PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1258

OCCUPY COLUMBIA; WALID HAKIM; MELISSA HARMON; BRADLEY 

POWELL; TIMOTHY LISZEWSKI; DAVID BLAND; ASHLEY BLEWER; DAVID 

ARROYO; GADSON BENNETT; JOSHUA ANDERSON; SEBASTIAN PENA; 

JUSTINE WOODS; JOHANNA CAPLE; JOHN RUTLEDGE; L. SHAW 

MITCHELL,

Plaintiffs – Appellees,

v.

NIKKI HALEY, Governor of South Carolina; LEROY SMITH, 

Director of the South Carolina Public Safety; ZACHERY WISE, 

Chief of Police of the South Carolina Bureau of Protective 

Services; JAMES CARR; JOE HODGE; ANDREW SCHMIDT; MARVIN 

HARRIS, III,

Defendants – Appellants,

and

STATE OF SOUTH CAROLINA; HARVEY S. PEELER, JR., Chairman of 

the South Carolina State House Committee; M RICHBOURG 

ROBERSON, Divison of General Services; STERLING L. MORRISON, 

Division of General Services; CURTIS LOFTIS, State 

Treasurer; RICHARD ECKSTROM, Comptroller General; HUGH

LEATHERMAN, Chairman Senate Finance Committee; BRIAN WHITE, 

Chairman House Ways and Means Committee; SOUTH CAROLINA 

BUDGET AND CONTROL BOARD; MARCIA ADAMS, Executive Director 

of the South Carolina Budget and Control Board; CARLA 

GRIFFIN, Division of General Services,

Defendants, 

MARIE THERESE ASSA'AD-FALTAS,

Intervenor.
2

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Cameron McGowan Currie, District 

Judge. (3:11-cv-03253-CMC)

Argued: October 31, 2013 Decided: December 16, 2013

Before TRAXLER, Chief Judge, and KING and THACKER, Circuit 

Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, 

in which Chief Judge Traxler and Judge King joined.

ARGUED: Kevin Alan Hall, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, 

Columbia, South Carolina, for Appellants. Andrew Sims Radeker, 

HARRISON & RADEKER, PA, Columbia, South Carolina, for Appellees. 

ON BRIEF: M. Todd Carroll, Karl S. Bowers, Jr., WOMBLE CARLYLE 

SANDRIDGE & RICE, LLP, Columbia, South Carolina, for Appellant 

Governor Nikki R. Haley. Michael S. Pauley, Vinton D. Lide, 

LIDE AND PAULEY, LLC, Lexington, South Carolina, for All 

Remaining Appellants. Robert J. Butcher, Deborah J. Butcher, 

Ronald Wade Moak, THE CAMDEN LAW FIRM, PA, Camden, South 

Carolina, for Appellees.
3

THACKER, Circuit Judge:

For 31 continuous days, a group of individuals, 

referring to themselves as “Occupy Columbia,” conducted a 24-

hour per day protest on the grounds of the South Carolina State 

House in Columbia, South Carolina. On November 16, 2011, South 

Carolina Governor Nikki Haley directed law enforcement to remove 

any individual associated with Occupy Columbia who remained on 

State House grounds after 6:00 p.m. that day. Shortly after 

6:00 p.m. on the evening of November 16, 2011, 19 members of 

Occupy Columbia remained on State House grounds. They were all 

arrested.

Appellees, Occupy Columbia and 14 individual 

protestors (collectively, “Occupy Columbia”), brought this 

action against a number of individuals, including Governor 

Haley; Leroy Smith, Director of the Department of Public Safety; 

Zachary Wise, Chief of Police of the Bureau of Protective 

Services; and four South Carolina law enforcement officers 

(collectively, “Appellants”), seeking injunctive relief and 

damages pursuant to 42 U.S.C. § 1983, the South Carolina 

Constitution, and South Carolina’s common law.1 Appellants

 1 Occupy Columbia also sued State Senator Harvey S. Peeler, 

Jr. and the State of South Carolina. The claims against Senator 

Peeler and the State of South Carolina were dismissed without 

prejudice on December 14, 2011. Finally, Occupy Columbia sued 

various members of the Budget and Control Board and the Division 

(Continued)
4

sought dismissal pursuant to Rule 12(b)(6) or Rule 12(c) of the 

Federal Rules of Civil Procedure. In granting in part and 

denying in part Appellants’ motion, the district court rejected 

Appellants’ assertions of qualified immunity at this stage in 

the proceedings. 

In this appeal, Appellants seek review of the district 

court’s denial of qualified immunity. Because Occupy Columbia 

has alleged a violation of a clearly established First Amendment 

right -- that is, the right to protest on State House grounds 

after 6:00 p.m. in the absence of a valid time, place, and 

manner restriction -- we affirm.

I.

A.

On October 15, 2011, Occupy Columbia began a 24-hour 

per day protest on the grounds of the South Carolina State House 

in Columbia, South Carolina. Occupy Columbia alleges that its 

“occupation” consisted of “protesting around-the-clock” at the 

 

of General Services, including the State Treasurer, the State 

Comptroller General, the Chairman of the Senate Finance 

Committee, and the Chairman of the House Ways and Means 

Committee (the “Budget and Control Board Defendants”). The 

claims against the Budget and Control Board Defendants were 

dismissed as moot on August 17, 2012.
5

State House. J.A. 114 (Third Am. Compl. (“Compl.”) ¶ 34).2 

According to Occupy Columbia, “[p]hysically occupying the State 

House grounds, including sleeping overnight on the grounds, is 

the only effective manner in which Occupy Columbia members can 

express their message of taking back our state to create a more 

just, economically egalitarian society.” Id. (Compl. ¶ 35).

In its Third Amended Complaint, Occupy Columbia 

alleges that after its members “inquired as to permitting 

requirements” for the State House grounds, they were given a 

handout from the Budget and Control Board’s Division of General 

Services (the “Division of General Services”) and were “told 

they would probably not receive a permit if they applied.” J.A. 

117 (Compl. ¶ 50).3

 In any event, Occupy Columbia alleges, “no 

application for a permit is available on any public source such 

as the internet or at the front counter of the Division of 

General Services.” Id. (Compl. ¶ 51). Moreover, a member of 

the Division of General Services allegedly later informed Occupy 

Columbia “that under no circumstances would any permission to 

 2 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.

