Free Speech

The Weird Litigation Posture of the Doe v. Mckesson / Baton Rouge Black Lives Matter Protest Case

The case, in which Judge Don Willett has just switched to dissenting, should be an easy win for DeRay Mckesson—but on a theory that hadn't been asserted in court.


According to the Fifth Circuit majority opinion,

On July 9, 2016, a protest illegally blocked a public highway in front of the Baton Rouge Police Department headquarters. This demonstration was one in a string of protests across the country, often associated with Black Lives Matter, concerning police practices…. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest…

At some point, an unidentified individual [allegedly, one of the protesters] 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 for, among other things, negligence: "Mckesson was negligent for organizing and leading the Baton Rouge demonstration because he 'knew or should have known' that the demonstration would turn violent." Mckesson moved to dismiss, arguing that, as a matter of law, he couldn't be held liable; but the Fifth Circuit rejected Mckesson's argument on this point:

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 alleges that Mckesson planned to block a public highway as part of the protest. And the complaint specifically alleges that Mckesson was in charge of the protests and was seen and heard giving orders throughout the day and night of the protests.

Blocking a public highway is a criminal act under Louisiana law…. 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 likely 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.

The court concluded that, "[b]y ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration." More precisely, given the procedural posture and an earlier note in the court opinion, the court concluded that Doe has plausibly alleged that Mckesson failed to exercise reasonable care.

This is huge, you might be thinking (whether or not you agree with the court): Under the court's analysis, police officers could sue citizens about all sorts of injuries the officers get in the course of duty, on the theory that the citizen indirectly but foreseeably brought about the need for the police to get involved, and the injury (intentional or accidental) to the police. Why aren't we seeing more such cases?

Because police officers generally can't sue for negligence over on-the-job injuries. This used be called the "fireman's rule" and is still often called the "firefighter's rule," but it also covers police officers. Louisiana law calls it the "Professional Rescuer's Doctrine":

[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 … [when the] risks arise from the very emergency that the professional rescuer was hired to remedy. The assumption rationale bars recovery from most [such] risks except when (1) the … risks encountered by the professional rescuer are so extraordinary that it cannot be said that the parties intended the rescuers to assume them, or (2) the conduct of the defendant [is] so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence.

Police officers are hired to protect others from criminal activities, are expected to effect arrests as part of their duties, and could expect a criminal to resist arrest. Accordingly, the risk of being injured while carrying out an arrest is a … [risk] arising out of the specific problem which the police officer was hired to remedy. Therefore, in order for a police officer to recover for injuries received while attempting to arrest a criminal who is resisting, the risk created by the arrestee's conduct must either be so extraordinary that it cannot be said that the parties intended the police officer to assume them, or the conduct of the arrestee in resisting must be so blameworthy that tort recovery should be imposed for purposes of punishment or deterrence.

In the case I'm quoting, the Louisiana Court of Appeals applied this reasoning to conclude that a police officer couldn't recover damages from a drunk arrestee who injured the officer (apparently accidentally) while the officer was handcuffing him. But the underlying doctrine applies more broadly, to all sorts of ways that police officers or firefighters can get injured.

Under this doctrine, Mckesson should win easily: The police officers were acting in the line of duty, dealing with the very sorts of risks they were hired to deal with; the risks were certainly not "extraordinary." Mckesson's conduct, according to Doe's theory, was negligent, so it wasn't especially "blameworthy" (the way the rock-thrower's conduct may have been). Clear result under Louisiana law (which is consistent with the dominant tort law view throughout the country).

But you can search in vain through the Fifth Circuit opinion for any discussion of the professional rescuer's doctrine or the firefighter's rule—because, as best I can tell, you can search in vain through the briefing before the Fifth Circuit or in the District Court for any such discussion. For whatever reason, Mckesson's lawyers didn't raise the argument, and, unsurprisingly, the courts didn't consider it. (I expect that, if the Fifth Circuit had certified the state law question to the Louisiana Supreme Court, as Judge Willett suggested, the Louisiana Supreme Court wouldn't have considered it, either, because Mckesson hadn't sufficiently raised it.)

Not all is lost for Mckesson: If the Supreme Court doesn't agree to hear the case, then the matter will go back to the federal trial court, where Mckesson can raise the professional rescuer's doctrine in ongoing proceedings (e.g., in a motion for summary judgment).

