Case Information
*1 Before: SENTELLE, BENTON and JORDAN, Circuit Judges [*]
_________________
COUNSEL ARGUED: Dawn M. Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. C. David Briley, BONE MCALLESTER NORTON, PLLC, Nashville, Tennessee, for Appellees. ON BRIEF: Dawn M. Jordan, Heather C. Ross, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. C. David Briley, BONE MCALLESTER NORTON, PLLC, Nashville, Tennessee, Thomas H. Castelli, ACLU FOUNDATION OF TENNESSEE, Nashville, Tennessee, Tricia Herzfeld, OZMENT LAW, Nashville, Tennessee, for Appellees.
_________________
OPINION
_________________
JORDAN, Circuit Judge. In October 2011, a group of protesters calling themselves
“Occupy Nashville” established an around-the-clock presence on the Nashville War Memorial
Plaza (the “Plaza”) in Nashville, Tennessee, with the aim of bringing attention to disparities in
wealth and power in the United States.
Occupy Nashville v. Haslam
,
Two of those officials – William L. Gibbons, Commissioner of the Tennessee Department of Safety (“DOS”), and Steven L. Cates, Commissioner of the Tennessee Department of General Services (“DGS”) (collectively, the “State Officials”) – now appeal from a ruling of the United States District Court for the Middle District of Tennessee that they are not entitled to qualified immunity and are personally liable for damages. While this appeal raises a number of important First Amendment issues, the dispositive question before us is whether, pursuant to a policy that may have been promulgated in derogation of Tennessee’s version of the Uniform Administrative Procedures Act (the “UAPA”), the State Officials violated clearly established constitutional rights by authorizing the arrest of people violating the curfew established for the Plaza. We hold that the State Officials are protected by qualified immunity because, regardless of the specifics of Tennessee’s administrative law, the Protesters’ claimed First Amendment right to unrestricted 24-hour access to the Plaza is not clearly established. We will therefore reverse the District Court’s order.
I. BACKGROUND [3]
A. Factual Background
1. The Plaza and the Old Policy The Plaza, site of the Occupy Nashville demonstration, serves as an open-air monument “to the soldiers who served for the State of Tennessee during World War I.” (D.I. 80 at 3.) [4] It is made up of the “surface above, or roof,” of the Legislative Plaza, an underground building that houses offices for the Tennessee legislature, as well as meeting spaces and parking facilities. ( Id. at 2.) The Plaza is part of a larger Capitol Complex, which is a set of interconnected buildings that includes the Tennessee State Capitol, the War Memorial Building, and accompanying grounds. The Plaza is covered with “porous granite” stones that are “approximately 3 inches thick and raised 12-18 inches above the roof membrane system” atop the underground facilities. ( Id . at 4.) The DOS is charged with providing a police force to maintain state property. See Tenn. Code Ann. § 4-3-2006 (creating within DOS a “division of protective services” to provide police services for state buildings, including the Capitol Complex). The DGS, which “exercise[s] general custodial care of real property of the state,” Tenn. Code Ann. § 4-3- 1105(12), is “charged with the care and maintenance of [the] Plaza,” and, pursuant to that charge, it may implement policy for the use of the Plaza. (D.I. 18, ex. 2 at 1.)
In October 2011, the use of the Plaza was governed by what was called the Public Use of War Memorial Plaza Policy (the “Old Policy”), as implemented by the DGS. (D.I. 18, ex.2 at 1.) Under the Old Policy, there was no limitation on overnight use of the Plaza, nor any requirement that a permit be obtained. Specifically, the Old Policy provided that “[t]he Plaza may be used free of charge by any person or group for expressive activity on a first come first serve basis.” ( Id. ) Priority was given, however, to a person or group who had previously reserved the Plaza. ( See D.I. 18, ex. 2 at 1 (“However, a person or group having previously entered into a User Agreement … shall have first rights for use of the Plaza as provided in the User Agreement.”).) To secure reserved use of the Plaza, an organization needed to pay a fee and obtain liability insurance, among other administrative requirements.
2. The protest and growing health and safety concerns By October 9, 2011, the Occupy Nashville participants had established a 24-hour-a-day protest on the Plaza. They brought food, drinks, supplies, and political signs, and set up tents for camping. State Capitol Complex Facilities Administrator David Carpenter was responsible for the day-to-day operations of the Plaza. Tennessee Highway Patrol Lieutenant Preston Donaldson also had responsibility for the Plaza, being the supervisor in charge of security. He asked his officers to periodically look in on Occupy Nashville “to check on [the demonstrators’] welfare.” (D.I. 80 at 13.) A local attorney, William “Tripp” Hunt, acted as a voluntary liaison for the demonstrators to establish a line of communication with DGS General Counsel Thaddeus Watkins. ( Id. at 14.)
