Free Speech

More Fifth Circuit Opinions in Doe v. Mckesson, the Baton Rouge Black Lives Matter Protest Case

|The Volokh Conspiracy |

Tuesday, the Fifth Circuit denied rehearing en banc in Doe v. Mckesson, the tort case stemming from a Black Lives Matter protest, but with three interesting separate opinions. (The en banc vote was as close as it could be—an 8-8 tie, which goes against the petitioner.) First, Judge James Ho's concurrence, which I think is quite right:

[A.] Police officers and firefighters dedicate their lives to protecting others, often putting themselves in harm's way. These are difficult and dangerous jobs, and citizens owe a debt of gratitude to those who are willing and able to perform them. What's more, police officers and firefighters assume the risk that they may be injured in the line of duty. So they are not allowed to recover damages from those responsible for their injuries, under a common law rule known as the professional rescuer doctrine.

"The professional rescuer doctrine, the fireman's rule, is a common law rule that either bars recovery by a professional rescuer injured in responding to an emergency or requires the rescuer to prove a higher degree of culpability in order to recover." Gallup v. Exxon Corp. (5th Cir. 2003) (collecting Louisiana cases). "The Professional Rescuer's Doctrine is a jurisprudential 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"—particularly when the "risks arise from the very emergency that the professional rescuer was hired to remedy." Gann v. Matthews (La. Ct. App. 2004).

This doctrine would seem to require immediate dismissal of this suit. After all, there is no dispute that the officer was seriously injured in the line of duty—specifically, while policing a Black Lives Matter protest that unlawfully obstructed a public highway and then turned violent. The officer deserves our profound thanks, sympathy, and respect. But his case would appear to fall squarely within the scope of the doctrine.

None of the panel opinions in this case addressed the professional rescuer doctrine, however—presumably because Mckesson never raised it. I imagine that, if given the chance on remand, he will invoke the doctrine at last, and that the district court will terminate this suit (again) accordingly.

Had Mckesson raised this doctrine at an earlier stage in the suit, there would have been no need to answer the more challenging First Amendment questions that now animate his petition for rehearing en banc. But he did not. So, like the panel, I turn to those questions now.

[B.] Because Mckesson has thus far neglected to invoke the professional rescuer doctrine, the panel confronted novel and interesting First Amendment issues that are arguably worthy of rehearing en banc. But I take some comfort in the fact that, upon closer review of the panel opinions, the constitutional concerns that have generated the most alarm may not be as serious as feared.

The First Amendment indisputably protects the right of every American to condemn police misconduct. And that protection secures the citizen protestor against not only criminal penalty, but civil liability as well. See, e.g., NAACP v. Claiborne Hardware Co. (1982).

But there are important differences between the theory of liability held invalid in Claiborne Hardware and the tort liability permitted by the panel majority here. In Claiborne Hardware, the defendants were sued for leading a boycott of white merchants. State courts subsequently held the defendants liable for all of the economic damages caused by their boycott.

Notably, the theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity. If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech. So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants' expressive activities. And the Supreme Court rejected this content-based theory of liability as a violation of the First Amendment. See, e.g., id. ("[T]he petitioners certainly foresaw—and directly intended—that the merchants would sustain economic injury as a result of their campaign. … [But t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.").

By contrast, the theory of liability adopted in this case appears to be neutral as to the content of the Black Lives Matter protest. Unlike Claiborne Hardware, liability here turns not on the content of the expressive activity, but on the unlawful obstruction of the public highway and the injuries that foreseeably resulted. This is an important distinction. As Claiborne Hardware itself observed: "While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity." "Only those losses proximately caused by unlawful conduct may be recovered."

So in sum: Content-based damages are generally impermissible, as Claiborne Hardware illustrates. But content-neutral rules typically survive First Amendment challenge. See, e.g., Ward v. Rock Against Racism (1989) ("Our cases make clear … that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.' ") (collecting cases).

