Judge says state officials violated Occupy protesters' rights

Wednesday, June 12, 2013 at 7:43pm
Updated 9:50 p.m.

U.S. District Court Judge Aleta Trauger issued a 45-page opinion on Wednesday lambasting the actions of the state officials during Occupy Nashville protests in 2011.

Trauger wrote that the plaintiffs’ First Amendment right to free speech was violated “when they were arrested … based on a ‘law’ that, under Tennessee statutory law, had no actual legal effect.”

The original complaint filed in the fall of 2011 followed weeks of protests from Occupy members in which they camped out on the War Memorial Plaza beginning in early October 2011. The situation degraded when Tennessee Highway Patrol officers began arresting the protesters in the early morning hours of Oct. 28, less than a day after state officials issued a “Use Policy” for the plaza that sought to prevent overnight camping at the plaza.

Trauger stated further that the protesters’ rights to due process were violated when “the defendants did not follow necessary administrative procedures in adopting and enforcing the Use Policy, meaning that the law under which the plaintiffs were arrested was void when the State adopted and enforced it by fiat.”

The judge specifically singled out Department of General Services Commissioner Steve Cates and Department of Safety and Homeland Security Commissioner Bill Gibbons for their handling of the arrests, which came after the “new rules” pertaining to the plaza were passed “without engaging in any formal process,” according to the opinion, which can be found here.

“The defendants have offered no coherent explanation as to why they failed to consult with the Attorney General on an issue of this magnitude... ,” Trauger wrote. “Even after the Judicial Commissioner refused to approve the warrants after the first wave of arrests, the defendants did not seek advice from the Attorney General.”

The state Office of the Attorney General previously revealed in court that Gov. Bill Haslam had mistakenly told media that the AG was part of conversations regarding the Occupy arrests.

Asked for comment, Haslam's office stated Wednesday night, "The ruling is being reviewed."

While Trauger granted summary judgment to the Occupy protesters on those claims, she dismissed other claims of retaliation and selective prosecution against Cates and Gibbons.

In Wednesday’s order, Trauger also awarded monetary damages to the plaintiffs — which included seven arrested Occupy protesters — in an amount to be determined later.

Notably, the two commissioners were denied qualified immunity, a measure that protects public officials from monetary legal claims.

Tricia Herzfeld, one of the attorneys for Occupy Nashville, called the judge’s opinion a “huge victory for Occupy Nashville and for free speech in Tennessee.”

The state could appeal the Trauger’s opinion.


Trauger memo.pdf129.51 KB

18 Comments on this post:

By: govskeptic on 6/13/13 at 3:22

Looks like Judge Trauger wants to make sure some Plaintiff's attorney get paid
through the Taxpayers on this matter. While finding most of her opinions rather
sound and logical, not so sure about this one.

By: Loner on 6/13/13 at 5:48

Billy Haslam panicked and called in the state police, SWAT teams etc....the frightened little man over-reacted....the judge's ruling is spot on.

Instead of worrying about a few "hippies" camped out on the state capital's campus, Haslam ought to be sweating bullets about the ongoing criminal investigation of his family's truck-stop empire.....Billy kept those holdings out of a blind trust...now, we know why....he's a friggin' thief.

By: 4gold on 6/13/13 at 6:02

Oh Please, a protester brings a sign, sings a chant, waves a flag, goes home and comes back next day if desired. These were squatters without a cause. I cannot camp on public grounds for endless days. They did not even know what they were protesting. Why not let the CMA fans camp on the Plaza next year. Why get a hotel if this idiot Judge makes tax payers suffer to support these homeless eccentrics.

Go Dores, Preds, Titans! Go Nashville a great place to live!

By: morpheus120 on 6/13/13 at 6:51

4gold: Doesn't matter what the Occupiers were protesting. Only that they were and they followed the law and procedures in place when they began. The state tried to change the rules in the middle of the game to suit their purposes (a common tactic of conservatives) and they got called on it. Now your tax dollars are going to pay for the legal fees and judicial awards to those "homeless eccentrics". HAHA!

If conservatives were so worried about their "high taxes" (LOL) in Tennessee, maybe they would think twice before passing these stupid laws that they know are unconstitutional and will cost them millions in court. But no. You fools will whine about your taxes then vote for people to pass laws that won't pass muster and cost you money.

And as far as your stupid analogy goes... no CMA fans would not have the same protections as the Occupiers did because the CMA fans would be considered squatters, not people who are exercising their free speech rights. You really thought that one through, gold.

By: Captain Nemo on 6/13/13 at 6:52

The law does not see it that way, 4gold.

By: Captain Nemo on 6/13/13 at 6:53

I am expecting a deluge from the right to be calling the judge an “Actives Judge”.

By: Rocket99 on 6/13/13 at 7:21

Of course the judge is an "Activist Judge". She upheld the law and the First Amendment and it wasn't what the right wingnuts wanted. That's their reasoning anyway.

Pretty much any judge who actually does their job and in the course of that job does something that is unfavorable to the right is automatically labeled an activist judge.

Can't have it both ways people.

