Free Speech

Supreme Court Sends DeRay Mckesson Black Lives Matter Protest Case Down to the Louisiana Supreme Court

The Court avoids, at least for now, the First Amendment question by instructing the Fifth Circuit to ask the Louisiana Supreme Court to decide whether Louisiana state law even allows negligence liability in the case.


From today's unsigned (per curiam) Supreme Court 7-1 opinion in McKesson v. Doe (Justice Thomas dissented without opinion, and Justice Barrett didn't participate):

Petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest a shooting by a local police officer. The protesters, allegedly at Mckesson's direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a "piece of concrete or a similar rock-like object," striking respondent Officer Doe in the face. Officer Doe suffered devastating injuries in the line of duty, including loss of teeth and brain trauma.

Though the culprit remains unidentified, Officer Doe sought to recover damages from Mckesson on the theory that he negligently staged the protest in a manner that caused the assault… [T]he Fifth Circuit … panel majority held that a jury could plausibly find that Mckesson breached his "duty not to negligently precipitate the crime of a third party" because "a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest" onto the highway…. The panel majority also rejected Mckesson's argument that NAACP v. Claiborne Hardware Co. (1982), forbids liability for speech-related activity that negligently causes a violent act unless the defendant specifically intended that the violent act would result. [The panel dissent, and the dissent from the denial of petition for rehearing en banc, disagreed. -EV] …

The question presented for our review is whether the theory of personal liability adopted by the Fifth Circuit violates the First Amendment. When violence occurs during activity protected by the First Amendment, that provision mandates "precision of regulation" with respect to "the grounds that may give rise to damages liability" as well as "the persons who may be held accountable for those damages." Claiborne Hardware. Mckesson contends that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only association with him was attendance at the protest.

We think that the Fifth Circuit's interpretation of state law is too uncertain a premise on which to address the question presented. The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place. The dispute thus could be "greatly simplifie[d]" by guidance from the Louisiana Supreme Court on the meaning of Louisiana law.

Fortunately, the Rules of the Louisiana Supreme Court … specify that the federal courts of appeals may certify dispositive questions of Louisiana law on their own accord or on motion of a party.  Certification is by no means "obligatory" merely because state law is unsettled; the choice instead rests "in the sound discretion of the federal court." Federal courts have only rarely resorted to state certification procedures, which can prolong the dispute and increase the expenses  incurred  by   the  parties. Our system of "cooperative judicial federalism" presumes federal and state courts alike are competent to apply federal and state law.

In exceptional instances, however, certification is advisable before addressing a constitutional issue. Two aspects of this case, taken together, persuade us that the Court of Appeals should have certified to the Louisiana Supreme Court the questions (1) whether Mckesson could have breached a duty of care in organizing and leading the protest and (2) whether Officer Doe has alleged a particular risk within the scope of protection afforded by the duty, provided one exists.

First, the dispute presents novel issues of state law peculiarly calling for the exercise of judgment by the state courts. To impose a duty under Louisiana law, courts must consider "various moral, social, and economic factors," among them "the fairness of imposing liability," "the historical development of precedent," and "the direction in which society and its institutions are evolving." "Speculation by a federal court about" how a state court would weigh, for instance, the moral value of protest against the economic consequences of withholding liability "is particularly gratuitous when the state courts stand willing to address questions of state law on certification."

Second, certification would ensure that any conflict in this case between state law and the First Amendment is not purely hypothetical. The novelty of the claim at issue here only underscores that "[w]arnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law." The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit. But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights—without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court….

I do think that the Louisiana Supreme Court might well conclude that there would be no liability here under state law, for reasons I discussed when the Fifth Circuit decision was handed down:

[1.] It seems to me that the Fifth Circuit's general negligence theory is plausible: The claim is that Mckesson's actions (and not just inaction) indirectly and foreseeably caused the injury to Doe—he organized a protest that illegally went into the highway, which foreseeably led to the police enforcing the law by clearing the highway, which foreseeably read to a physical attack on Doe.

As I wrote before, say that John Smith organizes an illegal protest in an abortion clinic's parking lot—illegal because it's a trespass (analogously to how Mckesson's protest was, according to the Fifth Circuit, plausibly pleaded to be an illegal blocking of a public street). Unsurprisingly, and thus foreseeably, some clinic employees come out to try to get the protesters to leave, and even use lawful defensive force (pushing) to eject the protesters. Unsurprisingly, and thus equally foreseeably, one of the protesters (Mary Baker) punches the employee who is pushing him. (Indeed, perhaps this has happened before at this group's protests, so it is indeed foreseeable.)

Would Smith be liable under normal tort law negligence principles for the injury to the employee? Yes, I think so. By organizing the protest, he caused a foreseeable risk that an employee will be injured. And because the protest involved trespass, it's pretty likely that this would be viewed as unreasonable conduct.