Problems surfaced quickly: “[t]here were issues with human feces, urine, trash, damage to the Plaza, and other issues . . . .” ( Id. at 17.) Nevertheless, the first weeks of the protest went “fairly smoothly.” ( Id. ) For instance, Carpenter, Donaldson, and Watkins, communicated with Hunt about an event called the Southern Book Festival, which was scheduled to occur on the Plaza October 14-16, 2011, and, by cooperative effort, the protest and the festival were able to occur on the Plaza simultaneously.
By the end of October, however, the size of the protest had grown, and conditions had deteriorated. Many homeless people had moved onto the Plaza, “enjoying the sleeping bags and tents and food” of Occupy Nashville, and it became difficult to distinguish between Occupy Nashville participants and non-participants. (D.I. 72, ex. 4 at 15.) There was also an increase in the number of assault complaints and damage to public property. Carpenter noted increased problems from sewage, trash that was piling up, power cords that posed tripping hazards, damage to lighting, broken Plaza stones, the use of open flames, damaged electrical outlets, and other health and safety issues on the Plaza. According to Carpenter, there were “jugs of human feces in and around the tents, or jugs of human urine in and around the tents,” and sewage was being “dump[ed] … into the bushes.” (D.I. 69, ex. 8 at 36.) Carpenter’s observations led him to say in an e-mail at the time that the demonstrators “have lost control of the situation with the homeless and the environment has become unsanitary and unsafe.” ( Id. , ex. 7 at 9.) Speaking through their attorney-liaison Hunt, the Occupy Nashville participants told Watkins in an e-mail dated October 25, 2011, that they had experienced “some bad problems with being attacked by the homeless or gangs in the middle of the night. One woman [was] assaulted and this weekend one person was sent to the hospital.” ( Id. , ex. 23 at 39.) Lieutenant Donaldson also described receiving complaints regarding indecent exposure, public fornication, and possible drug activity.
3. The State’s response: the Use Policy At the request of the demonstrators, a meeting was held on October 26, 2011, at which Occupy Nashville representatives – Hunt and a woman named Jane Hussain – discussed with Commissioner Cates, Watkins, Carpenter, Lieutenant Donaldson, and other state personnel the problems arising from the protest on the Plaza. Hunt and Hussain requested that the state provide portable toilets and additional security. Commissioner Cates denied those requests and said that, while the demonstrators would be allowed to return to the Plaza every day, a curfew would be necessary as a matter of health and safety. Commissioner Cates then directed Watkins to draft a new policy that would incorporate a curfew and a permit requirement for use of the Plaza.
Relying in part on the Supreme Court’s decision in
Clark v. Community for Creative
Non-Violence
,
The Governor’s Counsel made some suggestions following Watkins’s presentation about the Use Policy, which Watkins incorporated into the document. It is undisputed that no public hearings were held, nor was there a notice and comment period. Although the UAPA provides procedures for implementing rules on an emergency basis, those procedures were not utilized either.
Relevant to this appeal, the Use Policy included a curfew provision which directed that, notwithstanding new permitting requirements, the Plaza would close to the public from 10:00 p.m. until 6:00 a.m. daily. [8] The same day as the meeting at which the Use Policy was effectively adopted, Carpenter distributed copies of it to people who were on the Plaza, and signs were posted on the Plaza with notice of the curfew. Additionally, Watkins emailed a copy of the new requirements to Hunt. Occupy Nashville participants did not seek permission to remain on the Plaza overnight.
4. Arrests under the Use Policy At 3:00 a.m. on October 28, 2011, officers of the Tennessee Highway Patrol enforced the Use Policy’s curfew. [9] They surrounded the Plaza and told those present to vacate the Plaza within ten minutes or face arrest. After ten minutes, they began arresting people, including five of the six Protesters who brought this suit, all of whom were taken to the Davidson County Jail. The sixth Protester before us was not arrested but left when the officers arrived and gave the ten- minute warning. The local magistrate on duty that night at the jail refused to sign the arrest warrants, stating that the demonstrators had not been given sufficient notice of the new policy. The police nevertheless detained the arrestees while they prepared citations for criminal trespass and then released them. The arrestees then returned to the Plaza to resume their occupation.
