Free Speech

Organizer of Black Lives Matter Highway-Blocking Protest Can Be Sued for Injury to Police Officer

An interesting decision from the Fifth Circuit, allowing a negligence claim to go forward against organizer Deray Mckesson; the court's reasoning relies heavily on the illegal nature of the protest.

|The Volokh Conspiracy |

From Wednesday's Doe v. Mckesson:

On July 9, 2016, a protest took place by blocking a public highway in front of the Baton Rouge Police Department headquarters. [Footnote: This case comes to us on a motion to dismiss, so we treat all well-pleaded facts as true.] This demonstration was one in a string of protests across the country, often associated with Black Lives Matter, concerning police practices. The Baton Rouge Police Department prepared by organizing a front line of officers in riot gear. These officers were ordered to stand in front of other officers prepared to make arrests. Officer Doe was one of the officers ordered to make arrests. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest.

In the presence of Mckesson, some protesters began throwing objects at the police officers. Specifically, protestors began to throw full water bottles, which had been stolen from a nearby convenience store. The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson "incited the violence on behalf of [Black Lives Matter]." The complaint specifically alleges that Mckesson led the protestors to block the public highway. The police officers began making arrests of those blocking the highway and participating in the violence.

At some point, an unidentified individual picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Doe's face. Officer Doe was knocked to the ground and incapacitated. Officer Doe's injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, "and other compensable losses."

Doe sued Mckesson and Black Lives Matter; the Fifth Circuit held that Black Lives Matter wasn't an organization that can be sued, and also rejected the claims that Mckesson was vicariously liable for the action of the rock-thrower or conspired with the rock-thrower. But the court allowed the negligence claim against McKesson to go forward:

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….

Furthermore, as the purpose of imposing a duty on Mckesson in this situation is to prevent foreseeable violence to the police and bystanders, Officer Doe's injury, as alleged in the pleadings, was within the scope of the duty of care allegedly breached by Mckesson.

We iterate what we have previously noted: Our ruling at this point is not to say that a finding of liability will ultimately be appropriate. At the motion to dismiss stage, however, we are simply required to decide whether Officer Doe's claim for relief is sufficiently plausible to allow him to proceed to discovery. We find that it is….

The Supreme Court has made clear that "[t]he First Amendment does not protect violence." N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982)…. Assuming that the First Amendment is applicable to Mckesson's conduct, in order to counter its applicability at the pleading stage Officer Doe simply needed to plausibly allege that his injuries were one of the "consequences" of "tortious activity," which itself was "authorized, directed, or ratified" by Mckesson in violation of his duty of care. See id. ("[A] finding that [the defendant] authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity."). 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 court noted, though, that Doe could no longer proceed anonymously:

[Doe] argues that the public nature of his job puts him and his family in danger of additional violence. At the district court, he listed a number of examples of acts of violence against police officers by individuals who may have some connection with Black Lives Matter. In its order, the district court walked through three factors common to anonymous-party suits that we have said "deserve considerable weight." Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). These are: (1) whether the plaintiff is "challeng[ing] governmental activity"; (2) whether the plaintiff will be required to disclose information "of the utmost intimacy"; and (3) whether the plaintiff will be "compelled to admit [his] intention to engage in illegal conduct, thereby risking criminal prosecution." The district court concluded that none of these factors applied to the facts of this case.

In response to Officer Doe's argument regarding potential future violence, the district court noted that the incidents Officer Doe listed did not involve Officer Doe and were not related to this lawsuit. In fact, at oral argument before the district court regarding his motion, Officer Doe conceded that he had received no particularized threats of violence since filing his lawsuit. The district court instead saw the incidents Officer Doe listed as evidence of "the generalized threat of violence that all police officers face." As a result, the district found that Doe had not demonstrated a privacy interest that outweighs the "customary and constitutionally embedded presumption of openness in judicial proceedings."

We agree with the district court and affirm the denial of Doe's motion to proceed anonymously. In so holding, we emphasize what the Supreme Court said decades ago: "What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947).

Thanks to Howard Bashman (How Appealing) for the pointer.

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138 responses to “Organizer of Black Lives Matter Highway-Blocking Protest Can Be Sued for Injury to Police Officer

  1. Anti-gun types: Remember this case next time you wonder why guns are pulled on people who just have knives and rocks.

    That is all.

    1. “next time you wonder why guns are pulled on people who just have knives and rocks.”

      Because too many of the people who have guns overreact, and think their guns are the proper tool to solve EVERY problem?

      (I’m not anti-gun. I’m anti-twit.)

      1. I see you don’t understand risk very well.

        1. I see you don’t understand how to assess whether people understand risk very well.

      2. (I’m not anti-gun. I’m anti-twit.)

        Should be we be putting you on suicide watch, then?

  2. […] Organizer of Black Lives Matter Highway-Blocking Protest Can Be Sued for Injury to Police Officer Reason […]

  3. “protestors began to throw full water bottles, which had been stolen from a nearby convenience store.”

    No surprise there. When, out of habit and natural inclination you steal, then you aren’t likely to mind giving up your stolen possessions.

    1. out of habit and natural inclination you steal

      “Natural inclination.”

      Wow.

      1. What “wow”? He’s just recognizing the established nature of BLM. The organization may have started out in good faith, but was rapidly taken over by criminal gangs, and by the time this event took place, was really just a front for urban gangs that wanted the police off their turf.

        1. The “wow” is because Frum was indicating that BLM, which is primarily composed of blacks, steal and rabble rouse by natural inclination and habit. Comments like that in the wrong place get one doxxed.

