The Volokh Conspiracy

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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.