, 2011, that
arresting Occupy Columbia for protesting on State House grounds
after 6:00 p.m. was a First Amendment violation. Accordingly,
at this stage, Appellants are not entitled to qualified immunity
for damages arising out of Occupy Columbia’s arrest on November
16, 2011.
V.
In sum, we hold that the Occupy Columbia protesters
have stated a viable claim that Appellants violated their First
Amendment rights to assemble and protest peacefully on the
grounds of the South Carolina State House in the absence of a
valid time, place, or manner regulation. Condition 8 did not
constitute a valid regulation because on its face it imposed no
limit on when the State House grounds were open to the public
and, even if it had restricted the time during which protesters
37
could assemble, it did not contain any standards to guide the
official’s decision regarding when to grant special permission
to continue such activities beyond closing time. Furthermore,
at this point in the proceedings, we cannot say as a matter of
law that the state statutes upon which Appellants rely are valid
applicable time, place, and manner restrictions. For purposes
of this motion, we must accept as true Occupy Columbia’s
assertion that its members gathered in a peaceful and lawful
manner and conclude that the protesters were not violating any
law. Based on the complaint, there were no existing time,
place, and manner restrictions on the protesters’ First
Amendment activities on the State House grounds. Therefore,
Appellants violated these rights by removing the protesters from
the grounds.
We also hold that the right of the protesters to
assemble and speak out against the government on the State House
grounds in the absence of valid time, place, and manner
restrictions has been clearly established since Edwards v. South
Carolina, 372 U.S. 229, 235 (1963).
Accordingly, we affirm the district court’s denial of
qualified immunity at this stage of the proceedings.
AFFIRMED
38