          Apropos: https://www.youtube.com/watch?v=8m_2XGm9GqQ

          1. That sounds like a threat.

        2. Even taking your questionable narrative as correct, ‘natural inclination’ is not a statement about the history of the organization, but about the inherent nature of the people in it.

          1. With the history of the organization being evidence as to the nature of the people in it.

            1. Quit making excuses.

              The poster said the natural inclination for this organization of blacks is to steal.

              1. The natural inclination for THIS organization of blacks. This was a statement about BLM, not blacks in general.

                Are we still pretending that BLM is a quilting circle?

                1. What do you think natural means, Brett?

                  1. How about we invite JonFrum to clarify his remarks? Because both of you are right, blacks aren’t naturally criminals but BLM (may as well be) a criminal organization.

                  2. Who do you think it applies to, Sarcastro? THAT is the relevant question. If we say the members of a group are naturally violent, why assume that the relevant class is “people who look like members of the group”, and not, “members of the group”?

                    Mad_Kalak is right, though. Clarification would be nice, because it could in theory have been meant either way, much as I dislike the presumption of racism that motivates your interpretation.

                    1. Still not buying it. Joining a group doesn’t change you nature. But there is one natural attribute everyone in BLM shares.

                    2. Joining a group doesn’t change your nature, but your nature certainly can influence your decision to join the group.

                      Two natural attributes, Sarcastro: Peaceful people don’t join BLM anymore, haven’t in a long while.

  4. The possibility of confrontation seems foreseeable. The confrontation turning violent, however, does not appear to be equally foreseeable. “Foreseeable” is not the same as “possible” or even “probable”.

    To the extent that a violent confrontation was foreseeable, however, I would expect it to be substantially more foreseeable by the police managers and senior officers who are trained in crowd dynamics than by the untrained organizer of a political demonstration. It seems to me that Officer Doe should be pursuing his/her case against the police superiors rather than against Mckesson.

    1. Why? They would just be given qualified immunity. /sarc

    2. July 2016. By then BLM confrontations turning violent would have been the default assumption.

      Furthermore, when you organize an illegal activity, you tend not to get any benefit of the doubt when things turn bad. That was a key point in the ruling.

      1. I’m not sure that’s a defensible standard, Brett. If all political protests were held to that standard, it would have the de facto effect of either making political protests illegal or so dangerous for the organizer that it would have a chilling effect on speech. That would seem to strike at the core of First Amendment protections.

        Note that the “illegal activity” they organized involved assembly on a public roadway. Yes, that had the effect of blocking traffic and yes, the local legislature had made that effect illegal, but that’s a pretty low-level crime. It’s not like they were organizing a bank robbery.

        Second note, BLM confrontations turning violent might plausibly have been the default but that was at least as much the fault of police over-reactions and unnecessary escalations as it was the fault of the protestors. I do not think that should count toward Mckensson’s “foreseeability” obligations.

        1. “Furthermore, when you organize an illegal activity,”

          I’ve been to multiple political rallies, including Michigan Militia rallies that were monitored by police on adjacent rooftops through rifle scopes. And they were all peaceful and legal. Most political rallies, at least on the right side of the political spectrum, aren’t criminal. Because, you know, assembly for political purposes is constitutionally protected, there aren’t a lot of obstacles to doing it legally. Doing it illegally is something you do as a deliberate choice, not out of a lack of alternatives.

          Yes, the illegal activity they organized involved assembly on a public roadway. They could have gotten a parade permit. They could have held the event someplace it was legal to assemble, even without a permit. But, no, they chose to do it illegally, and that WAS a choice, a choice that had reasons behind it, and that choice had legal implications.

          And one of those implications was being responsible if anything went wrong.

          1. Unless torts has changed a lot in the past decade, there is no doctrine in torts that you are responsible for any injury associated with an illegal act you organize.

            You appear to be making up law. And expanding negligance doctrine in order that someone you don’t like has legal troubles. That puts you dangerously close to the reactionary types who endorse lawbreaking if it might screw with liberals.

            1. Look, read the decision. It wasn’t on the merits, it was on whether the officer could proceed with his lawsuit TO the merits.

              At which point he will assert not just that the guy he’s suing meant to organize an illegal rally, but that he meant to organize a violent illegal rally.

              Maybe he can prove it, maybe he can’t. But if he can prove violence was actually intended, are you still going to claim there’s no doctrine in torts that would hold the organizer responsible for injuries?

              1. And I think the decision is wrong as a matter of law. And I think you are as well.

                This creates a new legal doctrine of liability.

                Your supposition that all unpermitted rallies are organized by people who want them to turn violent is fantastical.

                Indeed, even the case doesn’t go as far as your imagination of what liberals must be thinking – If violence is intended, then negligence wouldn’t be the proper standard, would it?

                1. “Your supposition that all unpermitted rallies are organized by people who want them to turn violent is fantastical.”

                  Where did I say that? it’s certainly theoretically possible that an unpermitted rally organized by somebody other than BLM might not be intended to turn violent.

                  The officer asserts that the organizer intended the rally to be violent. He will have to prove this to prevail.

                  I think this is plausible, because they could easily have gotten a permit to hold the event, probably somewhere else, and instead chose to hold an illegal rally in front of a police station.

                  And I think it’s plausible because I didn’t sleep through 2016, nobody hit me in the head causing amnesia, so I’m not going to pretend that BLM is a peaceful organization without a track record of violence.