Applying that framework here, I do not understand the panel majority to suggest that Mckesson may be held liable for lawfully protesting police—that would be a textbook violation of established First Amendment doctrine, including Claiborne Hardware—but rather for injuries following the unlawful obstruction of a public highway. As the panel explained, "the criminal conduct allegedly ordered by Mckesson was not itself protected by the First Amendment, as Mckesson ordered the demonstrators to violate a reasonable time, place, and manner restriction by blocking the public highway. As such, no First Amendment protected activity is suppressed by allowing the consequences of Mckesson's conduct to be addressed by state tort law." In the face of such limiting language, any First Amendment concern about the potential reach of the panel majority opinion strikes me as uncertain and speculative.

So if I understand the panel majority's theory of liability correctly, it may be expansive—and it may be wrong as a matter of Louisiana law, as Judge Higginson's typically thoughtful dissent suggests. But it applies with equal force to pro-police protestors (just as it would, say, to pro-life and pro-choice protestors alike) who unlawfully obstruct a public highway and then break out into violence. It is far from obvious, then, that the First Amendment principles articulated in Claiborne Hardware would have any bearing here (and we do not ordinarily grant en banc rehearing to resolve questions of state law).

[C.] Civil disobedience enjoys a rich tradition in our nation's history. But there is a difference between civil disobedience—and civil disobedience without consequence. Citizens may protest. But by protesting, the citizen does not suddenly gain immunity to violate traffic rules or other laws that the rest of us are required to follow. The First Amendment protects protest, not trespass.

That said, this lawsuit should not proceed for an entirely different reason—the professional rescuer doctrine. I trust the district court will faithfully apply that doctrine if and when Mckesson invokes it, and dismiss the suit on remand, just as it did before. It is for that reason that I am comfortable concurring in the denial of rehearing en banc.

Judge James Dennis, joined by Judge James Graves, dissented:

I respectfully dissent from the court's refusal to rehear en banc a 2–1 panel opinion that not only misapplies Louisiana's duty-risk analysis, as Judge Higginson's dissent points out, but also fails to uphold the clearly established First Amendment principles enshrined in NAACP v. Claiborne Hardware Co. Claiborne Hardware reaffirmed this country's "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Thus, when violence or threats of violence "occur[ ] in the context of constitutionally protected activity, … precision of regulation is demanded," including an inquiry into whether the defendant "authorized, ratified, or directly threatened acts of violence." The panel majority demands no such precision. Instead, it appears to apply a free-wheeling form of strict liability having no resemblance to Louisiana law's careful duty-risk analysis, concluding that, because of his association with the demonstrators or his failure to anticipate and prevent the rock throwing incident, Mckesson can be held liable—despite the First Amendment protection historically afforded protest activity—for the acts of a "mystery attacker."

The majority of our colleagues have thus grievously failed to do what should have been done: Take up this case, apply the longstanding protections of the First Amendment, and conclude, as the district court did, that Doe's lawsuit against DeRay Mckesson should be dismissed.

Judge Stephen Higginson, joined by Judge Dennis, also dissented:

The panel opinion holds that the First Amendment affords no protection to McKesson because he was negligent under Louisiana law. I do not believe the Louisiana Supreme Court would recognize a negligence claim in this situation. When a negligence claim is based on the violation of a statute, Louisiana courts allow recovery only if the plaintiff's injury falls within "the scope of protection intended by the legislature." An assault on a police officer by a third-party is not the "particular risk" addressed by the highway obstruction statute. Absent the breach of this statutory duty, it is unclear on what basis the panel opinion finds that the protest was foreseeably violent.

To the extent that the panel opinion creates a new Louisiana tort duty, this is "a policy decision" for Louisiana courts—not this court—to make. Even if we could make this policy decision ourselves, the panel opinion does not weigh the "moral, social, and economic factors" the Louisiana Supreme Court has identified as relevant, including "the nature of defendant's activity" and "the historical development of precedent."

In light of the vital First Amendment concerns at stake, I respectfully suggest that these considerations counsel against our court recognizing a new Louisiana state law negligence duty here, at least in a case where argument from counsel has not been received. Protestors of all types and causes have been blocking streets in Louisiana for decades without Louisiana courts recognizing any similar claim.

