Federal judge halts arrests of Occupy Nashville protesters

Monday, October 31, 2011 at 5:22pm
By Steven Hale

A federal judge Monday afternoon granted a temporary restraining order putting a stop to the arrests of Occupy Nashville protesters on Legislative Plaza. In a surprise move, the state did not oppose it.

A preliminary injunction hearing is set for Nov. 21.

U.S. District Judge Aleta Trauger said she would have issued the order, even if it had been opposed.

"I can't think of a more quintessential public forum than Legislative Plaza," she said, adding that the new policy represented "clear prior restraint of free speech rights."

In a statement at the beginning of the hearing, attorney William Marett spoke on behalf of the state, saying they would not oppose the order and that the Department of General Services had returned plaintiffs' property seized by state troopers last week.

David Briley, one of three local attorneys who filed the lawsuit Monday morning along with the ACLU of Tennessee, said the two sides were close to an agreement before the hearing began, but that the talks were "derailed by minor issues."

The suit claims the state’s new policy — which includes an overnight curfew and a requirement for a $65 permit — violates Occupy Nashville’s First Amendment rights, calling it unconstitutionally vague and overbroad as well as arguing that the fees associated with the policy “chill or eviscerate” protesters’ rights to assembly and free speech.

ACLU-TN legal director Tricia Herzfeld called the order a victory for free speech.

“The state cannot arbitrarily create restrictive policies just because it does not like how people are using a public space,” said ACLU-TN Legal Director Tricia Herzfeld. “Today’s decision is the first step in restoring demonstrators’ free speech rights.”

State officials have claimed a permit policy for use of Legislative Plaza was always in place, but was simply not enforced. Despite multiple inquiries by The City Paper, officials have been unable to produce evidence of such a requirement.

The lawsuit argues that the Plaza has been the site of various demonstrations for many years and cites a 2008 letter from the Department of General Services’ general counsel to the ACLU as evidence of that precedent.

“I wish to assure you, however, that any person or organization is free to engage in any activity protected by the Constitution on the War Memorial Plaza without having to provide the State of Tennessee with advance notice, obtain liability insurance or pay event and security fees,” said Thad Watkins, counsel for the department.

Among the plaintiffs in the suit is Adam Knight, an eighth-grade teacher who was reportedly arrested in front of several of his students and their parents. Also listed as a plaintiff is 34-year-old Malina Shannon, a student-journalist who was documenting the events for the MTSU student paper, Sidelines.

Along with being a working journalist, the suit claims that Shannon was arrested while on a sidewalk — which falls under city jurisdiction and where protesters and observers stood to avoid arrest. The lawsuit, along with media reports, claims that Shannon was handcuffed with zip ties so tightly that a nurse had to use surgical scissors in order to remove them. Shannon’s photography equipment was allegedly damaged as well.

Nashville Scene reporter Jonathan Meador was also arrested early Saturday morning despite identifying himself as a reporter. In a video taken by Meador himself, one of the arresting troopers can be heard telling another to book Meador for "resisting arrest" — a charge for which he has not been cited.

After Meador’s release several hours later, the Tennessee Highway Patrol issued a release revealing that Meador had instead been issued a citation for criminal trespassing — as were all those arrested — and public intoxication, an allegation that Meador and others who interacted with him that night have denied.

Meador is not a plaintiff in the lawsuit filed Monday morning.

The THP has made 55 arrests since the General Services department announced the new policy.

No arrests were made Saturday or Sunday night, despite protesters’ continued presence at the plaza, in defiance of the overnight curfew.
 

Filed under: City News

30 Comments on this post:

By: yogiman on 11/1/11 at 12:02

It looks like the governor is being overpowered by a federal judge, which makes me wonder: What do we need a governor for if a federal judge has absolute power over them? Don't we deserve more than just someone in a rocking chair in the Governor's mansion?

The 17th Amendment needs to be repealed to give the states their State's rights power back.

By: shoes1 on 11/1/11 at 5:48

Thank goodness! I was starting to wonder how no law enforcement agency could add the plaza to their patrol to make sure everybody was behaving....but yet 100 patrolman from across the state could arrest scores in mass to enforce this new cknsht policy enacted to "safeguard" citizens.

I was thinking.... "Is this another case of the Golden Rule? Those with the gold make the rules...." It appears the good ole State of Tennessee came to their senses just in time.

While we are here.... Hats off to Night Court Magistrate Tom Nelson who apparently brings his cohones in with him to work.

