The US Supreme Court recently declined a petition for a writ of certiorari presented by Black Lives Matter organizer DeRay Mckesson. The denial has paved the way for a Louisiana police officer to sue Mckesson for negligence.
The roots of this legal event lie in a protest held in Baton Rouge, Louisiana, on July 9, 2016, following the deadly police shooting of Alton Sterling. As per Mckesson’s petition, the protest began peacefully; however, some protestors soon started throwing plastic water bottles towards the police. A police officer, referred to as John Doe, got hit by an object akin to a rock, resulting in severe injuries. Mckesson did not throw the object, but Doe sued him claiming that Mckesson should have anticipated the protest could turn violent.
Doe’s case for negligence was initially dismissed by a district court in Louisiana, pointing to the First Amendment’s rights to associate. However, The Court of Appeals for the Fifth Circuit reversed this decision, suggesting that Mckesson could theoretically be held accountable under a “negligent protest” theory.
In reaching their respective conclusions, both courts examined NAACP v. Claiborne Hardware Co., a 1982 case where the Supreme Court ruled that speech during an assembly would have to incite imminent wrong-doing to be punishable. The District Court leaned on Claiborne, stating when a tort occurs during an activity otherwise protected by the First Amendment, precision is critical in establishing liability so not to erode First Amendment guarantees. However, the Fifth Circuit concluded that its finding of potential liability aligned with Claiborne’s demand for regulatory precision.
In his dissent, Judge Don Willett voiced concerns about the precedent this decision could set for protest organizers, potentially making them liable for the unauthorized acts of counter-protesters and agitators. Following the Supreme Court’s refusal to consider the case on appeal, the ACLU tweeted that this does not indicate the Court’s agreement with the Fifth Circuit’s reasoning. The ACLU vows to continue to work toward ensuring the Fifth Circuit’s rationale in this case does not impact this or future cases.
You can read further details on this development here.