The aftermath of Occupy Nashville

Occupy Nashville v. Haslam, No. 13-5882 (6th Cir. Oct. 8, 2014). 

Occupy Nashville took to camping out on a plaza that was part of the Tennessee state capitol complex. Concerned by reports of sewage, trash, and safety problems, the state instituted a curfew that closed the plaza to the public from 10 pm to 6 am. When a number of demonstrators stayed on the plaza in spite of the curfew, they were arrested.

The demonstrators, claiming that the arrests violated the First Amendment, sued state officials for damages. The Sixth Circuit holds that there is no clearly established right to 24-hour occupation of a public square, so the state officials can’t be liable.

The opinion is issued by a panel that consists entirely of judges from outside the Sixth Circuit. Why that’s the composition of this panel is a mystery to me. Normally the only reason why such panels are constituted is that too many judges from within the circuit have recused themselves—and here it’s hard to imagine what could have prompted wholesale recusal.