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Free Speech

Fifth Circuit Certifies Questions in Doe v. Mckesson to Louisiana Supreme Court

This is the case against DeRay Mckesson, brought by a police officer who was injured in a protest that Mckesson allegedly organized.


From Friday's opinion:

This case arose out of a protest alleged to have been organized and led by defendant DeRay Mckesson in Baton Rouge, Louisiana, in response to the police shooting of Alton Sterling. According to the complaint, the defendant directed the protest to a public highway in front of a police station. The police began making arrests and attempting to clear the highway.

Some protesters began throwing various objects at the police. Officer John Doe was struck in the face by a piece of concrete or similar rock-like object. As a result, he lost teeth and suffered injury to his jaw and brain. The individual who threw the object has not been identified.

Officer Doe brought suit against Mckesson in the Baton Rouge, Louisiana, federal district court, alleging that his injuries resulted from Mckesson's negligence in organizing and leading the protest. The district court dismissed Officer Doe's claim …. It found that the facts alleged did not fall into one of the specific categories of conduct for which an individual can be held liable for the tortious activity of an associate….

[A] divided panel of this court [then] found that Officer Doe's complaint had stated a cause of action under Louisiana law against Mckesson. The theory of liability accepted by this court was that Officer Doe had plausibly alleged that Mckesson knew or should have known that the protest he led onto a public highway would turn confrontational and violent, and thus that, in the course of organizing and leading that protest, he breached a duty of reasonable care owed to Officer Doe and persons similarly situated. Stated more generally, we found that Louisiana law recognized "a duty not to negligently cause a third party to commit a crime that is a foreseeable consequence of negligence," and that Officer Doe had plausibly alleged a violation of that duty in illegally blocking a public highway….

Although Mckesson's petition to the Supreme Court focused on whether holding him liable for Officer Doe's injuries was consistent with the First Amendment, the Supreme Court declined to address that issue. It found our interpretation of Louisiana law "too uncertain a premise on which to address … [t]he constitutional issue …." It found that this "dispute presents novel issues of state law peculiarly calling for the exercise of judgment by the state courts."

Although federal courts are generally presumed competent to apply state law, the Supreme Court suggested that we should have pursued the certification procedure made available by the Supreme Court of Louisiana before engaging in the politically fraught balancing of "various moral, social, and economic factors" that is required before imposing a duty under Louisiana law. Today, in following the direction of the Supreme Court, we respectfully certify the relevant questions of law, set out below, to the Supreme Court of Louisiana….

In the meantime our attention has been drawn to a separate aspect of Louisiana law, the Professional Rescuer's Doctrine {[s]ometimes referred to as the "fireman's rule" or "firefighter's rule"}, that could be dispositive. That doctrine, put succinctly, is a judge-made rule that "essentially states that 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." …

We have found limited guidance from the opinions of the Supreme Court of Louisiana on how this doctrine might apply to the particular facts of this case. Because we find this to be a close question of law, which also raises a significant issue of state policy, we further take this opportunity to respectfully elicit guidance on this issue from the Supreme Court of Louisiana….

Accordingly, we hereby certify the following determinative questions of law to the Supreme Court of Louisiana, by which responses we will be bound for the purposes of this case:

1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party?

2) Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana's Professional Rescuer's Doctrine bars recovery under the facts alleged in the complaint? …

Judge Jennifer Walker Elrod concurred, but added (among other things):

We stand to benefit from the Louisiana Supreme Court's guidance on the intersection of state tort law and constitutional law, as Americans should be free to exercise their constitutional rights to free speech and assembly. While these rights are "fundamental in our democratic society," the "constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy." Moreover, "[t]he control of travel on the streets is a clear example of governmental responsibility to [e]nsure this necessary order."

For more on the Professional Rescuer's Doctrine question, see this post.