(This is not just on the so-called "negligence per se" theory, under which criminal conduct is treated as automatically negligent; that theory isn't recognized in Louisiana, and in any event might not apply here. Rather, it's because of broader unreasonableness principles: It's unreasonable to violate the law in a way that puts third parties in a position where they have to lawfully use force to defend their or others' rights against the crimes your followers are committing, and where they therefore risk injury from other foreseeable crimes.)

Nor does it matter that the injury comes from a third party (here, Baker), so long as the third party's conduct is foreseeable. As the Restatement (Second) of Torts put it,

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

This is particularly so when "the actor acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct," for instance (continuing from the Restatement),

The employees of the A Railroad are on strike. They or their sympathizers have torn up tracks, misplaced switches, and otherwise attempted to wreck trains. A fails to guard its switches, and runs a train, which is derailed by an unguarded switch intentionally thrown by strikers for the purpose of wrecking the train…. C, a traveler upon an adjacent highway, [is] injured by the wreck. A Company may be found to be negligent toward … C.

Note that this is not an affirmative duty to protect third parties from crimes as such: That is generally imposed only when there is a "special relationship" between the plaintiff and the defendant, for instance when the defendant is a commercial property owner and the plaintiff is a customer. I don't have a duty to protect you from being attacked on the street, even if I'm nearby and can easily save you (or at least call the police to save you).

Rather, this is a duty not to unreasonably create a risk of crime (or increase such a risk). In the Restatement example, the railroad is affirmatively running a train on a track that it knows can be easily and foreseeably sabotaged. This affirmative act, which creates "an unreasonable risk of harm to another through the conduct of … a third person which is intended to cause harm, even though such conduct is criminal," is what makes the railroad potentially liable. Or, to give an example from a famous 1918 case, which held a railroad liable when its train had struck a wagon and injured the driver, thus also leading bystanders to steal the contents of the wagon:

The negligence which caused the collision resulted immediately in such a condition of the driver of the wagon that he was no longer able to protect his employer's property; the natural and probable result of his enforced abandonment of it in the street of a large city was its disappearance; and the wrongdoer cannot escape making reparation for the loss caused by depriving the plaintiff of the protection which the presence of the driver in his right senses would have afforded….

"The act of a third person … contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen."

Of course, there is then the question whether the First Amendment should preempt this standard negligence rule when the defendant's (Smith's or Mckesson's) conduct, though unlawful, nonetheless involves organizing a political protest. I think the answer is complicated, for reasons I discuss here.

[2.] But I think the Louisiana Supreme Court can and should avoid all this because of a well-established limit on negligence liability:  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).

You can search in vain through the Fifth Circuit panel 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 (though Judge Jim Ho mentioned in his opinion concurring in the denial of rehearing en banc).

It may well be that the Louisiana Supreme Court would therefore also not consider the professional rescuer's doctrine, on the ground that the failure to raised it waived the argument. But now that the U.S. Supreme Court has sent down the case, precisely to determine whether Louisiana state law provides some way to avoid a thorny First Amendment question, I think the state court could and probably should bring this up (perhaps, if necessary, after ordering the parties to brief the question). The important legal issue raised in this case shouldn't be litigated in a highly artificial posture that ignores a major legal principle—and a legal principle that could avoid a possible First Amendment violation.

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  1. The 5th Circuit could have walked it over the the Louisiana Supreme Court, they’re only about 10 blocks apart.

  2. Note that Justice Thomas dissented.

    When will conservatives ever learn that no, Justice Thomas is not a conservative but a supporter of a central government unemcumbered by limits on its power by things like Constitutional rights. Conservatives adore Justice Thomas but trust me, they would not want to live in the world he would create. Hopefully they will never have to.

    1. He also dissented in the case where they summarily reversed the Fifth Circuit holding granting QI to the guards keeping a prisoner naked in cells caked with feces and sewage for six days. Even Alito thought QI was inappropriate, although because he is the worst, he wrote a concurrence saying he wished no one asked him about this in the first place.

      1. Good point. Conservatism based on Constitutional freedoms, Constitutional limited on government power and limitations on the executive branch will be greatly enhanced when this Justice leaves the Court.

        1. Although he didn’t comment, it is believed Thomas is against QI in general, and so dissented in principle of that rather than buttress it as a correct procedure, even if misapplied in that case.

          1. It isn’t believed by anyone with any legal background.

            If he wanted to overturn Qualified Immunity he should have filed a concurrence not a dissent. A dissent in the Texas case implies that the 5th Circuit result (if not its reasoning) was correct. A concurrence would have implied that the USSC result was correct (but not its reasoning).

