Fifth Circuit Sends Anonymous Cop's Lawsuit Againt Protest Organizer To The State's Top Court, Suggests Getting Injured Is Part Of The Job
from the ambulance-drivers-can't-be-ambulance-chasers dept
A decision that created a chilling effect on protected First Amendment activity is headed to yet another court to get the details sorted out.
It's been more than four years since an anonymous police officer sued over injuries they sustained while responding to a protest in Baton Rouge, Louisiana. The officer was struck in the face by a thrown chunk of concrete. Rather than recognize this was an unfortunate side effect of being in the law enforcement business, the officer sued activist DeRay Mckesson -- who decidedly did not throw the object that struck the officer.
The officer's argument was that Mckesson's organization of the protest, as well as his decision to lead protesters out to block the highway in front of the police station, made him at least indirectly responsible for the injuries the officer sustained.
Somehow this lawsuit and its ridiculous premise survived two passes by the Fifth Circuit Appeals Court, with its second decision noting how angry it was that it was forced to take another look at its inexplicable first decision: the one that said that Mckesson should have know that leading protesters out into a street would result in the injury of police officers.
By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.
This twice-made decision was appealed and the Supreme Court said the Fifth Circuit got it wrong twice. However, it didn't necessarily affirm the right to protest and the right of protest leaders to be free of bullshit secondary liability claims. But it said the Fifth Circuit -- while not incorrect to raise the issue about liability under Louisiana state law -- should not have taken it on itself to define the contours of the state law and how it applied to Mckesson's actions in relation to the officer's injury.
The Fifth Circuit's third pass [PDF] follows the Supreme Court's instructions. It is sending this case to the Louisiana state Supreme Court to handle the open state law question. But it does so with some additional examination of applicable state laws that indicate the anonymous cop may find no one to sue by the time the state court is done examining it. And this is at least partly due to law blog Volokh Conspiracy and its titular creator, Eugene Volokh.
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) (citation and internal quotation marks omitted). The parties disagree as to whether this doctrine bars Officer Doe from recovering. See Mckesson Suppl. Br., Dec. 18, 2020, Doc. No. 00515679716; Doe Suppl. Br., Dec. 18, 2020, Doc. No. 00515678655. 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 Fifth Circuit provides a link to the Volokh Conspiracy post raising this issue, one that called the as-yet-unraised local legal doctrine a "certain win" for Mckesson.
That's where things stand now. Hopefully, the state Supreme Court will remind this officer that the flipside of having a lot of government-granted power is assuming the risks that come with the position. The ability to quell and/or contain protests comes with the possibility of injury. And when it's impossible to discover who actually threw the projectile that resulted in injury, the acceptable response isn't suing protest organizers, unaffiliated protest movements, and Twitter hashtags.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, police, protests
Reader Comments
Subscribe: RSS
View by: Time | Thread
Let's apply that equally shall we?
Well if that's really the argument they want to push then I say let's apply the 'Turnabout is fair play' test and any time someone is injured by a cop who can't be identified for whatever reason the police chief can be personally sued for the injury.
If 'a cop was injured dealing with a group of people, therefore the head of that group is liable' is the standard they want to set then it seems only fair to apply it to them as well, and as such I look forward to the plethora of lawsuits aimed at police department heads in that area of the country which they will of course accept as entirely reasonable due to being based upon their own legal arguments.
[ link to this | view in chronology ]
Re: Let's apply that equally shall we?
Oh, I disagree that the police chief should be personally liable.
I think the police union executive should be held personally liable.
[ link to this | view in chronology ]
Re: Re: Let's apply that equally shall we?
As a wise pair of men once said, 'Why not both?'
[ link to this | view in chronology ]
OKAY. I've spent a while confirming TD is locked down!
At least on Maz's last. -- Oh, here too, after several attempts...
IF anyone were to admit they see how many I put in the alleged "Moderation" queue which is nothing but a bit bucket, it'd HELP, thanks.
What I get sez:
Free Speech [ HA! Only if agree!]
Comment Held for Moderation...
Thanks for your comment.
It will be reviewed by our staff before it is posted.
Only you hard-core neo-liberals can put the LIE of "Free Speech" right above another LIE of comment "moderated"!
Tactic I'm trying to overcome your faulty comment system, which appears contrary to your promises of "Free speech" and "comment open to all" is four windows open at once, and repeating. You should really fix this lousy system, 'cause looks exactly like viewpoint discrimination.
