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SCOTUS Punts Protest Case, First Amendment Lives To Fight Another Day

Cops get qualified immunity, but protestors owe a duty of care to cops? ¯\_(ツ)_/¯

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This morning the Supreme Court dodged another bullet in the case of DeRay McKesson, the civil rights activist being sued by an unnamed police officer who was injured during a protest in 2016. In a 7-1 per curiam decision, the court held that the Fifth Circuit should have deferred to the Louisiana Supreme Court to decide whether that state’s law imposes a duty of care on protestors to protect police.

Three guesses which Supreme Court Justice was totally onboard with a novel precedent to impose individual liability on protest organizers for harm caused by third party actors. Hint: It rhymes with Tarence Clomas.

On July 5, 2016, Alton Sterling, a 37-year-old Black man, was shot at point blank range by Baton Rouge police who were trying to arrest him for selling bootleg CDs. The killing was recorded by multiple bystanders, sparking several days of protest, some of which turned violent. On July 9, large crowds blocked Airline Highway, a major thoroughfare in Baton Rouge, and police arrested 120 people, including McKesson, one of the protest organizers. At some point during the evening, Officer Doe was injured by a chunk of concrete thrown by an unknown assailant.

There’s never been any suggestion that McKesson threw the concrete. There’s never been any suggestion that he instructed protestors to harm police. Which is why the trial court tossed Officer Doe’s suit to hold McKesson personally liable for the attack, consonant with the holding in NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982) that non-violent protestors cannot be held liable for damages wrought by third parties during the exercise of their First Amendment rights.

But the Fifth Circuit disagreed, citing Louisiana’s tort law to find that McKesson owed Officer Doe a duty of care and that the activist negligently failed to fulfill that duty, since he should have known that the protest would likely turn violent.

It was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was likely to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration. This is not, as the dissenting opinion contends, a “duty to protect others from the criminal activities of third persons.” See Posecai , 752 So. 2d at 766. Louisiana does not recognize such a duty. It does, however, recognize a duty not to negligently cause a third party to commit a crime that is a foreseeable consequence of negligence.

This would allow any state to curtail First Amendment protected speech by statutorily imposing a duty of care on protest organizers, saddling them with crippling personal liability if things got out of hand. And perhaps it still will if the Louisiana Supreme Court agrees with the Fifth Circuit’s interpretation of its law.

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But not today. For now, the Supreme Court didn’t reach the First Amendment issues of right to speech and assembly, because it was too busy dropkicking this dumpster fire into the state judges’ laps.

We think that the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented. The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place. The dispute thus could be “greatly simplifie[d]” by guidance from the Louisiana Supreme Court on the meaning of Louisiana law.

Translation: Please tell us this cockeyed interpretation of state law is as dumb as it looks so we don’t have to wade into this hot mess of a First Amendment issue.

So get out there and exercise your First Amendment right to assemble in protest. Because you might not get another chance.

DERAY MCKESSON v. JOHN DOE [No.19–1108, November 2, 2020]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

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