p is irrelevant in this federal case the mere violation of a state statutes a but is a right does not infringe the federal constitution two there was no first amendment violation occupancy twenty four seven is not a clearly established first amendment right and the use policy's ban on overnight occupancy which was the only part of the use policy that wasn't forced was a reasonable time place and manner restriction three there was no fourth amendment violation because the undisputed facts showed an intent to occupy twenty four seven and in violation of the ban on overnight occupancy thus there was no consent to be on the property and plaintiffs were guilty of a state law trespass and for there was no due process b were not deprived of a liberty interest can i ask you to start up by sand in this that it was easier for the district court to rely on state law to say there was a constitutional violation your opponent course say that the in essence i pay good will speak for themselves that the the the district court didn't rely on state law to say there was a constitutional violation but that that was a necessary preliminary step in order to know what was the governing rule or policy for use of the plaza so it's not a it's not a decision that state law drives constitutional alsace but that you have to know what laws in place and that requires that as a first step what's wrong with their assertion that you need to take a first step to know what law you're looking at for constitutional law purposes because  the state law whether the whether the state or the defense followed state law is irrelevant to these proceedings and boswell versus meyer this circuit the sixth circuit found that a prison mail policy did not violate the first amendment and hill that an alleged statement in boswell itself if there is walker versus menses in this court further stated that a federal court should not rule on the validity of a state regulation challenged on the sole ground that it was not properly adopted under state law and if and also in davis versus share the supreme court found that that a violation of a state statute even a clear state statute does not deprive an official of qualified immunity unless the state statute is the basis for the damages claim and here the u a a p is not the but that the basis of the damages claim but it's more like a what they're how did the district court have decided what was the governing policy for the use of the plaza if not by looking to state law in the first instance or was it unnecessary to ask what the governing rule for the plaza was the issue is whether the the ban on overnight occupancy within the us policy was a proper time place and manner restriction under the first amendment that is the inquiry that should have been made and they needed the district court to not go to that extent  so your position is that it doesn't matter if if if the governor had walked out of his office and said everybody off the plaza between the hours of ten and six your position would be don't worry about how we got there don't worry about whether it just struck him over a coffee that morning it's ok because it when you look at it that is his declaration that would be an appropriate time place and manner restriction so that the argument i don't know that that particular scenario would be a proper time place and manner restrictions would side of that i deposit it exactly as you have and to six off the plaza but it doesn't come through any meeting it doesn't come through any discussion it's just the governor walking out of his office after coffee and saying this is it get off ten to six your position is it doesn't matter how you get there it only matters that the policy itself is appropriate if i understood you right that is correct your honor but i want to make one clarification and that is the it's the ban on overnight occupancy not necessarily the curfew because the public is policy says no event shell overnight occupancy be permitted by any group or individual and that's and that's the basis for saying that that was a reasonable time place manner restrictions or purposes this argument you take the one sentence any nor the rest of the new  right and that is correct your honor and if the defendants can be charged with knowing about a constitutional provision such as prior restraints and such then they can also be charged with knowing that  amendment right to free speech the fourth amendment right to be free from unreasonable searches and seizures and the fourteenth procedural due process as to the first amendment as we state in the brief occupancy twenty four seven is not a clearly established first amendment right camping because as i read the back and forth between the parties i was until i got to your private reply brief i was in the impression that the camping aspect of that was important what you said just a moment or two ago seems to imply that again when you said it's not the curfew it's the overnight occupancy and maybe you know being simplistic but when you say overnight occupancy that means camping to me so i was i was curious when i saw  pages three and four of your reply brief that you say quote the defendants have not contended that the plaintiffs who were arrested for camping the plaintiffs were arrested for trespassing or with full mood notice of the use policies overnight restrictions is there a difference in your mind between overnight restrictions and camping and and is that and is is the case not about the concern that overnight occupancy would cause that is camping the this is the case is over night occupancy whether it be camping or just saying overnight for the upper however and the problem is that what was had that was happening was and even according to their own council he wrote to the department general services on october twenty five they have had some bad problems with being attacked by the homeless again in the middle of the night and on october twenty sixth the day before the us policy was implemented representatives the decision to put the new rules were a policy whatever you want to call it in place was driven by concerns about the overnight occupancy camping that was going on here overnight occupancy and that yes in the camping night do you say that or the other side no there were approximately twenty something the rest of the first night twenty something the second i must add and together with them of them were some of them were overlapping but not everybody some were arrested twice and some were arrested just one time ok and this not sufficient notice now commissioner given the current apartment safety testified that in his in his understanding was that there was no evidence given to the commissioner not commissioner for anything including notice so so  in the second night was the