Occupy Columbia v. Haley, No. 13-1258 (4th Cir. 2013)

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Justia Opinion Summary

After individuals associated with Occupy Columbia were removed by law enforcement from a 24-hour per day protest on the grounds of the South Carolina State House, Occupy Columbia filed suit against defendants, including the Governor, seeking injunctive relief and damages under 42 U.S.C. 1983, the South Carolina Constitution, and South Carolina's common law. The court granted in part and denied in part. On appeal, defendants sought review of the district court's denial of qualified immunity to defendants. The court affirmed, concluding that Occupy Columbia has alleged a violation of a clearly established First Amendment right - the right to protest on State House grounds after 6:00 p.m. in the absence of a valid time, place, and manner restriction.

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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 Before TRAXLER, Judges. Chief Judge, Decided: and KING and December 16, 2013 THACKER, Circuit 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 24hour 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, protestors action Occupy (collectively, against a Columbia Occupy number of and 14 Columbia ), individuals, individual brought including this Governor Haley; Leroy Smith, Director of the Department of Public Safety; Zachary Wise, Services; and (collectively, damages Chief four Police South and to 42 South of Carolina Appellants ), pursuant Constitution, of the law seeking U.S.C. § Carolina s 1 Bureau of Protective enforcement injunctive 1983, common the relief South law. 1 officers and Carolina Appellants 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. In alleges that its Third after its Id. (Compl. ¶ 35). Amended Complaint, members inquired Occupy as to Columbia 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. 117 (Compl. ¶ 50). 3 J.A. 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 28th. with J.A. 135. the Governor s Carol Lighting on November 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 Use ). Carolina State House Grounds (the Conditions Paragraph 8 of the Conditions for Use provided: 6 for 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. 132. J.A. Finally, Governor Haley s letter indicated that there were a number of problems associated with Occupy Columbia, including damage to security. press the State House grounds and the need for extra In addition to her letter, Governor Haley held a 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 grounds. They were all arrested. remained on State House Occupy Columbia alleges that at the time of the arrests, its members were assembled on the [S]tate [H]ouse grounds, protesting and petitioning government, and [they] were not violating any law. (Compl. ¶ 83). our J.A. 122-23 During the early morning hours of November 17, 2011, those members of Occupy Columbia who were arrested were 7 released from the All recognizance. detention charges center against on their them were personal ultimately dismissed. B. On November 23, 2011, Occupy Columbia filed suit in state court Appellants. against a number of individuals, including 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 time, and place, sleeping and on manner State House grounds restrictions, existed in October or November of 2011. 8 no with such reasonable restrictions 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 emergency regulation prohibited the use of the This State House grounds and all buildings located on the grounds for camping, sleeping, or any living accommodation purposes ( Regulation 19480 ). J.A. 106. 5 Columbia and Appellants In light of filed cross-motions preliminary injunction order. motions, concluding that Regulation 19-480, to Occupy modify the The district court denied both 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. Regulation 19-480 was The district court further held that 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 Regulation briefing 19-480 of that Rule Civil Procedure mooted the claims motion, Occupy 12(b)(1), against Columbia arguing them. revealed that During 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 motion relief. to concluding dismiss that However, Occupy the district Columbia s Appellants were court denied the for damages, entitled not claims 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. 424. the Id. at As to this separately alleged constitutional violation, 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, immunity seeking review ruling. of the Ordinarily, district we do not court s qualified 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 availability of order this doctrine defense to turns the on extent question a that of the law. Ridpath, 447 F.3d at 305 (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). immunity was proceedings), This principle applies whether qualified rejected or at at the the dismissal summary stage judgment (as in these 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 12(c) is motion assessed for judgment under the dismiss under Rule 12(b)(6). on same the pleadings standards as under a Rule motion to 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 complaint. Cir. 2012). motion to dismiss tests the sufficiency of a See Butler v. United States, 702 F.3d 749, 752 (4th To survive such a motion, the complaint must contain facts sufficient to raise a right to relief above the speculative level and state 13 a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, Although 555, 570 (2007). 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. F.3d 503, omitted). 506 (4th Cir. Brockington v. Boykins, 637 2011) (internal quotation One such defense is qualified immunity. marks See id. B. Occupy affidavits -- Columbia all of relies which on were several exhibits incorporated . . and . 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 (citing J.A. 233-34, 238-39, 245-46, 304). Appellees Br. 9-10 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. consider a written Civ. P. 12(d). instrument A court as attached may, exhibit an however, 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). [a] copy of a written instrument that Rule 10(c) states, is an exhibit pleading is part of the pleading for all purposes. Civ. P. 10(c) (emphasis supplied). to a Fed. R. 