Appeals Court: Idiot Cop Can Continue To Sue A Protester Over Actions Taken By Another Protester
from the so-much-for-protected-rights-and-personal-responsibility dept
In October 2017, a Louisiana federal court tossed a lawsuit brought by an anonymous cop against:
1. Activist DeRay McKesson, who spoke at the Baton Rouge demonstrations.
2. Black Lives Matters -- a name used by several concurrent movements to protest police violence against blacks
3. A Twitter hashtag
This lawsuit was dismissed with prejudice, with the judge pointing out no amount of rewording could salvage this cop's attempt to hold DeRay McKesson -- much less a social movement and a Twitter hashtag -- personally responsible for injuries sustained when a protester (not DeRay McKesson) tossed a chunk of concrete at him.
This judge was similarly unimpressed when another anonymous cop attempted to do the same thing two weeks later. In both cases, the court pointed out the lawsuits targeted protected speech and relied on conclusory statements linking McKesson and the social movement to actions taken by individuals participating in the protest. Both lawsuits were dismissed with prejudice, which prevents the cops from trying to pull the same litigious tricks again.
Unfortunately for DeRay McKesson and anyone else who might attempt to lead a protest against anything, the Fifth Circuit Court of Appeals has revived the first of these dismissed lawsuits. The court isn't permissive enough to let Officer "John Doe" sue a Twitter hashtag and a social movement. But it does say the lower court needs to examine the case again because the cop plausibly alleged DeRay McKesson could be indirectly responsible for another protester tossing projectiles at cops responding to the demonstration.
Seizing on the theory of negligence, the three-judge panel decides [PDF] McKesson's participation in a protest that illegally blocked a road set the stage for a confrontation between police and protesters. This supposedly means McKesson could be held personally responsible for the attack on Officer Doe because… he didn't ensure the protest remained completely legal the entire time???
We first note that this case comes before us from a dismissal on the pleadings alone. In this context, we find that Officer Doe has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration. The complaint specifically alleges that it was Mckesson himself who intentionally led the demonstrators to block the highway. Blocking a public highway is a criminal act under Louisiana law. See La. Rev. Stat. Ann. § 14:97. As such, it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. 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.
There's so many things wrong with the application of the negligence theory to this set of facts. First off, protests almost always "provoke a confrontation" between protesters and law enforcement -- even those that are completely legal in all other respects. Second, the illegal actions of individual members of a protest are their own. They should not be the legal responsibility of other participants in the protests.
But that's how the court sees it. DeRay McKesson will have to defend himself against a ridiculous lawsuit because he supposedly "provoked a violent confrontation" with police officers by… blocking a road. The Appeals Court says this doesn't necessarily mean the lower court will find McKesson is responsible after further fact finding, but it does mean someone participating in protected speech will have to foot the bill for absolving himself of actions taken by other protest participants.
As for the First Amendment, the court asks it to take a seat on the bench until Officer Doe's done exploring his novel legal theory.
Our discussion above makes clear that Officer Doe’s complaint does allege that Mckesson directed the demonstrators to engage in the criminal act of occupying the public highway, which quite consequentially provoked a confrontation between the Baton Rouge police and the protesters, and that Officer Doe’s injuries were the foreseeable result of the tortious and illegal conduct of blocking a busy highway. Thus, on the pleadings, which must be read in a light most favorable to Officer Doe, the First Amendment is not a bar to Officer Doe’s negligence theory. The district court erred by dismissing Officer Doe’s complaint—at the pleading stage—as barred by the First Amendment.
The district court may not find in favor of Officer Doe, but the Fifth Circuit Court of Appeals has made it clear people leading protests can be held responsible for the actions of individual protesters, if any action they take makes it more likely police are going to interact with demonstrators. This allows police officers to view protesters not only as criminals in need of rounding up, but lawsuit targets if any single protester injures them. First Amendment protections don't cover hurling projectiles at police, but the responsibility should be borne solely by those throwing objects at officers, not other participants.