By: yucchhii on 6/13/13 at 8:20

Hey 4gold: The protestors know what they're protesting for...it's YOU that doesn't know only because you only know what you WANT to know. I know what they were doing from the beginning and they made absolutely NO secret as to what they were doing. Funny, YOU don't know but the CRIMINAL POLITICIANS know. They knew what they did to the protestors was "ILLEGAL". If they had nothing to hide, why should they even bother doing anything? If you were hiding something that you absolutely didn't want anyone to know about and somebody knew and threatened to expose it, would you not try to do what you can to avoid being found out? If you are innocent of any chrarges, let it go. Why run if your NOT guilty? So, 4gold, do your research before you open yourself up to........?

By: budlight on 6/13/13 at 8:49

4gold on 6/13/13 at 7:02
Oh Please, a protester brings a sign, sings a chant, waves a flag, goes home and comes back next day if desired. These were squatters without a cause. I cannot camp on public grounds for endless days. They did not even know what they were protesting. Why not let the CMA fans camp on the Plaza next year. Why get a hotel if this idiot Judge makes tax payers suffer to support these homeless eccentrics.

Go Dores, Preds, Titans! Go Nashville a great place to live!

the plaza is NOT a campground. It is my understanding they had trash all over. Yes CMA fans would be exercising their freedom to gather. The Occupy people need to occupy jobs. They were just looking for a new law suit. Or else why stay so long when they were told they could not camp there.

By: JohnGalt on 6/13/13 at 9:54

Anyone familiar with Traugher's liberal background should have seem this coming.

By: CoyoteCrawford on 6/13/13 at 10:06

Sounds like a very conservative ruling based on constitutional principles.

By: govskeptic on 6/13/13 at 10:23

I guess I was a little naive to not know we had so many Constitutional scholars
reading TCP. Who knew?

By: HunkerDown on 6/13/13 at 10:51

I think we could all use a new definition of the term "teflon." It would appear only the press gives Governor Haslam a pass. The man feels entitled to enrich himself and his friends at the expense of hardworking taxpayers. Have we become so jaded that we accept this in our state? This should bother citizens on both sides of the aisle.

Why else would a man want to be Governor when his family-owned company generates $29B in revenue? Ego. Only the state has more revenue ($32B last budget) and more employees. Surely, everyone recalls how well he ran the one company independent of his family, right? Well, it failed.

Ethics is something we must have, but don't demand it of our Governor. Here's hoping the press keeps digging.

By: ancienthighway on 6/13/13 at 12:57

The only parts of the Constitution Tennessee Republicans care about are the right to bear arms and the perceived right to secede without any blow back from the federal government.

The 1st Amendment is just pure crap. Freedom of speech only exists for the sake of conservatives, not liberals or those speaking out against the government on non-conservative issues. Freedom of religion means the approved Christian church gets a free pass on everything, to include trying to restrict access to other religions. Freedom of the Press means the press is suppose to freely support conservatism and attack liberal issues.

We all have the right to vote, IF you as a liberal can jump through all the hoops and avoid all the obstacles placed before you. Just be aware that conservatives will amend your vote as they deem appropriate.

So these whiny dirty hippies that lost their homes and jobs because that money was needed more by the pocket liner people should just shut up and be happy they even had a job and home for a couple years. And furthermore, to punish you for not being a pocket liner person, we will cut off all welfare type programs, even those that you paid into while you were working.

By: yucchhii on 6/14/13 at 8:25

You need to quit drinking sooo many BUDS!! The beer is pouring out of your ears because there is nothing there to BLOCK IT!! I love how IDIOTS like you judge without information!! I'll tell you what, next time there is a war WORTH FIGHTING, say in some country in Africa, how about we go over there and have the troops pack a lunch and a dinner. We'll land our troops at 8am and have them leave there at 8pm and come home and go do it again the next day. The troops can come home and go to bed to sleep and get up EARLY in the morning to go fight. Will that suit you? Iraq, Afghanistan etc are NOT camp grounds either. If you are going to fight the government, you go to THEIR territory!!! Besides, as far as jobs are concerned, if you were do your research, you would find they all HAVE JOBS and more than likely get BETTER PAY THAN YOU DO!!! As far as the trash, the protestors were having problems with the homeless BUMS that bring their BOOZE AND DRUGS AND THROW THEIR TRASH ALL OVER THE PLACE!!! Oh yeah, then cause fights!! The BUMS were there to get what they could for free. Once they were told that state cops were coming, the bums said "GOOD LUCK, BYE!" That is FACT!! NOW, take your factless ridicule and stick it!!!

By: 4gold on 6/14/13 at 1:08

fFreedom of speech does not include camping, being a public nuesense. Any more the NRA's interpretation of right to bare arms. Not an arsinal. There are always those who abuse our constitution and stretch its intended bounderies.
Ranting Yuucchii, how funny, you know and they know but you still dont say what they were protesting. Ask any five people out there and you would get five different answers. They were just there to rail against the system because they dont fit in. I still say " Say your peice and go home. Thats freedom of speech.

Nashville a great place to live!

By: pswindle on 6/14/13 at 4:20

Our little wimp of a governor got so scared that he called in the troops.

By: jsabrown on 6/17/13 at 8:21

Wanna get 4Gold and Budboy singing a different tune? Simply replace "Occupiers" with "TEA Party members." That'll get em all up in the state's grill, screaming about big brother an stuff.