                               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.
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.




                                   2
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)
                                            3
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.



                                     4
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).



                                    5
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:

                                             6
        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

                                          7
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.

                                              8
              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.



                                        9
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.



                                              10
§ 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

                                               11
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

                                           12
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

                                                 13
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

                                             14
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]

                                           15
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

                                             16
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.



                                             17
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’”).




                                             18
                                        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



                                        19
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.

                                            20
                                              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.

                                              21
                 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).


                                              22
           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)).



                                         23
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-per-

day/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).

                                         24
               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.

                                             25
             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

                                          26
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).

                                              27
             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)
                                          28
               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”).



                                                 29
               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.

                                                 30
             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

                                           31
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




                                              32
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.



                                     33
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

                                                  34
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

                                           35
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

                                          36
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

                                       37
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




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