3 The Division of General Services is responsible for 

“maintain[ing] the grounds surrounding the State House.” J.A. 

340 (Answer ¶ 15).
6

sleep or use tents on the State House grounds” have been given. 

Id. (Compl. ¶ 50). 

On November 16, 2011, after 31 days of Occupy 

Columbia’s continuous “occupation” of State House grounds, State 

Senator Harvey S. Peeler, Jr. sent a letter to Governor Haley 

asking “what the Budget and Control Board will be doing about 

the Occupy Columbia group” in light of the approaching holiday 

season “and with the Governor’s Carol Lighting on November 

28th.” J.A. 135. Governor Haley responded that very day by 

sending a letter to the Director of the Department of Public 

Safety and to the Chief of Police of the Bureau of Protective 

Services seeking their “assistance in removing any individual 

associated with the ‘Occupy Columbia’ group, as well as his or 

her belongings, who remains on Statehouse grounds after 6:00 

p.m. without written authorization from the Budget and Control 

Board.” Id. at 133. In her letter, Governor Haley cited a 

Budget and Control Board policy “requir[ing] any individual or 

organization that wishes to remain at the Statehouse after 6:00 

p.m. to receive written permission from the agency.” Id. at 

132.

In support of this purported 6:00 p.m. policy, 

Governor Haley relied on a document entitled “Conditions for Use 

of South Carolina State House Grounds” (the “Conditions for 

Use”). Paragraph 8 of the Conditions for Use provided:
7

All activities on the grounds or in the State House 

must strictly adhere to the times as scheduled to 

insure that the activities will not conflict with any 

other scheduled activities. Activities will not be 

scheduled beyond 5:00 p.m. in the State House and 6:00 

p.m. on the grounds unless special provisions in 

writing have been made to extend the time.

Id. at 250 (Compl. Ex. 7) (“Condition 8”).

Governor Haley’s letter continued by explaining, “no 

one associated with the ‘Occupy Columbia’ group appears to have 

even sought such permission, much less received it, yet they 

have essentially taken to living on Statehouse property.” J.A. 

132. Finally, Governor Haley’s letter indicated that there were 

a number of problems associated with Occupy Columbia, including 

damage to the State House grounds and the need for extra 

security. In addition to her letter, Governor Haley held a 

press conference on November 16, 2011, during which she 

explained that anyone present on State House grounds after 6:00 

p.m. that evening would be removed.

Shortly after 6:00 p.m. on the evening of November 16, 

2011, 19 members of Occupy Columbia remained on State House 

grounds. They were all arrested. Occupy Columbia alleges that

at the time of the arrests, its members “were assembled on the 

[S]tate [H]ouse grounds, protesting and petitioning our 

government, and [they] were not violating any law.” J.A. 122-23 

(Compl. ¶ 83). During the early morning hours of November 17, 

2011, those members of Occupy Columbia who were arrested were 
8

released from the detention center on their personal 

recognizance. All charges against them were ultimately

dismissed.

B.

On November 23, 2011, Occupy Columbia filed suit in 

state court against a number of individuals, including

Appellants. The lawsuit sought an order enjoining Appellants 

from interfering with Occupy Columbia’s 24-hour occupation of 

the State House grounds. The state court issued an ex parte 

temporary restraining order (“TRO”), authorizing Occupy Columbia 

to continue occupying the State House grounds. On November 30, 

2011, Appellants removed this case to federal court, and the 

parties agreed to extend the state court’s TRO until 5:00 p.m. 

on December 15, 2011.

On December 14, 2011, the district court granted 

Occupy Columbia’s motion for a preliminary injunction, finding 

that Appellants’ “6:00 p.m. policy” and any unwritten or 

informal rules prohibiting camping or sleeping on State House 

grounds were not valid time, place, and manner restrictions on 

Occupy Columbia’s First Amendment rights. The district court 

explained that although Appellants were permitted to regulate 

camping and sleeping on State House grounds with reasonable 

time, place, and manner restrictions, no such restrictions 

existed in October or November of 2011.
9

 After the district court granted Occupy Columbia’s 

motion for preliminary injunction, the Budget and Control Board 

passed an emergency regulation on December 20, 2011, pursuant to 

its authority under S.C. Code §§ 10-1-30 and 1-23-130.4 This

emergency regulation prohibited the “use of the State House 

grounds and all buildings located on the grounds for camping, 

sleeping, or any living accommodation purposes” (“Regulation 19-

480”). J.A. 106.5

 In light of Regulation 19-480, Occupy 

Columbia and Appellants filed cross-motions to modify the 

preliminary injunction order. The district court denied both 

motions, concluding that amendments to the preliminary 

 4 Pursuant to S.C. Code § 10-1-30, the Director of the 

Division of General Services “may authorize the use of the State 

House lobbies, the State House steps and grounds, and other 

public buildings and grounds in accordance with regulations 

promulgated by the board.” S.C. Code § 10-1-30. Any such 

“regulations must contain provisions to insure that the public 

health, safety, and welfare will be protected in the use of the 

areas including reasonable time, place, and manner restrictions 

and application periods before use.” Id. Finally, “[o]ther 

restrictions may be imposed on the use of the areas as are 

necessary for the conduct of business in those areas and the 

maintenance of the dignity, decorum, and aesthetics of the 

areas.” Id.

In addition, pursuant to S.C. Code § 1-23-130(A), “[i]f an 

agency finds that an imminent peril to public health, safety, or 

welfare requires immediate promulgation of an emergency 

regulation before compliance with the procedures prescribed in 

this article . . . , the agency may file the regulation with the 

Legislative Council and a statement of the situation requiring 

immediate promulgation.” S.C. Code § 1-23-130(A).

5 Regulation 19-480 was codified at S.C. Code § 10-1-35 on 

March 29, 2012. See 2012 S.C. Acts 134.
10

injunction order were unnecessary because the order only 

enjoined any current policy, not any new policy or regulation,

such as Regulation 19-480. The district court further held that 

Regulation 19-480 was a valid time, place, and manner 

restriction.