The following night, October 29, 2011, shortly after midnight, police officers repeated the process, arresting several demonstrators, and the magistrate again refused to sign the warrants.
B. Procedural History
On October 31, 2011, the Protesters filed their Complaint in the District Court asserting, among other things, § 1983 claims against Governor Haslam, Commissioner Cates, and Commissioner Gibbons in their official capacities, and against unidentified highway patrol officers in their official and individual capacities, for violating the Protesters’ rights under the First, Fourth, Fifth, and Fourteenth Amendments. The Protesters sought equitable relief, including a declaratory judgment, and also sought monetary damages. By agreement of the parties, the District Court issued a Temporary Restraining Order on the same day, which prevented enforcement of the Use Policy. An agreed-upon preliminary injunction was entered by the Court on November 17, 2011. Therefore, as of November 17, 2011 at the latest, the Use Policy was no longer in effect. [11]
The Protesters then filed an Amended Complaint on January 5, 2012, which asserted claims against the same defendants named in the original complaint but also named the State Officials – Commissioners Gibbons and Cates – as defendants in their individual capacities. [12] The Amended Complaint contains nine counts – essentially mirroring those in the initial Complaint – including § 1983 claims for violations of the Protesters’ constitutional rights.
The parties filed cross-motions for summary judgment, and the District Court granted in part and denied in part both motions. Occupy Nashville , 949 F. Supp. 2d at 782. The Court determined that declaratory and injunctive relief were no longer at issue, as the offending policy was no longer in effect. Id . at 790. Furthermore, the Court granted summary judgment in favor of the State Officials on the Protesters’ claims alleging violations of the Tennessee Constitution and the UAPA and seeking the return of personal property, because the Protesters had implicitly abandoned those claims. Id. at 791. The District Court thus determined that the “only remaining claims at issue … [were] the § 1983 claims asserted against Commissioners Gibbons and Cates in their individual capacities, which seek monetary damages for” violation of the Protesters’ First, Fourth, and Fourteenth Amendment rights. Id . at 791.
As to those remaining claims, the District Court granted summary judgment for the Protesters, holding that the State Officials were not entitled to qualified immunity. Id . at 806. Specifically, the District Court granted summary judgment to the Protesters for liability under § 1983 on Count I (violation of First Amendment rights), Count V (violation of the right to be free from a deprivation of liberty without due process), and Count VIII (unlawful arrest). Id. at 783-84, 806. The District Court reserved judgment on the issue of damages. Id. at 806. This timely appeal followed.
II. DISCUSSION
The State Officials argue that the Protesters had no First Amendment right to “occupy” the Plaza indefinitely and therefore, because there was no constitutional violation, qualified immunity applies. The Protesters, in response, argue that the First Amendment right at issue is simply the freedom to air grievances on public property – a right they contend was most assuredly violated by enforcement of the Use Policy, which they describe as a facially invalid regulation of speech and one promulgated in violation of state procedures. The District Court did not define the right in question, and instead provided several different characterizations of it. Compare Occupy Nashville , 949 F. Supp. 2d at 797 (asking “[w]hether the Plaintiffs Had a Clearly Established Right to Occupy the Plaza”) with id. at 798 (characterizing the right as “utiliz[ing] the Plaza for free speech activity”), and id. at 798 (stating that “the plaintiffs here were not arrested for ‘camping’ as such; they were arrested for being present on the Plaza between the hours of 10 p.m. and 6 a.m., regardless of whether they were among the protestors who had set up sleeping arrangements”), id. at 799 (stating that “the plaintiffs had a clearly established right to utilize the Plaza for their free speech activities.”), id. at 799 (characterizing the right as “overnight free speech activities”). For reasons more fully described herein, we agree with the State Officials that 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.
A. Qualified Immunity
Qualified immunity operates “to ensure that before they are subjected to suit, officers are
on notice their conduct is unlawful.”
Hope v. Pelzer,
To determine whether a government official is entitled to qualified immunity, we
consider the two-part test described in
Saucier v. Katz
, which asks whether “a constitutional right
would have been violated on the facts alleged” and, if so, whether the right was “clearly
established.”
1.
Clearly Established
For a right to be clearly established, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right. [I]n the light
of pre-existing law the unlawfulness must be apparent.”
Anderson v. Creighton
,
a. Accurately defining the claimed right
The level of generality at which the constitutional right in question is defined is of great
importance.
