3:11-cv-03253-CMC
Date Filed 12/20/11
Entry Number 32
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
C/A No.: 3:11-cv-03253-CMC
Occupy Columbia; Walid Hakim;
Melissa Harmon; Bradley Powell;
Timothy Liszewski; David Bland; Ashley
Blewer; and David Arroyo,
Plaintiffs,
v.
Nikki Haley, Governor of South Carolina
State of South Carolina; Leroy Smith,
Director of the South Carolina
Department of Public Safety; Zachery
Wise, Chief of Police of the South
Carolina Bureau of Protective Services;
Nikki Haley, Chairwoman of the South
Carolina Budget & Control Board;
Harvey S. Peeler, Jr., Chairman of the
South Carolina State House Committee;
M. Richbourg Roberson, Division of
General Services; Sterling L. Morrison,
Division of General Services; Curtis
Loftis, State Treasurer; Richard Eckstrom,
Comptroller General; Hugh Leatherman,
Senate Finance Committee; Brian White,
House Ways and Means Committee;
James Carr; Joe Hodge; Andrew Schmidt;
and Marvin Harris, III,
Defendants.
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MOTION TO AMEND ORDER GRANTING
PRELIMINARY INJUNCTION
OR ALTERNATIVELY, MOTION TO MODIFY
PRELIMINARY INJUNCTION
NOW COME Defendants Nikki Haley, Governor of South Carolina, Curtis Loftis, State
Treasurer, Richard Eckstrom, Comptroller General, Hugh Leatherman, Senate Finance
Committee, Brian White, House Ways and Means Committee (collectively referred to as the
“Board Defendants” for this motion), by and through counsel, and move to amend or otherwise
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modify the Order of this Court granting Plaintiffs’ Motion for Preliminary Injunction, which was
entered on December 14, 2011. [NEF Dkt. # 27, hereinafter the “Order”]. This Court also issued
a Memorandum Opinion on Plaintiffs’ Motion for Preliminary Injunction on December 16, 2011.
[NEF Dkt. # 28, hereinafter the “Memorandum Opinion”]. Because the South Carolina Budget
and Control Board (hereinafter the “Board”) unanimously passed an emergency regulation on
December 20, 2011 prohibiting use of the State House grounds and all buildings located on the
grounds for camping, sleeping, or any living accommodation purposes, the Board Defendants now
move, pursuant to Rule 59(e) and Rule 60(b), FED.R.CIV.P., and the Court’s own equitable
authority, to amend the Court’s Order and Memorandum Opinion, and lift the injunction
regarding prohibitions on use of the State House grounds and all buildings located on the grounds
for camping, sleeping, or any living accommodation purposes. In support of their motion, the
Board Defendants state as follows:
THE ORDER AND MEMORANDUM OPINION
At a hearing on December 14, 2011, Plaintiffs sought a preliminary injunction aimed at
preventing the Defendants from restricting their “occupation” of the State House grounds,
specifically (1) the imposition of a 6:00 p.m. curfew and (2) the prohibition on camping and
sleeping on the State House grounds, including using tents and sleeping bags. (Order, p. 1). In
granting the motion, the Court observed that:
Although Plaintiffs have been sleeping on the State House grounds since October 15,
2011, there is no indication that the State has promulgated proper time, place, and
manner regulations or restrictions to limit camping or sleeping on the grounds. If it seeks
to limit or prohibit such conduct, the State must create regulations or valid restrictions of
which the public will have notice and which will be applied consistently as to all
individuals and groups. That is, the regulations or restrictions must be content neutral
both on their face and in practice.
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(Order, p. 5) (emphasis added). The Court also stated:
Defendants, through the State Budget and Control Board, have the authority to
promulgate regulations or valid restrictions to prohibit camping and sleeping on the State
House grounds. The existence of valid regulations or restrictions would eliminate the basis
for injunctive relief.
(Order, pp. 5-6). Ultimately, the Court noted that "[n]othing in this order shall limit Defendants’
ability to create reasonable time, place, and manner restrictions related to the use of the State
House grounds." (Order, p. 7).
Similarly, in its Memorandum Opinion filed on December 16, 2011, the Court
“[r]ecognize[d] that the State may properly regulate conduct on the State House grounds, including
prohibiting camping and sleeping.” (Memorandum Opinion, p. 18). The Court specifically stated
that “[t]he State Budget and Control Board, not the court, has the ability to remedy this situation
and may promulgate regulations governing use of the State House grounds under S.C. Code Ann.
§ 10-1-30.” (Memorandum Opinion, p. 26). Further, the Court pointed out that “[s]hould the
Board promulgate regulations pursuant to § 10-1-30, Plaintiffs’ argument that the Board is
required to promulgate regulations in order to impose time, place, and manner restrictions on
protected First Amendment activity on the State House grounds would no longer apply.”
(Memorandum Opinion, p. 19, n. 22).
