Occupy Columbia v. Haley

922 F.Supp.2d 524

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; and L. Shaw Mitchell, Plaintiffs,

v.Nikki HALEY, Governor of South Carolina; Leroy Smith, Director of the South Carolina Department of Public Safety; Zachery Wise, Chief of Police of the South Carolina Bureau of Protective Services; James Carr; Joe Hodge; Andrew Schmidt; and Marvin Harris, III, Defendants.

C/A No. 3:11–cv–03253–CMC.

United States District Court,

D. South Carolina,

Columbia Division.

Feb. 7, 2013.

Andrew Sims Radeker, James C. Harrison Law Office, Mark Schnee, Schnee Law Firm, Columbia, SC, Deborah J. Butcher, Robert J. Butcher, Camden Law Firm, Camden, SC, for Plaintiffs.

Karl S. Bowers, Jr., Kevin A. Hall, Matthew Todd Carroll, Womble Carlyle Sandridge and Rice, Columbia, SC, Evan Markus Gessner, Michael Stephen Pauley, Vinton Devane Lide, Lide and Pauley, Lexington, SC, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

CAMERON McGOWAN CURRIE, District Judge.

This matter is before the court on Defendants' motion to dismiss the Third Amended Complaint or for judgment on the pleadings pursuant to Rules 12(b) and 12(c) of the Federal Rules of Civil Procedure. Defendants argue that Plaintiffs' claims for injunctive relief are moot and that Defendants have qualified immunity as to Plaintiffs' claims for money damages. For reasons explained below, the court grants Defendants' motion as to Plaintiffs' claims for injunctive relief and denies the motion as to Plaintiffs' claims for money damages.

STANDARD

A motion under Federal Rule of Civil Procedure 12(c) is assessed under the same standards as a Rule 12(b)(6) motion. See Walker v. Kelly, 589 F.3d 127, 139 (4th Cir.2009). A motion under Federal Rule of Civil Procedure 12(b)(6) should be granted only if, after accepting all well-pleaded allegations in the complaint as true, it appears certain that the plaintiffs cannot prove any set of facts in support of their claims that entitles them to relief. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). Although the court must take the facts in the light most favorable to the plaintiffs, it “need not accept the legal conclusions [the plaintiffs would draw] from the facts.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008) (quoting Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.2000)). The court may also disregard any “unwarranted inferences, unreasonable conclusions, or arguments.” Id.

The Rule 12(b)(6) standard has often been expressed as precluding dismissal unless it is certain that the plaintiffs are not entitled to relief under any legal theory that plausibly could be suggested by the facts alleged. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). Nonetheless, the plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoted in Giarratano, 521 F.3d at 302).

As recently explained by the Fourth Circuit,

“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.” Brooks v. City of Winston–Salem, 85 F.3d 178, 181 (4th Cir.1996). One such defense is that of qualified immunity. Jenkins [ v. Medford ], 119 F.3d [1156,] 1159 [ (4th Cir.1997) ].

Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.2011). On a 12(b)(6) motion, “the facts set forth are from the vantage point of [Plaintiffs], with all reasonable inferences drawn in [their] favor.” Tobey v. Jones, 706 F.3d 379, 383 (4th Cir.2013).

BACKGROUND

Allegations.¹ Occupy Columbia was organized in early October 2011, and protestors began occupying the State House grounds on October 15, 2011. Third Am. Compl. ¶¶ 31–33. Plaintiffs' “occupation” consisted of “protesting around-the-clock at the site.” Id. ¶ 34. Plaintiffs allege that “[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. ¶ 35. They allege that Occupy Columbia is a “peaceful protest,” causing no disruption to the state. Id. ¶ 41.

Plaintiffs allege that they “inquired as to the permitting requirements” for the State House grounds, and were “given a handout by Defendant Division of General Services and told they would probably not receive a permit if they applied.” ²Id. ¶ 50. Plaintiffs were later informed “that under no circumstances would any permission to sleep or use tents on the State House grounds have been given to the Plaintiffs.” Id. Plaintiffs allege that “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. ¶ 57.

After “occupying” the State House grounds for over thirty days, Plaintiffs “were forcibly seized, arrested, and removed” from the premises on November 16, 2011. Id. ¶ 53. Plaintiffs allege that their removal was prompted by a letter from Senator Harvey Peeler “imploring [Governor Haley] to remove Occupy Columbia [because] the ‘Governor's Carol Lighting’ of the State Christmas Tree would be more pleasant without protestors present.” After receiving Peeler's letter dated November 16, 2011, Governor Haley issued a letter to the Director of the Department of Public Safety (Director Smith) and the Chief of Police of the Bureau of Protective Services (Chief Wise) and held a press conference “set [ting] a curfew to 6:00 p.m.” that same date. Id. ¶¶ 60–61. In her letter to Defendants Smith and Wise, 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.” Dkt. No. 42–1 at 2. Governor Haley explained that “[g]roups have uniformly followed this content-neutral policy for years” and that Occupy Columbia had failed to seek or receive such permission, “yet they have essentially taken to living on Statehouse property.” Id. After explaining problems associated with Occupy Columbia, such as damage to the State House grounds and the need for extra security, Governor Haley ordered Defendants Smith and 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.” Id. at 3. Later that evening, “nineteen [O]ccupy protestors were arrested” for trespassing and taken to the Alvin S. Glenn Detention Center.³ Third Am. Compl. ¶¶ 61, 85. They were released on personal recognizance bonds early the following morning. Id. ¶ 61. The charges against all protestors were later dismissed. Id.

Plaintiffs allege that there were no regulations for use of the State House grounds. Id. ¶ 17. “Instead, the Budget and Control Board claimed that a document entitled ‘Conditions for Use of South Carolina State House and Grounds' had the force of law and authorized the arrests of the Plaintiffs.” Id. ¶ 18. Paragraph 8 of the Conditions 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.

Dkt. No. 42–2 at 32 (“6:00 p.m. policy”). “At the time Plaintiffs were arrested, Plaintiffs were assembled on the state house grounds, protesting and petitioning our government, and Plaintiffs were not violating any law.” Third. Am. Compl. ¶ 83.

Preliminary Injunction.⁴ This action first came before this court on Plaintiffs' motion to preliminarily enjoin Defendants from interfering with Plaintiffs' 24–hour occupation of the State House grounds, including sleeping on the State House grounds, and the use of sleeping bags and tents. In response to Plaintiffs' motion for preliminary injunction, the Board Defendants argued that the Board was authorized by statute ( S.C.Code Ann. § 10–1–30 ) ⁵ to create regulations or restrictions regarding use of the State House grounds, and that it created restrictions contained in the Conditions, including Condition 8. Dkt. No. 42–2 at 32. The Board Defendants also argued that the Board had the authority to prohibit camping and sleeping on the State House grounds under § 10–1–30, and that it had an unwritten rule prohibiting such conduct.

The court, therefore, considered whether the 6:00 p.m. policy and the unwritten prohibition on camping and sleeping were valid time, place, and manner restrictions on Plaintiffs' First Amendment rights. The court concluded that they were not. See Dkt. No. 28 at 20–23. In light of this conclusion, the court found that Plaintiffs had made a clear showing that they would succeed in challenging the unwritten policy prohibiting camping and sleeping and the purported policy restricting activities on the State House grounds after 6:00 p.m. without written authorization. As the Preliminary Injunction Order explains, the Board Defendants may regulate camping and sleeping on the State House grounds with reasonable time, place, and manner restrictions, but may not regulate this conduct through an unwritten or informal rule. The court, therefore, granted Plaintiffs' motion for preliminary injunction. Dkt. No. 27 at 7 (...