The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.

|The Volokh Conspiracy |


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.