from bad-laws-foolishly-enforced department

Well, it’s a mess.

A lawsuit prompted by the actions of a protester during a protest held in Baton Rouge, Louisiana on July 9, 2016 always is not resolved. During this Black Lives Matter protest, an attendee threw a “rock-like substance” at a Baton Rouge police officer known only as “Officer Doe.”

In response, this officer sued activist DeRay Mckesson, the organizer of the protest. He also pursued a movement (Black Lives Matter) and its associated hashtag. The district court dismissed the lawsuit with prejudice in October 2017, finding (very reasonably) that neither party sued could be held directly liable for the actions of a single person participating in the protest. This should have been the end.

This was not the case. The anonymous policeman appealed. And, for some reason, the Fifth Circuit Court of Appeals decided that the trial could proceed. The Court of Appeal held that because the protest was blocking a road, a confrontation with law enforcement should have been considered an imminent possibility, if not a certainty.

Given the intentional lawlessness of this aspect of the protest, Mckesson should have known that bringing the protesters onto a busy highway was almost certain to provoke a confrontation between the police and the mass of protesters, but he ignored the danger. predictable to officers, bystanders, and demonstrators, and despite everything, did it anyway. By ignoring the foreseeable risk of violence created by his actions, Mckesson failed to exercise due diligence in the conduct of his protest.

Because it reached this conclusion by reference to state law, the Court of Appeals decided that it did not need to address the much more concerning First Amendment implications of its decision.

Five months later, the Fifth Circuit changed its mind, prompted by Admission of Judge Don Willett he was wrong the first time. But this bench the re-examination did not change anything. A majority of judges decided the first opinion was correct but hit the table a little harder on the second opinion. The dissent offered good arguments but could not change the irrational decision to allow an anonymous cop to sue one person for injuries caused by another. The problems of the First Amendment, again, went unaddressed.

Mckesson appealed, bringing the matter to the attention of the highest court in the land. The Supreme Court said the Fifth Circuit asked the right questions but arrived at the wrong answers. He sent the case back to the Court of Appeals to determine whether or not state law could be applied to the officer’s claims — and whether those claims could indeed be sustained given the facts of the case. ‘incident.

The Fifth Circuit’s third pass consisted primarily of crafting questions for the state’s highest court to answer regarding state law and the prosecution’s allegations. But he did at least ask some very good questions about state law and the duties required of officials in the area of ​​public safety.

Meanwhile, our attention has been drawn to a separate aspect of Louisiana law, the professional lifeguard doctrine, which may be decisive. This doctrine, succinctly summarized, is a rule of law that “essentially states that a professional rescuer, such as a firefighter or police officer, who is injured in the line of duty, bears the risk of such injury and is not entitled to damages -interests.» Gann c. Matthews, 873 so. 2d 701, 705 (La. App. 1st Cir. 2004) […] We found limited guidance in the opinions of the Louisiana Supreme Court as to how this doctrine might apply to the particular facts of this case. Because we believe this is a closely related question of law, which also raises an important question of state policy, we further take this opportunity to respectfully seek guidance on this matter from the Court. Supreme of Louisiana.

The state Supreme Court considered the case. And that answered the Fifth Circuit’s two questions in a way that will allow this cop to continue his seemingly fanciful quest to hold a protest organizer personally responsible for injuries sustained in the course of his normal duties at the hands of another person entirely. . (h/t Michael Vario)

Black Lives Matter organizer and activist DeRay Mckesson can be sued by a Baton Rouge police officer injured during a 2016 protest, the Louisiana State Supreme Court has ruled.

The announcement released Friday, March 25, was intended to address issues raised by the United States Court of Appeals for the Fifth Circuit. These questions were about whether the officer can prosecute the organizer of an event that ends in a crime.

This is the extremely succinct summary of the court’s decision [PDF]. Had the state Supreme Court ruled the other way on either of the two issues, the Fifth Circuit could have dismissed the lawsuit. Instead, he provided the cop and his stupid lawsuit with two ways to keep prosecuting someone for someone else’s act of violence.

We have accepted certified questions presented to this court by the United States Court of Appeals, Fifth Circuit, in Doe v. Mckesson, 2 F.4th 502 (5th Cir. 2021) (by curiam). The questions posed by the Fifth Circuit are: (1) Does Louisiana law recognize a duty, by virtue of the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party? (2) Assuming that Mckesson could otherwise be held liable for a breach of duty to Constable Doe, does the Louisiana professional lifeguard doctrine prohibit recovery under the facts alleged in the complaint? We answer the first, under the facts alleged in the complaint, in the affirmative and the second in the negative…

But the law doesn’t seem to really say what the state Supreme Court says. The state law appears to be narrower than this reading by the judges handling this case. (And I’ll leave the emphasis of the original which seems to show that only the person who commits the act can be held responsible.)

Based on the factual allegations set forth in plaintiff’s motion to the federal district court, it could be concluded that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a felony (blocking of a busy highway, posing a danger to public safety), directly in front of police headquarters, knowing full well that the result of similar actions taken by BLM in other parts of the country has resulted in violence and injury not only to citizens but also to police, would make Mr. McKesson liable for damages for injuries resulting from such activities to a police officer compelled to attempt to clear the road of the obstruction. Section 2315 of the Louisiana Civil Code requires that “[e]very act anyway of the man who causes damage to another obliges the one by whose fault it happened to repair it”. (Emphasis added.)

Provoking a confrontation does not guarantee violence, although similar confrontations elsewhere in the country have (sometimes) resulted in violent acts against police officers. “Whatever” does most of the heavy lifting here and, despite the language cited by the court, it cannot be assumed that Mckesson is even vicariously responsible for another protester’s decision to assault a police officer. This allegation would still need to be proven, as the state court admits. But being willing to read the law this way means that any protester could be sued by anyone harmed (physically or otherwise) at a protest simply because they helped organize the protest or showed up. as a figurehead for the social cause from which the protests erupted. This is a dangerous interpretation of the law.

As to the second question of whether the professional lifeguard doctrine applies (one who assumes the risk for those who are paid to handle risky situations), the court says that state law has virtually eliminated this doctrine. in favor of allowing the cops to prosecute the people who hurt them. . The concurring opinions do not agree with this assessment. Dissenting opinions too. But the majority says that doctrine no longer exists and the cop can continue to sue.

This leads back to the Fifth Circuit who will have another chance to put an end to this antics. But he is unlikely to do so given the interpretations the Court of Appeals has been brought to work with the Louisiana Supreme Court. It will likely take yet another trip to the Supreme Court to settle all of this. Meanwhile, the anonymous cop who decided to pursue someone who didn’t hurt him will continue to bleed Mckesson. And, until it is resolved, protected First Amendment activity will be less protected in the state of Louisiana.

Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, louisiana supreme court, police