- Associated Press - Wednesday, October 8, 2014

NASHVILLE, Tenn. (AP) - Two top Tennessee officials are protected from claims that they violated the rights of Occupy Nashville protesters who were arrested on a plaza outside the state Capitol in October 2011, a federal appeals court ruled Wednesday.

The protesters sued after Safety Commissioner Bill Gibbons and former General Services Commissioner Steven Cates - responding to reports of crime and sanitation problems - implemented a last-minute curfew for the War Memorial Plaza and then had those who refused to leave arrested.

The curfew policy was later withdrawn and replaced, meaning the only remaining claims were those against Gibbons and Cates. As individuals, they could be sued for monetary damages.

In June 2013, U.S. District Court Judge Aleta Trauger in Nashville ruled in favor of the protesters, finding that the arrests were unlawful and violated the demonstrators’ rights to free speech and due process.

Trauger found the officials were not entitled to qualified immunity, which can protect public officials from being held personally responsible for their actions, even when they are illegal, as long as those actions do not violate a clearly established right.

She did not immediately rule on monetary damages. That was put on hold as the commissioners asked the 6th U.S. Circuit Court of Appeals to overturn Trauger’s ruling.

In their appeal, attorneys for Gibbons and Cates argued that it was the commissioners’ job to protect state property and maintain order. They said the curfew and arrests were necessary to deal with problems that included crime, trash, sanitation and property damage.

“Plaintiffs’ 24-hour occupation of the War Memorial Plaza was not protected by the First Amendment,” they argued in court papers, adding that courts have found even protected speech can be subject to reasonable time and place restrictions.

On Wednesday, a special panel of three judges from outside the 6th Circuit ruled in the commissioners’ favor. The panel declined to decide whether the protesters had a First Amendment right to protest by occupying a public space for days on end, although they expressed “serious doubt.”

Instead, they found that any such right was not clearly established, and so the commissioners’ actions were reasonable.

“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,” the panel wrote.

The outside panel was called because 6th Circuit Judge Julia Gibbons is married to Commissioner Gibbons.

Tennessee Attorney General Herbert Slatery issued a statement saying he was gratified that the appeals panel agreed with the state’s interpretation that the commissioners’ actions were reasonable. Slatery was Tennessee Gov. Bill Haslam’s chief legal adviser during the Occupy Nashville arrests.

David Briley, an attorney for the protesters, emphasized that they were successful in getting the state to stop the arrests and abandon the curfew policy.

“The only issue was whether we could get money damages,” he said. “We disagree with the ruling in the 6th Circuit, and we intend to appeal.”

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