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Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, louisiana, police, protestors, protests, violence
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Incitement is dangerous. Next step is to hold people accountable who do this online.
A court of appeals knows a lot more about the law than the author of the article bashing them, that's for sure.
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Re:
Incitement is saying "You should attack these people because of x"
it is not "These people should stop shooting people because of the colour of their skin." while standing behind a a road block.
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Re: Re:
Defamation can be incitement to vigilantes dumb enough to believe what they read online.
I suspect the definition of incitement is going to expand as more and more cases arise where things like this happen.
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Re: Re: Re:
"I suspect the definition of incitement is going to expand as more and more cases arise where things like this happen."
If by that you mean members of the government are going to "expand" laws to try to exert control over and chilling effects on the populace to stifle protest then yes I agree with you.
I don't understand why they don't just make "disagreeing with a government employee" a crime punishable by instant death and then just shoot anyone that annoys them. I mean it works for Judge Dred so clearly it would be great for 'Murica right?
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Re: Re: Re: Re:
Ironically, it only works for Dredd because he is so incorruptible.
As the saying goes, "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary".
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Re: Re: Re: Re: Re:
When you bring religion into logic as your argument, you lose all rational sense and you lose argument.
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Re: Re:
Does this mean Jason Kessler is going to jail for murder? If no then this should be squashed yesterday. Oh wait it was nsm...WS-SCOTUS 2020....
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Re:
I see several claims, however there seems to be a lack of supporting evidence.
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Re:
You mean like, if someone holding a rally uses the podium and tells people to beat up the protesters? And he'll pay their lawyers!
That ain't incitement. So that leaves plenty of room for others.
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Re: Re:
It's only incitement when the other guys say it.
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Re:
I could see DeRay being held accountable for holding an illegal demonstration, blocking a highway without a permit. But I can't see how that even indirectly makes him responsible for a protester becoming violent.
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Re: Re:
There's precedent with things like the Felony Murder Rule: if you're committing a felony, and for whatever reason something goes wrong and somebody dies, even if that was never part of the plan, even if someone else was the person who actually killed somebody, you're still considered liable for murder as well as the felony you meant to commit, because it wouldn't have happened without your felonious actions.
If we can accept that (and I see no good reason not to) then why not also the idea that if you're holding an illegal demonstration and violence quite foreseeably breaks out, you can be held liable for the results of the violence which would not have happened without your actions, even if you weren't personally the one being violent?
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Re: Re: Re:
Exactly.
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Re: Re: Re:
Just go back to screaming RICO at everything.
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Re: Re: Re: Re:
At least one person known for mocking RICO leads one of the largest RICO enterprises on the internet.
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Re: Re: Re: Re: Re:
Pics or it didn't happen.
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Re: You took your ball and went home 😘
Hey Jhon boy are we gonna play some more games bro?
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Re: Re: Re:
Though the code doesn't say, it sure looks more like a misdemeanor rather than a felony, so your theory guilt by association does not work.
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Re: Re: Re:
The felony Murder rule is quite controversial ans there have been a number of highly controversial cases where it has been applied.
Such as https://www.theguardian.com/us-news/2015/feb/26/felony-murder-teenager-55-years-jail-indiana
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Re: Re: Re: Re:
This article misses the point:
No one is saying that he is; they're saying that it doesn't matter. By doing something that 1) he knew full well was illegal (mens rea) and 2) led directly to somebody getting killed, he is still responsible for the death even though he is clearly not directly the killer. In other words, it is indisuputable that, had he and his friends not decided to rob the house, his friend would not have been shot and killed by the house's owner defending himself against robbers.
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Re: Re: Re:
There are so many problems with that arguement. First off it isn't even all felonies - you can't get felony murder for a lot of things. If you commit a pump and dump scheme and an old man who invested dies of a heart attack when it drops 80% that isn't elgible for felony murder. Second and most importantly protesting without proper permits isn't a felony!
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Re: Re: Re:
"There's precedent with things like the Felony Murder Rule"
Did someone die?
I missed that part of the story.