                  Sorry about your closed head injury, Sarcastro. Hope you make a full recovery in time.

                  1. So it’s BLM specific.

                    Not making your case any better by targeting the organization.

                    1. Yes, of course it’s BLM specific. And I damned well AM making my case better by targeting the organization, because BLM is a violent organization, and I don’t see any reason to humor your pretense that we don’t know that.

                    2. First, we don’t know that BLM is violent. Just cause the right says this organization is all about black terrorism doesn’t mean it is.
                      I sincerely don’t think BLM is a violent organization. There are countless counterexamples of their protests about police use of force going just fine.

                      Did you note how none of the facts in the case seem to argue that BLM is inherently violent?

                      And even if there were voilent, the Nazis got to march.

                    3. “First, we don’t know that BLM is violent.”

                      Yes. We. Do.

                      I don’t know about “inherently” violent, but they are contingently violent, which is to say it wasn’t logically necessary for them to be violent, but that’s the way things turned out.

                    4. “Yes. We. Do.”

                      You know these fellows well, then?
                      Or is this simply an article of faith for you, which is not subject to discussion?

                    5. Brett,

                      “Yes, of course it’s BLM specific.”

                      Derp derp derp did you read the opinion? BLM is out.

                2. >all unpermitted rallies

                  Street blocking is far worse than a mere “unpermitted rally.” It’s inherently the application of force against others. Force is in it’s very name.

              2. “But if he can prove violence was actually intended…”

                This is a negligence case. If he thought he could prove that McKesson intended violence against Officer Doe, he’d assert an intentional tort. Officer Doe can prevail even if he never proves that McKesson “meant to organize a violent illegal rally”.

                1. ” If he thought he could prove that McKesson intended violence against Officer Doe, he’d assert an intentional tort.”

                  He’d lose that one. The fact that McKesson intended violence against Officer Doe is immaterial unless McKesson also attempted violence against Officer Doe. Because McKesson has an iron-clad defense against a battery tort… he objectively didn’t batter Officer Doe.

            2. SarcastrO,

              I’m not sure how you arrive at that conclusion. If you “organize” an illegal act, you are, along with the other actors, responsible for the foreseeable consequences of that activity. There is nothing new there.

              One might argue that the particular contours of this event do not align properly with the rationale underlying laws against illegal protests. For example, imagine that a group merely protested peacefully, but did so past the time allotted under their permit (and thus, illegally. Rival protesters violently disrupt the first protest, causing harm to bystanders. It might be open to the first group to argue that the foreseeable risks of “merely unpermitted” protest activity do not include violence by other groups.

              Maybe a form of this characterization works in this case, but it seems clear to me that the “rock-throwing protesters” were probably on the same side as the putatively peaceful protesters; it’s an open question whether organizing illegal activity foreseeably leads to the kind of excesses that apparently happened here. Abstractly, I happen to think so, but whether liability is appropriate turns on the situation as it should have appeared to McKesson. And I don’t know enough about those circumstances to have a firm opinion. That’s why dismissal of the claim was inappropriate.

              1. You’re begging the question, adamscales – the causality is the rub.

                Allowing this causal logic would be something new; it would expand liability for unpermitted protests quite a bit more than I’ve heard of in the past.

                1. Sarcastr0,

                  It’s not begging the question to point out that the question (of causality) needs an answer. You seem very convinced that there’s no possible way that could be answered, “Yes, there is causation.” I’ve taught Torts for twenty years, which may be why I am unsure what the correct answer on causation should be. I have certainly seen much more dramatic stretches of causation doctrine. I suspect that courts would ultimately resolve these questions with an eye toward the impact that a “Yes” answer could have on free expression. But that resolution requires more factual development than has been done so far.

                  1. adamscales,

                    “I have certainly seen much more dramatic stretches of causation doctrine.”

                    Examples?

            3. “Unless torts has changed a lot in the past decade, there is no doctrine in torts that you are responsible for any injury associated with an illegal act you organize.”

              The claim here appears to be that if you organize an illegal occupation of a public highway, it’s foreseeable that cops might be injured clearing the occupation. I’m not sure how that’s controversial.

          2. I’m just not buying “assembly on a public road” as sufficiently illegal to justify this restriction, Brett. I fear that this creates a slippery slope where politicians could effectively ban in-person protest by making access to the protest spaces too difficult to manage. What if, for example, you want to protest outside the police station (a clearly protected activity) and the police extend their building all the way to the road. Or just build a fence around the building and declare the fenced-in space non-public. It becomes too easy for a rule making assembly on the road illegal to become a way to make protest itself functionally illegal.

            This policy can not be made right by allowing for the possibility that the organizer could have gotten a parade permit since the issuance of those permits is discretionary – in this case, by the same department that was the subject of the protest.

            Again, it would be a very different case if the illegal activity were something that most of us would consider illegal in other contexts. Assembly on a public road? That doesn’t seem right to me.

        2. Are you clueless, or just dishonest?

          It didn’t just have the “effect” of blocking traffic, that was the intent!

        3. “That’s a pretty low level crime”.

          Actually, that can be a major crime. Imagine, a protest that blocks fire engines from being able to answer a 5-alarm fire. Because the fire engines can’t get out, dozens die.

          Is that a “low level crime”?

          1. When you have to make up a scenario to maximize the consequences, that’s not an argument that the action when not in that scenario is a major crime.

          2. “Actually, that can be a major crime. Imagine, a protest that blocks fire engines from being able to answer a 5-alarm fire.”

            Why are we imagining a different crime than the one we have?