On January 5, 2012, Occupy Columbia filed a Second 

Amended Complaint, adding a claim for damages pursuant to 42 

U.S.C. § 1983.6

 On January 19, 2012, the Budget and Control 

Board Defendants moved to dismiss the Second Amended Complaint 

pursuant Federal Rule Civil Procedure 12(b)(1), arguing that 

Regulation 19-480 mooted the claims against them. During

briefing of that motion, Occupy Columbia revealed that the 

Budget and Control Board had revised Condition 8 on January 10, 

2012. The revised Condition 8 deleted any references to 

specific time limitations for the use of State House grounds. 

Therefore, on August 17, 2012, the district court granted the 

Budget and Control Board Defendants’ motion to dismiss, holding 

that Occupy Columbia’s claims for injunctive relief against the 

Budget and Control Board Defendants were mooted by S.C. Code 

 6 The caption in Occupy Columbia’s First Amended Complaint, 

which was filed on January 3, 2012, “failed to accurately 

reflect the Defendants” in the case. J.A. 21. As such, the 

district court directed Occupy Columbia “to file a Second 

Amended Complaint no later than January 6, 2012, making only 

this correction.” Id.
11

§ 10-1-35 (formerly Regulation 19-480) and the removal of the 

6:00 p.m. policy from Condition 8.

Occupy Columbia filed a Third Amended Complaint on 

September 20, 2012, adding additional plaintiffs to the case. 

On October 1, 2012, Appellants moved to dismiss the Third 

Amended Complaint or for judgment on the pleadings pursuant to 

Federal Rules of Civil Procedure 12(b)(6) and 12(c), arguing 

that Occupy Columbia’s claims for injunctive relief were moot,

and that Appellants were entitled to qualified immunity as to

Occupy Columbia’s claims for damages. On February 7, 2013, the 

district court dismissed as moot Occupy Columbia’s claims for 

injunctive relief. However, the district court denied the 

motion to dismiss Occupy Columbia’s claims for damages, 

concluding that Appellants were not entitled to qualified 

immunity at this stage.

In addressing Appellants’ qualified immunity 

arguments, the district court first agreed with Appellants “that 

it was not clearly established at the time of [Occupy 

Columbia]’s arrests that there was a constitutional right to 

camp, sleep, or live continuously on the State House grounds.” 

J.A. 423-24. However, the district court then reviewed the 

allegations in the Third Amended Complaint and concluded that 

Occupy Columbia had also alleged that their “constitutional 

rights were violated when they were arrested for their presence 
12

and protests on the State House grounds after 6:00 p.m.” Id. at

424. As to this separately alleged constitutional violation, 

the district court rejected Appellants’ qualified immunity 

argument and held that “it was clearly established that [Occupy 

Columbia] had a First Amendment right to protest absent a valid 

time, place, and manner restriction.” Id. at 431. Therefore, 

the district court concluded Appellants were not entitled to 

qualified immunity on the § 1983 claims for damages as alleged 

in the Third Amended Complaint.

II.

On February 25, 2013, Appellants filed a notice of 

appeal, seeking review of the district court’s qualified 

immunity ruling. Ordinarily, we do not possess appellate 

jurisdiction over interlocutory orders -- such as the denial of

a Rule 12(b)(6) motion to dismiss or the denial of a Rule 12(c) 

motion for judgment on the pleadings -- because such decisions 

are not final judgments within the meaning of 28 U.S.C. § 1291. 

See Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 

304 (4th Cir. 2006) (explaining that generally, a district 

court’s denial of a Rule 12(b)(6) motion is not an appealable 

ruling); Coleman by Lee v. Stanziani, 735 F.2d 118, 120 (3d Cir. 

1984) (“An order denying a Rule 12(c) motion . . . is a prime 

example of an interlocutory order.”). A district court’s denial 

of qualified immunity, however, “is immediately appealable under 
13

the collateral order doctrine to the extent that the 

availability of this defense turns on a question of law.” 

Ridpath, 447 F.3d at 305 (citing Mitchell v. Forsyth, 472 U.S. 

511, 530 (1985)). “This principle applies whether qualified 

immunity was rejected at the dismissal stage (as in these 

proceedings), or at the summary judgment stage.” Id. 

Therefore, because the district court’s decision here turned on 

a question of law, we possess jurisdiction under the collateral 

order doctrine to review the denial of qualified immunity.

III.

A.

A motion for judgment on the pleadings under Rule 

12(c) is assessed under the same standards as a motion to 

dismiss under Rule 12(b)(6). See Edwards v. City of Goldsboro, 

178 F.3d 231, 243 (4th Cir. 1999). As such, we review de novo a 

district court’s denial of qualified immunity raised in a motion 

under either Rule 12(b)(6) or Rule 12(c). See id.; Ridpath v. 

Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 

2006).

A motion to dismiss tests the sufficiency of a 

complaint. See Butler v. United States, 702 F.3d 749, 752 (4th 

Cir. 2012). To survive such a motion, the complaint must 

contain facts sufficient “to raise a right to relief above the 

speculative level” and “state a claim to relief that is 
14

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555, 570 (2007). “Although a motion pursuant to Rule 

12(b)(6) invites an inquiry into the legal sufficiency of the 

complaint, not an analysis of potential defenses to the claims 

set forth therein, dismissal nevertheless is appropriate when 

the face of the complaint clearly reveals the existence of a 

meritorious affirmative defense.” Brockington v. Boykins, 637 

F.3d 503, 506 (4th Cir. 2011) (internal quotation marks 

omitted). One such defense is qualified immunity. See id.

B.

Occupy Columbia relies on several exhibits and 

affidavits -- all of which were “incorporated . . . by 

reference” to the Third Amended Complaint, see J.A. 109 (Compl. 

¶ 7) -- in support of its argument that Appellants are not 

entitled to qualified immunity. Specifically, Occupy Columbia 

cites a number of affidavits to explain that, in response to 

Governor Haley’s November 16, 2011 letter and press conference, 

members of Occupy Columbia removed all camping supplies from the 

State House grounds by 5:15 p.m. See Appellees’ Br. 9-10 

(citing J.A. 233-34, 238-39, 245-46, 304). We must therefore 

define the universe of documents we may consider in evaluating 

this appeal.