By: treehugger7 on 11/1/11 at 7:29

Tom Nelson is a hero--thank you! We need more judges like him! Yogi ,in this case, we do not need a governor like the one we have. We'd be better off without him!

By: american1974 on 11/1/11 at 7:37

For those reading this who don't know. (Of course the media is not going to tell you either) Calls have been coming into the police department of people being harassed and feeling threatened. I'm sure 90% of everyone there is not doing anything to ensue fear in the local people, but a few are and it's enough of a concern for calls to start coming in.
I personally chatted with a group of girls from a school downtown who said they were becoming afraid to be downtown alone. Some of the protesters were coming by and placing their faces on restaurant windows, taunting people etc.
Once again. I'm sure the majority are behaving, but a number are not and causing a lot of fear students and some of the women who work downtown.
There is obviously no law against clueless protesters, but it would be nice if they would educate themselves and protest the Federal Reserve and the Federal Government. The two instigators of ever problem this country has ever had.
America has not had a free market nor crony-free Capitalist system since 1912.
Until the Federal Reserve is abolished and the printing of fiat money is stopped, the cost of living will continue to rise and everyone but the few will suffer.
Jobs will NEVER come back with the cost of living being so high (caused by inflation from printing), so many regulations and social programs that companies are forced to pay into.
Anyone who thinks this bailout is going to help Europe is mistaken. They will continue to print money, produce very little and remain in debt with their utopian ideas. The reality in rules of economics can't be changed, not matter who is printing the money. America has had Colonial money, the Greenback and now the Federal Reserve Note. All were over printed, caused inflation and eventually failed and or is failing in the case of the Federal Reserve Note ( Dollar ).
It's so frustrating to hear someone say prices are rising in the grocery store. NO!!
The dollar is losing its value because of over printing and it gives the appearance that prices are rising!!!! Errr........
FYI: Kroger has a sale on green beans this week. :)

By: yogiman on 11/1/11 at 7:59

Well, treehugger7,

Your feeling toward the governor is personal. It seems a federal judge can overrule a governor and its okay. But a federal judge cannot overrule the president because they don't have the autority.

At least Governor Haslam is in his office legally.

By: Jughead on 11/1/11 at 8:08

If it had been a Christian group, Judge Trauger would have disappeared.

Liberal Judges embrace liberal causes, period. Why do we even expect impartiality from Judge Trauger? She and her husband are pure liberal, Obama-lovin democrats.

By: nash615 on 11/1/11 at 8:13

"But a federal judge cannot overrule the president because they don't have the autority."

That is blatantly not true. I presume yogiman is making some point via sarcasm that I'm missing. Care to elaborate?

On topic: I read through the motion for the TRO last night and it's obvious that the Governer / State Services blatantly acted in violation of not only the State Constitution, and the US Constitution, but even in contradiction with it's own laws and procedures regarding establishing Rules for the Capitol grounds and Legislative Plaza.

Without a clear state of emergency (a bum-fight that THP didn't even see fit to stop, a homeless guy crapping in a corner of the plaza, and rumors of some hippies making out under a magnolia tree, contrary to Haslam's opinion, in no way constitute a "state of emergency") General Services cannot make new Rules (much less curfews and permit requirements) without public hearings and fairly lengthy reviews.

In my opinion, Haslam was reacting to the horrid thought that some of his black-tie cronies might have to encounter a panhandler on the way to/from their TPAC silver plate affair.

I was on the grounds one of the nights when arrests happened. I've never seen such nonsense in my life. 80+ state troopers in shock gear arresting reporters and a couple dozen people sitting around reading from the Declaration of Independence?

We don't the money to pay for the single trooper who walks the Plaza beat, but we have the money to put 100+ officers (THP, corrections officers, support staff) up in a Nashville hotel all weekend to run a SWAT strike on a bunch of people who couldn't fight their way out of a paper bag?

The cost of this lawsuit to the state it going to be huge. Haslam caused this by flaunting every law on the books. HE deserves to be the one doing jail time.

By: BenDover on 11/1/11 at 8:28

First rule of politics... when your opponents are making idiots of themselves you let them go for it.

By: macjedi on 11/1/11 at 8:49

Yogi, don't forget the jackass Governor had his head handed to him first, by a LOCAL JUDGE. Checks and balances. I can think of no better justice for a GOP overlord like him to be smacked down from both sides - city and nation. Screw Haslam.

Oh... and back to what I originally wanted to post...

HAHAHAHAHAHAHAHAAAAAHHAAHAHAAA.... ha.

