Occupy Columbia v. Haley and the First Amendment Right to “Protest” on State House Grounds
Written by John Tamasitis
On December 16, 2013, the Fourth Circuit issued its decision in Occupy Columbia v. Haley. According to several media outlets friendly to the Occupy protests that sprung up in 2011, the Fourth Circuit delivered an early Christmas present to the populist, egalitarian movement and vindicated Occupy Columbia’s First Amendment challenge to Governor Nikki Haley’s decision to have them forcibly removed from the State House grounds. However, the court’s preliminary decision only addressed the narrow threshold issue of whether Governor Haley and her codefendants were entitled to qualified immunity as a defense to Occupy Columbia’s claims under 42 U.S.C. § 1983. In finding that Occupy Columbia asserted two separate First Amendment violations—one of which, if true, violated a right that was clearly established and, thus, did not provide grounds for Governor Haley and her codefendants to cloak themselves in immunity—the Fourth Circuit denied the motion to dismiss and allowed the case to move forward.
For thirty-one straight days, Occupy Columbia conducted a nonstop protest on the South Carolina State House grounds, using the public space as personal living quarters and, in some cases, as public restrooms. On November 16, 2011, Governor Haley directed law enforcement to remove any individual associated with the Occupy Columbia group who remained on the grounds after 6:00 p.m. Shortly after the designated time, officers arrested nineteen members of the group who remained on the grounds. Following their arrests, fourteen protestors brought an action against Governor Haley, law enforcement officials, and others in her administration (the Appellants), seeking injunctive relief and damages pursuant to § 1983.
In a South Carolina federal district court, the Appellants asserted qualified immunity as a defense and sought dismissal of the case pursuant to FRCP Rule 12(b)(6) or Rule 12(c). The district initially agreed with the Appellants that a constitutional right to camp, sleep, or live continuously on the State House grounds was not clearly established and, as a result, the Appellants were entitled to qualified immunity for this claim. However, after reviewing the allegations in Occupy Columbia’s Third Amended Complaint, as well as some of the documents and orders incorporated by reference to the complaint, the district court concluded that Occupy Columbia protestors had also alleged a violation of their First Amendment rights to protest on public grounds. Naturally, the district court held that this right was clearly established. Therefore, the district court denied the Appellants’ motion to dismiss and rejected their assertion of qualified immunity at that stage in the proceedings. The Fourth Circuit agreed with the district court.
After determining that the district court’s denial of qualified immunity was immediately appealable under the collateral order doctrine—to the extent that the availability of the defense turned on a question of law—the Fourth Circuit turned its attention to testing the sufficiency of the complaint. In assessing whether Occupy Columbia asserted a First Amendment right to camp on State House grounds or a right to protest its state government on public property, the Fourth Circuit held that it was limited to only examining the complaint itself—and not any of the affidavits and other evidence incorporated by reference.
However, even after establishing this baseline rule, the Fourth Circuit discussed some of the affidavits and earlier orders, which included evidentiary findings that, inter alia, the protestors had removed all of their camping equipment prior to their arrests and that the Budget and Control Board did not have a formal policy in place to regulate the State House grounds.
While these facts were also discussed at the district court level, the Appellants argued that the district court looked outside of the actual pleadings to find that Occupy Columbia also alleged a violation of their First Amendment right to protest on public property. The Fourth Circuit disagreed, explaining that the reference materials were brought up for illustrative and background purposes only. It appears, however, that these incorporated facts helped make the case that the protestors were asserting two different violations—a violation of their rights to camp on State House grounds and a violation of their rights to protest their government on public property—even though this distinction was not clear on the face of the pleadings.
After determining that the Occupy Columbia protestors were complaining of a violation of their First Amendment rights to protest on public property, the court’s decision on whether Occupy Columbia stated a valid claim and whether the Appellants were entitled to qualified immunity was quite easily dispensed with. Holding that the right of individuals to peaceably assemble and protest their government on public property was clearly established, and that the South Carolina had not instituted any time, place, or manner restriction at the time the Occupy Columbia movement was protesting, the Fourth Circuit determined that the Appellants were not entitled to qualified immunity at that stage in the proceeding.
Lost in all of this was the fact that the Fourth Circuit did not disturb the district court’s determination that the emergency regulation, promulgated by the Budget and Control Board in response to the district court granting Occupy Columbia’s motion for a preliminary injunction, was not affected by this case. The emergency regulation—now codified at S.C. Code Ann. § 10-1-35—prohibited the “use of the State House grounds and all buildings located on the grounds for camping, sleeping, or any living accommodation purposes.” Therefore, while Occupy Columbia protestors may be able to continue this protracted legal battle against Governor Haley and her administration for violations of their First Amendment rights to protest in 2011, the citizens of South Carolina can rest assured that their tax dollars will no longer go toward cleaning up for those camping, or “protesting,” on their State House grounds.