In resolving a motion pursuant to Rule 12(b)(6) or 

Rule 12(c), a district court cannot consider matters outside the 
15

pleadings without converting the motion into one for summary 

judgment. Fed. R. Civ. P. 12(d). A court may, however,

consider a “written instrument” attached as an exhibit to a 

pleading, see Fed. R. Civ. P. 10(c), “as well as [documents] 

attached to the motion to dismiss, so long as they are integral 

to the complaint and authentic.” Philips v. Pitt Cnty. Mem’l 

Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Rule 10(c) states, 

“[a] copy of a written instrument that is an exhibit to a 

pleading is part of the pleading for all purposes.” Fed. R. 

Civ. P. 10(c) (emphasis supplied). There is no uniform rule 

among the circuits with respect to whether an affidavit attached 

as an exhibit to a pleading is a “written instrument” such that 

it may be considered by a district court in resolving a Rule 

12(b)(6) or Rule 12(c) motion.

The Third Circuit has held that an affidavit does not 

constitute a “written instrument” within the meaning of Rule 

10(c). Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989). 

“To hold otherwise,” the court reasoned, “would elevate form 

over substance by drawing a distinction between an affidavit 

filed with [a pleading] and an affidavit filed with a motion to 

dismiss under Rule 12(b)(6).” Id. The court noted, “the types 

of exhibits incorporated within the pleadings by Rule 10(c) 

consist largely of documentary evidence, specifically, 

contracts, notes, and other writing[s] on which [a party’s] 
16

action or defense is based.” Id. (internal quotation marks 

omitted). Finally, the court explained that considering 

affidavits “would further blur the distinction between summary 

judgment and dismissal for failure to state a claim upon which 

relief could be granted.” Id.

In contrast, the Seventh Circuit “has interpreted the 

term ‘written instrument’ as used in Rule 10(c) to include 

documents such as affidavits,” N. Ind. Gun & Outdoor Shows, Inc. 

v. City of South Bend, 163 F.3d 449, 453 (7th Cir. 1998), 

explaining that it “believe[s] the broader interpretation 

comports with the traditionally generous nature in which [the 

court] view[s] pleadings,” id. at 453 n.4; see also Schnell v. 

City of Chicago, 407 F.2d 1084, 1085 (7th Cir. 1969), overruled 

on other grounds by City of Kenosha v. Bruno, 412 U.S. 507

(1973). 

We need not decide the propriety of considering an 

affidavit attached as an exhibit to a pleading in the instant 

appeal. Here, the district court refused to consider any of the 

“affidavits purportedly incorporated by reference in the Third 

Amended Complaint” in making its qualified immunity 

determination. J.A. 417 n.1. In fact, to avoid converting 

Appellants’ motion under Rule 12(b)(6) or Rule 12(c) into a 

motion for summary judgment, the district court explained it was 

“rely[ing] solely on the allegations in the Third Amended 
17

Complaint and those documents that are integral to the 

complaint.” Id.7 We will do the same.

Appellants argue that, despite the district court’s 

explicit statement to the contrary, the court did in fact rely 

on materials outside of the Third Amended Complaint in denying 

Appellants’ motion to dismiss. See Appellants’ Br. 8. 

Specifically, Appellants contend that the district court’s order 

incorporated by reference its earlier rulings on Occupy 

Columbia’s motion for preliminary injunction, which contained 

evidentiary evaluations. In addition, Appellants note the 

district court’s order referenced the Budget and Control Board 

Defendants’ previous statements in this litigation concerning 

how the Budget and Control Board regulated the State House 

 7 According to the district court, the following documents 

were integral to the complaint: (1) Governor Haley’s letter to 

Appellants Smith and Wise; (2) Senator Peeler’s letter to 

Governor Haley; and (3) the Budget and Control Board’s 

Conditions for Use. J.A. 417 n.1. We agree and note that, even 

at the Rule 12(b)(6) or Rule 12(c) stage, the district court 

properly considered these documents. Not only can they be 

fairly characterized as written instruments attached to the 

Third Amended Complaint, see Fed. R. Civ. P. 10(c), but they 

were also explicitly relied on by the parties in briefing the 

Rule 12(b)(6) or Rule 12(c) motion, and their authenticity has 

not been disputed, see Philips, 572 F.3d at 180; Blankenship v. 

Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006).

The district court further noted that even if it were to 

consider the affidavits, it “would reach the same result as the 

affidavits support [Occupy Columbia]’s position.” J.A. 417 n.1.
18

grounds. After carefully reviewing the district court’s order 

below, we are not persuaded by Appellants’ contentions.

To the extent the district court mentioned materials 

beyond the Third Amended Complaint and attached exhibits, it 

appears the court was doing so for illustrative and background 

purposes only -- the court did not rely on those materials in 

making its qualified immunity determination. Indeed, the 

district court referred to its earlier rulings on Occupy 

Columbia’s motion for preliminary injunction through footnotes 

in its “Background” section, simply explaining that it “assumes 

familiarity” with these orders. J.A. 419 n.4. As for the 

Budget and Control Board Defendants’ previous statements in this 

litigation, the court’s “find[ing] that there was no time 

restriction on protests on State House grounds,” id. at 426, is 

supported simply by the text of Condition 8. See id. at 425-26 

(characterizing Condition 8 as a method for obtaining 

reservations and explaining that “[t]he text of Condition 8 

neither purported to close the State House grounds to protestors 

after 6:00 p.m. ‘unless special provisions in writing’ were 

obtained, nor to authorize the arrests of protestors for their 

presence on the grounds after 6:00 p.m. if they did not receive 

‘special provisions in writing’”).
19

IV.

Appellants argue that they are entitled to qualified 

immunity. Qualified immunity is an affirmative defense that 

“shields government officials performing discretionary functions 

from personal-capacity liability for civil damages under § 1983, 

insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person 

would have known.” Ridpath v. Bd. of Governors Marshall Univ., 

447 F.3d 292, 306 (4th Cir. 2006) (internal quotation marks 

omitted). Qualified immunity does not protect government 

officials when they are “plainly incompetent or . . . knowingly 

violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 

“But, in gray areas, where the law is unsettled or murky, 

qualified immunity affords protection to [a government official] 

who takes an action that is not clearly forbidden -- even if the 

action is later deemed wrongful.” Rogers v. Pendleton, 249 F.3d 

279, 286 (4th Cir. 2001) (internal quotation marks omitted).