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Re: Re: Re:
The felony Murder rule is quite controversial ans there have been a number of highly controversial cases where it has been applied.
Such as https://www.theguardian.com/us-news/2015/feb/26/felony-murder-teenager-55-years-jail-indiana
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Re: Re: Re:
Mr. Wheeler -
You're correct, sir. But you see, then Cushing couldn't somehow blame everything on a police officer.
He's traumatized because they remind him of the masculine males that picked on him in his school years. Therefore, he's made it is raison d'etre in life to whine about them. (It's called being a pussy.)
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Re: Re:
"I could(n't) see 'Jews, Gandhi Martin Luther King' being held accountable for holding an illegal demonstration, blocking a highway without a permit."
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Re:
The real cause of the incitement is the actions of the police. That is where the cops should be focusing their efforts. Clean up the corrupt police situation and the anger that the community feels will go away. If the police had the same scrutiny that the protesters had, there would never be this problem in the first place.
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Re: Re:
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Re: Re: Re:
Six degrees of full liability
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Re: Re: Re:
What's next? Nightsticks and Belgian Malinois sicced on those who get out of line with water hoses ala Edmund Pettus Bridge? Along with curfews and sundown towns?
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Re: Hi jhon!
I thought you left bro
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Re:
spoken like an anonymous coward, and an idiot.
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When a site with close ties to so many attorneys ridicules so many litigants as a matter of course, one has to wonder what's going on.
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Re:
"When a site with close ties to so many attorneys ridicules so many litigants as a matter of course, one has to wonder what's going on."
Shiva, that you? Still butt hurt over losing?
He's ridiculing the judges. Oh, and many litigants need to be ridiculed. See above litigant for an example.
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Re: Re:
While many individual litigants may seem worthy of ridicule, the mistakes cross into territory that could be construed as intimidation or retaliation, such as with a Title VII or other whistleblower lawsuit.
Defamation isn't the only law on the books. Truth is not a defense in most cases. In extortion, for example, truth is almost a necessary element.
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Re: Is the truth a defence in that case
Hey remember when you threatened to rape a mentally ill person bro?
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Re:
When a post appears that seems to be a bit off, one has to wonder what's goin' on.
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Re:
When a site with close ties to so many attorneys
So what are you actually trying to say here? It's suspicious that TF tries to get legal folks to contribute to the many legal issues involved in Tech, Copyright and Internet Law?
Are you saying it's a conspiracy, and all the lawyers are out to get you, but you'll keep making anonymous posts to spread the Truth?
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Re: Bring it on motherfucker
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The Appeals Court...
...is correct.
It's the basis for "incitement to riot" charges.
McKesson appears to have "ordered" the illegal roadblock. That does put him liable for any injuries resulting from the action.
AFAIK, the First Amendment, no matter how tortuously stretched, doesn't cover assaulting people with rocks...
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Re: The Appeals Court...
Leading other people onto a highway, as a legal act or not, does not instruct them to throw rocks. So where does McKesson's liability come from?
That is of course that McKesson did in fact lead them onto the highway, according to the appeals court this is only alleged, not proven.
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Re: Re: The Appeals Court...
Which is why the lawsuit is allowed to go forward: to give an opportunity for a plausible allegation which, if true, would subject McKesson to criminal liability, to be properly proven or disproven in a court of law.
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Re: Re: Re: The Appeals Court...
Yes, I know, we don't have all the facts (and I said so), the question remains if McKesson did in fact lead them onto the highway, how does that indicate an instruction for someone in the crowd to become violent? So far, that is the only allegation, though more may come up in the remand trial.
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Re: Re: Re: Re: The Appeals Court...
If the act of leading the demonstrators onto the highway is illegal, the consequences of that illegal act could give rise to liability.
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Re: Re: Re: Re: Re: The Appeals Court...
Liability for everything bad that happened in the surrounding five square mile area?
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Re: Re: Re: Re: The Appeals Court...
Evidently, an agent provacateur is still in the French language to some people.
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Re: Re: Re: The Appeals Court...