            1. It’s called “analogy”

              1. …You were not making an analogy:

                “That’s a pretty low level crime”.

                Actually, that can be a major crime. Imagine, a protest that blocks fire engines from being able to answer a 5-alarm fire. Because the fire engines can’t get out, dozens die.

                That’s not an analogy, that’s trying to argue from a hypothetical because the facts weren’t saying what you wanted them to. If you truly are a lawyer, you should know the law doesn’t work like that.

                1. “Analogy” : a comparison between two things, typically for the purpose of explanation or clarification.
                  Now, this isn’t the forum for a legal argument, it’s the forum for simplified explanations or clarifications.
                  You seem to be entirely writing off the example posed, as “That didn’t happen” without considering the example, and whether the example would lead to negligence on the part of the organizer. Would it be negligence on the part of the protester?

                  1. “it’s the forum for simplified explanations”

                    You’re the only simpleton in this discussion.
                    Allow me to offer this analogy: Pointing out your errors to you is as useful as it would be to explain law to a potted geranium.

    3. It was certainly foreseen by the police. They were lined up with riot shields and helmets, with a row of cops behind the cops with riot shields making arrests.

  5. This is some chilling BS.

    Organizing a protest is not condoning violence.

    1. As I sad above: He didn’t organize a protest. He organized an illegal protest. The protest criminally occupied a public road.

      When you organize a criminal activity, you tend to be legally responsible for anything that goes wrong during it.

      1. Typical big government Brett…

        1. What, you’re going to claim there’s no valid reason to make it illegal for people to assemble in large groups on highways, and without making any arrangements for traffic control?

          No neutral justification for the government to not want people and high speed vehicles to mix, so that this law shouldn’t exist, or be enforced?

          All my life I’ve been politically active, and I’ve never had to break the law to do it. These people didn’t need to, either. They chose to. They chose to, because they wanted a fight with the police.

          That’s the blunt truth: They were looking for a fight, or they’d have done things differently.

          1. “What, you’re going to claim there’s no valid reason to make it illegal for people to assemble in large groups on highways…”

            What? No. The case isn’t about whether Mckesson can be charged with an illegal act. Of course he can. Of course the government doesn’t want people in public roads. Neither do I. It’s about what “legally responsible” means. And for you, it apparently means the government should take money from Mckesson, and give it to Officer Doe, because somebody else hurt Officer Doe. The Fifth Circuit has come a long way from Testbank re: foreseeability, and I don’t view this recent development as positive for tort duty/liability jurisprudence in the Fifth Circuit.

            1. OK, again, I keep saying this: Read the freaking ruling!

              The officer is claiming he can prove that McKesson intended to organize a violent rally. The court simply decided that at this stage in the proceedings, they have to assume he can do this, and the case can proceed to a hearing on the merits, where he’ll have to make his case.

              Do you want to argue that even if McKesson can be shown to have intended violence, he’s not responsible for any injuries resulting from it? That it wasn’t reasonably foreseeable that violence might result in injuries?

              1. Do you mean this claim?

                The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson “incited the violence on behalf of [Black Lives Matter].” The complaint specifically alleges that Mckesson led the protestors to block the public highway.

                Yes, try and bring incitement law into this, Brett. That’ll save you!

                1. I’m not in need of saving.

                  We’ll see what happens in the trial, since it’s now going to happen.

                  1. And if the Fifth rules this is fine, that won’t change my mind about what the law is and should be. And I suspect the inverse is true for you.

              2. “Do you want to argue that even if McKesson can be shown to have intended violence, he’s not responsible for any injuries resulting from it?”

                You’re still jumping from person A planned a protest to person X injured a cop, and straining to show why the responsible party is A instead of X. In ordinary negligence law, an intervening criminal act breaks proximate cause. To apply agency law, you need to show that X acted at the specific command of A.
                Now, if you wanted to argue that this fellow led protesters into the street, and one of them got hit by a car, then I’ll buy that he’s liable for the injuries that resulted, both to protester and to automobile. But trying to apply negligence law to this set of facts doesn’t seem to fit.
                I mean, this particular cop went into law enforcement knowing that cops are often involved in violent incidents. Why not choose assumption of the risk as the controlling legal principle?

              3. “The officer is claiming he can prove that McKesson intended to organize a violent rally.”

                I’m starting to think you haven’t read the opinion. The decision has nothing to do with McKesson’s subjective intent to incite a violent crime. It has to do with judicial recognition of fault for an objectively foreseeable injury from what I contend is an unrelated act to the brick throwing. It’s a negligence claim, not an intentionally-based tort. (The court did throw out the intentional civil conspiracy claim.)

                You, and the court, keep repeating ad nauseum that this is just an initial stage decision. But it isn’t. The court holds that people who incite street obstructions, as a matter of law, owe a duty. Duty is not going to be relitigated at trial, because in Louisiana, like in most jurisdictions, duty is a matter of law for the court to decide. That’s why the court says shit like “patently foreseeable”.

                Worse, the court is misstating the precedent they rely on. NAACP v. Clairborne involved non-violent protest, so it’s dicta. In any event, the court says defendant can be liable for the “consequence” of tortious activity. But they’re relying on Gibbs which had another caveat: “the permissible scope of state remedies in this area is strictly confined to the direct consequences of such [violent] conduct“. In other words, the 5th is wrong on both state law foreseeability grounds and 1A grounds.

              4. “That it wasn’t reasonably foreseeable that violence might result in injuries?”

