Free Speech

Protests, Roadways, and Liability

(1) Black Lives Matter demonstrations. (2) Trump-fans-vs.-Biden-bus demonstrations.

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Yesterday, the Supreme Court essentially sent the Mckesson v. Doe First Amendment litigation on a state-law detour down to the Louisiana Supreme Court; here are the facts, as recounted in yesterday's opinion:

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.

Doe sued, and the question before the Louisiana Supreme Court will be whether Mckesson could be held liable under the Louisiana tort law of negligence, "on the theory that he negligently staged the protest in a manner that caused the assault." And of course there have been other incidents in recent years where protesters illegally blocked public streets, often keeping cars from going forward, sometimes surrounding them, and potentially causing accidents.

A couple of days ago, a group of drivers displaying Trump signs apparently surrounded a Biden campaign bus, allegedly slowed it down to 20 mph, and allegedly tried to stop it. There was apparently at least one minor collision between an SUV associated with the Biden campaign and one of the trucks displaying the Trump signs; from what I understand, no-one was injured, but someone certainly could have been.

What can we say about legal liability in such situations?

[1.] Certainly the individuals who themselves break the law (whether they are throwing rocks, driving unsafely, or simply blocking traffic as pedestrians) could be criminally prosecuted, and those who cause injury could be held civilly liable for their own actions.

To the extent that the people (whether surrounding a bus in trucks or surrounding a car on foot) threaten others, or wrongfully block them from leaving, they can be prosecuted or sued for that, too. This is true whether they deliberately surround a vehicle because it's associated with a political campaign, or surround a vehicle for other reasons; both can be criminal or tortious, though there are sometimes also special criminal statutes that can be used when the targeting stems from the target's political activity.

[2.] To the extent that a protest organizer is deliberately instigating a crime or a tort (whether the blocking of traffic, the throwing of rocks, or whatever else), the organizer can be prosecuted and sued for conspiring to commit a crime or tort, or for soliciting, ordering, or otherwise directing its commission.

[3.] But can a protest organizer be sued even for harms by protesters that he didn't intend, on the theory that he negligently caused those harms, and the harms were foreseeable? The theory might be, "It's foreseeable that when people deliberately block a street, the police will feel obligated to clear it, and then one of the protesters will attack and injure a police officer; your organizing the blocking of the street caused this foreseeably injury; and you acted unreasonably in creating this risk of harm by organizing the illegal blocking of the street."

Or it might be, "It's foreseeable that when drivers surround another vehicle as part of a political demonstration, someone is going to drive unsafely (follow too closely, drive too aggressively, or otherwise focus more on their highway theater project than on safe driving), and there may be an auto accident which will cause injury or property damage."

[A.] It turns out that, as Fifth Circuit Judge James Ho noted in his early concurrence in the denial of en banc rehearing in Mckesson (see also this post of mine discussing the initial Fifth Circuit panel opinion) that the result may be different when a police officer is negligently injured. Under the "professional rescuer doctrine" (earlier called "the fireman's rule"), which is recognized in most states (including Louisiana),

"[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."

So that means that, in Mckesson v. Doe, Doe would lose under this doctrine; likewise if a police officer were injured in an accident when trying to break up a drivers' demonstration on a freeway. But this wouldn't dispose of a lawsuit by someone else who was hit by a rock thrown by a protester (e.g., a bystander, a driver, a private security guard), hit by a car driven by a demonstrator, or more broadly someone else who was injured in a foreseeable consequence of the protest.

[B.] Once we set aside the professional rescuer question, there are two related state law questions. One is sometimes loosely called "duty": Do people have a duty not to organize protests in ways that foreseeably and unreasonably cause physical harm, especially when they deliberately structure the protest that violates some other law (such as laws against blocking traffic)? I think that, as a general matter of negligence law, the answer is yes, because this is just a special case of the general duty not to do things that foreseeably and unreasonably cause physical harm:

An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm ….

Comment. An actor's conduct creates a risk when the actor's conduct or course of conduct results in greater risk to another than the other would have faced absent the conduct…. Conduct may … create risk by exposing another to the improper conduct of third parties.

It's true that the law usually doesn't impose a duty to protect others from physical harm that you didn't cause. But it does impose a duty to act reasonably when your actions do create a risk.