    2. 1. Note that when it comes to the central government, Justice Thomas has among the broadest views of the limits on the federal government’s enumerated powers.

      2. When it comes to Bill of Rights protections, Justice Thomas — like most Justices — has broader views of some protections than do some of his colleagues, and narrower views of others. He has taken a more rights-protective view than many of his conservative colleagues in some First Amendment cases (Citizens United, McIntyre, Free Speech Coalition), some Second Amendment cases, and various other cases under the Jury Trial Clause, Confrontation Clause, Excessive Fines Clause, and more. I’m not sure, then, how your categorical assertion that “Justice Thomas is not a conservative but a supporter of a central government unencumbered by limits on its power by things like Constitutional rights” can be supported.

      1. When it comes to the government’s the ability to directly impose physical pain and anguish on other humans, the greatest power any government has, he appears to give them a rather wide berth.

        See his dissent in Hope v. Pelzer, his opinion in Connick v. Thompson, his dissent in Hudson v. McMillan, his dissent in Safford v. Redding, his dissent today in the QI case, his opinions in solitary confinement cases, etc.

        Also, he has announced he thinks Gideon was wrongly decided. Therefore it is questionable that rights under the Excessive Fines Clause or Confrontation Clause would be adequately preserved for most defendants when they don’t have a right to an attorney who might know how to assert them if his position was adopted.

        1. Ouch, that could leave a mark. Also, citing Citizens United as an example of Thomas’s willingness to place limits on central government power is … interesting.

        2. His dissent in today’s QI case wasn’t because he’s in favor of crappy holding cells, but because he’s largely opposed to QI and probably doesn’t want to give it even the dignity of merely being misapplied in that case. A number of commentators have jumped to the wrong conclusion.

          1. That wouldn’t be a dissent that would be a concurrence.

      2. I think if you look at Justice Thomas’s position on police powers (but recognizing his opposition to qualified immunity), his writings that deny the accused even basic rights such as the right to competent counsel and the right to a fair trial, his opinions that seem to always validate the Trump assumption of the right to spend money that is not appropriated, to move against immigrants, to prevent incoming persons on the basis of their religion etc I think you will find that the Justice supports a very strong executive power position with weakened legislative powers. All of this violates the basic tenet of classical conservatism.

  3. Just as well that the courts will not hold a demonstrator responsible for damages he causes, when they’re unwilling to hold police officers or departments responsible when they detain someone without cause or take or destroy property. (I would prefer a rule of strict liability in both directions, excused only when the person who suffers the loss or damage is convicted of a crime serious enough that the damage was not out of proportion.)

    1. Agreed. And note that no ‘law and order’ types are calling for the individuals who organized the Wisconsin counter protest that brought an Illinois teen and his assault rifle to that state to kill two legitimate protesters to be prosecuted. Principles are only valid when they are blind to political positions.

      1. Maybe you need to re-read the post. No one is being prosecuted, this is a civil case brought by a private party for negligence and money damages. If someone in Wisconsin wants to file a similar suit, they can do so, and it will likely have similar legal and First Amendment issues as this case.

        1. I don’t think criminal vs civil tort is really relevant with respect to the principle here.

          1. Sure it is. You criticized “law and order types” for not calling for prosecution of Kyle Rittenhouse in Wisconsin. But there is no prosecution anywhere.

            Criminal prosecution is initiated by the state, so “law and order types” might call for someone to be prosecuted. Civil actions are brought by private parties to obtain damages. You have to have an injured plaintiff to even start that, assuming he can find a lawyer willing to take the case.

            So your criticism is bogus.

      2. That never happened. Kyle Rittenhouse is a hero who volunteered to protect the victims of violent criminals. He did not have an assault rifle. And the three thugs he shot in self-defense were not innocent of anything. On the contrary, he showed amazing self-control and weapons discipline by not firing on anyone, however guilty, who was not at that very moment directly attacking him.

    2. Protester First Amendment Qualified Immunity?

      1. Not really. QI has to do with knowlege of the law. Does an officer of the law know that what he or she is doing contravenes the Constitution?

        This has to do with factual knowledge of the future. Holding a protest always creates some risk that someone will get hurt, or that someone will attend and act outrageously and then someone will get hurt. If that is negligent, then any holding of a protest where someone gets hurt results in liability for the organizers and attendees. Such a result has obvious problems with the First Amendment.

        The question then is what additional knowledge do you need to increase the risk enough so that you can be held liable, both under the common law of negligence, and the First Amendment.

        I see this more like NY Times v. Sullivan. Where SCOTUS decided that the First Amendment limits liability for the common law tort of defamation, so as to allow First Amendment actors room to engage in their protected actions.

        Of course, first you have to know what the common law liability is. If there is none, then no need to get into the First Amendment issue.