night that the commissioner said i don't think that the policy is constitutional and then after that there were no further arrests the commission's findings are in the record somewhere yes they were yes or distance of the earlier policy meaning policy for use on the plaza it didn't provide any further rights or any less rights of course than the first amendment and it was silent on the whole a whole arc over night occupancy or occupancy twenty four seven well does the fact that it was silent mean that there english and german american type distinctions about prohibited while i think in the united states it's not prince law right well in court as we said the supreme court held that occupancy twenty four seven is not a first amendment right and they amendment required the park service to allow twenty four hour vigils of all it's not clearly established i mean by definition that's not a holding be expressed in dick on the side you know we got our doubts but that wasn't the holding of the case right it was not hold case but it left at delivering for down so it's not a clearly established first amendment right so is camping speech there before the supreme court said that they assume without deciding again leaving open for doubt that sleeping or camping restriction it was content neutral apply to everybody without regard to speech it promoted a significant government interest the district court on page forty three of her opinion acknowledged that the uncontroverted evidence establishes that the use policy was intended to alleviate the good morning my name is david bradley and i'm here with my co counsel tricia hertzfeld and patrick fro on behalf of seven nashville humans and occupy nashville and i'd like to start today may please the floor by reading a it quotes from watchtower bible which says it is offensive not only to the values protected by the first amendment but to the very notion of a free society that in the context of every day public disclosure discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so in about i thought that this case was decided on the basis of the curfew and that that was the only thing that was in front of us why or why is that why is the permit something that we should even be thinking about because the permitting scheme that was before that was that was promulgated by the clear tory judgement relief pieces of this are off the table we're talking about one thing and one thing only we're talking about money damages against two people and we're talking about them on the basis of one thousand nine hundred eighty three violations associated with arrests stemming from violations  the curfew provision have i misunderstood the district court's ruling were right but i do think that the district called court ultimately reached the analysis even if the reach the analysis if the analysis was meaningless to the court's holding which i tried to describe just now isn't the only thing in front of us the curfew aspects of this regulation and the asserted constitutional violations which came as a result of the imposition of a curfew isn't that in fact what's in front of us well i don't think it precisely is because i think the different the qualified immunity defense that has been asserted by the defendants requires in the analysis under certain circumstances how they've they've expressed lead this claim that they themselves in their briefs of said there is no issue with respect to the permit ing we in fact to question your standing to even raise the permitting piece because there's no there's no ruling of the district court in front of us on that and since they're not enforcing it you don't have any perspective harm you can invoke so i really am curious why you're open or is the permitting part of that scheme well and i think that's been put up perhaps it was not the right opener but i do think that it is it is ultimately what the defense but that's being asserted by these defendants amounts to is that they are trying to assert that they have created a regulatory scheme that complies with the well settled clearly settled they are saying the latter they are saying the latter they are saying that it was not and now they say that but they say that in the context of prohibiting camping which is not an issue in this case that's how they that's how they get that it was a peri individuals were sitting down in the middle of the plaza a plaza that is located between the three branches of government the most quintessential public form in our state surprisingly are you honestly saying that there that the occupiers weren't camping on the plaza when they were they've been camping on the plaza for three weeks and that's the record is not clear that these individuals who were arrested were camping out so there's all kinds of stuff about food and the electricity and you know what's the record found by the judge here she takes her finding after finding after finding and that's camping stuff up there but it's not clear that these individuals were the ones who were camping that's not in the record well is it clear in the record that the concern that prompted your clients to go through mr hunt to the state officials and complain and say at the state's expense you should bring in security and sanitation services is it not clear that that was prompted by  camping you had it staying overnight you had people doing what people do overnight which is have waste the limitation problems and you had some crime associated with people staying there overnight it i not in the record that it is that it was theirs and that there is evidence that it occurred while they were there however for the years prior the same thing had been taking place on the same location the city of nashville had actually asked the state to impose a curfew because of that same conduct and they they elected not to have been no it is not clear been a previous occupy movement in nashville you know but there had been there had been homeless people who had been causing these same issues on the same location prior to this and the state had elected not to do anything fair inference from the record that this was that their head this was a first time experience for the state nobody had ever moved onto the plaza and  however some elements the moments of the assaults and the public urination and the indecency that is not true those were there before and those were where we were well on the scale significant enough matters right your own clients came in and said this is getting out of control in effect right scale does matter in the scale was significant enough in the past for the city to make a request specifically for a curfew here and for the state to decline to do so now it's important to note that when when pressed about the duration of this ban on i keep and see