This would be a surprising and unusual outcome in a civil case.
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Re: The Appeals Court...
And it then follows that you support indicting Donald for inciting violence.
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Re: Re: The Appeals Court...
As long as we also get to charge mayors of sanctuary cities with inciting illegal immigration, sure. Let's do it.
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Re: Re: Re: The Appeals Court...
and you fail to see just how ridiculous it all is - LOL
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Re: Re: The Appeals Court...
There are cases where one might say he should be sued for it.
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Re: Re: Re: The Appeals Court...
His cases are certainly more cut and dried.
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Re: The Court Of Impotent Old Fuckwits
Of course we all know you don’t have the balls to actually sue anyone.
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Re: Re: The Court Of Impotent Old Fuckwits
And here I thought it was money that one needed.
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Re: Re: Re: The Court Of Impotent Old Fuckwits
Old jhon boy claims to have plenty of that.
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Illegal activity is NOT protected speech
I don't agree with the conclusion, but you have to stop saying that blocking the road is protected speech.
It isn't. Once they entered the roadway, they were no longer engaged in a protected activity, they were criminals.
I don't care how much you like their message or claim the necessity of extreme measures, what they were doing was breaking the law. There are means of using sidewalks and public rights of way to express yourself that are open to these individuals to protest police brutality and anything else they want to protest. There are groups of people all over the country that do this every day and do so legally and peacefully, and if they had done things in that manner, and the officer were hurt in the process, the water would be clean, no so murky. McKesson's involvement in getting the people to break the law muddies this for him.
That doesn't make McKesson liable for someone else's actions, but he could easily be roped into a lawsuit against the person who did throw the rock as a conspirator, if he indeed did endorse and lead the group into breaking the law, which then resulted in the attack on the officer.
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Re: Illegal activity is NOT protected speech
On the other side of the coin, they can claim it was civil disobedience, which, by definition, is an illegal act.
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Re: Re: Illegal activity is NOT protected speech
Contempt of cop is an illegal act even though, afaik, there is no official law addressing it while there is punishment. You can beat the rap but you can not beat the ride, which is sometimes deadly.
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Re: Re: Re: Illegal activity is NOT protected speech
If there is no official law against something, then it is not illegal. That cops don't understand this and give you 'the ride' anyway might very well be an actual illegal act, though one that is very difficult, if not impossible to get action upon.
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Re: Re: Re: Re: Illegal activity is NOT protected speech
Yes, this is true.
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Re: Illegal activity is NOT protected speech
If first amendment right to be heard is civil disobedience then prepare for a deluge of free speech and first amendment cases. Yet when the Bundi's blocked Federal lands there were only crickets from the law and (dis)order crowd.
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Re: Re: Illegal activity is NOT protected speech
Good point.
Bundy got away with a lot of shit, but that was a different state. Are there federal charges to compare?
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Re: Illegal activity is NOT protected speech
"...Once they entered the roadway, they were no longer engaged in a protected activity, they were criminals."
I don't agree with your premise that walking on, or traveling on, or crossing a roadway is automatically against the law. I know it's a minor point, but surely this is what roadways are for. Yes, there were a large number of people protesting, which caused a inconvenience, but to my mind this seems to be a classic misuse of law to declare a protest illegal.
Also, it takes a court to assign criminality.
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Re: Re: Illegal activity is NOT protected speech
It's called Jaywalking when one person does it outside of marked pedestrian crossings or at corners.
When a group does it and blocks a road (without a Parade or similar Permit) so traffic can't pass through, it's criminal.
Courts do NOT assign criminality. They simply judge if the accused violated the laws they are charged with.
And, again, what the Appeals court decided was NOT this case, but the Prejudicial Dismissal. And they were correct to do so.
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Similar to Charlottesville, VA cases
This case seems similar to the Charlottesville cases involving Unite the Right.
Anti-protestors are trying to sue the protesters, and the protesters were trying to sue the city.
ELIZABETH SINES, ET AL.,
Plaintiffs,
v.
JASON KESSLER, ET AL.,
Defendants.
