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Tennessee officials ask federal appeals court to reverse ruling in favor of Occupy Nashville

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NASHVILLE, Tennessee — Two high-ranking Tennessee officials are asking a federal appeals court to rule that they did not violate the rights of Occupy Nashville protesters who were arrested on the War Memorial Plaza in October 2011.

U.S. District Judge Aleta Trauger last year found Safety Commissioner Bill Gibbons and former General Services Commissioner Steven Cates violated protesters' rights when they promulgated a last-minute curfew for the plaza, then had those who refused to leave arrested.

In briefs filed with the 6th U.S. Circuit Court of Appeals, state attorneys argue that Gibbons and Cates should be granted qualified immunity for their actions to disperse the protesters.

They say it was the job of the two officials to protect state property and maintain order. The curfew and arrests were necessary to deal with reports of crime, sanitation problems, trash and damage to the plaza in front of the state Capitol, they say.

"Plaintiffs' 24-hour occupation of the War Memorial Plaza was not protected by the First Amendment," they argue. And even protected speech can be subject to reasonable time and place restrictions.

Attorneys for the protesters argue the officials could have solved the problems at the plaza by providing portable toilets and increased security rather than seeking to shut down a political protest at "Tennessee's quintessential public forum." Cates and Gibbons should have known they were exceeding their authority when they approved a last-minute curfew that had not gone through the proper channels, and used it to evict Occupy Nashville.

"Defendants should not be free to exceed the clear limits of their delegated authority and then seek the protection of this Court by an assertion of qualified immunity," they state.

Because Gibbons is married to 6th Circuit Judge Julia Gibbons, all the judges in the circuit have recused themselves. Instead a panel of three judges from other circuits will hear arguments in Cincinnati on Monday.

The Occupy movement began in lower Manhattan in September 2011 with the idea of bringing attention to wealth inequality and corporate influence in government. Occupy Nashville protesters began camping outside the Capitol on Oct. 8. At the time the plaza had no rules governing when or how long citizens could demonstrate there.

By the third week, the some homeless people who were not part of the protest had begun camping on the plaza. Protesters grew concerned about sanitation and crime. A delegation met with Commissioner Cates on Oct. 26 to express their concerns.

Cates told the protesters they would have to leave the plaza at night. Then he had a curfew and use policy drawn up that the state put into effect the following day.

Protesters who refused to leave were arrested in the early hours of Oct. 28 and again on Oct. 29, but both times, the Judicial Commissioner refused to sign the warrants and the protesters had to be released. They asked for and received an injunction, barring the state from enforcing the new policy.

The state eventually adopted a less restrictive policy, and the Legislature passed a law banning camping on state-owned property not specifically designated for that purpose.

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