Louisiana Supreme Court Says Anonymous Cop Can Continue To Sue Activist Over Injuries Caused Another Protester

Well, this is a mess.

A lawsuit prompted by the actions of a protester at a demonstration held in Baton Rouge, Louisiana on July 9, 2016 still isn’t resolved. During that Black Lives Matter protest, some person in attendance threw a “rock-like substance” at a Baton Rouge police officer known only as “Officer Doe.”

In response, this officer sued activist DeRay Mckesson, the organizer of the protest. He also sued a movement (Black Lives Matter) and its associated hashtag. The district court tossed the lawsuit with prejudice back in October 2017, finding (quite reasonably) that none of the sued parties could be held directly responsible for the actions of a single person attending the protest. That should have been the end of it.

It wasn’t. The anonymous cop appealed. And, for some reason, the Fifth Circuit Court of Appeals decided the lawsuit could continue. The Appeals Court reasoned that because the protest blocked a road, a showdown with law enforcement should have been seen as an imminent possibility, if not a certainty.

Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

Because it reached this conclusion in reference to state law, the Appeals Court decided it didn’t need to address the far more concerning First Amendment implications of its decision.

Five months later, the Fifth Circuit had a change of heart, prompted by Judge Don Willett’s admission he had gotten it wrong the first time around. But this en banc reconsideration changed nothing. A majority of judges decided the first opinion was correct but banged the table a little harder during the second opinion. The dissent offered good arguments but could change nothing about the irrational decision to allow an anonymous cop to sue one person for injuries caused by another. The First Amendment issues, again, went unaddressed.

Mckesson appealed, bringing this case to the attention of the top court in the land. The Supreme Court said the Fifth Circuit had asked good questions but arrived at the wrong answers. It remanded the case to the Appeals Court for it to determine whether or not state law could be applied to the officer’s allegations — and whether those allegations could actually be sustained given the facts of the incident.

The Fifth Circuit’s third pass mostly involved crafting questions to be answered by the state’s top court regarding state law and the allegations of the suit. But it did at least ask some very good questions about state law and the duties required of public servants in the public safety business.

In the meantime our attention has been drawn to a separate aspect of Louisiana law, the Professional Rescuer’s Doctrine, that could be dispositive. That doctrine, put succinctly, is a judge-made rule that “essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, assumes the risk of such an injury and is not entitled to damages.” Gann v. Matthews, 873 So. 2d 701, 705 (La. App. 1st Cir. 2004) […] We have found limited guidance from the opinions of the Supreme Court of Louisiana on how this doctrine might apply to the particular facts of this case. Because we find this to be a close question of law, which also raises a significant issue of state policy, we further take this opportunity to respectfully elicit guidance on this issue from the Supreme Court of Louisiana.

The state supreme court has reviewed the case. And it has answered both of the Fifth Circuit’s question in a way that will allow this cop to continue their seemingly quixotic quest to hold a protest organizer personally responsible for injuries sustained during the course of their normal duties at the hands of another person entirely. (h/t Michael Vario)

Black Lives Matter organizer and activist DeRay Mckesson can be sued by a Baton Rouge police officer injured during a 2016 protest, Louisiana’s state supreme court has determined.

The announcement published Friday, March 25, was meant to answer questions raised by the United States Court of Appeals for the Fifth Circuit. Those questions centered on whether the officer can sue the organizer of an event that ends in a crime.

That’s the extremely succinct summary of the court’s decision [PDF]. Had the state supreme court ruled the other way on either of the two questions, the Fifth Circuit could have dismissed the lawsuit. Instead, it has provided the cop and their stupid lawsuit two ways to continue suing someone for someone else’s act of violence.

We accepted the certified questions presented to this court by the United States Court of Appeals, Fifth Circuit, in Doe v. Mckesson, 2 F.4th 502 (5th Cir. 2021) (per curiam). The questions posed by the Fifth Circuit are: (1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party? (2) Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana’s Professional Rescuer’s Doctrine bars recovery under the facts alleged in the complaint? We answer the former, under the facts alleged in the complaint, in the affirmative and the latter in the negative…

But the law doesn’t really seem to say what the state supreme court says it does. State law appears to be less expansive than this reading by the judges handling this case. (And I’ll leave the emphasis from the original which appears to show only the person committing the act can be held responsible.)

Under the allegations of fact set forth in the plaintiff’s federal district court petition, it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety), directly in front of police headquarters, with full knowledge that the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but to police, would render Mr. Mckesson liable for damages for injuries, resulting from these activities, to a police officer compelled to attempt to clear the highway of the obstruction. Louisiana’s Civil Code Article 2315 requires that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” (Emphasis added.)

Provoking a confrontation does not guarantee violence, even if similar confrontations elsewhere in the nation (sometimes) resulted in violent acts against police officers. “Whatever” is doing most the heavy lifting here and, despite the language quoted by the court, it cannot be assumed Mckesson is even vicariously responsible for another protester’s decision to assault a police officer. This allegation would still need to be proven, as the state court admits. But by being willing to read the law this way means any protester could be sued by anyone harmed (physically or otherwise) during a protest simply because they participated in the organization of the protest or presented themselves as a figurehead of the social cause from which the protests sprung. That is a dangerous interpretation of the law.

As to the second question about whether the professional rescuer’s doctrine applies (one that assumes risk to those paid to handle risky situations), the court says state law has pretty much eliminated this doctrine in favor of allowing cops to sue people who’ve injured them. The concurring opinions disagree with this assessment. So do the dissenting opinions. But the majority says this doctrine no longer exists and the cop can continue to sue.

This heads back to the Fifth Circuit which will get yet another chance to end this buffoonery. But it’s unlikely to do so given the interpretations the Appeals Court has been given to work with by the Louisiana Supreme Court. It will likely take yet another trip to the Supreme Court to sort this all out. Meanwhile, the anonymous cop who decided to sue someone who didn’t injure them will continue to bleed Mckesson dry. And, until it’s resolved, protected First Amendment activity will have less protection in the state of Louisiana.