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.pdf ||129.51 KB|