Yet so far, the case has been litigated in this highly artificial posture, which makes it hard for us to speculate about its implications. We often, for instance, reason that some legal analysis—especially a common-law analysis—is wrong because it would lead to results we view as unsound. But the Fifth Circuit's analysis might well not lead to any results in this case or in cases just like it, precisely because ultimately those cases would be thrown out on a different basis. If we think that there should be some protection against excessive negligence lawsuits brought by police officers in case such as this, then perhaps that protection is offered precisely by the professional rescuer's doctrine, and not by the more general negligence arguments that Mckesson was making and that the Fifth Circuit rejected.

Still, I'm a law professor, so I get to change the hypo, so that we can evaluate the Fifth Circuit's analysis without the professional rescuer's doctrine overshadowing this. More on that in a later post.

NEXT: Today in Supreme Court History: December 19, 1940

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  1. I have published papers that extensively discussed the Firefighter’s Rule. I am pissed at myself for missing this.

    1. Me too. (I mean, I’m pissed at myself. I’m kind of indifferent about you.)

  2. Planning to block a major public throughfare and leading demonstrators thusly could be considered extraordinary or extremely blameworthy conduct, no?

    1. Only if you want to repudiate America’s history of protest against corrupt governments.

      Protesting our government is kind of baked into our political genes. Any law or legal interpretation that tries to stamp that out is going to face problems, even if lawyers can convince themselves they’re doing the right thing.

      1. There’s nothing wrong with protesting corrupt government. The problem comes in when you decide that protesting corrupt government entitles you to break the law. And not even the law you’re protesting, just a law that prohibits you from interfering with other people’s lawful conduct.

        Protest isn’t an excuse for lawlessness.

        1. Right. If the protestors are breaking lws that are either explicitly designed to or have the effect of curtailing reasonable demonstrations then that would be one thing. The courts should and do take into account laws passed for the purpose of rendering protesting near impossible.

          But this is clearly not the case with blockading a public highway.

    2. Not really. There’s numerous cases stating dealing with such things is the normal burden of law enforcement.

    3. No. Responding to a blocked highway and to protestors would be squarely within the job description of any police officer. As evidence, consider that riot control is part of their regular curriculum of training. I don’t think even the police union rep could call that “extraordinary” with a straight face.

  3. There are better legal theories than negligence – which could create liability even for similar conduct during a demonstration which was completely lawful – which would provide a sounder basis for the plaintiff’s complaint.

    A civil conspiracy occurs, according to one definition, when there is an agreement between two or more people to act together to break the law in hopes of achieving even a lawful aim by unlawful means.

    Under such circumstances, a person who is injured by one party to the conspiracy can sue any one or more members of the conspiracy for all of the damages he suffered, even if the person(s) sued did not directly cause it, and even if it was not reasonably foreseeable.

    Holding a person legally liable for a harm when it occurs as part of a crime is a well-accepted.

    Indeed, under the misdemeanor-manslaughter rule (similar to the felony-murder rule but applied to lesser crimes), persons who together engage in committing a misdemeanor which results in a death – even if the person charged didn’t directly cause the death, and even if death was not clearly foreseeable – can be found liable for the much more serious crime of manslaughter.

    So, assuming that deliberately blocking traffic, especially in apparent defiance of police orders, constitutes a misdemeanor, the defendant-organizer could be found guilty of the serious crime of manslaughter if the projectile had killed the officer rather than simply wounding him.

    Thus if does not seem unreasonable or “unsound” for the law to at least hold the organizer liable for the resulting non-fatal injuries since it was fortunate, for both the officer and the organizer-defendant, that the injuries proved to be non-fatal rather than causing the officer’s death.

    The Professional Rescuer’s Doctrine appears to apply to injuries caused by negligence, since it says that a rescuer “assumes the risk”; a doctrine and defense applicable to negligence torts, not intentional criminal ones.

    The corresponding defense for intentional torts, whether or not they also constitute a misdemeanor or other crime, is consent, and there is obviously no indication here of consent by the officer.