There might be good reason to limit this duty in certain situations. (Consider, for instance, the "social host liability" rules, which in most states say that social hosts who affirmatively furnish alcohol to their guests aren't liable when the guest gets drunk, drives away, and injures someone—a jury won't even be asked whether the social hosts' actions were negligent, because the social host doctrine limits the normal duty of reasonable care.) But such limitations on this duty of care.

A related question (sometimes labeled the "proximate cause" question) is: Can someone be held liable for doing things that increase the risk of a criminal act by another person? The general answer is yes, if that act is "foreseeable":

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….

The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party….

Illustration. 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.

Again, there are sometimes limitation on this proximate cause theory, but they are exceptions rather than the rule.

[C.] Finally, we get to the First Amendment question, which the Supreme Court avoided for now by sending the case to the Louisiana Supreme Court for a decision on whether state law authorizes such negligence claim in the first place: Does the First Amendment limit negligence liability in such situations? That's a very interesting and complex question, which I think should turn on whether the negligence theory stems from the content of the speech: A claim that a film distributor is liable for crimes stemming from some viewers being inspired to act violently, for instance, is generally precluded. But a claim that someone was injured as (say) a result of a stampede at a concert, because the concert organizers let in more fans than was safe, would likely be allowed. I discuss this in much more detail in this post.

But in any event, I thought it would be helpful to think about these questions by viewing Mckesson (and other pedestrians-blocking-the-streets cases) and the Texas incident together, and seeing what rules would make sense for both of them.

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  1. The video of the incident shows the smaller white SUV driver trying to force the large pickup truck out of its lane.

    I am not condoning the the surrounding of the Bus, but the white suv driver was the one cause collission.

      1. Maybe a little unclear about the meaning of “condone”?

        1) The Bus should not have been surrounded, (Technically, should not have been obstructed.)
        2) The driver of the white car should not have caused the collision.

        “Not condone” means that Joe is clear that #2 did not make #1 OK.

        1. I am 100% clear in what I said, and the meanings.

          Using weasel words like “surround” and not actually understanding what was done … yeah, he is condoning. He is minimizing. And so are you.

          1. How is surround a “weasel” word? It was used in the original post…

      2. Mindreading is a habit of which you can break yourself. Just like making ad hominem attacks by suggesting people believe in QAnon. And, if you’re using Slate as a citation, your argument is faulty.

    1. It should be condoned; it was mostly peaceful.

      1. “it was mostly peaceful.”

        Mostly …. that word carries a lot of weight there!

        Donald Trump mostly has consensual sex. Mostly. More often that not.

        Usually.

        1. Sometimes…. sometimes consensually.

          Mostly with women that are over the age of 18. Mostly.

          1. Unlike Hunter Biden?

            1. Hey, look! Another QAnon person shows up.

              I mean, unlike Giuliani’s magic that no one seems to verify, at least there aren’t a ton of pictures of Hunter Biden with Jeffrey Epstein, right?

              Or Hunter Biden saying that he owns underage beauty pageants so that he can watch them naked without the underage girls being able to stop him?

              Stuff like that, right?

              Is that why QAnon votes for Trump? Because if he’s in the White House, he’s probably not out there raping girls?

              #OnlytheWhiteHouseSecretServiceCanKeepYourDaughtersSafeFromTrump

      2. “Peacefully” detaining someone against their will should be condoned?

        And by “peaceful” you mean using the threat of automobile collision to influence the person(s) you are attempting to detain unlawfully.

    2. “The video of the incident shows the smaller white SUV driver trying to force the large pickup truck out of its lane.”

      The incident started with the white SUV directly behind the bus. The Trumper vehicles surrounded the two non-bigot vehicles, then slowed them to unlawful freeway speed. The driver in the black pickup truck — who apparently has a record that includes striking protesters with his vehicle when he isn’t engaged in drunken driving — reportedly used the shoulder to come alongside the white SUV, then began to try to insert itself between the white vehicle and SUV by moving left and attempting to force the SUV out of the bus’ lane.

      Let’s see how the civil liability claims and criminal charges develop. I predict the driver of that black truck will regret his conduct while he tries to live without a driver’s license.

      I also predict that Joe_dallas does condone the Trumpers’ conduct, because half-educated, bigoted right-wingers tend to stick together.

      1. You must have seen a different video than we did. The video we’ve seen all starts with the pickup truck immediately behind the bus.