LEGAL STANDARD FOR AMENDMENT OF A PRELIMINARY INJUNCTION
The Fourth Circuit Court of Appeals has recognized that a district court “clearly [has] both
statutory and equitable authority to modify” an order granting a preliminary injunction.
Transportation, Inc. Mayflower Services, Inc., 769 F.2d 952, 954 (4th Cir. 1985). The Fourth Circuit
has recognized that authority exists under Rule 60(b), FED.R.CIV.P., which allows for the
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modification of an order on various bases. Id.; see also Centennial Broadcasting, LLC v. Burns, 433
F.Supp.2d 730, 733 (W.D. Va. 2006) (court may modify preliminary injunction based on “general
equitable principles set forth in Rule 60(b)(5), which provides for relief from a final judgment ‘if it
is no longer equitable that the judgment should have prospective application’”). Moreover, when
the motion is brought within 28 days of the original order, a district court is authorized under
Rule 59(e), FED.R.CIV.P., to reconsider and thus modify an existing preliminary injunction. In re
Burnley, 988 F.2d 1 (4th Cir. 1992). Rule 59(e) may be used (1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a
clear error of law or prevent manifest injustice. Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993).
In addition, it is well settled that “[d]istrict courts have inherent equitable power to modify
their injunctions to ensure that any injunctive relief granted fully vindicates the rights accorded by
the underlying judgment.” Transportation, Inc., 769 F.2d at 954, citing United States v. United Shoe
Corp., 391 U.S. 244, 248 (1968) (holding that a court of equity has power “to modify an
injunction in adaptation to changed conditions”). See also Centennial Broadcasting, 433 F.Supp.2d
at 733 (“Court has continuing plenary power to modify or dissolve a preliminary injunction
applying general equitable principles”). “[A] court is authorized to make any changes in the
injunction that are equitable in light of subsequent changes in the facts or the law, or for any other
good reason.” Canal Authority for State of Florida v. Callaway, 489 F.2d 567, 578 (5th Cir. 1974).
THE EMERGENCY REGULATION & PRELIMINARY INJUNCTION
Following the Court’s issuance of its Order and Memorandum Opinion, the Board met on
December 20, 2011, to consider an emergency regulation under S.C. Code Ann. § 1-23-130. That
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statute permits an agency to promulgate a regulation immediately if it finds that an “imminent
peril to public health, safety, or welfare requires immediate promulgation of an emergency
regulation” which becomes “effective as of the time of filing” with the Legislative Council. The
emergency regulation was approved and filed with the Legislative Council on December 20, 2011
and is incorporated into this motion by reference. (Emergency Regulation 19.480, attached as
Exhibit “A”). 1
The emergency regulation sets forth in detail the statutory authority for the regulation, the
emergency situation that necessitates the regulation, and the content of the regulation itself. The
emergency regulation does not impact the Court’s enjoining of the 6:00 p.m. curfew that limited
access to the State House grounds and does not impose any time restriction on any First
Amendment-protected activity on the grounds. 2
The Board Defendants are only seeking an
amendment or modification of the Court’s injunction with respect to the ban on camping or
sleeping on the State House grounds.
Importantly, as a time, manner, and place restriction on expression protected by the First
Amendment, the emergency regulation amply passes constitutional muster. Time, manner, and
place restrictions on expression in a public forum are valid “provided that they are justified
without reference to the content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample alternative channels for
1
In its Memorandum Opinion filed on December 16, 2011, the Court discussed the
statutory procedure for promulgating an emergency regulation in accordance with S.C. Code Ann.
§ 1-23-130 and further pointed out that the Board had not promulgated an emergency regulation
at that time.
2
The emergency regulation does confirm the hours that the State House Building is
open to the general public; however, that is the only time restriction that is imposed.
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communication of information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293294, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); Perry Educational Ass’n v. Perry Local Educator’s
Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); United States v. O'Brien, 391 U.S. 367,
88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9
L.Ed.2d 697 (1963).
A regulation that forbids sleeping or camping or living at the State House grounds and
buildings is, by its very nature, content neutral. Clark, 468 U.S. at 295, 104 S.Ct. at 3070. The
emergency regulation is applicable to any group that wishes to use the State House grounds or
buildings for the purpose of camping, sleeping, or as a place for living accommodations. It is a
strict prohibition with no exceptions. The emergency regulation makes no provision for any
person or group to camp, sleep, or live at the State House grounds or buildings.
In addition, the emergency regulation was properly promulgated in accordance with S.C.
Code Ann. §§ 10-1-30 and 1-23-130 and will remain in effect for ninety days. At its meeting on
December 20, 2011, the Board also authorized the Division of General Services to draft
permanent regulations for the use of the State House grounds, steps, and lobby areas. Those
proposed regulations will be promulgated under the procedures set forth in the Administrative
Procedures Act and will include an opportunity for public comment and hearing as allowed by
law. The emergency regulation will be published in the next issue of the State Register per S.C.