Very interesting stuff, and I'm sure it will be read by the Supreme Court in deciding whether to hear the case. For my thinking on this, see these posts:

  1. The Weird Litigation Posture of the Doe v. Mckesson / Baton Rouge Black Lives Matter Protest Case, which deals with the professional rescuer doctrine.
  2. Negligence Claims Brought Against Protest Organizers: More on the Tort Law Side of Doe v. Mckesson, which discusses why (apart from the professional rescuer doctrine) the tort law theory behind the case is plausible.
  3. When Does First Amendment Preempt Negligence Liability?, which generally argues for the content-based / content-neutral distinction that Judge Ho's opinion discusses.

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  1. I’m not sure why this is treated as a speech case. IIUC the liability would be the same whether the folks were blocking the streets for a protest, a party, or for no reason at all.

    1. In general, the firefighter’s rule seems like the right approach here.

      But I do agree with you, and with Judge Ho, that so long as there is sufficiently clear causation between a leader telling people to block the streets and the blockage of the streets (a question that I think has to be given heightened scrutiny under Claiborne Hardware), there’s no First Amendment objection to liability. There’s just the firefighters’ rule.

      This is a situation where it could be useful to flip ideologies. Let’s say there’s a raucous protest at an abortion clinic, and the leaders of the protest, when they see a doctor coming out the front door, encouage the protesters to block ingress and egress (clearly illegal and not protected by the First Amendment under the abortion protest clauses). The crowd swarms the door and knocks the doctor to the ground and tramples her.

      It seems to me that there’s no First Amendment bar to a lawsuit by the doctor against the protest leader, right? The law is they clearly aren’t allowed to block the entrance, they did, and the injuries to the doctor are entirely foreseeable from directing a rowdy crowd to swarm that clinic exit.

      1. The abortion clinic hypo analysis sounds right to me. I don’t have or other theories of liability. But folks often talk about the right to protest as protesting gives you the right to interfere with the activities of others. It doesn’t.

        1. Anti-abortion protesters routinely interfere with the activities of others, with calculated and often coordinated conduct ranging from boorishness to physical obstructionism.

          The situation has improved — the protesters no longer aim to promote evictions with coordinated obstreperousness (sometimes with police complicity) and are less prone to physical contact with others or complete blockage of walkways, because litigation has constrained those seeking to injure the clinics and interfere with women seeking to enter clinics — but they continue to try to delay, discourage, or inconvenience those seeking to enter a clinic.

          That protesters are deluded enough to perceive a Mission From God should not influence the legal analysis of conduct.

          Unless Elwood and Jake are involved, of course.

      2. It seems to me that there’s no First Amendment bar to a lawsuit by the doctor against the protest leader, right? The law is they clearly aren’t allowed to block the entrance, they did, and the injuries to the doctor are entirely foreseeable from directing a rowdy crowd to swarm that clinic exit.

        I think that’s right, but I also think that your hypo has a far more direct and foreseeable connection than this case. If a driver crashed because BLM blocked the road, that would be comparable to your hypo. Or even if the cop were trampled. But this is more like a protest where people block ingress and egress to the abortion clinic, and someone else tries to burn down the clinic while that’s happening.

        1. I agree. I was simply trying to get at the First Amendment issue with it, while taking it out of the context of BLM.

  2. I don’t think McKesson under any theory should be held liable for a demonstrator throwing a rock, unless there is some evidence he advocated rock throwing or provided a box of rocks.

    However if there were any accident on the freeway I think he should be liable, that’s a much more forseeable outcome, and a direct consequence of the unlawful conduct he organized and advocated.

    1. My take as well.

  3. I’m a white guy and I have been all my life.

    What I will never understand is the frothing, vehement, eye-bulging hatred reaction that BLM invokes seemingly without fail among certain segments of media and general community.

    I don’t speak for them and never will, but their message seems pretty clear and I would share the same sentiment: we don’t want to get shot for no good reason and then the shooters always get officially cleared.