                What I am saying is that it should be the case as a matter of law that somebody who incites street obstructions is not liable for every person who engages in violence as a result. I would hold as a matter of law that the fact that someone incited a street obstruction is insufficient to impose a duty. I hate case-by-case foreseeability analyses generally, which is why I prefer Texas’s duty-category analysis better. Where will the court draw lines in the next case? Serving alcohol to minors can foreseeably lead to violent and dangerous conduct. If I give a minor alcohol and he bashes my neighbor’s head in, do you think I should be liable? Does a shop-lifter who causes a chase in a mall become liable if the mall cop trips on a spill caused by somebody else? Put differently, I don’t think it’s wise for the courts to impose the felony murder doctrine to tort liability for non-violent crimes.

                1. “What I am saying is that it should be the case as a matter of law that somebody who incites street obstructions is not liable for every person who engages in violence as a result. I would hold as a matter of law that the fact that someone incited a street obstruction is insufficient to impose a duty.”

                  If somebody incites an illegal occupation of a public street, it’s patently foreseeable that cops might be injured clearing the street. I’m not sure how much it matters that the guy was injured by someone actively resisting being removed from the street, as opposed to if a cop just hurt his back dragging some dude out of the street.

                  As for NAACP v Claiborne, I’m not sure how that applies since there is no activity protected by the first amendment involved.

                  1. “I’m not sure how that applies since there is no activity protected by the first amendment involved.”

                    There’s a right to petition the government for a redress of grievances. Where does that right come from?

                    1. “There’s a right to petition the government for a redress of grievances. Where does that right come from?”

                      The first amendment. But the first amendment doesn’t give you right right to petition the government by blocking highways any more than it gives you the right to oppose banking laws by robbing banks.

                    2. Twelve,

                      “But the first amendment doesn’t give you right right to petition the government by blocking highways…”

                      Right, which would be an interesting observation, if the only basis for liability sought by Officer Doe was that McKesson was “blocking highways”.

                    3. ” the first amendment doesn’t give you right right to petition the government by blocking highways”

                      My copy of the Constitution seems to have left off the list of limitations to the rights provided by the First Amendment. Would you mine listing what they are? Besides “you can petition the government for a redress of grievances, unless you’re in a public place.”

                  2. “…it’s patently foreseeable that cops might be injured clearing the street.”

                    I don’t agree with you that it is foreseeable–much less “patently foreseeable”–that when you incite blocking a street, a cop is going to get his head smashed in with a brick. In fact that’s pretty unusual.

                    “…I’m not sure how that applies…”

                    Besides the plaintiff seeking to hold the defendant liable for speech, because it incited violence in others? Or, as the Supreme Court has said, “Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”

                    While it is true that the 5th Circuit sidestepped this by focusing on the incitement to block the street, Officer Doe’s lawsuit is not so limited. Maybe put eyes on the petition.

                    1. The complaint says that McKesson directed the actions of the protestors and incited violence against the police. If the cop can prove that, I don’t see how the injury wasn’t foreseeable.

                2. “I would hold as a matter of law that the fact that someone incited a street obstruction is insufficient to impose a duty.”

                  No, walking in the street is a dangerous act. There are injuries that might arise from physically being in the roadway. If a bunch of protesters are on the sidewalk or in the park and some jackass drives into them, the blame clearly lies with the driver. But if they’re in the street, there’s some blame for whoever told them to get in the street.

      2. I get that any consequence of illegally occupying the public road would be a liability of the organizer.

        But the injury isn’t causally related to the tresspass.

        You seem to be arguing for a felony-murder doctrine for criminal tresspass.

        1. Did you read the quotes from the court decision? This wasn’t a decision on the merits, it was a decision on whether the lawsuit could proceed. “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. ”

          “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. ”

          The case will now proceed to determining if Officer “Doe” can prove his assertions.

          1. That causality statement is full of beans (occupy highway=>confrontation with police=>injuries to police from random violent yahoo protestors), and if taken as proper, has quite the reach beyond this protest.

            If we want to make the penalties for illgall protests stronger, we should make them stronger. Dragooning tort law to get there seems a shift in the status quo of negligence just to own the libs.

            1. I am actually with Sarcastro on this one. Imagine if one of the boxes of tea had fallen on the head of a redcoat in a passing rowboat when thrown overboard, Sam Adams would be held liable, rather than the man dressed as an Indian who did the deed.

              Still, I won’t shed a tear for the BLM guy bankrupted for it, because that is a corrupt organization.

              1. Thanks for the support, but I don’t care for more carefully tailored rule of law from the righties on this blog.

                Not that I don’t see it from the left on other blogs (though they lean more on natural law than the positivies invocations here, ironically enough), but it sucks no matter who is doing it.

            2. READ THE FREAKING RULING!!!!

              1. Look man, you don’t understand fucking tort law, ok?

            3. “That causality statement is full of beans (occupy highway=>confrontation with police=>injuries to police from random violent yahoo protestors)”

              What part is full of beans? “Occupy a highway” means that you intend to get dragged off the highway by the cops, with an associated risk of injury to the cops. I’m not sure why you get to say, well, I only intended for people to passively resist the cops, not actively resist.

              1. ” ‘Occupy a highway’ means that you intend to get dragged off the highway by the cops, with an associated risk of injury to the cops.”

                WTF?
                Every time I drive somewhere, I occupy a part of the highway. I assure you, at no time do I intend to be dragged off by cops.