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). of exhibits consist contracts, incorporated largely of notes, and Id. within The court noted, the types the documentary other pleadings evidence, writing[s] 15 by on which Rule 10(c) specifically, [a party s] action or defense omitted). is Finally, based. the Id. court (internal explained quotation that marks 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 explaining South that Bend, it 163 F.3d believe[s] 449, the 453 (7th broader Cir. 1998), 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 determination. Appellants in making J.A. 417 n.1. motion under Rule its qualified immunity In fact, to avoid converting 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 16 in the Third Amended Complaint and those Id. 7 complaint. documents that are integral to the 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 Columbia s evidentiary by reference motion for its earlier preliminary evaluations. In rulings injunction, addition, on which Appellants Occupy contained note the district court s order referenced the Budget and Control Board Defendants how the previous Budget and statements Control in Board this litigation regulated the concerning 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 district qualified court immunity referred to determination. its earlier Indeed, rulings on the 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. (characterizing reservations and Condition 8 explaining as that a See id. at 425-26 method [t]he text for of obtaining 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 (4th F.3d 292, omitted). 306 Qualified Cir. 2006) immunity (internal does not quotation protect marks government officials when they are plainly incompetent or . . . knowingly violate the law. But, in gray Malley v. Briggs, 475 U.S. 335, 341 (1986). 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 19 reasonable person would have 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] conduct, asserts recognizing that was the infringed right appropriate level of particularity. 525, 530 (4th Cir. 1997) (en must by the challenged be defined at the Winfield v. Bass, 106 F.3d 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 continuously on State House grounds. than a right to live 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 November 16, vacate 2011; and State (2) House the grounds arrest of by 6:00 members p.m. of on Occupy Columbia when they were assembled on State House grounds after 6:00 p.m. on November 16, 2011. 20 1. There than is sufficiently no doubt allege Occupy that Columbia s Appellants pleadings violated more 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). [p]hysically occupying the State Occupy Columbia alleges, 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 egalitarian society. its occupation, to a more Columbia a committee. Id. at 118 (Compl. ¶ 57). Complaint, service Occupy Indeed, as part of committee, Columbia economically established committee, Amended just, Id. (Compl. ¶ 35). Occupy food create and a a medical security Throughout its Third 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. Columbia has unquestionably alleged that its Therefore, Occupy First Amendment rights were violated when Appellants required its members to remove their camping equipment and vacate grounds by 6:00 p.m. on November 16, 2011. 21 the State House 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, property Amendment. was sleeping, expressive or living conduct continuously protected by on public the First The district court explained there are no Supreme Court or Fourth Circuit cases that clearly establish a First Amendment right to camp connection with protests. Cmty. for Creative or sleep on public property in See J.A. 424 n.9 (citing Clark v. 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 court did not allegations Columbia s district would in decide fact whether substantiate a Occupy 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. defense of against qualified Appellants Accordingly, the immunity barred arising out constitutional violation. court any of held claims the that for first the damages alleged 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. argues, Id. at 14 (emphasis supplied). however, [w]hen the facts are Occupy Columbia 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. It is true that at the Appellees Br. 36. heart of Occupy Columbia s Third Amended Complaint are allegations that Appellants violated Occupy Columbia s First Occupy Columbia s ability State House grounds. Occupy Columbia was day/7-days-per-week House grounds. Columbia s Amendment to rights continuously interfering camp and with sleep on Specifically, the complaint alleges that determined actual, to physical establish literal a occupation J.A. 113 (Compl. ¶ 27). complaint, by occupation 24-hour-perof the State According to Occupy 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 however, the Appellants right to assertions squat to indefinitely the on contrary, 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 government, and . . . were not violating any law. (Compl. ¶ 83) (emphasis Amended Complaint supplied). alleges that In Appellants addition, our J.A. 122-23 the wrongfully Third 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 grounds. government, Id. at 123 and assemble (Compl. ¶ 85) on [S]tate (emphasis [H]ouse supplied). Crucially, these paragraphs do not allege that members of Occupy Columbia were arrested for their camping on the State House grounds. continued occupation and Rather, they state that the arrests occurred when Occupy Columbia was simply assembled on State House grounds for petitioning the government. the purpose of protesting and 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). supports Occupy Columbia s allegations This further of a second constitutional violation arising purely out of lawful protest activity. Accordingly, that Occupy the Columbia s district court complaint correctly and concluded 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 defined the concluded right at that issue, the we district must next court decide correctly 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 allegations for § 1983 civil the claim, underlying damages if unless: true, (1) substantiate the a violation of a federal statutory or constitutional right; and (2) this violation was of a clearly established right of which a reasonable person Governors Marshall would have Univ., 447 known. F.3d (internal quotation marks omitted). 