    Over and over again we get media accounts of some black guy who is threatening nobody (regardless of whether he is a suspect) gets shot. 12-year old. In the back. In his own house. Mentally disabled. 14-shots to the body and the guy has no gun just a cellphone. Doesn’t matter. Some under-trained white guy with a badge blows him away and the defense is “I was terrified for my life.” And the defense always seems to work. A broken tail-light has become a major risk for some people.

    In short the position of BLM (to the extent that it is discernible) doesn’t seem unreasonable to me. Maybe there are some BLM members who are chanting “death to white cops” but have you seen that? The reaction is as if that is all they do.

    Now this case I can’t really tell the merits based on what is written here. Yes protesters shouldn’t riot and disregard all laws. But the background I describe above is not addressed, and I bet that a BLM protester can take two steps off a muddy highway shoulder onto the pavement and get arrested for it with the charge of endangering the public. Maybe that’s unfair but that is the impression I am getting.

    1. when controlling for crime rate and other relevant factors blacks arent any more likely to be shot by cops unarmed or otherwise. The same thing could be said in the realm of criminal sentencing, death penalty etc.
      The anger is provoked because BLM supporters protest with righteous indignation while not even attempting to get a grasp of the facts. Even though some think this is just a canard, the chances of anyone being killed by a cop are infinitesimal, but if you are a black person living in a a high crime area the chances of getting mowed down by a neighbor are substantially higher.

      The biggest ‘accomplishment’ of BLM has been the post-Ferguson crime wave in cities like Baltimore, Cleveland etc.

      1. Society rejects your views on racism, sam123. At least, the mainstream and prevailing elements of society reject your stale thinking. This is American progress, which people who pine for illusory good old days can’t stand.

        Are you on the wrong side of history with respect to gays, Muslims, immigrants, and women, too?

      2. when controlling for crime rate and other relevant factors blacks arent any more likely to be shot by cops unarmed or otherwise.

        Let’s assume this is true. Do you not still see why BLM types get upset when black people ARE shot and killed by the police and the police get cleared?

    2. I would have much more sympathy for BLM if …

      1. They had complained about ALL police misconduct and not treated it solely as racism. Racism is a component which would shrink to zero if ALL police misconduct were addressed.

      2. They branched out into other social justice matters which have nothing to do with police misconduct.

      Their name is also problematic; are they complaining about racist problems outside police misconduct? Are they complaining about other non-racist social justice problems? They need to figure out what they are protesting and stick with it, if they want support from more people.

      1. Why they don’t take up your preferred cause and not their own is a mystery you will never forgive them for.

        1. Why you don’t read more better is beyond everybody.

          If they stuck with their cause, I’d have more sympathy.

          When they change their cause, my sympathy does not automatically follow.

          1. Your 1 is asking them to have a cause you prefer. Your 2 is asking that they not take on different causes.

            Both are pretty silly demands for an advocacy group you don’t belong to.

            You are making process arguments in a substantive arena.

    3. I’m a white guy and I have been all my life.

      I’m not.

      In short the position of BLM (to the extent that it is discernible) doesn’t seem unreasonable to me.

      The leaders of BLM have one message for white people and a different message for black people. You’re only hearing the white people message because that’s all you want to hear.

      Maybe there are some BLM members who are chanting “death to white cops” but have you seen that?

      Yes. The prevailing perspective among BLM members (both explicit and implicit) is that the police are the arm of white america oppressing the black people.

      What if I started a “White Lives Matter” group. This group is explicitly about encouraging more police presence to oppose violence against white people by blacks.

      In favor of this, I offer that blacks are often unpunished for committing violent crimes; that blacks disproportionately commit crimes against white people; and therefore whites are more at risk from black people than any other non-white race.

      Taking all of those facts as true doesn’t prove that the police are biased against enforcing laws against violent crime when the perpetrators are black and the victims are white. It proves (at best) that there are cases that fall through the cracks.

      That’s what BLM does. They take the occasional case and blow it out of proportion. By the time the truth comes out (Michael Brown, Trayvon Martin), the outrage has moved on to the next case. If the case is ever addressed again it is dismissed. Darren Wilson may have acted appropriately, but Michael Brown’s death raised the issue. In other words, it doesn’t matter that we lied, what matters is we lied for the right reasons.