                1. Well, geez, James, I guess as long as there’s no difference between occupying a highway as a protest, and driving somewhere, then you have a point. But if there is a difference between driving somewhere and occupying a highway as a protest, then you don’t have much of a point, do you?

                  1. Well jaywalking may require an officer to step into the street to stop me. Are you saying I’m liable in tort, to the police, every time I jaywalk?

                    1. “Well jaywalking may require an officer to step into the street to stop me. Are you saying I’m liable in tort, to the police, every time I jaywalk?”

                      I would say that police intervention is generally unlikely in an incidence of jaywalking. But if you occupy a public street as a protest, you are intending to create a situation where the cops have to remove you by force, and it’s foreseeable that cops can be injured in such a situation.

                    2. Alternate interpretation: If you occupy a public street as a protest, you are intending to create a situation where the cops change their behavior such that the protest is unnecessary, and it’s foreseeable that the cops would a) mostly stay in their police station except for b) a subset of police sent to manage traffic by diverting drivers just like they would for an accident or parade.

                    3. ” But if you occupy a public street as a protest, you are intending to create a situation where the cops have to remove you by force”

                      You keep repeating this opinion as if it’s a fact.
                      It’s not true that all cases where protests occupy public streets are seeking a situation where the cops have to remove you by force. You’re seeking attention, but (here you keep projecting) not any specific form of attention. See, e.g., Critical Mass protests.

      3. “When you organize a criminal activity, you tend to be legally responsible for anything that goes wrong during it.”

        Guess that’s why the nice folks who occupied the bird sanctuary in southeastern Oregon were charged with the murder of Mr. Finicum. He died as a direct result of participating in the protest.

        1. Actually, he got shot away from the protest as a result of daring a police officer to shoot him.

          Never a smart thing to do.

      4. When you organize a criminal activity, you tend to be legally responsible for anything that goes wrong during it.

        I mean, this is not remotely an accurate statement of any law in any jurisdiction in the history of the United States. You made it up.

  6. “The complaint specifically alleges that it was Mckesson himself who intentionally led the demonstrators to block the highway.” They’re assuming this to be true at this stage of the case, though the cop will have to prove it at trial.

    Of course, you can’t hold someone accountable for all the ripples from a rock he throws in the water. Holocaust survivors can’t sue the Princip estate (assassin of Franz Ferdinand) because the assassination led to two world wars and the Holocaust.

    At some arbitrary point, you have to cut the causal chain and say “no more liability beyond this.”

    But when you lead a bunch of people to occupy a busy road – without a parade permit – I don’t see how it’s too much of a stretch to hold you responsible for the injuries cops suffer as they try to get your people *off* the road.

    However, I suppose this all comes down to Louisiana law and there’s no guarantee this judge got it right.

    1. But when you lead a bunch of people to occupy a busy road – without a parade permit – I don’t see how it’s too much of a stretch to hold you responsible for the injuries cops suffer as they try to get your people *off* the road.

      If the injuries involved the cops getting hit by cars while trying to move protesters off the roads, perhaps. That’s foreseeable. (Though traditional principles of tort liability generally forbid public safety officials (cops, fire department, etc.) from suing people for injuries they suffer in performing their duties. (It’s called the “fireman’s rule.”))

      But the risk that some random person in the protest will decide to throw rocks at the cops is entirely unlike that.

      1. The risk is that the people in the road will have to be physically removed from the road, and that they might resist such removal.

        When the people are convinced they have a right to occupy the road and to stop anyone from taking them out of the road, then sending them into the road seems to me to be accepting the risks of a volatile situation.

        Now it’s “how could he predict someone would throw a rock”? Next time it will be “how could he predict someone would punch one of the cops” and so on through all the totally unpredictable scenarios when you’re trying to clear the streets of people who aren’t supposed to be there but insist on remaining.

        1. “Now it’s “how could he predict someone would throw a rock”? Next time it will be “how could he predict someone would punch one of the cops” and so on through all the totally unpredictable scenarios when you’re trying to clear the streets of people who aren’t supposed to be there but insist on remaining.”

          You still have the problem of an intervening criminal act breaking the chain of proximate cause. Punching cops is just as criminal as hitting them with thrown projectiles. The proper defendant is still the one who actually causes the injury.

  7. Unless the BLM leader invoked a riot (or the violence alleged) I do not see how he (or BLM) could be held liable.

    This trend of trying to punish political enemies (gun manufacturers, etc.) through this twisted logic can NOT be good for freedom.

    1. “Unless the BLM leader invoked a riot (or the violence alleged) I do not see how he (or BLM) could be held liable.”

      He invoked the occupation of a highway, with the attendant clearing of the highway by cops. People who claim that this doesn’t create foreseeable injury to cops are engaging in highly motivated reasoning.

      1. As NToJ pointed out above, your logic proves way too much – it creates liability for anything where the cops have to do anything. You’re the one arguing for a change to the status quo.

        And as James Pollock pointed out there is also the intervening criminal act.

        On this blog the side arguing for liability is all conservatives. The other side is bipartisan. Perhaps interrogate your own motives and reasoning.

        1. There’s also the fact that cops are involved in violence when I stay home and type comments on Internet websites. Therefore, it’s foreseeable that typing this comment will be followed by cops encountering violence.

          I mean, when you decide to become a cop, it’s foreseeable that you will encounter some workplace violence. If only there was some kind of well-known legal principle that people who know about a risk, but go ahead anyway and do the risky thing(s), they are liable for the results of the risk. You know, like if you decide to go to the ballpark to watch a baseball game, and the batter hits a foul ball that goes into the stands and hits you, the batter isn’t responsible for your injuries, despite being negligent in his duties to hit fair balls.