Government officials are entitled to the defense of 

qualified immunity unless a § 1983 claim satisfies the following 

two-prong test: “(1) the allegations underlying the claim, if 

true, substantiate a violation of a federal statutory or 

constitutional right; and (2) this violation was of a clearly 

established right of which a reasonable person would have 
20

known.” Ridpath, 447 F.3d at 306 (internal quotation marks 

omitted).

A.

Before proceeding to the two-prong qualified immunity 

test, “our first task is to identify the specific right that 

[Occupy Columbia] asserts was infringed by the challenged 

conduct, recognizing that the right must be defined at the 

appropriate level of particularity.” Winfield v. Bass, 106 F.3d 

525, 530 (4th Cir. 1997) (en banc). Appellants’ primary 

contention on appeal is that the district court “incorrectly 

defined the alleged right at issue” as a generalized right to 

protest on public property, rather than a right to live 

continuously on State House grounds. Appellants’ Br. 13. This 

threshold error, according to Appellants, caused the district 

court to misapply both prongs of the qualified immunity analysis 

outlined above. We disagree.

A careful examination of the Third Amended Complaint 

and the attached exhibits (excluding the affidavits) leads us to 

conclude that Occupy Columbia has alleged two separate First 

Amendment violations, arising out of: (1) the requirement that 

Occupy Columbia vacate State House grounds by 6:00 p.m. on 

November 16, 2011; and (2) the arrest of members of Occupy 

Columbia when they were assembled on State House grounds after 

6:00 p.m. on November 16, 2011.
21

1.

There is no doubt Occupy Columbia’s pleadings more 

than sufficiently allege that Appellants violated Occupy 

Columbia’s First Amendment rights by requiring Occupy Columbia 

to vacate State House grounds by 6:00 p.m. on November 16, 2011. 

The Third Amended Complaint is clear that Occupy Columbia’s 

“occupation” consisted of “protesting around-the-clock” at the 

State House. J.A. 114 (Compl. ¶ 34). Occupy Columbia alleges, 

“[p]hysically occupying the State House grounds, including 

sleeping overnight on the grounds, is the only effective manner 

in which Occupy Columbia members can express their message of 

taking back our state to create a more just, economically 

egalitarian society.” Id. (Compl. ¶ 35). Indeed, as part of 

its occupation, Occupy Columbia established a “medical 

committee,” a “food service committee,” and a “security 

committee.” Id. at 118 (Compl. ¶ 57). Throughout its Third 

Amended Complaint, Occupy Columbia asserts that its First 

Amendment rights were violated when Appellants prevented members 

of Occupy Columbia from engaging in the expressive conduct of 

living continuously on State House grounds. Therefore, Occupy 

Columbia has unquestionably alleged that its First Amendment 

rights were violated when Appellants required its members to 

remove their camping equipment and vacate the State House 

grounds by 6:00 p.m. on November 16, 2011.
22

With this first alleged constitutional violation in 

mind, the district court briefly analyzed Appellants’ qualified 

immunity defense and held that, at the time of Occupy Columbia’s 

removal from State House grounds, it was not clearly established 

that camping, sleeping, or living continuously on public 

property was expressive conduct protected by the First 

Amendment. The district court explained there are no Supreme 

Court or Fourth Circuit cases that clearly establish a First 

Amendment right to camp or sleep on public property in 

connection with protests. See J.A. 424 n.9 (citing Clark v. 

Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) 

(assuming without deciding, for purposes of its time, place, and 

manner analysis, that “overnight sleeping in connection with the 

demonstration is expressive conduct protected to some extent by 

the First Amendment”)).8

 8 At least one federal district court has reached the 

opposite conclusion. See Occupy Nashville v. Haslam, ––- F. 

Supp. 2d –––-, 2013 WL 2644081, at *15 (M.D. Tenn. June 12, 

2013) (denying qualified immunity for state officials and 

holding that “plaintiffs had a clearly established right to 

utilize the Plaza to engage in overnight protest activity”). In 

Occupy Nashville, the United States District Court for the 

Middle District of Tennessee explained, “[t]he plaintiffs’

protests contained a fundamental constitutional core, regardless 

of the secondary effects that resulted from the manner in which 

they chose to exercise it.” Id. “At any rate, the plaintiffs 

were not arrested because of those secondary effects, they were 

arrested for their presence on the Plaza, even though no law 

. . . prevented them from being present there.” Id. (emphasis 

in original).
23

The district court did not decide whether Occupy 

Columbia’s allegations would in fact substantiate a First 

Amendment violation because, assuming a right to camp and sleep 

on public property as part of a protest exists, it was not 

clearly established. Accordingly, the court held that the 

defense of qualified immunity barred any claims for damages 

against Appellants arising out of the first alleged 

constitutional violation. This holding is not the subject of 

the instant appeal.9

2.

We next examine whether Occupy Columbia’s pleadings 

sufficiently allege that Appellants violated Occupy Columbia’s

 9 Nevertheless, Occupy Columbia asks us to “hold that the 

camping and sleeping in which Occupy Columbia was engaged at the 

State House was constitutionally protected speech.” Appellees’ 

Br. 45. This issue is not before us. Indeed, the district 

court’s grant of qualified immunity with respect to the first 

alleged constitutional violation was not a final appealable 

order because it did not dispose of all of Occupy Columbia’s 

claims against Appellants. See United States v. Myers, 593 F.3d 

338, 344 (4th Cir. 2010) (“Generally, a final decision ends the 

litigation on the merits and leaves nothing for the court to do 

but execute the judgment.” (internal quotation marks omitted)). 

Moreover, Occupy Columbia has not asked us to exercise pendent 

appellate jurisdiction to consider this issue. See Evans v. 

Chalmers, 703 F.3d 636, 658 (4th Cir. 2012) (“Our exercise of 

pendent appellate jurisdiction is proper only when an issue is 

(1) inextricably intertwined with the decision of the lower 

court to deny qualified immunity or (2) consideration of the 

additional issue is necessary to ensure meaningful review of the 

qualified immunity question.” (internal quotation marks 

omitted)).
24

First Amendment rights by arresting them for their presence and 

protest on State House grounds after 6:00 p.m. on November 16, 

2011. Appellants contend Occupy Columbia’s pleadings allege

only a violation of “the right to live indefinitely on public 

property.” Appellants’ Br. 17. According to Appellants, “the 

Constitution does not guarantee a right to squat indefinitely on 

public property, which is precisely what the [members of Occupy 

Columbia] allege they were doing before and at the time they 

were arrested.” Id. at 14 (emphasis supplied). Occupy Columbia 

argues, however, “[w]hen the facts are viewed in Occupy 

Columbia’s favor, the third amended complaint suggests that the 

Occupy Columbia arrestees were arrested when they were simply 

protesting as part of Occupy Columbia.” Appellees’ Br. 36.