  4. Why didnt they certify the question of whether a duty of care exists to the Louisiana Supreme Court?

    The conceptual distinction Judge Ho drew in his iopinion is elegant but he doesnt respond to Dennis suggestion that “when violence or threats of violence “occur[ ] in the context of constitutionally protected activity” Clareborne mandates “an inquiry into whether the defendant “authorized, ratified, or directly threatened acts of violence.”

    Is that latter part a necessary component of imposing civil liability when tortuous conduct occurs within the scope of otherwise protected First Amendment Activity? (Or maybe it isnt otherwise protected as they were on a public highway).

    What did the evidence indicate? Dennis argues that Mckesson is being held liable merely “because of his association with the demonstrators or his failure to anticipate and prevent the rock throwing incident”. But didnt he lead the protestors on the highway? Wouldnt that criminal act alone be sufficient to strip him of 1st Amendment protection and raise the specter of negligence per se liability (assuming the professional rescuer doctrine wasnt applicable)

  5. Maybe end the “professional rescuer doctrine” in the face of increasingly lawless protestors?

    1. All principles must fall before owning the libs.

      1. Its just a common law doctrine, not handed down to Moses at Sinai. A policy choice by the courts, not a moral principle.

        Courts invented it, they can get rid of it.

    2. The policies behind the firefighters’ rule don’t just have to do with the culpability of the defendant. After all, starting fires can be really horrible too. Lives are risked. Property damage is immense.

      And yet, because firefighters receive special compensation and know what they are getting into, we don’t allow tort suits. Firefighters do get compensated, but they get compensated through their own benefit plans.

      Police officers are the same way. It isn’t that the defendants are innocent; it’s that the police officers already receive compensation for the risks that they are running catching criminals.

      1. Worth noting that firefighters and cops often get special protection under criminal law in these situations.

  6. Given that this case very likely depends purely on questions of state law, there was no reason for the 5th Circuit to have issues an advisory opinion on a federal matter, and even less reason for the Supreme Court to review it.

    A regime in which parties can trigger politically favorable advisory federal judicial opinions on controversial matters if they simply pretend controlling state law doesn’t exist does not seem a regime consistent with the
    constitutionally limited role of the federal judiciary.

    1. ReaderY: What do you mean exactly by an advisory opinion? The defendant filed a motion to dismiss; to decide the motion, the panel had to decide if defendant had a potentially valid state law claim (yes, said the panel) and if the claim was precluded by the First Amendment (no, said the panel).

      Now the panel might have avoided the First Amendment question if they agreed with Judge Ho that the professional rescuer doctrine precluded liability — but the defendant didn’t raise that doctrine. Or am I misunderstanding your objection?

      1. Because if there is no liability under state law, the question whether a state law that imposes liability violates the First Amendment becomes an advisory opinion.

        The 5th Circuit should have asked the parties to brief the state law question and decided it before reaching the federal question.

        Otherwise, parties who want rulings on federal questions can simply Ignore state law, perhaps make claims about state law that aren’t even true and if nobody challenges them, they get their federal-law decision.

        1. ReaderY: It’s rare that a party makes the tactical decision to forgo a winning state law argument just to get a win on a federal issue. (I doubt there was such a decision here.) And if it does make that tactical decision and wins on the federal claim, I don’t think the resulting federal law victory is an “advisory opinion” — it’s an opinion that resolves the federal issue.

          Now one can imagine a regime where courts generally take a more hands-on approach in crafting the parties’ arguments, requiring them to brief issues that they declined to raise. But courts in our system rarely do this, especially when the issue wasn’t raised below (and thus was likely waived) — not never, but rarely. By and large, they decide the issues that the parties presented. Maybe that’s not an optimal system, but it’s the one we generally have.

  7. Is Ho right that the professional rescuer rule clearly applies? If so, how did the defendant’s counsel miss that one?

    Sounds like they need a new lawyer.

    1. I think he is right; see my December post on the subject for more details. I do think it was a major mistake on the trial-level lawyer’s part to miss this, but I think there’s still time for him to raise it on remand, if the Supreme Court denies cert.

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