See Anderson
,
from other circuits is therefore sitting by designation. The District Court described the Use Policy as including two discrete pieces: the “curfew” and the
“permit requirement.”
Occupy Nashville
,
To support their respective definitions of the claimed right, both Parties rely heavily on
Clark v. Community for Creative Non-Violence
, a case in which the Supreme Court upheld a
National Park Service ban on overnight camping on the National Mall, even though the ban
restricted a homelessness-awareness protest.
The State Officials argue that Clark supports their definition of the Protesters’ claimed right, while the Protesters’ contend that Clark is inapplicable because, they say, it dealt with camping, rather than mere violations of a curfew provision. (Appellee’s Br . at 26-27.) The Protesters may be right that Clark does not stand for the proposition that overnight protest activity is entirely unprotected, but that misses the point of the governing precedent on qualified immunity. There must be specificity in the definition of the right at stake. Plumhoff , 134 S. Ct. at 2023. Despite their insistence to the contrary, the Protesters’ activities were indeed, as their group’s name suggests, fundamentally about occupation. They argue, and the District Court agreed, that they were arrested not for camping, but only “for being present on the Plaza between the hours of 10:00 p.m. and 6:00 a.m,” Occupy Nashville , 949 F. Supp. 2d at 798 (emphasis omitted); (Appellee’s Br. at 26). Whether their conduct is called camping or not, however, their late-night presence on the days of their arrest cannot be divorced from the continuous, 24-hour-a- day, seven-day-a-week occupation of the Plaza, of which it was part. The State Officials were confronted with the increasingly chaotic, unsanitary, and dangerous conditions caused by the full-time occupation of the Plaza. The Protesters were arrested as part of a decision to address those serious problems associated with the occupation, not as a result of some vague concern with fleeting protests in the night. To claim, as the Protesters do, that they were merely seeking the right to speak in a public forum is to ignore the actual scope and duration of the protest and thus to express the First Amendment issue in unduly abstract terms. See Anderson, 483 U.S. at 639 (cautioning that “[p]laintiffs would be able to convert the rule of qualified immunity … into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights”).
b. Whether the right to indefinite occupation is clearly established
The record is undisputed that
Clark
was the primary guide in the drafting of the Use
Policy. Watkins and a staff attorney studied it and understood that it permitted a curfew for
the Plaza. In discussions among the government personnel who gathered to consider the new
policy,
Clark
thus undisputedly – and reasonably– provided the background understanding of
what could and could not be done by the state to place a temporal limitation on use of the Plaza.
It does not matter, then, whether the Protesters have, as they seem to believe, a First Amendment
right to move into a public park and take it over for as long as they are doing something that
might be called expressive. What matters is that reasonable government officials could, like
the State Officials here, understand the law very differently.
See Anderson
, 483 U.S. at 639
(emphasizing that “objective legal reasonableness” is the “touchstone” of qualified immunity
analysis). It was neither “plainly incompetent,”
Stanton
, 134 S. Ct. at 5, nor was it “beyond
debate,”
Plumhoff
,
According to the Protesters, however, “the District Court had to determine whether the New [Policy] or Old [Policy] w[as] controlling before the Court could assess the viability of [the] Constitutional claims”; it was, in the Protesters’ view, “a necessary, preliminary decision.” (Appellees’ Br. at 22-23.) Whether that consideration was necessary, or even permissible, in the qualified immunity analysis is a question which, as guests of the Sixth Circuit, we leave for another day, because, even assuming that the District Court properly examined the promulgation of the Use Policy and determined that it was void, we conclude that the right for Occupy Nashville protesters to indefinitely occupy a public park in the manner that they did is not clearly established. We join the Supreme Court in expressing “serious[] doubt,” Clark , 468 U.S. at 296, that the First Amendment grants a right to engage in a protest that involves occupying a public space for 24 hours, much less for weeks on end, and that, without question, threatens public health and safety. However, because we sit by designation, we avoid weighing in on the constitutionality of that so-called right or whether, as the District Court determined, the State Officials’ violation of state administrative procedures rendered the Use Policy void ab initio . Cir. 2013); Occupy Fresno v. City of Fresno , 835 F. Supp. 2d 849, 864 (E.D. Cal. 2011) (“Plaintiffs [Occupy Fresno and members thereof] are not entitled to remain in Courthouse Park for 24 hours a day.”).
Nor was it, or is it, clear that the First Amendment gives one an unfettered right to
threaten the health and safety of the public or the security of public property.
Cf. Adderly v.
