The Volokh Conspiracy
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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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