It is true that at the heart of Occupy Columbia’s 

Third Amended Complaint are allegations that Appellants violated 

Occupy Columbia’s First Amendment rights by interfering with 

Occupy Columbia’s ability to continuously camp and sleep on 

State House grounds. Specifically, the complaint alleges that 

Occupy Columbia was determined to establish a “24-hour-perday/7-days-per-week actual, physical occupation” of the State 

House grounds. J.A. 113 (Compl. ¶ 27). According to Occupy 

Columbia’s complaint, “literal occupation of the State House

grounds 24 hours a day is and . . . was a core component to the 

Occupy Columbia movement.” Id. at 114 (Compl. ¶ 35). 
25

Despite Appellants’ assertions to the contrary, 

however, the “right to squat indefinitely on State House 

grounds” is not the only right Occupy Columbia’s Third Amended 

Complaint alleges was violated. At the time its members were 

arrested, Occupy Columbia alleges they “were assembled on the 

[S]tate [H]ouse grounds, protesting and petitioning our 

government, and . . . were not violating any law.” J.A. 122-23 

(Compl. ¶ 83) (emphasis supplied). In addition, the Third 

Amended Complaint alleges that Appellants wrongfully arrested 

members of Occupy Columbia while they “were exercising their 

fundamental constitutional rights of Free Speech, Assembly, and 

Petition.” Id. at 122 (Compl. ¶ 81). Occupy Columbia further

alleges that its members “had a constitutional right to protest, 

petition the government, and assemble on [S]tate [H]ouse 

grounds.” Id. at 123 (Compl. ¶ 85) (emphasis supplied). 

Crucially, these paragraphs do not allege that members of Occupy 

Columbia were arrested for their continued occupation and 

camping on the State House grounds. Rather, they state that the 

arrests occurred when Occupy Columbia was simply assembled on 

State House grounds for the purpose of protesting and 

petitioning the government. Thus, Occupy Columbia has pled a 

separate constitutional violation arising solely out of their

arrest for assembling on State House grounds after 6:00 p.m. on 

November 16, 2011.
26

Moreover, Governor Haley’s letter, which prompted the 

arrests, did not generally order the removal of any individuals 

who were camping, sleeping, or living on State House grounds. 

Instead, it was focused solely on Occupy Columbia; it directed 

Appellant Smith and Appellant Wise to “remov[e] any individual 

associated with the ‘Occupy Columbia’ group, as well as his or 

her belongings, who remains on Statehouse grounds after 6:00 

p.m. without written authorization from the Budget and Control 

Board.” J.A. 133; id. at 119 (Compl. ¶ 61). This further 

supports Occupy Columbia’s allegations of a second 

constitutional violation arising purely out of lawful protest 

activity.

Accordingly, the district court correctly concluded 

that Occupy Columbia’s complaint and exhibits thereto 

sufficiently alleged that Appellants violated Occupy Columbia’s

First Amendment rights when they arrested them for their 

presence and protest on State House grounds after 6:00 p.m. on 

November 16, 2011.

B.

Having concluded that the district court correctly

defined the right at issue, we must next decide whether 

Appellants are entitled to dismissal on the basis of qualified 

immunity. As explained, qualified immunity provides government 

officials who are performing discretionary functions a defense 
27

from liability for § 1983 civil damages unless: “(1) the 

allegations underlying the claim, if true, substantiate a 

violation of a federal statutory or constitutional right; and 

(2) this violation was of a clearly established right of which a 

reasonable person would have known.” Ridpath v. Bd. of 

Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) 

(internal quotation marks omitted). It is within our discretion 

to decide “which of the two prongs of the qualified immunity 

analysis should be addressed first in light of the circumstances 

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 

223, 236 (2009). Each prong is analyzed below.

1.

In reviewing the denial of qualified immunity, “the 

nature of the right allegedly violated must be defined ‘at a

high level of particularity.’” Rogers v. Pendelton, 249 F.3d 

279, 286 (4th Cir. 2001) (quoting Edwards v. City of Goldsboro, 

178 F.3d 231, 250-51 (4th Cir. 1999)). Stated at the 

appropriate level of particularity, the right allegedly violated 

by Appellants is the right to be present and protest on State 

House grounds after 6:00 p.m. Therefore, the qualified immunity 

analysis must begin with this alleged constitutional violation 

in mind, and we must simply determine “whether [Occupy 

Columbia’s] allegations, if true, establish a constitutional 

violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002).
28

The First Amendment guarantees the right to free 

speech. U.S. Const. amend. I; Rendell-Baker v. Kohn, 457 U.S. 

