Mckesson (Black Lives Matter) organized a demonstration in Baton Rouge to protest a shooting by a police officer.
The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters.
As officers began making arrests to clear the highway, an unknown individual threw a rock-like object, striking Officer Doe in the face.
Doe suffered devastating injuries.
Doe sued Mckesson on the theory that he negligently staged the protest in a manner that caused the assault.
The Fifth Circuit reversed the dismissal of the claim, reasoning that a jury could plausibly find that Mckesson breached his duty not to negligently precipitate the crime of a third party; a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest onto the highway.
The First Amendment does not bar tort liability if the rock-throwing incident was a consequence of tortious activity, which was authorized, directed, or ratified by Mckesson, who allegedly directed an unlawful obstruction of a highway.
The Supreme Court vacated.
The constitutional issue is implicated only if Louisiana law permits recovery under these circumstances.
Certification to the Louisiana Supreme Court is advisable for the questions:
Whether Mckesson could have breached a duty of care in organizing and leading the protest and whether Doe has alleged a particular risk within the scope of protection afforded by any such duty.
Speculation by a federal court about how a state court would weigh the moral value of protest against the economic consequences of withholding liability is gratuitous when Louisiana courts stand willing to address these questions on certification to ensure that any conflict between state law and the First Amendment is not purely hypothetical.
JAMES C. HO, Circuit Judge, concurring in denial of rehearing en banc:
I agree with my colleagues who voted to grant rehearing en banc that this lawsuit by a police officer against DeRay Mckesson, a leader of the Black Lives Matter movement, should not proceed.
I nevertheless voted to deny rehearing en banc.
I write to briefly explain why, in the hope that this explanation might help finally bring this suit to an end.
Police officers and firefighters dedicate their lives to protecting others, often putting themselves in harm’s way. These are difficult and dangerous jobs, and citizens owe a debt of gratitude to those who are willing and able to perform them. What’s more, police officers and firefighters assume the risk that they may be injured in the line of duty. So they are not allowed to recover damages from those responsible for their injuries, under a common law rule known as the professional rescuer doctrine.
“The professional rescuer doctrine, the fireman’s rule, is a common law rule that either bars recovery by a professional rescuer injured in responding to an emergency or requires the rescuer to prove a higher degree of culpability in order to recover.” Gallup v. Exxon Corp., 70 F. App’x 737, 738 (5th Cir. 2003) (collecting Louisiana cases). “The Professional Rescuer’s Doctrine is a jurisprudential 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”— particularly when the “risks arise from the very emergency that the professional rescuer was hired to remedy.” Gann v. Matthews, 873 So.2d 701, 705–6 (La. Ct. App. 2004).
This doctrine would seem to require immediate dismissal of this suit. After all, there is no dispute that the officer was seriously injured in the line of duty—specifically, while policing a Black Lives Matter protest that unlawfully obstructed a public highway and then turned violent. The officer deserves our profound thanks, sympathy, and respect. But his case would appear to fall squarely within the scope of the doctrine.
None of the panel opinions in this case addressed the professional rescuer doctrine, however—presumably because Mckesson never raised it.
I imagine that, if given the chance on remand, he will invoke the doctrine at last, and that the district court will terminate this suit (again) accordingly.
Had Mckesson raised this doctrine at an earlier stage in the suit, there would have been no need to answer the more challenging First Amendment questions that now animate his petition for rehearing en banc.
But he did not. So, like the panel, I turn to those questions now.
Because Mckesson has thus far neglected to invoke the professional rescuer doctrine, the panel confronted novel and interesting First Amendment issues that are arguably worthy of rehearing en banc.
But I take some comfort in the fact that, upon closer review of the panel opinions, the constitutional concerns that have generated the most alarm may not be as serious as feared.
The First Amendment indisputably protects the right of every American to condemn police misconduct.1
And that protection secures the citizen protestor against not only criminal penalty, but civil liability as well. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982).
But there are important differences between the theory of liability held invalid in Claiborne Hardware and the tort liability permitted by the panel majority here.
In Claiborne Hardware, the defendants were sued for leading a boycott of white merchants. State courts subsequently held the defendants liable for all of the economic damages caused by their boycott.
Y’all turn up on the sound: Meet Fifth Circuit #judge James ‘Jim’ Ho’s #Attorney Spouse with a Resume which includes Defending MERSCORP and #DeutscheBank National Trust Co; and she got her husbands old #job at #GibsonDunn in #Dallas after his appt https://t.co/KTKbhHxAnF pic.twitter.com/1tMq0Zc4ta
— LawsInTexas (@lawsintexasusa) November 17, 2019
Notably, the theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity.
