Freedom of Association and Assembly / Protests
Vajnai v. Hungary
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This appeal followed a District Court ruling that the illegal imposition of a 10:00 pm curfew and the arrest of five members of “Occupy Nashville” who were demonstrating and occupying a public plaza violated their First Amendment rights. However the District Court was reversed on the matter of qualified immunity and the protesters’ claim against state officials for monetary damages in their individual capacities failed. On appeal, the United States Court of Appeals for the Sixth Circuit found that the defendant Commissioners William Gibbons and Stephen Gates were entitled to qualified immunity as public servants and were therefore not liable for damages. The Court reasoned that, given the property damage, the violent assaults, and deteriorating and unsafe conditions, “the State Officials were not objectively unreasonable in believing that they could promptly adopt a 10:00 p.m. curfew that would allow them to clean the Plaza and ensure the safety of the public in general and the Protesters in particular. The State Officials are thus entitled to qualified immunity for their actions.”
The plaintiffs in this case were five “Occupy Nashville” protesters, and the defendants included William Edward Haslam (the Governor of Tennessee), William L. Gibbons (the Commissioner of the Tennessee Department of General Safety), Steven G. Cates, (the Commissioner of the Tennessee Department of General Services), and Tennessee Highway Patrol officers. After weeks of the Occupy Nashville protest and occupation of the Nashville War Memorial Plaza (Plaza), officials raised concerns about public health and safety. On October 27th, 2011, local officials enacted a curfew in the Plaza that restricted access to the public grounds from 10 PM to 6 AM. Local officials believed they had the right to enact a curfew and believed they were not infringing upon the rights of the protestors.
However, the curfew was not legally established, as the local officials did not follow protocol for passing a city ordinance. In addition, the undertaking of public hearings regarding the drafting of the ordinance was disputed, and it was argued that the implementation of the ordinance was done without sufficient warning. The night after the ordinance was passed, individuals were arrested for violating it. At 3 AM on October 28th, Occupy Nashville protestors were ordered to disperse from the Plaza by Tennessee Highway Patrol. Five protestors refused to do so, and after their ten-minute warning expired, the Highway Patrol placed them in custody. The five protestors were then taken to the Davidson County Sheriff’s Criminal Justice Center, and their belongings in the Plaza were seized.
The local Judicial Commissioner refused to approve of the detention of the protestors and ordered their release. The officers not only failed to release the protestors immediately, detaining them for an additional five hours, but also charged them with misdemeanor trespassing. The protestors claimed that the defendants violated their rights by enacting and enforcing the Plaza curfew in fiat. The protestors also contended that they were illegally detained after the Commissioner ordered their release and were wrongly made responsible for transporting their seized material.
The protestors brought suit in the United States District Court against Haslam, Cates, and Gibbons in their official capacities under 42 U.S.C. § 1983 for violations under the First, Fourth, Fifth, and Fourteenth Amendments of the United States Constitution (as well as against several highway patrol officers in both their official and individual capacities). The protestors requested equitable relief and monetary damages. The Court issued a Temporary Restraining Order (TRO), preventing the enforcement of the curfew, and, after subsequently-implemented agreed upon injunction, the curfew law was no longer in effect.
Following the TRO and the setting aside of the curfew law, the protestors submitted an amended complaint before the Court. The new complaint alleged the same violations as the original, however, the new pleading included charges against Gibbons and Cates in their individual capacities for violations of the protestors’ constitutional rights. In light of the fact that the law had been set aside, the Court determined that the only remaining issues were the §1983 claims against Commissioners Gibbons and Cates. Gibbons and Gates argued that they were entitled to qualified immunity as public servants, and, therefore, were not liable for damages. However, the District Court granted the protestors’ movement for summary judgment and held that state officials were not entitled to qualified immunity. Furthermore, the District Court granted the protestors’ request for summary judgment for liability under §1983 for First Amendment violations and violation of due process rights, as well as liability for unlawful arrest. Commissioners Gibbons and Cates then filed an appeal before the Unites States Court of Appeals.
In a decision by Circuit Judge Kent A. Jordan, the United States Court of Appeals for the Sixth Circuit first acknowledged the number of First Amendment issues raised in this appeal. The test to determine if an official is eligible for qualified immunity looks at whether “‘a constitutional right would have been violated on the facts alleged’ and, if so, whether the right was ‘clearly established.’” Here, Gibbons and Cates argued that because the protestors did not have a right under the First Amendment to “occupy” the Plaza for an indefinite amount of time, there was no constitutional violation and, therefore, qualified immunity applied. The Court agreed, stating “the claimed right must be defined as one of indefinite occupation of a public park, and that, even if the Protesters had a First Amendment right to occupy the Plaza indefinitely, that right certainly was not, and is not, clearly established.”
In determining whether the protestors’ First Amendment right was accurately defined, the Court considered the application of Clark v. Community for Creative Non-Violence. In Clark, the United States Supreme Court considered “‘whether a National Park Service regulation prohibiting camping in certain parks violate[d] the First Amendment when applied to prohibit demonstrators from sleeping in [two of those parks] … in connection with a demonstration.’” The Supreme Court also expressed its doubts that First Amendment protections required the government to allow a 24-hour demonstration.
The protestors argued that Clark was not applicable, while the state officials argued the contrary, on account of the protestors’ “claimed right.” The Court noted that it was not definitive that Clark was to be read to permit a curfew or to allow steps to be taken to implement a curfew. Additionally, the Court noted that it was not clear that the First Amendment gave individuals a right that threatened a public property’s security or the public’s health and safety. Ultimately, the Court decided that, given the property damage, violence assault, and deteriorating and unsafe conditions, “the State Officials were not objectively unreasonable in believing that they could promptly adopt a 10:00 p.m. curfew that would allow them to clean the Plaza and ensure the safety of the public in general and the Protesters in particular. The State Officials are thus entitled to qualified immunity for their actions.” Therefore, the Court of Appeals overturned the District Court’s decisions with respect to its grant of partial summary judgment on liability and to its denial of the state officials’ grant of qualified immunity. The Court remanded the case with instruction to the lower court to enter judgment in favor of the state officials.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The United States Court of Appeals for the Sixth Circuit found that the state officials in this case did have qualified immunity on the ground that there is no First Amendment right to occupy a public space indefinitely, especially in light of public health and safety concerns, and that it was not unreasonable of the state to adopt a curfew to address this issue. However, this ruling did not disturb the lower court’s decision that the law establishing the curfew violated the protestors’ constitutional rights.
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Lower courts in this circuit are bound by this decision.
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