[ link to this | view in chronology ]
Re: OKAY. I've spent a while confirming TD is locked down!
And I'm IN! -- How many tries was that? Have a counter handy?
[ link to this | view in chronology ]
Re: Re: OKAY. I've spent a while confirming I'm an idiot
Still losing against the spam-filter, eh?
[ link to this | view in chronology ]
Re: OKAY. I've spent a while confirming TD is locked down!
yawns
This is me screaming into the void but...
Moderation is a real thing.
Outside of your stupid happy ass, I am quite possibly the person who ends up in moderation the most among TD posters.
Funny, they manage to approve my posts & not have to reconstruct them... its almost like there is a queue & if you stopped filling it over & over & over with the exact same thing you might notice that.
Did you actually have anything to say about this story or are you just furiously masturbating while posting the same things over & over screaming how you won?
You aren't entitled to post here, you are a guest.
Please stop slapping your dick on the table, we can all see it and we are not impressed.
If you want to impress us, try posting just 1 time instead of 100 and watch what happens.
Try posting something actually on the topic at hand.
In the alternative, please fsck all the way off you looney asswipe.
goes to the naughty corner for bothering to address the dumbass
[ link to this | view in chronology ]
Re: OKAY. I've spent a while confirming TD is locked down!
Free speech doesn't mean unlimited freedom to abuse and troll and spam though. What you're asking for is the ability to dominate the community discussions by spamming a lot and making the discussions functionally unreadable. That leads to other users abandoning the discussion.
There's a great website you should visit that talks about these kinds of issues. They even tag all the articles so you can easily find related articles on the same topic: https://www.techdirt.com/blog/?tag=content+moderation
[ link to this | view in chronology ]
Re: OKAY. I've spent a while confirming TD is locked down!
You'll notice this stuff all showed up eventually, and nobody censored you.
HOWEVER, there's nothing wrong with discrimination, even viewpoint discrimination. It all depends on context.
In this case, your post is argumentative, abusive, off-topic and contains references to falsehoods.
I tend to discriminate against such "viewpoints" with extreme prejudice.
[ link to this | view in chronology ]
Re: OKAY. I've spent a while watching you flail
Bragging about losing to a spam filter is the sole reason I still unhide your comments.
[ link to this | view in chronology ]
Re:
It'd help... what, exactly? Besides proving that you spam the site so relentlessly the taps have to get tightened a little?
Like that, see. This doesn't "help". It proves you're an obsessed fuckwit. I don't know what kind of universe you live in where that constitutes "help".
[ link to this | view in chronology ]
"By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration."
LMFTFY
By ignoring the foreseeable risk of violence that their actions created, the court failed to exercise reasonable care in pretending that officers needed to have cases explicitly telling them murdering handcuffed suspects was a crime.
[ link to this | view in chronology ]
Re:
By ignoring the foreseeable risk of violence that their actions created, the court failed to exercise reasonable care in pretending that officers needed to have cases explicitly telling them murdering handcuffed suspects in an extremely specific way was a crime.
Fixed for horrifying accuracy because when it comes to police it's not enough to tell them that something blatantly unacceptable is in fact unacceptable it needs to be spelled out in exacting detail otherwise it's unfair to expect them to grasp such complex subjects as 'people have rights' and 'killing people is bad'.
[ link to this | view in chronology ]
This cop, and all cops, should know, and should have known, that by their actions and the actions of their peers, they will cause protests to happen where, while they generally get to hurt a lot of people with impunity, that they too might be injured.
Go sue yourself for causing your injuries.
[ link to this | view in chronology ]
This is still going on?
A stupid suit.
Go after your he person who hurt you.
As for the “ “out to block the highway in front of the police station”
THe other (protestor) shithead should be jailed for that.
Talk about disregard for public safety.
Somewhere along the way people will learn; play in traffic get run over!
But that’s a side point.
A case against the organiser is like the case now against a goatee for VPN services being dragged over pirates.
[ link to this | view in chronology ]
Re:
One wonders how stupid it is when you consider the DOJ tried a bunch of people who attended an Anti-Trump rally at the inauguration for actions none of them were involved in...
The case where a Judge bitchslapped the DOJ lawyer in front of the jury after it was suggested reasonable doubt wasn't a thing.
[ link to this | view in chronology ]