Florida
, 385 U.S. 39, 47-48 (1966) (“The State, no less than a private owner of property, has
power to preserve the property under its control for the use to which it is lawfully dedicated.”);
Schenck v. United States
,
Our qualified immunity conclusion also necessarily extends to the Protesters’ claims that their Fourth and Fourteenth Amendment rights were violated. Again, the most that can be said for the Protesters’ argument is that it is unclear whether they had a right to indefinitely occupy the Plaza for their demonstration. It is therefore also unclear that the law forbade their arrest and that they had any liberty interest that could be infringed by an alleged failure to provide adequate procedural protections.
B. Liability Issues
In addition to contesting the denial of qualified immunity, the State Officials challenge
the District Court’s partial grant of summary judgment on the issue of liability. The District
Court’s ruling left open the issue of damages, which would ordinarily mean that the judgment on
liability would be a non-final and unappealable order.
Woosley v. Avco Corp.
, 944 F.2d 313,
316-17 (6th Cir. 1991). In this case, though, we can exercise pendent appellate jurisdiction
because the liability issues are “inextricably intertwined” with the issue of qualified immunity,
over which we clearly do have jurisdiction.
See Brennan v. Twp. of Northville
,
III. CONCLUSION
For the foregoing reasons, the District Court’s order denying qualified immunity and granting partial summary judgment of liability will be reversed and the matter remanded with instructions to enter judgment for the State Officials.
Notes
[*] The Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia Circuit, the Honorable Duane Benton, United States Circuit Judge for the Eighth Circuit, and the Honorable Kent A. Jordan, United States Circuit Judge for the Third Circuit, were designated by the Committee on Intercircuit Assignments of the Judicial Conference of the United States to comprise the panel for this appeal. 1
[1]
Occupy Nashville was one of many such movements manifesting themselves in several major cities in the
United States.
Occupy Nashville v. Haslam
,
[2]
The Protesters are Paula Elaine Painter, Lauren Marie Plummer, Adam Kenneth Knight, William W.
Howell, Darria Hudson, and Katy Savage. A seventh plaintiff, Malina Shannon, also filed suit but was dismissed
from the case and has not appealed.
Occupy Nashville
,
[3]
Consistent with our standard of review,
see infra
note 15, we “view the facts and draw reasonable
inferences ‘in the light most favorable to the part[ies] opposing the [summary judgment] motion,’”
Scott v. Harris
,
[4] We will use the abbreviation “D.I.” to refer to docket items on the District Court’s docket.
[5] The porous granite stones can only tolerate certain weight and will break if impacted or loaded for long periods of time beyond their capacity. “The walk-able roof/Plaza is designed to accommodate only light to medium volume of dispersed weight … . Usage outside this parameter must be controlled, or it could cause … failure to the roof ….” (D.I. 80 at 8.)
[6] The District Court refers to the “Old Policy” as the “Old Rules,” despite the fact that “neither side knows the origin” of the policy or “whether or not it was actually promulgated pursuant to the [state’s UAPA].” Occupy Nashville , 949 F. Supp. 2d at 796. Given that the designation of something as a “rule” is sometimes taken as reflecting a legal determination dependent upon procedural requirements, we will refer to the document as it is referred to in its own text, i.e. , as a “policy.”
[7] The State Officials asserted in their statement of undisputed facts in the District Court that the protesters “set up tents to sleep in, set up a food tent with a Coleman stove, set up a donation area for tents, sleeping bags, food, water, and other donated items, [and] brought sleeping bags with the intention of sleeping there to demonstrate their alleged property right in the Plaza, the right to ‘occupy.’” (D.I. 71 at 11.) In response, the Protesters disputed whether the demonstrators “ever claimed to have a property right in the Plaza” but did not – and clearly could not, on this record – dispute the fact that participants in the protest slept on the Plaza overnight on an ongoing basis. ( See, e.g. , Appellees’s Br. at 7 (describing themselves as having “set up tents and sleeping bags for overnight accommodation, utilized cooking stoves and laptops, and set up a food and drink tent... .”)
[8] The Use Policy also provided that, “[e]ffective immediately and until further notice, all assemblies and gatherings of persons on the ... Plaza ... shall require a use permit from the Tennessee Department of General Services.” (D.I. 18, ex. 3 at 1.) The permitting provisions were never enforced and thus are not part of this appeal.
[9]
The District Court concluded that the arrests at issue in this case “only related to purported violations of
the new curfew requirement.”