If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech.
So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants’ expressive activities. And the Supreme Court rejected this content-based theory of liability as a violation of the First Amendment. See, e.g., id. at 914 (“[T]he petitioners certainly foresaw—and directly intended—that the merchants would sustain economic injury as a result of their campaign.
[But t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”).
By contrast, the theory of liability adopted in this case appears to be neutral as to the content of the Black Lives Matter protest. Unlike Claiborne Hardware, liability here turns not on the content of the expressive activity, but on the unlawful obstruction of the public highway and the injuries that foreseeably resulted.
This is an important distinction.
As Claiborne Hardware itself observed: “While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity.” Id. at 918. “Only those losses proximately caused by unlawful conduct may be recovered.” Id.
So in sum: Content-based damages are generally impermissible, as Claiborne Hardware illustrates. But content-neutral rules typically survive First Amendment challenge. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“Our cases make clear . . . that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘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 communication of the information.’”) (collecting cases).
Applying that framework here, I do not understand the panel majority to suggest that Mckesson may be held liable for lawfully protesting police— that would be a textbook violation of established First Amendment doctrine, including Claiborne Hardware—but rather for injuries following the unlawful obstruction of a public highway.
As the panel explained, “the criminal conduct allegedly ordered by Mckesson was not itself protected by the First Amendment, as Mckesson ordered the demonstrators to violate a reasonable time, place, and manner restriction by blocking the public highway.
As such, no First Amendment protected activity is suppressed by allowing the consequences of Mckesson’s conduct to be addressed by state tort law.” Doe v. Mckesson, 945 F.3d 818, 832 (5th Cir. 2019) (citation omitted).
In the face of such limiting language, any First Amendment concern about the potential reach of the panel majority opinion strikes me as uncertain and speculative.2
So if I understand the panel majority’s theory of liability correctly, it may be expansive—and it may be wrong as a matter of Louisiana law, as Judge Higginson’s typically thoughtful dissent suggests. But it applies with equal force to pro-police protestors (just as it would, say, to pro-life and pro-choice protestors alike) who unlawfully obstruct a public highway and then break out into violence. It is far from obvious, then, that the First Amendment principles articulated in Claiborne Hardware would have any bearing here (and we do not ordinarily grant en banc rehearing to resolve questions of state law).
* * *
Civil disobedience enjoys a rich tradition in our nation’s history. But there is a difference between civil disobedience—and civil disobedience without consequence.3
Citizens may protest. But by protesting, the citizen does not suddenly gain immunity to violate traffic rules or other laws that the rest of us are required to follow. The First Amendment protects protest, not trespass.
That said, this lawsuit should not proceed for an entirely different reason—the professional rescuer doctrine. I trust the district court will faithfully apply that doctrine if and when Mckesson invokes it, and dismiss the suit on remand, just as it did before. It is for that reason that I am comfortable concurring in the denial of rehearing en banc.
THE DISSENTERS (CORRECTLY SO IN THIS CASE)
I respectfully dissent from the court’s refusal to rehear en banc a 2–1 panel opinion that not only misapplies Louisiana’s duty-risk analysis, as Judge Higginson’s dissent, infra, points out, but also fails to uphold the clearly established First Amendment principles enshrined in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
Claiborne Hardware reaffirmed this country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Claiborne, 458 U.S. at 913 (cleaned up).
Thus, when violence or threats of violence “occur in the context of constitutionally protected activity, . . . precision of regulation is demanded,” including an inquiry into whether the defendant “authorized, ratified, or directly threatened acts of violence.” Id. at 916, 929.
The panel majority demands no such precision.
Instead, it appears to apply a free- wheeling form of strict liability having no resemblance to Louisiana law’s careful duty-risk analysis, concluding that, because of his association with the demonstrators or his failure to anticipate and prevent the rock throwing incident, Mckesson can be held liable—despite the First Amendment protection historically afforded protest activity—for the acts of a “mystery attacker.” Doe v. Mckesson, 945 F.3d 818, 842 (5th Cir. 2019) (Willett, J., dissenting).