  8. This ruling gives cover to every college administration who cancels a controversial speaker because of a perceived threat of a heckler’s veto. If it’s possible to hold the organizer of an event responsible in negligence for an event that turns violent, controversial speakers should expect a substantial decrease in speaking fee income.

  9. My first gut reaction was like Sarcastro’s – you can’t penalize protest or other political leaders for things done under their name without a pretty clear link of responsibility. But upon reflection I think the waters are at least murky, and people’s reaction will largely turn on their view of the cause being espoused.

    Consider MLK marching across the Pettus Bridge: what if under great provocation (dogs, fire hoses, …) one of the civil rights protesters loses their temper and heaves a rock at the police. Most people are pretty strongly on MLK’s side of that, and so penalizing MLK seems outrageous – not the least because the civil rights movement even went as far as training participants to not lose their tempers.

    On the other side of the coin, suppose some Grand Kleagle is leading a KKK/white supremacist march through the black part of town. He’s mumbled platitudes about non-violence but the rumors are the mob is bent on widespread arson or other mayhem. The police try to channel the mob, and someone in the crowd heaves a rock at the cops. All of a sudden the line that the Kleagle should have realized the danger he was creating, and is liable for the result, doesn’t seem quite so per se ridiculous.

    You need some principle other than MLK good/KKK bad, true though that may be. And the factual details – what did the protest leader actually do and what did he know – may matter a lot, which argues against a motion to dismiss.

    1. “You need some principle other than MLK good/KKK bad, true though that may be.”

      No you don’t, if your position is that neither should be liable.

    2. Sorry but even in your hypothetical, the Grand Kleagle is (or should not be) liable. The person who threw the rock is responsible. (In the MLK matter, the police might share some contributory responsibility depending on the degree of provocation.) In neither scenario does liability fall to the march organizer until you get all the way to actual incitement to riot. And the standards for that crime are pretty clear. Mumbled platitudes about non-violence would probably be enough to torpedo that charge.

  10. I’m not sure I agree with that result. I don’t think organizing a protest and directing them where to go creates liability for every act of any other person in the group organized.

    Abhorrent as their beliefs may be even fascists and terrorists have rights.

    1. ” I don’t think organizing a protest and directing them where to go creates liability for every act of any other person in the group organized.”

      Assumes facts not in evidence; apparently, organizing such a protest makes you liable for any other person who happens to be in the vicinity.
      I’m sure the insurance company that covered the losses to vandalism and theft to the store are kicking themselves for not suing the protest leader for the trespass.

  11. BLM is a domestic terrorist organization.

    1. Such harsh words for the Bureau of Land Management. Are you related to the Bundy gang that took over a bird refuge?

  12. This seems like a pretty clear case of intervening criminal act. Even if the guy was negligent in leading protesters into the street, it isn’t the fact that protesters were in the street that were the cause of Officer Doe’s injuries. It was the guy who hit him with a big rock that is the cause of the injuries, and he’s the proper defendant.

    I’m assuming that assailant X wasn’t named as a defendant because Officer Doe has been unable to determine who he is. That’s unfortunate for Officer Doe, but doesn’t justify naming defendants willy-nilly, hoping at least one will stick (and be able to pay), no matter how common that tactic is among the tort bar.

    1. I mean, one of the named defendants is a hashtag. How is that supposed to be taken seriously?

    2. I’m assuming that assailant X wasn’t named as a defendant because Officer Doe has been unable to determine who he is.

      I think you’re pretty likely mistaken.¹ I think assailant X wasn’t named as a defendant because this lawsuit isn’t about recovering damages for injuries suffered by Officer “Doe.” This lawsuit is a political stunt intended to punish someone viewed as anti-police.

      ¹Of course you’re right in general about the trial lawyer tactic of suing everyone and the kitchen sink to find someone with deep pockets. But I don’t think that’s the real factor here.

      1. How does suing a hashtag accomplish literally anything?

  13. Sounds reasonable. It’s pretty simple.

    Some protests are illegal because they present a public safety hazard based on where they are (IE, public roads, especially in front of organizations which perform public safety). For example, you could have an illegal protest in front of a fire station. That protest could prevent fire trucks from leaving the station. That could reasonably be foreseen. And if there was a fire, and people died or were injured, because the illegal protest was preventing the fire trucks from getting to the fire, that would be a case for negligence on the part of the organizer of the protest who directed it to block the fire station.

    Likewise, blocking a police station, would prevent police officers from quickly answering 911 calls, presenting a public safety issue. Indeed, it would be the police officer’s duty and responsibility to ensure the roads in front of the police station were clear, so that public safety could be attended to.

    Now if the organizer directed the illegal protest in front of the police station, and the organizer was reasonably the protest would not peacefully disperse when ordered, they then might be held negligent for following violent actions on the part of the protest.

    1. “Now if the organizer directed the illegal protest in front of the police station, and the organizer was reasonably the protest would not peacefully disperse when ordered, they then might be held negligent for following violent actions on the part of the protest.”

      You skipped over a step here.

      If the protest was organized in the roadway, and a protester was hit by a car, OK. If the protest was organized in the roadway, and a cop was hit by a car, OK. Those are dangers that arise from being in a roadway. How does the protest being in the roadway cause flying rocks?

      1. In fact I didn’t skip a step, nor did I use those examples “IE hit by a car”.

        I used the example of “Blocking public safety vehicles, resulting in deaths from public safety being unable to access emergencies.”