    Here both the organizer and the thrower were engaged in a criminal conspiracy to engage in an intentional tort which is also a crime, and it is entirely foreseeable that one or more of the conspirators would commit an additional crime (e.g. throwing something at the police, damaging municipal and/or private property, etc.)

    So holding that the organizer of a criminal conspiracy is liable for any harms done by the wrongful acts of any one of the conspirators, especially if it is both an intentional tort and a crime and also entirely foreseeable, does not seem to violate the letter or spirit of the Rescuer’s Doctrine, nor seem unfair, “unsound,” or inconsistent with established legal principles in this situation.

    1. The problem is that the injury to the cop wasn’t an intended result of advocating the blockage of traffic. So it is not an intentional tort

      1. Not proximately, sure, but in a but-for sense, yes, it was, as much as somebody being shot can be a consequence of deciding to rob a liquor store even if you do so unarmed.

        1. But that’s due to special legal rules that change the definition of intent with respect to certain crimes.

          Here, we’re talking about garden variety intentional tort scienter. And that means you either have to know to a certainty the tortious conduct is going to occur or be substantially certain that it will. And that standard can’t be met here.

  4. It is a shame that evil deeds like the one that injured the officer go unpunished. The coward who threw the rock at the officer deserves to be punished and shamed. One can only hope that if he or she continues these violent ways, they will bring a stone to a gunfight and get some rough justice.

  5. I’m not a lawyer (or even a law student), but Professor Volokh’s assertion that “…police officers are … dealing with the very sorts of risks they were hired to deal with; the risks were certainly not “extraordinary..” seems insane to me. Police officers are not hired to “deal” with risks they cannot defend themselves against.

    I too am skeptical that much, if any, responsibility falls on DeRay McKesson’s shoulders. To automatically hold the organizer of a demonstration responsible for *any* of the actions of others who happen to be present and happen to have some beliefs in common with the organizer would have the effect of discouraging protests in general and thus should be at least suspect on 1st amendment grounds.

  6. I wonder whether the doctrine would apply in jurisdictions where assumption of the risk has been abolished in favor of something like proportionate responsibility.

    1. The professional rescuer’s doctrine generally applies in most jurisdictions, I think, including ones that follow comparative negligence (such as Louisiana itself).

  7. I don’t see how the firefighter’s rule is even relevant. The only difference that rule ought to make is that the injured officer does not get to sue his employer, but instead collects from the employer’s worker’s comp insurer, and the worker’s comp insurer then brings basically this same case against either the protest organizer or the rock thrower.

    If the firefighter’s rule says that police aren’t fully covered by worker’s comp, then it’s wrong: they need to be.

    1. jdgalt1: The firefighter’s rule precludes any recovery for the negligent injury to the rescuer (setting aside the various exceptions) — either by the rescuer or by the rescuer’s insurer. Maybe that shouldn’t be the rule, but it is. (The rescuer is indeed covered by worker’s comp, and by other insurance policies; it’s just that the employer or insurer can’t recover from the allegedly negligent party.) See Hubbard v. Boelt (Cal. Ct. App. 1983):

      The City’s claim is based on Labor Code section 3852, which allows an employer who is obligated to pay benefits to an injured employee to sue the third party responsible for the injuries. The City argues this right of action is independent of the employee’s right to sue the third person and is not barred by a finding the third person is not liable to the employee….

      A cause of action by a subrogee is, of course, subject to all defenses defendant could have asserted against the subrogor; “Rights under subrogation are derivative rights, and succession to another’s rights, like water, cannot rise higher than its source.”

      The Supreme Court has found Hubbard’s claim against Boelt is barred by the fireman’s rule. Therefore, in spite of the arguments supporting the City’s position, its claim, being derivative, is also barred. This result was envisioned by the Supreme Court as it recognized employers would often be able to recoup compensation payments made to injured police officers and firemen if the fireman’s rule was abolished and then refused to abolish it.

  8. So it’s not illegal to gather a group of people and block a highway? And I won’t be held liable for any injury any persons or police sustain during the course of said event?
    …I’m throwing a Highway Party!!!
    It’ll be called, “Man Faster than Pig Marathon”: We will obstruct traffic for 26.2 miles; and at the finish line, we’ll have the right to P A R T Y – Chicks, beer, and bring your own inflatable pools!
    It’ll be 3 lanes of FUN! (unless I missed something)

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