        Care to share the video you’ve seen? Mind, your account seems at least semi-plausible, but I know of no evidence demonstrating that it’s true.

          1. (It’s at 1:20 in that video; you are welcome to actually look around. There’s plenty of places).

            1. Joe_dallas
              November.3.2020 at 2:26 pm

              Loki – that is the same video I posted below: You need to re-examine the video

              https://www.youtube.com/watch?v=2B30zHE7DJ0
              Start at the 1:18 mark
              The Black truck was in the Right lane,
              the biden Bus moves from the center lane to the right lane
              The biden bus clears the black truck by approx one car length.
              The White SUV then moves into the Right lane where the Black truck is at.

              The actual event is no where close to the description provided by Re

            2. Yea, it shows the black truck staying in his lane, and the white suv encroaching. Not making your point, loki.

          2. I absolutely did and do not condoning surrounding the bus, impeding its travels

    3. I am not condoning the the surrounding of the Bus […]

      You are not convincing anyone with that line.

  2. “But in any event, I thought it would be helpful to think about these questions by viewing Mckesson (and other pedestrians-blocking-the-streets cases) and the Texas incident together, and seeing what rules would make sense for both of them.”

    Have to admit, this is some impressive (and considering the source, somewhat surprising) Both-Side-Ism.

    This is, perhaps, the end result of certain segments on the right trying to push forth the narrative of weaponizing cars against demonstrators, but I admit to being shocked to see Professor Volokh tacitly endorse tactics such as targeting the buses of political candidates and forcing them off the road by these types of equivalencies.

    1. Just for the record; the bus stayed on the road the entire time; there was no forcing, attempted or actual, except as usual, by the left wing.

      1. That’s BS and you know it. You are either lying to us, or to yourself.

        Just like Lying Joe Dallas up above. How do we know this? First, there is more than one video; it is clear from the multiple videos that the truck in back sped up after the bus changed lanes and prevented the SUV from accompanying the bus, and then forced it into another lane.

        Second, there are on-line transcripts of the people organizing this. They called it, with typical Rapin’ Trump QAnon subtlety, Operation Block the Bus.

        So go peddle your lies where they will be believed, which is to say- your usual QAnon forums.

        1. You’re the one who’s full of it, loki. I’ve watched all the available videos and have come to the same conclusion as the police have: the white SUV caused that collision. And, there’s no forcing off the road going on or attempted. Go soak your head!

          1. Oh wait. You’re saying that the San Marco police, who are under fire for not providing an escort, and were shown to have lied about their response, might have lied again?

            But you’ve seen all the video yourself?

            You know what? Why do I bother. You’ve lied so many times, you just keep on movin’ on.

            1. Yea, don’t bother. I’m not lying, you’re the one dealing in false narratives.

              1. Yeah, right.

                Do you know you know ThePublius is lying?

                You can see his name, followed by something he wrote.

                1. Wow. You’re so far gone you can’t even see that the video you linked to confirms what he’s saying.

        2. So, link to this video, don’t just make us take your word for it.

    2. https://www.youtube.com/watch?v=2B30zHE7DJ0

      Start at the 1:18 mark
      The Black truck was in the Right lane,
      the biden Bus moves from the center lane to the right lane
      The biden bus clears the black truck by approx one car length.
      The White SUV then moves into the Right lane where the Black truck is at.

      The actual event is no where close to the description provided by Rev

      1. I know that you are five beers short of a six pack …

        But do you see the bus?
        You see that the SUV is following the bus?
        Moved into the right lane?

        And after the bus moves, and while the white SUV (with right blinker on) is trying to follow, the black pickup truck speeds up and moves into the space that the white suv was transiting into.

        So, you tell me.

        If you are following another vehicle.
        And you signal that you are switching lanes.
        And you begin the lane shift.

        …is it normal and acceptable for a trailing car that, prior to your lane shift was an acceptable distance behind you, to speed up like that?

        1. Is it normal?
          No. People are generally polite.
          Is it acceptable?
          Varies. (Think merging lanes in a construction zone, and that one asshole who speeds down the empty lane to merge at the end. People absolutely consider it acceptable to not leave the jerk a hole to merge into.)
          Is it legal?
          Absolutely.