830, 837 (1982) (“[I]t is fundamental that the First Amendment 

prohibits governmental infringement on the right of free 

speech.”). As the Supreme Court has stated, “[t]here is no 

doubt that as a general matter peaceful picketing and leafleting 

are expressive activities involving ‘speech’ protecting by the 

First Amendment.” United State v. Grace, 461 U.S. 171, 176 

(1983) (collecting cases). “It is also true that ‘public 

places’ historically associated with the free exercise of 

expressive activities, such as streets, sidewalks, and parks, 

are considered, without more, to be ‘public forums.’” Id. at 

177 (collecting cases). The South Carolina State House grounds 

are the “site of the State Government,” Edwards v. South 

Carolina, 372 U.S. 229, 235 (1963), and comprise “an area of two 

city blocks open to the general public,” id. at 230. As such, 

we treat the area outside of the State House as a public forum 

for First Amendment purposes. Cf. Grace, 461 U.S. at 180 (“The 

public sidewalks forming the perimeter of the Supreme Court 

grounds, in our view, are public forums and should be treated as 

such for First Amendment purposes.”).10

 10 The district court also characterized the State House 

grounds as a “public forum.” J.A. 11. The specific character 

of property affects the government’s ability to limit expressive 

(Continued)
29

As we have recognized, “[a] bedrock First Amendment 

principle is that citizens have a right to voice dissent from 

government policies.” Tobey v. Jones, 706 F.3d 379, 391 (4th 

Cir. 2013). Moreover, speech regarding “matters of public 

concern . . . is at the heart of the First Amendment’s 

protection.” Dun & Bradstreet, Inc. v. Greenmoss Builders, 

Inc., 472 U.S. 749, 758-59 (1985) (internal quotation marks 

omitted). “Speech deals with matters of public concern when it 

can be fairly considered as relating to any matter of political, 

social, or other concern to the community.” Snyder v. Phelps, 

131 S. Ct. 1207, 1216 (2011) (internal quotation marks omitted). 

Occupy Columbia’s Third Amended Complaint sufficiently alleges 

that its members were engaged in protected speech at the time 

they were arrested. Specifically, the complaint alleges Occupy 

Colombia’s members were assembled on State House grounds (a 

public forum) and were “protesting and petitioning our 

government.” J.A. 122-23 (Compl. ¶ 83). Occupy Columbia’s 

allegations thus satisfy the standards to qualify as protected 

speech.

 

conduct. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 

460 U.S. 37, 45-46 (1983) (describing the differences between: 

(1) “quintessential public forums;” (2) “public property which 

the state has opened for use by the public as a place for 

expressive activity;” and (3) “[p]ublic property which is not by 

tradition or designation a forum for public communication”).
30

Although Occupy Columbia alleges it was engaged in 

protected speech, this does not end the inquiry. Even protected 

speech is subject to government regulation since “protected 

speech is not equally permissible in all places and at all 

times.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 

U.S. 788, 799 (1985); see also id. at 799-800 (“Nothing in the 

Constitution requires the Government freely to grant access to 

all who wish to exercise their right to free speech on every 

type of Government property without regard to the nature of the 

property or to the disruption that might be caused by the 

speaker’s activities.”). To that end, the state may “enforce 

regulations of the time, place, and manner of expression which 

are content-neutral, are narrowly tailored to serve a 

significant government interest, and leave open ample 

alternative channels of communication.” Perry Educ. Ass’n v. 

Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) 

(explaining that “even in a public forum the government may 

impose reasonable restrictions on the time, place, or manner of 

protected speech”). Therefore, in the absence of a valid time, 

place, and manner restriction, Occupy Columbia had a First 

Amendment right to assemble on State House grounds after 6:00 

p.m., and its Third Amended Complaint sufficiently alleges that 

this right was violated.
31

Appellants contend that, at the time of the arrests, 

South Carolina had in place a series of criminal statutes 

regulating the use of State House grounds and that those 

statutes were valid time, place, and manner restrictions. See

S.C. Code § 10-11-20 (making it “unlawful to use the State House 

or grounds for any purpose not authorized by law”); id. § 10-11-

30 (making it unlawful “to trespass upon the grass plots or 

flower beds of the grounds of the State house” or to “cut down, 

deface, mutilate or otherwise injure any of the statues, trees, 

shrubs, grasses or flowers on the grounds”); id. § 10-11-330 

(making it unlawful “to obstruct or impede passage within the

capitol grounds or building”). As valid time, place, and manner 

restrictions -- the argument goes -- Appellants “could rightly 

enforce them against [Occupy Columbia].” Appellants’ Br. 28 

(emphasis supplied). Appellants’ argument misses the point.

It may well be that these statutes are in fact valid 

time, place, and manner restrictions on an individual’s ability 

to protest on State House grounds. It may also be true that, 

under appropriate circumstances, Appellants could enforce these 

statutes against individuals on State House grounds, including 

members of Occupy Columbia. Yet, what Appellants “could” do is 

irrelevant here. What matters, at this stage, is whether 

Appellants can demonstrate an entitlement to the defense of 

qualified immunity based on the Third Amended Complaint and the 
32

exhibits attached thereto. See Brockington v. Boykins, 637 F.3d 

503, 506 (4th Cir. 2011) (explaining that dismissal “is 

appropriate when the face of the complaint clearly reveals the 

existence of a meritorious affirmative defense” (emphasis 

supplied)).

On the face of the Third Amended Complaint, members of 

Occupy Columbia were violating no law when they were arrested. 

Instead, the complaint alleges that members of Occupy Columbia 

were arrested simply for their presence on State House grounds 

after 6:00 p.m. The motivation for the arrests, according to 

the complaint, was Governor Haley’s letter, which specifically 

instructed Appellant Smith and Appellant Wise to “remov[e] any 

individual associated with the ‘Occupy Columbia’ group, as well 

as his or her belongings, who remains on Statehouse grounds 

after 6:00 p.m. without written authorization from the Budget 

and Control Board.” J.A. 133. The Third Amended Complaint 

contains no allegations to support the notion that Occupy 

Columbia was violating S.C. Code §§ 10-11-20, 10-11-30, or 10-

11-330 when its members were arrested on November 16, 2011.

Therefore, at the Rule 12(b)(6) or 12(c) stage, Occupy Columbia 

has sufficiently alleged a First Amendment violation 

notwithstanding the existence of these statutes and despite 
33

Appellants’ contention that the statutes “could” rightly be 

enforced against Occupy Columbia.11

Appellants also argue that Condition 8 was a valid 

time, place, and manner restriction, requiring Occupy Columbia 

to receive permission to remain on State House grounds after 

6:00 p.m. Again, we are not persuaded.

Condition 8 provides:

All activities on the grounds or in the State House 

must strictly adhere to the times as scheduled to 

insure that the activities will not conflict with any 

other scheduled activities. Activities will not be 

scheduled beyond 5:00 p.m. in the State House and 6:00 

p.m. on the grounds unless special provisions in 

writing have been made to extend the time.

J.A. 250 (Compl. Ex. 7). On its face, Condition 8 is simply a 

mechanism for groups to obtain reservations to utilize the State 

House grounds in ways that “will not conflict with any other 

scheduled activities.” Id. It does not, as Appellants contend, 

close the State House grounds to the public at 6:00 p.m., nor 

does it authorize the arrest of individuals for their presence 

on State House grounds after 6:00 p.m.