Suck it, Haslam.

By: macjedi on 11/1/11 at 8:49

(And the THP thugs who helped him, for that matter.)

By: jvh2b on 11/1/11 at 9:16

Yogi - go take your meds - you are even crazier than usual this morning. Of course a Federal judge can over rule the Governor - ESPECIALLY when the Governor makes an UNCONSTITUTIONAL mandate against the FEDERAL constitution, which we as states are bound by! You claim you do nothing but want to uphold the constitution, but yet when the most basic principle of it comes about you show exactly how ignorant you are on the issue.

@American - interesting - I work downtown, and have not only seen none of that alleged behavior, but I've also had female coworkers state they have felt SAFER here since the occupy people started. Maybe its the fact they are drawing the bums away from their usual areas, but hey, results are results. I'd be willing to bet that those acting the fools are indeed the bums trying to align themselves with the movement, and who have relocated from their usual 'territory'

By: pswindle on 11/1/11 at 10:01

Gov. Haslam finally has received what he deserves. He is a sissy hiding behind his troopers.

By: Captain Nemo on 11/1/11 at 10:44

By: american1974 on 11/1/11 at 7:37

I personally chatted with a group of girls from a school downtown who said they were becoming afraid to be downtown alone. Some of the protesters were coming by and placing their faces on restaurant windows, taunting people etc

Now how the hell did these young ladies know they were the protesters?

By: Captain Nemo on 11/1/11 at 10:48

By: nash615 on 11/1/11 at 8:13
"But a federal judge cannot overrule the president because they don't have the autority."

That is blatantly not true. I presume yogiman is making some point via sarcasm that I'm missing. Care to elaborate?

The only point yogi has is his head and that is always been screwed up somewhere from birth.

By: Captain Nemo on 11/1/11 at 10:52

By: BenDover on 11/1/11 at 8:28
First rule of politics... when your opponents are making idiots of themselves you let them go for it.

That is the truth Ben; The Democrats are letting the GOP go for it. LOL

By: JohnGalt on 11/1/11 at 11:20

When does it stop being a demonstration and actually become squatting and setting up housekeeping on public property?

By: Captain Nemo on 11/1/11 at 11:24

Good question John why don’t you go down there and squatt and find out.

By: JohnGalt on 11/1/11 at 12:11

Don't need the hands (or nose) on experience, cap. The MSM is spending enough time in breathless anticipation of what will happen next...maybe even suggesting and urging.

By: Charlie Sommers. on 11/1/11 at 1:10

Yogiman, When a governor oversteps his authority and tramples on the protesters constitutionally guaranteed rights it's time for a federal judge to step in and adjudicate. That is, after all, what they'er for.

I have had no trust in Haslam since he freed his political appointees, and himself, from any kind of public scrutiny of personal finances as his first official act as governor. I for one miss the honesty and transparency of Bredesen's administration.

By: Captain Nemo on 11/1/11 at 1:54

Mr. Sommers, you would have a better time explaining to a rock that it was a rock. We keep yogi around for the laughs.

By: fair_minded on 11/1/11 at 8:43

Firstly, like others, I'd like to commend Night Court Magistrate Thomas Nelson. Right after Harry Truman fired General Douglas McArthur, a reporter quipped that "You could hear Harry's balls clank when he walked.", and I thought of that when I read of Magistrate Nelson's actions not only on the first night, but definitely on the second! If this was over your head, "clank" is the sound of two objects made of steel hitting each other. If you need more explanation than that, just forget about it!

It's not often you see a lowly Night Court Magistrate be the one to uphold our Constitution in such a strong and fearless fashion and it was heartening to see Herr Haslam and his Storm Troopers handed their asses.by such a patriot.

I'm an old and cynical man who sees our country mainly headed downhill, but then someone like Magistrate Nelson gives me hope that not all is yet lost. Hurrah for Magistrate Nelson! Thomas Nelson for Governor!

And while I've not read the complaint in this case, I hope that somewhere, someone in the U.S. Attorney's Office will apply the U.S. Criminal Code to this situation. There is a section of Title 17 (I forget the section number) that makes it a felony to "conspire to deprive an individual of their civil rights under color of authority." That part about "color of authority" means that there is no immunity from this charge, that the perp was a person who should have known better and knew exactly what they were doing.

This is a charge that can be applied when at least two individuals, say a governor and his director of homeland security, conspire (make plans or just simply discuss) actions that will deprive some one of their Constitutional Civil Rights.