      2. I’ve watched your video, and the description was essentially correct. The black pickup was already in the right lane, the bus switches to the right lane from the middle, the white SUV attempts to follow, but the bus hadn’t left enough space, and the black pickup didn’t give way.

        Now, I will go so far as to say it is less than polite not to drift back and make a bit of space under such circumstances. I would have.

        But you’re not legally obligated to open such a hole, and it was the white SUV causing the collision.

        1. That might be true, if the black truck hadn’t sped up (and you can also see the tell-tale brakelights because it was going so fast in order to ensure that there was no gap).

          Other than that, spot on.

          1. It’s true even if the black truck sped up. The key point is that, when the white car attempted to change lanes, the truck was already occupying the space.

            You don’t get to change lanes right into another car just because they were inconsiderate in not allowing you a hole to merge into. As the car changing lanes, the white car was at fault, because it was responsible for confirming there was a space to merge into.

            This hinges on the fact that the collision was between the sides of the cars, and the white car was the one changing lanes.

            That’ said, I don’t approve of what was going on there, whether or not it was legal, it was terribly inconsiderate.

            But the early reports that the black pickup rammed the white car were clearly wrong. It was the other way around.

            1. “It’s true even if the black truck sped up. The key point is that, when the white car attempted to change lanes, the truck was already occupying the space.”

              As a general matter, if you are following another vehicle, and you have signaled to change lanes, and you have looked and there is adequate space, you begin the lane change.

              You do NOT expect the car behind you to accelerate full speed, and you are likely not even looking for that.

              Which would explain why you see, in the video, that the white trailing vehicle is half in the lane with the signal still on before it becomes apparent that the black truck is there.

              This has nothing to do with common courtesy, by the way, or being inconsiderate. And it is, quite frankly, baffling that you are trying so hard to defend this.

              1. If you change lanes, and get hit from behind, the guy who hits you is at fault. That’s a standard rule of the road, you are responsible for not hitting the car in front of you.

                If you change lanes, and the collision occurs between the sides of the vehicles, you’re at fault. Because the vehicle changing lanes is responsible for preventing collisions. End of story.

                I’ve viewed the video again. The black pickup is clearly already in the way, by about half a car length, when the white SUV crosses the lane divider. Like it or not, that means the fault is the white SUV’s, not the black pickup’s.

                The white SUV is clearly trying to intimidate the truck into giving way. I would have given way just as a matter of courtesy, myself, but doing so was NOT legally required. Just polite.

              2. The white SUV didn’t signal, it had its four-way flashers on. And, the black truck didn’t “accelerate full speed,” he kept the same distance from the bus.

                1. Within normal variation, yes.

                  Like I’ve said, I’d have given it some space to merge. But doing so wasn’t legally required.

  3. To the extent that a protest organizer is deliberately instigating a crime or a tort (whether the blocking of traffic, the throwing of rocks, or whatever else), the organizer can be prosecuted and sued for conspiring to commit a crime or tort, or for soliciting, ordering, or otherwise directing its commission.

    So if something like this happens again Trump can be held liable, since he encouraged the behavior by his supporters?

    1. And many Democratic office holders can be held liable for the personal injury and property destruction at the hands of BLM and Antifa for condoning and even encouraging the rioting, right?

    2. Potentially. It would presumably need to be more direct. IE, Trump would need to be at the protest, directly encouraging the protestors to engage in illegal actions.

      Indirect “encouragement” that’s kinda vague from a few hundred miles away, that’s going to be a hard sell.

      1. So, say if Trump encouraged his follows at a rally to punch someone and then offered to pay any legal expenses that might result?

  4. I can agree that the likelihood of law breaking is foreseeable. But if I was a juror, I would find it difficult to say that is sufficient evidence to convict anyone of negligence.

    It is a first amendment right to petition the government. It is also foreseeable that some such petitions will lead to violence and law breaking. I think it goes with the territory.

    Prosecute the rock thrower, not the organizer.

    1. Prosecute the rock thrower, not the organizer.

      Yes.

      1. Unless the organizer was distributing rocks.

        1. Or, unless the organizer was issuing a call to arms for rioters to show up and … you know … riot.

    2. Just to be specific, what the US Constitution guarantees, the the right to PEACEFULLY assemble to petition the government.
      Peaceful assembly has signs stating political positions in the daytime when they can be seen, generally on sidewalks without blocking the right of passage by the rest of the public. Once you get into the road the magic occurs, and the assembly becomes a lawless riot. Expect arrests, expect violence. This can always be foreseen.