Even if we read Condition 8 as imposing a time, place, 

and manner restriction, which would require individuals to 

 11 Occupy Columbia contends that Appellants’ argument 

justifying the arrests under these statutes is not preserved for 

this appeal. However, we need not decide the preservation issue 

because, as explained, we do not find Appellants’ argument

compelling.
34

receive permission from the Division of General Services to 

remain on State House grounds after 6:00 p.m., such a 

restriction would be invalid. As the Supreme Court has made 

clear, “a time, place, and manner regulation [must] contain 

adequate standards to guide the official’s decision and render 

it subject to effective judicial review.” Thomas v. Chicago 

Park Dist., 534 U.S. 316, 323 (2002). The Court explained, 

“[w]here the licensing official enjoys unduly broad discretion 

in determining whether to grant or deny a permit, there is a 

risk that he will favor or disfavor speech based on its 

content.” Id. (citing Forsyth Cnty. v. Nationalist Movement, 

505 U.S. 123, 131 (1992)). Here, we are unaware of any 

standards to guide the Division of General Services in deciding 

whether to grant or deny a permit to remain on State House 

grounds after 6:00 p.m. Indeed, neither Condition 8 nor the 

other Conditions of Use articulate any such standards. 

Accordingly, Condition 8 was not a valid time, place, and manner 

restriction that could have justified the arrests of the members 

of Occupy Columbia.

2.

Having concluded that Occupy Columbia’s complaint 

sufficiently alleges that arresting its members for their 

presence and protests on State House grounds after 6:00 p.m. 

constituted a violation of their First Amendment rights, we must 
35

turn to the second prong of the qualified immunity analysis. 

“The second prong is ‘a test that focuses on the objective legal 

reasonableness of an official’s acts.’” Henry v. Purnell, 652 

F.3d 524, 534 (4th Cir. 2011) (en banc) (quoting Harlow v. 

Fitzgerald, 457 U.S. 800, 819 (1982)). At this stage, we must 

assess whether the First Amendment right allegedly violated by 

Appellants was a “clearly established” right “of which a 

reasonable person would have known.” Mellen v. Bunting, 327 

F.3d 355, 365 (4th Cir. 2003) (internal quotation marks 

omitted)).

When deciding whether a right is clearly established, 

we ask “‘whether it would be clear to a reasonable [official]

that his conduct was unlawful in the situation he confronted.’” 

Henry, 652 F.3d at 534 (quoting Saucier v. Katz, 533 U.S. 194, 

205 (2001)). “This is not to say that an official action is 

protected by qualified immunity unless the very action in 

question has previously been held unlawful, but it is to say 

that in the light of pre-existing law the unlawfulness must be 

apparent.” Anderson v. Creighton, 483 U.S. 635, 239 (1987)

(internal citations omitted); see also Brockington, 637 F.3d at

508 (“Importantly, it is not required that the exact conduct has 

been found unconstitutional in a previous case.”). Whether a 

right is clearly established depends on the law of the relevant 

jurisdiction. See Edwards, 178 F.3d at 250-51 (“In determining 
36

whether a right was clearly established at the time of the 

claimed violation, courts in this circuit [ordinarily] need not 

look beyond the decisions of the Supreme Court, this court of 

appeals, and the highest court of the state in which the case 

arose.” (alteration in original and internal quotation marks 

omitted)).

The question we must therefore ask is, on November 16, 

2011, was it clearly established in Fourth Circuit and Supreme 

Court precedent that, in the absence of a valid time, place, and 

manner restriction, arresting members of Occupy Columbia for 

their presence and protest on State House grounds after 6:00 

p.m. was a violation of their First Amendment rights. In light 

of the First Amendment case law described above (and again 

briefly summarized below), we must answer this question in the 

affirmative.

“A bedrock First Amendment principle is that citizens 

have a right to voice dissent from government policies.” Tobey, 

706 F.3d at 391 (citing Mills v. Alabama, 384 U.S. 214, 218 

(1966)). Indeed, “it is fundamental that the First Amendment 

prohibits governmental infringement on the right of free 

speech.” Rendell-Baker, 457 U.S. at 837. Moreover, when that 

speech takes place in a “quintessential public forum,” the 

ability “of the state to limit expressive activity are sharply 

circumscribed.” Perry, 460 U.S. at 45. Of course, “even in a 
37

public forum the government may impose reasonable restrictions 

on the time, place, or manner of protected speech.” Ward, 491 

U.S. at 791.

It is not disputed that South Carolina and its state 

officials could have restricted the time when the State House 

grounds are open to the public with a valid time, place, and 

manner restriction. However, as explained above, at the time of 

Occupy Columbia’s arrest, no such restrictions existed. In 

light of the case law from this circuit and from the Supreme 

Court, it was clearly established on November 16, 2011, that 

arresting Occupy Columbia for protesting on State House grounds 

after 6:00 p.m. was a First Amendment violation. Accordingly, 

at this stage, Appellants are not entitled to qualified immunity 

for damages arising out of Occupy Columbia’s arrest on November 

16, 2011.

V.

In sum, we hold that the Occupy Columbia protesters 

have stated a viable claim that Appellants violated their First 

Amendment rights to assemble and protest peacefully on the 

grounds of the South Carolina State House in the absence of a 

valid time, place, or manner regulation. Condition 8 did not 

constitute a valid regulation because on its face it imposed no 

limit on when the State House grounds were open to the public

and, even if it had restricted the time during which protesters 
38

could assemble, it did not contain any standards to guide the 

official’s decision regarding when to grant special permission 

to continue such activities beyond closing time. Furthermore, 

at this point in the proceedings, we cannot say as a matter of 

law that the state statutes upon which Appellants rely are valid

applicable time, place, and manner restrictions. For purposes 

of this motion, we must accept as true Occupy Columbia’s 

assertion that its members gathered in a peaceful and lawful 

manner and conclude that the protesters were not violating any 

law. Based on the complaint, there were no existing time, 

place, and manner restrictions on the protesters’ First 

Amendment activities on the State House grounds. Therefore, 

Appellants violated these rights by removing the protesters from 

the grounds.

We also hold that the right of the protesters to 

assemble and speak out against the government on the State House 

grounds in the absence of valid time, place, and manner 

restrictions has been clearly established since Edwards v. South 

Carolina, 372 U.S. 229, 235 (1963). 

Accordingly, we affirm the district court’s denial of 

qualified immunity at this stage of the proceedings.

AFFIRMED