that it was only intended to last until our clients were even did from the location so although that's unclear right the the attorney says temporary and the state officers act like it's going to be permanent that they're pretty muddled on that hartley well i would say there is there is some model but the person who spoke most definitively about the the the band this attorney is acting at his direction the defendant seemed to think this was a permanent change in policy instituted in fact to deal with the problems that your own clients came to complain about right that's why that's that uncertainty is why this regulation this in this band is so problematic if it the bandage off the problematic them as opposed to the way it was adopted they're both problematic they're both problematic the way it is adopted is problematic because state law under the problem bears a murderous low no it is not it is not it not in the context of that they that they assert it before you ever get to the qualified immunity analysis you have to determine whether or not a reasonable state actor would have believed that this action the ban was within their capacity just like the example you used of the government coming out and saying i'm banning presence on this council why don't the very statutes give these officials the control the state grounds of hair to keep him safe you know well the statute safe side of being why isn't why isn't that enough because that's not the only statute that exists under state law anywhere in the district courts district court judge  no the court did not actually reach that conclusion in in her opinion however i think that is essentially what the decision is when the court is determining that the that the new rules never took effect that is an act of alter really is it the same think the say you made a mistake in how you promulgated these rules to say you've got no power to promulgated rules at all you know that's not the difference the difference is not between making a that be enough to say that it's alter virus you know probably not but but under circumstances where you ignore it entirely or you say i'm going to act as if it does not exist well and i have the essence of that you're making i mean this was a summary judgment record and we were bound and obligated to view things in the light most favorable to the defendants is it fair to say that it's clear on this record that they said let's ignore the u a a p or did they or is it fair to assume and to believe based on the record that they gathered and met to deal with an emergency situation and thought they were complying with state law well i think that the because of the court's decision ultimately although it does not use the words virus i think that the court ultimately did inherently in expose implicitly find that this was an act outside the authority of these well because they had other authority to act they could have enforced the laws of the neutral criminal laws on the site they had authority to act we're not suggesting that they had no authority to act but we will bring me what would be wrong with it well the piece of paper that they adopted the one page regulation that they adopted is in problems to the second page through it it is improper it is improper for many reasons first it is  and ambiguous because we don't know what occupancy means we don't know what a gathering means for example a gathering might mean somebody in a hillary clinton shirt and somebody in a ran paul shirt debating which one is better together it's not in the sentence or two we're concerned with we're concerned only with the notwithstanding paragraph opting out and serve with the entire regular now right now and i thought we conquered that earlier i thought we're only but you tell me i'm wrong i thought we were only brought in and more specifically is your answer that you should focus on the difference between the least restrictive alternative which is not required to me right and narrowly tailored which it is right this is not merely tailored because the because you can do other things to protect this space in a way that that would protect the legitimate interests of the state in they can  least restrictive alternative analysis that is not in the early tailoring analysis to say you could do this other ways doesn't speak the nailer marilee taylor test does it which says a requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest right you know whether you look think it's broader than you'd like or not right it's unquestionable isn't it that it promotes a legitimate does not end it because there's even under circumstances such as this when you impose a curfew like this there has to be an escape there has to be some way to assess the bureaucrats administration ob that band to determine whether or not it is objective in their use but and the reason is that if you do not have that that that the bureaucrat can use the the curfew as a guard is to limit the content of speech you're getting into the permitting are now you're now you're back despite all our efforts to keep you on paragraph for right with standing half right back to prior restraints on speech with right which well  arguing that the reasonableness of the conduct of the defendant is not an issue for the court is that mr rudin your brief or is that i think that's an open question that the supreme court has has left out there for the sentence that you are relying on these our clients had the right to participate in pro political protest on the legislative plaza during the time period where it was banned the plaza at three o'clock in the morning in defiance of an order to disperse about thirty people left with their property they were got arrested now after the order players continued to occupy with camping tents and camping gear surrounding them that had been present night and day night and day for weeks and at that point in time there was no way to distinguish between occupy nashville between homeless between gangs between any of the groups there on the plaza the troopers were able to rely on report to say that they were all i mean why didn't they just do or even try to prevent try to yeah and the best that we can determine is that they they were faced with a true truly an emergency situation yes and they were had understood but their lawyer said well that's not what their lawyer said either the boy or say had to be interpreted that way like ok that they were there temporary but he said they until they could get control of their movement again was listed with his express testimony  and your honor finally with respect to the process i don't have to have that we're asking for you to exercise pin an appellate jurisdiction and reverse the grant a summary judgment to play the same and gris every judgment to defendants let me