        1. The problem here isn’t that he held a protest. The problem is that he held a protest illegally in an obviously dangerous location. The protest didn’t accidentally spill out into the highway, it was planned to be in the highway. If you look at a map, there was plenty of room to protest without entering the highway, and blocking highways had by that time become something of a standard protest tactic.

          1. Basically, yes.

          2. That may be so, but it does not mean that the protest organization was the proximate cause of the injury. As the post states:

            As officers began making arrests to clear the highway, an unknown individual threw a “piece of concrete or a similar rock-like object,” striking respondent Officer Doe in the face.

            The immediate cause was someone throwing a heavy object which struck the officer. Not clear to me that the fact that the protest was done on the highway is closely enough connected to the cause of the injury. It might be different if a car on the highway had accidentally run into someone.

            That’s why the Supreme Court is right to first ask whether this is a claim at all under the ngeligence law of Louisiana, before the First Amendment issues are considered.

        2. Should baseball and football teams and stadia be held accountable for the statistic certitude of fights in the stands?

          How, then, would any such thing ever occur?

  4. re: the chain of responsibility:

    “he organized a protest” – conceded by all sides
    “that illegally went into the highway” – it’s alleged that this was at Mckesson’s direction but not (to my limited knowledge) proven
    “which foreseeably led to the police enforcing the law by clearing the highway” – given the many historical examples both before and since of police standing aside during a protest, the foreseeability of that step is questionable
    “which foreseeably read to a physical attack on Doe” – This is the step that goes beyond reasonable foreseeability and into the realm of the surreal.

    Police departments regularly disclaim responsibility for the violent acts of bad officers who they:
    – failed to screen during the hiring process
    – failed to train properly
    – failed to supervise
    – failed to terminate after the first twelve instances of abuse

    If foreseeability to the standard expected of Mckesson is going to be the new rule, not a politician in Congress will be able to stay out of jail. They routinely pass laws that cost lives – and it’s usually much easier to trace causality than in this silly case.

    1. I like where you are going.
      “he got a warrant on fabricated suppositions”
      “he executed the warrant without knocking”
      gunfire ensues and people die
      cop is liable due to the foreseeable result of gunbattles result in death and distruction.

    2. Once the protest went onto the highway, the police were basically required to respond, if only to protect the protestors and redirect traffic.

      While the attack couldn’t be foreseen with 100% certainty, the negligent action (leading the protest onto the highway) was present, and there was certainly a significant risk of harm that could be foreseen. Protestors often get into incidents with police.

      For example, if you tie something shoddily to your roof, then drive down the highway, that’s negligent. It if flies off your room, you don’t KNOW it will hit another car. But there’s a significant risk. And because of that, you’re liable for the damages, if they occur, due to the negligent action you undertook in the first place.

      1. Generally speaking someone else’s felonious conduct is not considered foreseeable in Louisiana tort law.

        1. Depends.

          You deliberately give a known criminal a gun, knowing they can’t have one. That criminal uses the gun to shoot someone.

          Are you liable?

  5. This case reminds me of the Prop 8 gay marriage case in the USDC, ND of California, where the Ninth Circuit certified the question of standing for the backers of the proposition to the SCOCA, only to ignore its opinion finding standing even though then-AG Gerry Brown refused to defend the proposition, essentially casting it adrift.
    Please correct me if I got any of the procedural facts wrong, but this result cries out for relief in the form of amending 28 USC, probably somewhere in the 1300’s, to grant parties supporting state laws standing to do so in federal court, when the state, through its AG, governor, or any other authorized representative, violates his oath of office by refusing to defend those laws. See also, the Holder Doctrine, (US AG urges state AG’s not to defend or enforce laws they personally find offensive or unconstitutional), and federalism, generally.

    1. The Ninth Circuit deferred to the California Supreme Court’s decision that the initiative sponsors had standing, before ruling against them on the merits. (The Supreme Court would later conclude that they did not have standing in an opinion that I did not find very persuasive.)

      Not sure what it has to do with this case, other than the fact that they both involve certification to state courts.

      1. Since it was mentioned anyway, the voting line-up for Hollingsworth is still fascinating to me:

        Roberts, joined by Scalia Ginsburg, Breyer, and Kagan.

        Kennedy, joined by Thomas, Alito, and Sotomayor.

  6. Did DeRay throw the rock that injured the officer? If someone else did, I do not even understand the basis of any claim, unless that other person was under the direct control of the defendant. This is crazy lawyer crap, and misuse of a civil procedure to scapegoat and to harass a political opponent. I oppose such misuse of the law by Democrats and by Republicans.

  7. Perhaps someone more practiced in civil litigation can correct me, but wouldn’t the “professional rescuers’ doctrine” be a defense that the defendant must affirmatively raise, and failure to do so constitute a waiver of the defense?

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