      1. Agreed, nobody peacefully protests at night.

        1. Of course they do. There are lots of peaceful gatherings after dark.

          1. There are. They just don’t typically involve broken windows and burning buildings.

            1. As always, I support arresting vandals and arsonists, but others peacefully demonstrating at the same time are not accountable for the behavior of troublemakers.

              1. Yeah, do you really not understand what’s going on here?

                The first night a protest turns into a riot, you’re going to have some people there who came for a protest.

                Maybe the 2nd and 3rd days, too; Might take some time for the news to get around.

                After a week? A month? If you’re there when it turns into a riot, you’re there for the riot.

                Now, that doesn’t mean everybody there is going to be throwing Molotov cocktails, or clubbing anyone who tries to take video.

                What they ARE doing, is providing a crowd for the people actually committing the crimes to melt back into if cops show up, so they can’t be ID’d and arrested. And innocent shields so the police will be reluctant to deploy tear gas.

                Not everybody can be the point of the spear, some people have to settle for being the shaft. But the point doesn’t get there without the shaft.

                1. “Turns into a riot” is subjective.

                  If 10,000 people show up to a peaceful protest and 100 of them riot, most of those 10,000 won’t even know the riot happened if they were at the time of the unlawful behavior. The BLM protests were hours-long affairs and people would come and go so it would be possible to attend at a time when there was no unlawful activity.

                  The first few BLM protests here in San Francisco attracted opportunistic organized crime. The thieves staged trucks and vans near the protest in order to use it as cover to looting. They were breaking windows but not in protest. How does that figure in? Are organizers of peaceful protests liable for the activity of non-protesters using the protest to as an opportunity? And how do we tell protesters from non-protesters?

                  If a peaceful protest attracts armed counter-protesters, are the organizers of the peaceful protest liable for the actions of the counter-protesters? If someone organizes an event full of armed, angry counter-protesters, should they be surprised if someone gets shot? “But I had no reasonable expectation that a call to come to the protest with deadly weapons would result in a shooting. I swear!”

      2. Longtobefree, I agree with everything you said, but still the answer is to prosecute the rock throwers or violent people, not the organizers.

        Today’s election will foreseeably incite violence someplace in the USA. Does that make it negligent to hold an election?

  5. I think this is using a poor example to say “look how the law applies equally…”

    Roads and the use of roads are highly regulated environments and the liability rules involving vehicles, collisions, etc. are sometimes modified or just plain different. Also the use of a road can be legal even if say the conduct might be annoying to an individual.

    Obstructing traffic or blocking a road is rarely, if ever legal. Advocating for people to block a road is almost always advocating illegal activity (which might be protected by the First Amendment, but also might not be in some circumstances.) Encouraging illegal activity produces a whole different rubric of liability concerns.

    “Harassing” a bus on a public road is completely different then holding a protest with the intention of blocking a road (again an inherently illegal activity.)

    1. You have your liability backwards. Traffic obstructions happen all the time. Trees fall, trucks jackknife, cows wander, kids play, workers repair. The vast majority of those are not illegal.

      We do not live under the Napoleanic Code. Only those specific situations where a legislature has prohibited something is it illegal.

      Remember also that on almost all roads, cars do not have an automatic right-of-way. Pedestrians, bikes, amish buggies and everyone else also has a right to use that space. Roads that are restricted access must be specifically designated so. (Though that last might not be relevant to the Mckesson case because I think the road his protest blocked might have been so designated.)

      1. It is a divided highway, but I don’t think it’s restricted access.

        BLM protest site.

      2. In Baton Rouge Louisiana where this occurred there are vestiges of the Napoleonic Code in the law. Not as much as some people like to pretend bur still some.

  6. What happened in Texas on Saturday was not a “political demonstration” any more than cross-burning or church bombing is a “political demonstration.” It was coordinated vehicular assault for the purpose of political intimidation–i.e. terrorism. That no one was injured is a mercy, but it should not obscure the seriousness of the act.

    Whatever the flaws of BLM protests, they are not coordinated acts of terrorism. Professor Volokh should have resisted the temptation to both-sides these two incidents, because they are not at all analogous.