Occupy Nashville
,
[10] Plaintiff Shannon asserted that she “was not part of the protest, but was taking photographs on the sidewalk” by the Plaza. (D.I. 18 at 13.)
[11] On April 27, 2012, the DGS withdrew the Use Policy entirely and implemented the rules that are currently in effect. “Although the parties did not file a copy of the Current Rules” with the District Court, the Court took judicial notice of them because they were referenced in the State Officials’ submissions. Occupy Nashville , 949 F. Supp. 2d. at 784 n.4. The Court determined that the Current Rules were promulgated “pursuant to required agency rulemaking procedures set forth in the UAPA.” Id. at 784. Those rules provide, in part, that “[c]amping or sleeping overnight on the Plaza or Courtyard is not permitted.” Procedures for Use of the Tennessee War Memorial Plaza and Courtyard, Tenn. Comp. R. & Regs. 0690-06-01-.03 (Nov. 20, 2012).
[12] In the amended complaint, the Protesters again named as defendants Governor Haslam in his official capacity and “John Doe” officers of the Tennessee Highway Patrol. The District Court noted that the Protesters were not entitled to relief against Governor Haslam in his individual capacity because they had only sued him in his official capacity and did not seek monetary damages from him. Occupy Nashville , 949 F. Supp. 2d at 790. The District Court also noted that the Protesters “never identified th[e] [Highway Patrol] officers and do not dispute that the claims against those officers are no longer viable.” Id. at 784 n.3.
[13]
The Court also noted that the Protesters did not dispute that their Fifth Amendment claim was untenable
“because the [State Officials] are not federal officials.”
Occupy Nashville
,
[14]
The District Court dismissed Plaintiff Malina Shannon from the suit entirely and dismissed with
prejudice Plaintiff Katy Savage’s claim for unlawful arrest (Count VIII) because she was not arrested.
Occupy
Nashville
,
[15]
The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction pursuant to
28 U.S.C. § 1291.
See also Mitchell v. Forsyth
, 472 U.S. 511, 530 (1985) (holding that that denial of qualified
immunity is an appealable final decision within the meaning of § 1291). We review a denial of qualified immunity
de novo.
Sample v. Bailey
, 409 F.3d 689, 695-96 (6th Cir. 2005). We also review a district court’s grant of
summary judgment de novo, “using the same standard of review applicable in the district court.”
Gecewicz v. Henry
Ford Macomb Hosp. Corp.
,
[16] We note that, in this Circuit, there is a question of whether the qualified-immunity analysis includes an additional, third step. After reviewing the first two steps, Circuit panels have at times further considered “whether the plaintiff offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” E.g. , Drogosch v. Metcalf , 557 F.3d 372, 378 (6th Cir. 2009) (internal citations and quotation marks omitted). The Protesters argue that the District Court erred in applying a three-step analysis. Given our conclusion that their rights were not clearly established, we need not reach that question. We note, however, that “[r]egardless of how the test is articulated, a defendant will only be held liable if his or her actions were objectively unreasonable in view of clearly established law.” Robertson v. Lucas , 753 F.3d 606, 615 n.4 (6th Cir. 2014); see also Plumhoff v. Rickard , 134 S. Ct. 2012, 2023 (2014) (emphasizing that the “crucial question” is “whether the official acted reasonably in the particular circumstances that he or she faced”); Anderson v. Creighton , 483 U.S. 635, 639 (1987) (emphasizing that “objective legal reasonableness” is the
[19] The District Court’s qualified immunity analysis was premised on its determination that the promulgation of the Use Policy violated state administrative law and, thus, the Old Policy was the only policy in place at the relevant time. The parties dispute whether questions of state administrative law are relevant to a qualified immunity analysis. The State Officials take the position that the District Court improperly “treated th[e] violation of Tennessee law as a violation of the Constitution for purposes of the § 1983 action.” (Appellants’ Opening Br. at 31.) To the extent the District Court may have considered a violation of state administrative law to amount to a constitutional violation under § 1983, Occupy Nashville , 949 F. Supp. 2d at 797, such an analysis was improper. This Circuit has clearly stated that “noncompliance [with state laws and administrative procedures] does
[21]
The Fourth Circuit reached a somewhat different conclusion, albeit on distinguishable facts. In
Occupy
Columbia v. Haley
, the Fourth Circuit affirmed a district court’s denial of qualified immunity to state officials at the
motion to dismiss stage, stemming from their arrest of Occupy Columbia protesters who were present on State
House grounds shortly after 6:00 p.m.