        It’s not “direct”. The protest blocking the roadway in front of the hospital did not immediately lead to John Doe dying because the ambulance couldn’t get to him.

        But it was a foreseeable potential negligent issue.

        Unless you think that blocking ambulances and fire engines is perfectly fine, and any death that result because they can’t perform their service is in no way the blocking group’s fault. Perhaps you ascribe to this?

        1. “In fact I didn’t skip a step”

          Except for the step you skipped, you’re right.

          “nor did I use those examples ‘IE hit by a car’.”

          No, genius, that was me.

          “I used the example of ‘Blocking public safety vehicles, resulting in deaths from public safety being unable to access emergencies.’”

          So, unless Officer Doe sustained injuries due to public safety vehicles being blocked, you skipped a step.

          Unless you think that blocking ambulances and fire engines is perfectly fine”

          It’s not fine. It’s just not relevant. Other things I disapprove of include drunk driving, armed robbery, and counterfeiting the currency of the United States. Which all ALSO do not create a path to liability for a police officer getting hit in the face by a rock thrown by somebody else.

          1. It’s not fine. It’s just not relevant. Other things I disapprove of include drunk driving, armed robbery, and counterfeiting the currency of the United States. Which all ALSO do not create a path to liability for a police officer getting hit in the face by a rock thrown by somebody else.

            Indeed. Under the theory endorsed by the court, though, that would hold.

            1) Every crime requires police to try to apprehend a criminal.
            2) It is always foreseeable that police will have to use force to apprehend said criminal.
            3) It is always foreseeable that a criminal’s friends or family will use force to prevent said apprehension.

            Therefore, every criminal could be liable for every injury suffered by a cop in the course of an arrest. “Best” part is, since the cause of action is civil rather than criminal, they don’t even have to prove beyond a reasonable doubt that the defendant was actually criminal.

            1. According to the complaint,

              “At the beginning the protest was peaceful until activist began pumping up the crowd. DeRay McKesson was in charge of the protests and he was seen and heard giving orders throughout the day and night of the protests.

              The protest turned into a riot. DEFENDANTS and their membership began to loot a Circle K and one of the items taken was plastic full water bottles, which Defendants began to hurl at the police who were in riot gear and hurl over the line of police in riot gear to strike the police who were behind the protective shield formed by the officers in riot gear. Officers were struck by the full water bottles.

              Defendant DeRay McKesson was present during the protest and he did nothing to calm the crowd and, instead, he incited the violence on behalf of the Defendant BLACK LIVES MATTER.”

              If the cop can prove that McKesson incited violence against the police, that’s more than just a claim that he is negligent only for organizing the protest.

            2. You think the facts alleged clear the bar for an incitement case, TiP? Doesn’t look like it to me.

              1. “You think the facts alleged clear the bar for an incitement case, TiP?”

                The facts alleged are that McKesson incited violence. It remains to be seen whether or not cop Doe can prove that, but that is what he pleaded. So yes, alleging incitement clears the bar for an incitement case.

                1. Lots of intimations, but I don’t see a facts alleging the specificity required for the imminent lawless action threshold.

                  But I’m glad you seem to have stepped back from your earlier if you organize an illegal occupation of a public highway, it’s foreseeable that cops might be injured clearing the occupation. I’m not sure how that’s controversial‘ to a much more modest question of fact. I may disagree still, but it’s a much more narrow language-parsing point on which reasonable people can differ.

                  1. I haven’t been stepped back from anything, but I read the complaint more closely. If you organize an occupation of a highway, it certainly is foreseeable that cops will be injured hauling your ass off of the highway. Usually the point of such an occupation is to get the cops to haul you off the road.

                    “I don’t see a facts alleging the specificity required for the imminent lawless action threshold.”

                    The allegation is that “…he incited the violence…” Now maybe you’re much more of a stickler about pleadings than the fifth circuit, and you would have made him say, “he incited limited lawless action”. Would you have allowed him to amend his complaint? But presumably when on alleges incitement, they allege constitutionally un-protected incitement. The jury will be instructed about incitement.

                    1. ” If you organize an occupation of a highway, it certainly is foreseeable that cops will be injured hauling your ass off of the highway.”

                      That’s just not true, no matter how many times you repeat the claim.

                      The only way a cop’s getting hurt hauling me off is if he has a pre-existing back condition that limits his ability to lift.

                    2. “The allegation is that “…he incited the violence…” Now maybe you’re much more of a stickler about pleadings than the fifth circuit”

                      You don’t get to just allege your legal conclusions. You have to allege specific facts that support that conclusion.

                      This is why the pleadings take more than just one page… you can’t just allege “on or about TIME and DATE, Defendant was negligent”

            3. “1) Every crime requires police to try to apprehend a criminal.
              2) It is always foreseeable that police will have to use force to apprehend said criminal.
              3) It is always foreseeable that a criminal’s friends or family will use force to prevent said apprehension.”

              This logic ALSO makes the police agency liable for any injury. I wonder how long it’ll take for the PI bar to pick up on this.

              1. Qualified Immunity

                1. You’re not a lawyer. Police agents get qualified immunity. Police agencies don’t get qualified immunity.

  14. Road blockers are a-holes.

  15. Officer Brokenface was compensated by whatever the local police agency has in place of workman’s comp. Why didn’t they bar this suit as an attempt at double recovery?

  16. […] cited a late April ruling by the 5th U.S. Circuit Court of Appeals that reinstated a negligence lawsuit by an unidentified […]

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