292, Ridpath 306 v. (4th Bd. Cir. of 2006) 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. 223, 236 (2009). Pearson v. Callahan, 555 U.S. 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 if true, determine Columbia s] allegations, violation. Hope v. Pelzer, 536 U.S. 730, 736 (2002). 27 establish whether a [Occupy constitutional The speech. First Amendment guarantees the right to free 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 speech. ). infringement on the right of free 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) cases). (collecting places historically It associated is also true the free with that public 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 State the site of the 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 perimeter sidewalks forming the 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. Cir. 2013). concern . Moreover, . . protection. Inc., 472 omitted). Tobey v. Jones, 706 F.3d 379, 391 (4th is Dun U.S. at & 749, speech the regarding heart Bradstreet, 758-59 of the Inc. (1985) matters v. First of Amendment s Greenmoss (internal public Builders, quotation marks 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. Colombia s public members forum) government. and J.A. Specifically, the complaint alleges Occupy were assembled were 122-23 on State protesting (Compl. ¶ and 83). House grounds petitioning Occupy (a our 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 protected speech, this does not end the inquiry. speech is subject speech is not times. to government equally regulation permissible in all engaged in Even protected since places protected and at all 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 speaker s activities. ). that might be caused by the To that end, the state may enforce regulations of the time, place, and manner of expression which are content-neutral, significant are government narrowly interest, tailored and alternative channels of communication. to leave serve open a ample Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 45 (1983); see also Ward v. Rock (explaining that Against even Racism, in a 491 public U.S. forum 781, the 791 (1989) government may impose reasonable restrictions on the time, place, or manner of protected speech ). place, and manner Therefore, in the absence of a valid time, 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 regulating had in place use of State the a series House of criminal grounds and statutes 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. § 10-1130 (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]. (emphasis supplied). Appellants Br. 28 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. irrelevant here. Appellants can What Yet, what Appellants could do is matters, demonstrate an at this entitlement stage, is to defense the whether of qualified immunity based on the Third Amended Complaint and the 31 exhibits attached thereto. 503, 506 (4th Cir. See Brockington v. Boykins, 637 F.3d 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. contains no J.A. 133. allegations to The Third Amended Complaint support the notion that Occupy Columbia was violating S.C. Code §§ 10-11-20, 10-11-30, or 1011-330 when its members were arrested on November 16, 2011. Therefore, at the Rule 12(b)(6) or 12(c) stage, Occupy Columbia has sufficiently notwithstanding the alleged existence a First of 32 these Amendment statutes violation and despite 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 11 would require individuals to 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 remain on House State the Division grounds restriction would be invalid. clear, a time, place, and of General after 6:00 Services p.m., such to a As the Supreme Court has made manner regulation [must] contain adequate standards to guide the official s decision and render it subject to effective judicial review. Park Dist., 534 U.S. 316, 323 (2002). Thomas v. Chicago 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 content. 505 U.S. will favor or disfavor speech based on its Id. (citing Forsyth Cnty. v. Nationalist Movement, 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. other Conditions of Indeed, neither Condition 8 nor the 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 sufficiently concluded alleges that that Occupy arresting its Columbia s members complaint 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. F.3d 524, 534 (4th Cir. 2011) (en Henry v. Purnell, 652 banc) Fitzgerald, 457 U.S. 800, 819 (1982)). (quoting Harlow v. At this stage, we must assess whether the First Amendment right allegedly violated by Appellants was a clearly established reasonable person would have known. F.3d 355, 365 (4th Cir. 2003) right of which a Mellen v. Bunting, 327 (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 qualified by 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. of the First Amendment case law described above In light (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 speech. speech infringement on the Rendell-Baker, 457 U.S. at 837. takes place in a right of free Moreover, when that quintessential public forum, the ability of the state to limit expressive activity are sharply circumscribed. Perry, 460 U.S. at 45. 36 Of course, even in a 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. Occupy Columbia s However, as explained above, at the time of 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. of this motion, we must accept as true For purposes Occupy Columbia s assertion that its members gathered in a peaceful and lawful manner and conclude that the protesters were not violating any law. place, Based and on the manner complaint, there restrictions on were no existing the protesters Amendment activities on the State House grounds. time, First 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