After troopers enforce curfew, Haslam administration faces trouble explaining policy

By Steven Hale

Two weeks ago, few in Nashville, or the country at large, had heard much about the fledgling Music City wing of the Occupy Wall Street protests, Occupy Nashville.

After a well-attended, and widely covered, weekend rally a month ago, the group began occupying Legislative Plaza on Oct. 8, setting up tents and announcing plans to stay there indefinitely. But on Oct. 19, no more than two-dozen of the most devoted occupiers gathered between the columns of the War Memorial Auditorium. Hiding from the rain, but not the cold, they held a General Assembly and anxiously discussed ways to bolster their numbers and sustain the occupation through the coming winter.

The “movement” was trickling away. They needed a shot in the arm, as it were, and in the early morning hours of Friday, Oct. 28, they got one, from an unlikely source.

On Thursday, the state’s Department of General Services had announced a new policy, which instituted an overnight curfew on Legislative Plaza and announced the state’s intention to begin enforcing a daytime permit requirement they claimed had always been in place (something neither City Paper reporters nor local lawyers could find references to in state code or rules). The confusion caused by competing statements from officials in Gov. Bill Haslam’s administration made it unclear whether or not the curfew would be enforced that night. No matter when it went into effect, members of Occupy Nashville said they would pay no attention to it.

At around 3 a.m., troopers from the Tennessee Highway Patrol lined the plaza. The protesters, which at that time numbered around 50, were given 10 minutes to leave. Some of the group took advantage of the final chance to avoid arrest, moving to the city-owned sidewalks surrounding the plaza. And then a trooper, using a megaphone, spoke the words that galvanized the protesters and have since been rebuked by two judges.

“Your time is up,” he said, signaling more than 70 more troopers to move in on 29 protesters, who sat with linked arms in the middle of the plaza.

After another round of arrests the following night, the count stopped at 55. Aided by the fact that two of those arrested and held were working journalists — Jonathan Meador of the Nashville Scene and Malina Shannon, a student photojournalist on a class assignment — the name, and Twitter hashtag, “Occupy Nashville” quickly found its way around the country and the world.

The movement, which has been criticized here and around the country for lacking a clear set of goals or demands, also gained a newfound, much simpler mission statement with broad, bipartisan support: the First Amendment.

That constitutional issue has raised a series of questions about how the Haslam administration created and enforced policies in this case.

Last week U.S. District Judge Aleta Trauger, responding to an ACLU-brought lawsuit against Haslam and other state officials, halted the arrests for the time being. Her order reinforced the rulings of Metro Night Court Judge Tom Nelson, who twice denied warrants for the protesters’ arrests and asserted that the state had no authority to authorize the curfew.

Two straight no-shows by state troopers, in the days before the court hearing, and the state’s decision not to oppose the restraining order seemed to some observers like an acknowledgement that the newly imposed policy was on shaky legal ground. With litigation pending, state officials have been less inclined to open up about its formation.

In an Oct. 27 Facebook post, the same day the policy was announced, Occupy Nashville named Department of General Services Commissioner Steven Cates as the state official doling out the rules. Cates is also listed as a defendant in the lawsuit against the state. According to Occupy Nashville, Cates called an attorney from the group’s legal team into a meeting with him and several other state officials and asked if the occupiers still had concerns about security on the plaza.

The THP is charged with Capitol security, and protesters had asked for help maintaining the peace on the plaza. When the attorney said that the protesters’ safety was still a concern, Cates informed the attorney that the state would be evicting the group and putting a curfew into place.

When asked to specify who was involved in the formation of the policy, state spokeswoman Lola Potter declined to name names.

“The leadership of General Services developed that policy as they do all policies with General Services,” she said, “but at this point with the pending litigation, we’re just not going to go any further than that. That’s what the lawyers have advised us to do.”

Cates’ office directed requests for comment back to Potter.

Sources within the administration have characterized the situation as a combination of “bad politics, bad communications and bad legal advice.”

Enforcement of the policy fell to the state’s Department of Safety and Homeland Security and Commissioner Bill Gibbons, who is also a defendant in the pending lawsuit. While he said he had no role in deciding the policy, in a press briefing the morning after the first round of arrests, he said it was his call to send in the troopers at 3 a.m. The governor had approved the policy and the operation, Gibbons said, but he gave the impression that he hadn’t spoken with Haslam directly, saying only that he had met with “members of the governor’s staff.” Haslam has since come out to defend the policy and its enforcement.