07/09/2018
JASON KESSLER, Plaintiff,
v.
CITY OF CHARLOTTESVILLE, VIRGINIA, et al., Defendants.
August 11, 2017.
...
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Can't find the guy who actually threw the rock that gave me an owie so I'll go after the guy who was yelling stuff 'cause I'm pissed!
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Owie?
Owie, huh? If you actually research this past the 'angry with my dad' propaganda of Cushing, you'll find out the officer has permanent brain damage.
Always the internet tough guys who've never been in a fight (past getting wedgied by bullies in grad school) or heard a shot fired in anger who verbally swagger the most.
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Too many problems
Cops are nearly invulnerable to any consequences of actions they themselves take. Should a protest leader be responsible for actions another takes?
Being able to sue a protest leader would make infiltrating and sabotaging a protest that much more effective.
When should it be "legal" (or acceptable) to make useful protest activity illegal?
Too often justice is not blind at all.
What we are seeing may be a further unbalancing on the judgments of legality. Increasingly, objectivity illegal and immoral acts are treated as both legal and acceptable. Meanwhile, the (often direct) reactions and responses to those acts are treated with escalating hostility. The consequences of this thinking go beyond the simple question of 'legal or illegal?'.
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'Sir, the protesters aren't violent.' 'Not YET anyway...'
Being able to sue a protest leader would make infiltrating and sabotaging a protest that much more effective.
Not just effective, flat out mandatory. If all it took to punish anyone who led/organized a protest was to have someone in the group do something illegal, then the easiest way to break up protests and prevent future ones would be to have a few 'friends' slip into any protest you want to bust up and start acting violent.
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Re: 'Sir, the protesters aren't violent.' 'Not YET anyway...'
Exactly.
Though, I would note that police would NOT have to sue successfully. It is problematic enough just to be able to discourage protests by way of legal harassment.
Furthermore, most protests that cops are tasked with "chaperoning" have nothing to do with the cops themselves. BLM protests are directly about the police. There is a sort of conflict of interest. Anonymously suing a protest leader adds yet another layer of bad on top.
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Someone stop me if I'm wrong but the appeals court doesn't seem to be addressing the actual claims. Its addressing the dismissal with prejudice. I'm not a lawyer but I'd expect them to, in that case, be considering whether there are claims to litigate or not. The claims might be ridiculous. They might even be obviously false or unprovable. However, IF (and that's the operative word here) everything the plaintiff alleges happened was 100% true without question then you'd have a valid case I think. The appeals court is not where the truth of whay really did happen is hashed out no matter how obvious it may be. The appeals court is for questions of process and yes, I can see where officer John Doe may technically have a case that he should be allowed to ligitate, however unlikely it will be that he succeeds.
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Re:
Exactly. Appeals overturned the Prejudicial Dismissal.
They didn't decide who was "right", they didn't trample anyone's Rights, they didn't "award the winner".
They can now re-file again.
Frankly, they should be filing multiple suits so that if the grouped charge is dismissed with prejudice (again) they've still got time in the courtroom on the other "counts".
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How do you get away with being able to file an anonymous complaint in court?
I can understand why you would allow 'John Doe' defendants.
I don't get how a court would allow you to be a plaintiff without identifying yourself.
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Re:
If the police snowflake had to identify themselves people might say mean things about them and that would hurt their feeeeelings. And if they suddenly started feeling afraid they could murder anyone in sight, so you gotta be careful.
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Nice things
This is why the fifth district cannot have nice things.
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"could be indirectly responsible"
Perhaps positions for life is a really bad idea...
A court codifying that personal responsibility no longer exists or matters & you can just sue the deepest pockets as long as you and string together a theory.
We want you to allow you to this case to go forward!!!
Oh you violated someones rights but were the first one to do it that way... QI for you!
Justice stopped being blind and I think we need to get her on some meds of this MPD diagnosis.
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First Amendment
Do you think that such an imposition of negligence law in a First Amendment case might just chill the rights of individuals to free speech?
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