The majority of our colleagues have thus grievously failed to do what should have been done:
Take up this case, apply the longstanding protections of the First Amendment, and conclude, as the district court did, that Doe’s lawsuit against DeRay Mckesson should be dismissed. See Doe v. Mckesson, 272 F. Supp. 3d 841, 852–53 (M.D. La. 2017).
The panel opinion holds that the First Amendment affords no protection to McKesson because he was negligent under Louisiana law.
I do not believe the Louisiana Supreme Court would recognize a negligence claim in this situation.
When a negligence claim is based on the violation of a statute, Louisiana courts allow recovery only if the plaintiff’s injury falls within “the scope of protection intended by the legislature.” Lazard v. Foti, 859 So. 2d 656, 661 (La. 2003).
An assault on a police officer by a third-party is not the “particular risk” addressed by the highway obstruction statute. Id. Absent the breach of this statutory duty, it is unclear on what basis the panel opinion finds that the protest was foreseeably violent.
To the extent that the panel opinion creates a new Louisiana tort duty, this is “a policy decision” for Louisiana courts—not this court—to make.
See Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 766 (La. 1999); see also Meador v. Apple, 911 F.3d 260, 267 (5th Cir. 2018).
Even if we could make this policy decision ourselves, the panel opinion does not weigh the “moral, social, and economic factors” the Louisiana Supreme Court has identified as relevant, including “the nature of defendant’s activity” and “the historical development of precedent.” Posecai, 752 So. 2d at 766.
In light of the vital First Amendment concerns at stake, I respectfully suggest that these considerations counsel against our court recognizing a new Louisiana state law negligence duty here, at least in a case where argument from counsel has not been received.
Protestors of all types and causes have been blocking streets in Louisiana for decades without Louisiana courts recognizing any similar claim.
For these reasons, I dissent.
Justices send “Black Lives Matter” case back to lower court for new look
In their orders from last week’s private conference, the justices on Monday vacated the decision by the U.S. Court of Appeals for the 5th Circuit in Mckesson v. Doe, a case arising out of the Black Lives Matter movement, and sent the case back for another look – and with more information from state courts about state law. The petition for review was filed by DeRay Mckesson, a civil rights activist, who was sued (along with the BLM movement) by an unnamed police officer who was seriously injured by a “rock like” object thrown during a 2016 demonstration to protest the shooting death of Alton Sterling, who was killed by police officers in Baton Rouge, Louisiana. The officer does not contend that Mckesson threw the object or directed any violence; instead, the officer contends, Mckesson should be held responsible because he “knew or should have known” that violence would result from the demonstration, which he had organized.
After the the 5th Circuit allowed the lawsuit to go forward, Mckesson appealed to the Supreme Court. The case centers on whether the police officer’s lawsuit against Mckesson is barred by the First Amendment and the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware Co., which limited the NAACP’s liability for a nonviolent protest that it organized.
The NAACP filed a “friend of the court” brief urging the justices to hear the case. Emphasizing that the use of civil disobedience “has been critical in securing the social and political reforms our nation enjoys today,” as well as the Supreme Court’s role in protecting against “the use of state laws to silence or otherwise intimidate civil-rights leaders,” the group argued that allowing the 5th Circuit’s ruling to stand would tell “opponents of civil rights that they can use civil liability to bankrupt civil rights organizers and activists, and thereby disrupt movements.”
In a four-and-a-half-page unsigned decision on Monday, the justices explained that under Louisiana law there is generally no duty “to protect others from the criminal activities of” others. But the 5th Circuit ruled, the court continued, that a jury could conclude that Mckesson violated his obligation not to cause someone else to commit a crime because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” that went onto a highway.
If the question that the court has been asked to review is whether holding Mckesson liable under the 5th Circuit’s theory violates the First Amendment, the justices observed, it is important to know whether Louisiana law in fact allows Mckesson to be held liable in these circumstances. Therefore, the justices wrote, “the Fifth Circuit should not have ventured into so uncertain an area of tort law — one laden with value judgments and fraught with implications for First Amendment rights — without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.” To address this error, the justices invalidated the 5th Circuit’s opinion and sent the case back to allow the 5th Circuit to seek guidance from the Louisiana Supreme Court.
Justice Clarence Thomas dissented from the court’s disposition of the case, although he did not provide a written explanation of his reasons for dissenting.
Justice Amy Coney Barrett, who joined the court last week, did not participate in the case. A Supreme Court spokeswoman indicated that Barrett did not participate in any of the cases involved in last week’s conference to give her more time to prepare for oral arguments.