Gibbons was quick to put his name on the enforcement operation and has continued to defend his troopers’ actions, even in the case of Meador who was arrested despite identifying himself as a member of the media and slapped with a widely refuted public intoxication charge. Shannon’s arrest and the troopers’ rough treatment of her (her photography equipment was damaged and the zip-ties on her wrists had to be removed with the help of a nurse) have been largely ignored by comparison. Though it had been reported by several media sources, mention of it caught the governor by surprise on Tuesday.

The supposed impetus for the enforcement operation was concern for public safety and sanitary conditions at the Plaza. Gibbons acknowledged Occupy Nashville’s pleas for improved security at the plaza but said the eviction came because the state can’t “go out and, in effect, babysit protesters 24/7.”

If the state didn’t have the resources to ensure overnight security at the plaza — Gibbons is on record as saying the state is 200 to 300 troopers short of other Southern states — they certainly came up with the resources to empty it. More than 70 troopers took part in each curfew operation. The effort was also supported by the state’s Department of Correction, which provided approximately 12 officers and the bus used to transport those arrested. Safety Department spokeswoman Dalya Qualls said, however, that correction officers did not participate in the arrests of Occupy Nashville protesters.

Qualls declined to comment on whether or not troopers were brought in to assist in the operation from their posts in other cities, but told The City Paper that THP has 56 road troopers assigned to the Nashville District (which includes 12 counties), five of which are assigned to Davidson County. Another 20 troopers are on full-time Capitol duty. Witnesses said several troopers at the plaza Sunday night confirmed they’d come in from Memphis and claim to have seen troopers staying in a nearby hotel.

Although she reiterated the assertion of Highway Patrol Col. Tracy Trott, who said that no overtime had been paid for the operation, Qualls declined to comment on the cost of the operation, including any money spent to bring in extra troopers and put them up in downtown Nashville.

As for concerns about safety and sanitation, the veracity of claims made by the state about conditions on the plaza is still being debated. According to Gibbons, the “dynamics of the protest” changed in the days leading up to the eviction. Asked to specify what those new dynamics were, he referred simply to what he “read in the press.”

Although the plaza falls under the state’s jurisdiction, Metro police officers (who, in some cases, were undercover) did respond to several complaints in the area the week arrests began. According to records provided by Metro police, there were two incidents involving the sale of marijuana, a report of sexual assault (a “forcible fondling” per the complaint) and two altercations between men, one which was briefly violent. Police described the number of incidents as neither high nor low for the area, but “average.”

While Haslam and Tennessee Republican Party Chairman Chris Devaney, have made much of claims of protesters defecating on the Capitol grounds and of General Service workers having to clean up after them, those claims are in doubt. The day before the policy was announced, Safety Department spokeswoman Jennifer Donnals told The City Paper troopers were dispatched to the plaza after two reports of public urination and one of a “sex act” occurring in the area. No arrests were made.

Subsequently, The City Paper requested a list of all complaints made between the beginning of the occupation, Oct. 8, and the announcement of the policy, Oct. 27. Qualls said “the THP has no record of any complaints or incidents that occurred on the plaza.”

Potter said General Services had received phoned-in complaints. A request for a log of those complaints was still pending at press time.

Members of Occupy Nashville maintain that the troublemakers were homeless individuals, who often sleep in the plaza anyway and had stuck around to take advantage of the free food provided by the group. In multiple visits to the camp, The City Paper witnessed Occupy members (particularly women) leading cleanups of the plaza and imploring those present to leave if they possessed drugs or had been drinking.

When asked if the state would respond similarly to other situations where public urination and sex acts might have occurred, Gibbons said their primary concern was Capitol security.

For now, having declared Judge Trauger’s order a victory, members of Occupy Nashville have returned to the plaza, as they did after each night of arrests. What happens next depends on whether their lawyers can come to an agreement with those representing the state. If diplomacy fails, a preliminary injunction hearing is set for Nov. 21.

David Briley, one of three local attorneys representing Occupy Nashville, said at the initial hearing that the two sides got close to an agreement but were “derailed by minor issues.” He declined to be more specific about the reasons an agreement couldn’t be reached, as negotiations are still ongoing.

State Attorney William Marett, whom Briley said had been “very professional” thus far, did not respond to requests for comment.

Briley said, “The state needs to adopt a regulation that governs Legislative Plaza, and they need to do it in compliance with the Administrative Procedures Act,” which the lawsuit alleges was violated in the formation of the now suspended policy.

In defining a successful outcome for Occupy Nashville with regards to the lawsuit, Briley also illuminated what could be common ground for the protesters and those Americans who disagree with their stance on Wall Street and corporate greed.

“It needs to be consistent with Supreme Court rulings on the First Amendment,” said Briley, speaking of a hypothetical future policy. “That’s all our clients have ever wanted, and that’s what they will continue to ask for.”