Code Ann. § 1-23-130(C) and is presently available to the public on the General Assembly's
website and on the Board's website. 3
3
The emergency regulation may be accessed by using the following link and entering
document number 4277: http://www.scstatehouse.gov/regnsrch.php. The emergency regulation
may also be accessed on the Board's website at http://www.bcb.sc.gov/BCB/BCB-agendas.phtm.
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The emergency regulation also serves significant and substantial government interests. The
emergency regulation addresses the immediate need to prohibit camping, sleeping, or otherwise
living at the State House grounds and buildings in order to serve the following legitimate
government interests:

Camping, sleeping, or otherwise living at the State House grounds and buildings raises an
imminent peril based on increased opportunities for criminal conduct and public safety
incidents attendant to such conduct, as well as the liability resulting from such incidents.
In particular, the Board expressed concerns regarding “recent confrontations involving the
group of individuals currently living on the State House grounds which has caused the
group to form a ‘protection unit’ to stand watch and defend the group during night time
hours when the individuals are sleeping.” The Board stated “that the use of such a
‘protection unit’ raises serious public safety concerns in addition to public liability
concerns that need to be addressed immediately.”

Camping, sleeping, or otherwise living at the State House grounds and buildings raises an
imminent peril given the significant risk of liability arising from the use of the State House
property for camping, sleeping, and living accommodation purposes. The Board
recognized that under premises liability laws, the State, as the property owner, has a duty to
reasonably provide for the safety and security of those persons lawfully on its property. The
habitation of the grounds for camping, sleeping, and living accommodation purposes
increases the risk of liability.

Camping, sleeping, or otherwise living at the State House grounds and buildings raises an
imminent peril based on the impact of such conduct on public health, arising from
continuous storage and preparation of food, attracting wildlife, and the sanitation issues
attendant to camping, sleeping, or living on the grounds.
(Exhibit “A,” p. 2).
The emergency regulation as promulgated is based on and virtually identical to the
prohibition approved by the U.S Supreme Court’s decision in Clark, 4 which thoroughly addresses
why, even if overnight sleeping in connection with a demonstration is expressive conduct, 468
U.S. at 293, 104 S.Ct. at 3068-3069, a “prohibition on camping with its ban on overnight
4
The emergency regulation was patterned after the National Park Service regulation
that was upheld by the Supreme Court in Clark as a valid time, place and manner restriction.
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sleeping” is a reasonable time, place and manner restriction that withstands constitutional
scrutiny. 468 U.S. at 297, 104 S.Ct. at 3071. This is likewise consistent with this Court's own
conclusion “that the State may properly regulate conduct on the State House grounds, including
prohibiting camping and sleeping.” (Memorandum Opinion, p. 18).
And, because the emergency regulation applies only to camping, sleeping, or using the
State House grounds and buildings for living accommodations, it leaves open ample alternative
channels for communication of information. As mentioned above, the emergency regulation does
not address – and therefore leaves intact – the Order’s injunction preventing enforcement of “any
current policy (written or unwritten), including Paragraph 8 of the ‘Conditions for Use of South
Carolina State House and Grounds,’ that limits Plaintiffs’ access to the State House grounds after
6:00 p.m.” (Order, p. 7).
Finally, the emergency regulation does not impose a “licensing” or “permitting” regime on
camping, sleeping, or using the State House grounds and buildings for living accommodations.
The emergency regulation strictly prohibits, rather than licenses or permits, such conduct.
CONCLUSION
For the reasons set forth above, the Board Defendants request that this Court amend or
otherwise modify its preliminary injunction, and in view of the State’s emergency regulation,
permit the Defendants to prohibit use of the State House grounds and all buildings located on the
grounds for camping, sleeping, or any living accommodation purposes.
The Board Defendants also request that the Court set an expedited briefing schedule with
regard to this motion.
Dated this the 20th day of December, 2011.
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Respectfully submitted,
s/Eugene H. Matthews
Eugene H. Matthews, FID # 7141
Richardson Plowden & Robinson, P.A.
1900 Barnwell Street (29201)
Post Office Drawer 7788
Columbia, South Carolina 29202
(803) 771-4400
Facsimile (803) 779-0016
[email protected]
s/Andrew F. Lindemann
Andrew F. Lindemann, FID # 5070
Davidson & Lindemann, P.A.
Post Office Box 8568
Columbia, South Carolina 292028568
(803) 806-8222
Facsimile (803) 806-8855
[email protected]
COUNSEL FOR CURTIS LOFTIS, STATE TREASURER;
RICHARD ECKSTROM, COMPTROLLER GENERAL; HUGH
LEATHERMAN, SENATE FINANCE COMMITTEE; BRIAN
WHITE, HOUSE WAYS AND MEANS COMMITTEE
s/Kevin A. Hall
Kevin A. Hall, FID # 5375
Karl S. Bowers, Jr., FID # 7716
M. Todd Carroll, FID # 9742
Hall & Bowers, LLC
1727 Hampton Street
Columbia, South Carolina 29201
(803) 454-6504
COUNSEL FOR GOVERNOR NIKKI R. HALEY
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