    1. It was a mostly peaceful protest, the same as we were constantly told the BLM riots were.

      Riots are also a form of political intimidation. Yet you justify them.

      1. There’s nothing peaceful about attempting to illegally roadblock someone’s car and force them to slow down or stop.

        If you’d like to try it, I suggest you do so against someone who isn’t armed, because if it’d been me and my car targeted by this shit, I’d have shot at one of the drivers presuming they meant to do me serious bodily harm.

        1. If this is true, then I am illegally roadblocked every day on Los Angeles highways. What is up with these slow drivers?

        2. “I’d have shot at one of the drivers ”

          Ok internet tough guy.

        3. And you would be wrong, and you would go to jail.

          1. I don’t think so. If you wait until they’ve brought you to a complete halt, with no escape possible anymore, it’s too late for you to start defending yourself. By all means go ask any defensive driving. The most important objective in defending yourself while inside a vehicle is to prevent it from being stopped.

            Anyone deliberately performing an illegal rolling roadblock and forcing someone’s car to a halt can be considered to be engaging in a threat to that person’s life.

            Go try it on the President and see what happens. Hint: Secret Service will shoot you the instant you become even partially successful. Why? Because you’re a threat to the President’s life.

            1. In this case, I think they did keep moving fast enough to comply with the local lower limit, so you’d be hard put to justify any such action.

            2. You’re not the President. Or an expert on any sort of tactics. But, maybe, you will get to test out some of your stupid theories sometime, and either see the inside of a penitentiary or end up dead.

    2. “Whatever the flaws of BLM protests, they are not coordinated acts of terrorism. ” Ha, ha, ha, ha, ha! Yes the are! Haven’t you been paying attention? Coordinated via social media. Personal injuries inflicted, buildings and cars burned. And more.

    3. Terrorism? Dial down the hyperbolic rhetoric, it was nothing of the sort.

  7. So, why is this false equivalency so annoying?

    As Prof. Volokh is well aware, there is a decent amount of decisions concerning protests and the First Amendment; quite a few of those were established in quite tumultuous times. Any 1L worth their salt (and most certainly Prof. Volokh) knows about the Brandenburg incitement test … and its application in NAACP v. Caliborne (holding that organizer who used fiery speeches including threats of violence, followed by acts of violence weeks later, was protected under Brandenburg test). Even a FORSEEABLE risk of harm is insufficient under Brandenburg- a point that has been made by luminaries such as …. Prof. Volokh.

    Which makes me wonder about the sudden result-driven analysis here. A large part of it is due to the shifting (mostly GOP) norms regarding the right to assemble (protest). If you look back in history, to the 50s, 60s, and 70s, you will see that protesting in the street was common. Even when TPM (that is time, place and manner) restrictions began to be regularly upheld, it was still seen as acceptable to protest in a STREET.

    But now we have the exceptionally weird situation where conservatives do not like liberals protesting, so they are seeking any and all legal and extra-legal means to curtail lawful protests, including by condoning running over of protesters. Moreover, we get the conflation of peaceful assembly in public areas (including roads) which has a long and storied history in our constitutional order with the deliberate and organized targeting and harassment with motor vehicles on a single source; had this been a so-called “Trump Train” that would be a different issue.

    The simplest way to look at this is usually the easiest. No one can, or should, condone lawless action or violence. But the false equivalencies being put forth here both minimize the real issues faced when it comes to traditional protest and also manages to, unfortunately, elevate QAnon-sponsored targeted road rage and harassment of political candidates, which should always be anathema in our country.

    1. Why? You really wonder? He is a hack. Has been obvious for years.

  8. I bet EV had no idea this post would be so triggering to the leftists here.

  9. There’s been a rush to eliminate police officer qualified immunity. Accordingly, let’s eliminate the public’s “qualified immunity” from the harm they cause to a police officer. Being intentionally harmed is not a part of the job anymore than a sport figure assumes the risk his opposing team will willfully injure him.

    1. The point of the discussion here isn’t whether the harm experienced by the officer is without liability. From the very start of the thread, there is agreement that the officer was harmed and the person who harmed him should be liable.

      The question is whether the person who organizes a peaceful protest is also liable for the independent actions of individuals who are at the protest.

      As an aside, I’m sure the word “qualified” in “qualified immunity” is a legal term of art but, from a layman’s perspective, it makes no sense since it just looks like “always immune” in application.

