What's at Stake
On November 7, 2016, an unnamed police officer, referred to as “John Doe,” sued activist DeRay Mckesson for his alleged role as the organizer of a Black Lives Matter protest against the police killing of Alton Sterling in Louisiana. Doe alleged that an unidentified third party—not Mckesson—threw a “rock-like” object during the protest and injured him. Nevertheless, Doe sued Mckesson, not the third party, on the theory that Mckesson “should have known” that the protest “would become violent as other similar riots had become violent.” If this theory succeeds and opens the door to costly lawsuits against organizers, it could hinder the future of protest movements.
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In 2017, the District Court of the Middle District of Louisiana dismissed Doe’s suit as barred by the First Amendment, relying on the constitutional rule that protesters and leaders cannot be held liable for the violent acts of a third party unless they specifically intended or personally “authorized, directed, or ratified” that violence.
On appeal, the Fifth Circuit reversed the district court, holding that Mckesson could be held liable on a theory of “negligent protest.” The court recognized that Louisiana law generally imposes no “duty to protect others from the criminal activities of third persons,” but held that Mckesson breached a duty when he allegedly directed people onto the street in front of police headquarters, purportedly in violation of Louisiana law. The court determined that he could be held liable for any foreseeable harm that followed. And the court concluded that the harm to Doe was foreseeable because, as soon as people stepped out onto the street, police officers would arrive to enforce Louisiana’s laws, which could be expected to result in violence.
It is worth noting the case’s unusual procedural history up to this point: This opinion by the Fifth Circuit, issued on December 16, 2019, was the court’s third. It came after two others issued by the same panel of judges—an initial opinion, on April 24, 2019, issued without argument, and a revised opinion, on August 8, 2019, again issued without argument but after Mckesson requested rehearing.
After the Fifth Circuit issued its second opinion, the ACLU and ACLU of Louisiana became co-counsel with David Goldberg of Donahue, Goldberg & Littleton and Billy Gibbons and Ian Atkinson of Schonekas, Evans, McGoey & McEachin to file a petition for review by the Supreme Court. Mckesson initially sought Supreme Court review of the second opinion, but the Fifth Circuit then issued its third opinion. The third opinion included a dissent by one of the panel members who had joined the previous two opinions in full.
Following the third opinion, the Fifth Circuit also voted on whether to rehear the case as a full court. Eight of the court’s sixteen judges concluded that the opinion was wrongly decided and voted to rehear the case. Because a majority is necessary, however, the case did not go en banc.
On March 5, 2020, Mckesson sought Supreme Court review of the third Fifth Circuit opinion.
On November 2, 2020, the U.S. Supreme Court vacated the Fifth Circuit’s opinion and directed the Fifth Circuit to ask the Louisiana Supreme Court to address whether a protest organizer could be held liable for injuries an officer sustains during a protest under Louisiana state law. While recognizing that “the constitutional issue” presented by the case is “undeniably important,” the Court determined that the case could be “greatly simplified” by guidance from the Louisiana Supreme Court on the meaning of Louisiana law.
On December 8, 2020, the Fifth Circuit directed Mckesson and Doe to submit briefs regarding what questions it should certify to the Louisiana Supreme Court, and whether the professional rescuer doctrine—under which firemen, police officers, and other professional rescuers cannot recover damages for injuries sustained in the performance of their duties—bars Doe’s lawsuit. After considering the briefs, the Fifth Circuit asked the Louisiana Supreme Court to answer two questions: whether Louisiana law recognizes a duty not to negligently precipitate the crime of a third party, and whether Louisiana’s professional rescuer’s doctrine bars recovery under the facts alleged in this case.
Plaintiff-Applicant Brief on Certified Question
Defendants-Respondents Brief on Certified Question
Opinion on Certified Question