Also kudos to Judge Trauger for her statement that she would have issued the restraining order no matter what trasp0ired at the hearing this morning.

Maybe the Constitution is not totally dead yet.

By: Moonglow1 on 11/2/11 at 7:12

Moonglow1: The Occupy movement was successful in their efforts to stop Bank of America from imposing the monthly fee on debit cards. Our country is "occupied" by career politicians purchased by shadowy groups controlled by big money zealots and Haslam is no exception. So it is about time that The People "occupy" and exert their influence. We The People do not have lobbyists to represent us. Our Congress is comprised of millionaires who also do not represent the interests of the middle class. So I applaud the Occupy movement for representing the 99 percent. Thank you and God Bless you and the United States of America.

By: Moonglow1 on 11/2/11 at 7:19

Moonglow1: P. S. To Haslam-ha ha ha ha. Your Koch friends and the ALEC cannot give you cover this time. Also, to all you tea zealots- did you see Rick Perry implode in Rhode Island. Yeah the best and brightest serve our nation. Right! Thank goodness for Occupy. They are committed to our country. Not the goof balls currently in office and that includes Haslam.

By: nash615 on 11/2/11 at 8:27

fair_minded:

Here is the section of the US Code you're looking for:

http://www.law.cornell.edu/uscode/18/242.html

"TITLE 18 > PART I > CHAPTER 13 > § 242
§ 242. DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."

Haslam and Gibbons should be incarcerated for their criminal actions.

By: JohnGalt on 11/2/11 at 11:15

Traugher has proclaimed downtown Nashville a free campground. Y'all come.

By: fair_minded on 11/2/11 at 3:13

thanks NASH615! exactly what i had in mind....

and since a federal judge had to tell the governor and gibbons to call it off, there is already proof that it happened...

also, since it was carried out by armed state troopers, this little clause could also come into play.. "or if such acts include the use, attempted use, or threatened use of a dangerous weapon,"

so yeah.. let him cool his heels at Club Fed for a few years... him, the head of his Gestapo, and the storm troopers as well.. .they should have had the cojones to refuse the unlawful order. it's already established that the "Nurenberg Defense" is not valid ("I vass only following orders!")

By: d4deli on 11/2/11 at 3:45

"As consumers say good riddance to the unpopular new fees, some offer a big thank you to the clamorous Occupy movement

Starting late last week, large banks began killing off new monthly fees for debit card holders. Chase and Wells Fargo were first, with the trend spreading to regional banks like SunTrust on Monday. Even Bank of America, whose $5 monthly fee stirred up widespread consumer outrage, appears to be backing off. "Progressive bloggers are celebrating and crediting Occupy Wall Street" for the change of heart, says Tim Mak at Politico. But is it really fair to score this a victory for the amorphous Occupy movement?

Yes. Give Occupy its victory lap: "For a movement without an agenda, Occupy Wall Street is off to a pretty good start," says Dan Freed at The Street. Sure, the leaderless, agenda-less Occupiers didn't specifically demand that big banks abandon the debit card fees. But "it does not take a genius to figure out" that this is the kind of greed Occupiers are protesting against, and that the movement's glaring spotlight generated the needed heat to melt the banks' resolve.
"Bank fee debacle is the first Occupy Wall Street victory"

No. If anything, this should teach Occupy to change its tactics: This is "a big victory for consumers," not Occupiers, says Mike Gavin in The Wall Street Journal. In fact, the Wall Street "protesters might be better served taking a lesson from the debit card" debacle: Voting with your cash, as consumers did by threatening to withhold their business from big banks charging these fees, is more effective than camping out in a park. As the banks' quick surrender shows, "the 1 percent is listening, you just have to know which ear is the 'good' ear" — and it's "the one closet to the wallet."
"Looking to be heard on Wall Street? Stop shouting into the deaf ear"

By: d4deli on 11/2/11 at 3:48

Camping out or "Occupying" a public area, while no one is really clear why they are there, seems pointless. It is an "occupation", rather than a protest. Perhaps they should get a job and be productive.

By: wwhowell on 11/2/11 at 5:26

It would be nice if folks here would show a little restraint and only talk about their direct experience, not what they have heard or read from someone else. How many of those expressing negative opinions about Occupy Nashville have actually been to one of their meetings? They are regularly scheduled at 7:00 PM week nights and 1:00 PM on the weekends on the Plaza steps closest to TPAC. Your views will be welcome if presented in accordance with the group's rules of order.

Come on. Quit occupying your couch and come occupy the public forum. See if you can win the group over to your point of view.

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