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.

Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, louisiana, police, protestors, protests, violence