  10. None of this possible liability is as clear as the liability Trump bore after telling his supporters that he would pay their legal bills if they assaulted protesters. If that’s not incitement, then nothing is.

    1. Context, captcrisis: Trump said that, if somebody attempted to throw something at the stage, he’d pay the legal bills of anybody who slugged them: “If you see somebody getting ready to throw a tomato, knock the crap out of them, I’ll pay the legal fees.”

      If you’re at a public event, and somebody attempts to throw something at the speaker on the stage, that’s attempted assault, and slugging them is considered defense of others, not assault.

      1. No, you are not entitled to “knock the crap out of” a tomato thrower.

        And Trump’s offer extended to anyone committing assault, even unprovoked.
        https://www.theguardian.com/us-news/video/2016/mar/14/donald-trump-legal-fees-protester-punched-video

  11. It is certainly the case that the “Trump train” should not have created that rolling blockade. (Whether doing so was actually illegal depends on the local lower speed limit.)

    Just as the Biden chase car should not have collided with the pickup in attempting to force it out of the way. Which absolutely was a traffic violation on the part of the Biden car, NOT the pickup.

    It is also the case that, unlike the protest Eugene is comparing this incident to, the “Trump train” was legally entitled to be on that road. And that is a rather key distinction, since the case he’s discussing hinges on the location of the protest being illegal.

    1. Did the Trump group really slow down the Biden bus? The videos I have reviewed don’t appear to show that.

  12. (A) Not gonna mention Trump supporters closing down bridges the other day?

    (B)

    Do people have a duty not to organize protests in ways that foreseeably and unreasonably cause physical harm

    Pretty sure that crossing state lines, and bringing your long arms when you do so, in order to counter-protest peaceful protesters does a lot more to “foreseeably and unreasonably cause physical harm” then standing outside a police station and yelling.

    1. ‘Crossing state lines, and bringing your long arms’ does not foreseeably and unreasonably cause physical harm. Period. The context is the same otherwise, protesting. Your bias has blinded you.

  13. Allegedly, it’s hard to tell from the videos, but I’m not seeing a lot of push back on that part of the reporting, so I’m tentatively assuming they did.

  14. BLM-the-organization is well known for training “peaceful protesters” to cooperate with, and screen, the rioters who accompany them. Any serious prosecution needs to make conspiracy or even accessory status out of that.

    Of course most Democrat-run cities and states have prosecutors who are part of the conspiracy themselves, and won’t even charge anyone except victims such as Kyle Rittenhouse. This is why we need the president to send in the Marines.

  15. Nice to see so many that are so eager to condone political violence.

    I’d say “go to Hell”, but you troglodytes brought it to the USA.

    1. Which violence are we talking about? Was somebody somewhere silent?

  16. (1) I am having a hard time seeing how in the McKesson case there is either foreseeability or proximate causation. You can hold a protest, even on a highway, without someone throwing a piece of concrete at anyone. Maybe there is something quirky about Louisiana negligence law. Which is why I think the Supreme Court was wise to instruct a certified question to the Louisiana Supreme Court.

    (2) If you drive recklessly, then it is foreseeable that a car accident will occur. I think calling what they did in Texas “terrorism” is an exaggeration, but it is reckless behavior. Whether that was the cause of any damage, I will leave to the jury.

    (3) Some of you are too hard on Professor Volokh. There is one suit that was before the Supreme Court that it just ruled on, and the other event just happened. He is asking what the legal ramifications are. That is what this blog is about. He is not drawing any moral equivalency. (FWIW, both should be condemned, IMO.)

    1. Agreed, the white SUV did drive recklessly. The Trump train cars were just driving inconsiderately.

    2. In the McKesson case, if other similar protests had similar occurrences, it would seem reasonably foreseeable and steps should have been taken to prevent the occurrence. If the protesters were chanting slogans which implied or referenced violence. “No Justice, No Peace”

  17. I’m not sure why you think this is so hard.

    Scenario 1 – clear legal liability for your own lawbreaking.
    Scenario 2 – probable liability if you can prove the instigation.
    Scenario 3 – no liability. Negligence does not extend to an affirmative duty to prevent lawbreaking by others. Even the police have no such duty. There is no way that we citizens can reasonably be held to that standard.

  18. I oppose any immunity. I would make an exception for driving through protesters blocking a road

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