Louisiana Supreme Court rules on Doe v. Mckesson

4th April 2022   ·   0 Comments

By Fritz Esker
Contributing writer

On March 25, the Louisiana Supreme Court ruled on two state law questions certified to it by the Fifth Circuit in a federal lawsuit filed by a police officer against civil rights activist and Black Lives Matter organizer DeRay Mckesson. The court indicated protest organizers may be held accountable for actions of people attending the protest.

The officer is seeking damages for being injured by a thrown object during a July 9, 2016, protest in Baton Rouge, La., that was sparked by the killing of Alton Sterling, a Black man. The lawsuit claims Mckesson, as the alleged leader of the protest, should be held legally responsible for the officer’s injuries.

July 2016 was a violent month in Baton Rouge that started with the killing of Sterling on July 5. Sterling was shot and killed by two Baton Rouge Police Department officers after police responded to a report that Sterling was selling CDs and had used a gun to threaten a man outside a convenience store. The store’s owner, Abdullah Muflahi, told CNN in 2016 he had known Sterling for six years and had never seen him confront anyone.

Protests ensued around Baton Rouge. A coalition of civil rights groups, including the American Civil Liberties Union, sued the Baton Rouge Department and state law enforcement officials for offenses that included excluding protestors from public forum space and engaging peaceful protestors in a militarized fashion. Thirteen protestors and two journalists also filed suit against the city of Baton Rouge, the parish of East Baton Rouge, the East Baton Rouge Sheriff’s Department, and several individual police officers (www.louisianaweekly.com/lawsuits-surround-the-alton-sterling-case-one-year-later).

In Doe v. Mckesson, the plaintiff claimed a BLM protestor “picked up a piece of concrete or similar rock like substance and hurled [it] into the police that were making arrests,” striking the plaintiff in the face and injuring his teeth, jaw and head.

The plaintiff also pointed to incidents involving violence against police officers in between Sterling’s killing and the Baton Rouge protest, including a July 7 incident in Dallas where a sniper shot twelve police officers and killed five.

In their ruling on the case (www.lasc.org/opinions/2022/21-0929.CQ.OPN.pdf), the Louisiana Supreme Court wrote: “…it can be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety), directly in front of police headquarters, with full knowledge of the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but police, would render Mr. Mckesson liable for damages for injuries, resulting from these activities, to a police officer compelled to clear the highway of the obstruction…Louisiana law would give the plaintiff an opportunity to prove the allegations made at trial.”

Justice Piper Griffin was the sole dissenter. She wrote: “…the finding of a duty in this case will have a chilling effect on political protests in general as nothing prevents a bad actor from attending an otherwise peaceful protest and committing acts of violence.”

Justice Griffin also noted that even if a protest organizer were successfully able to defend themselves in court, the cost of a legal defense would be significant.

Duke Law’s First Amendment Clinic filed an amicus brief on the case in 2020 in defense of Mckesson. Duke law school student Kaan Ulgen said, “Protest movements do not have endless resources. Forcing organizers such as Mr. Mckesson to litigate for action of other protestors and show that they were not negligent will either bankrupt movements, cause them to stop organizing, or both.”

The ACLU was quick to criticize the Louisiana Supreme Court’s recent decision.

“Under the First Amendment, protesters – including protest organizers – cannot be held liable for the unlawful acts of others that they did not direct, order or incite. The Louisiana Supreme Court may have held that there is no state law barrier to this lawsuit proceeding, but the First Amendment applies everywhere and bars this case. We look forward to making that clear as this litigation continues in federal court,” said Vera Eidelman, staff attorney with the ACLU Speech, Privacy, and Technology Project.

However, it is not just traditionally liberal organizations like the ACLU that criticized the decision.

On March 29, the libertarian website Reason.com published an article by Scott Shackford, who wrote, “It’s always worthy of noting how profoundly different courts treat police officers when the shoe is on the other foot – when police conduct results in innocent people being harmed. Thanks to the legal concept of qualified immunity, police officers often evade civil responsibility when they are personally responsible for violating citizens’ civil rights, harming them, or destroying their property.”

Mckesson pointed to the fact that many conservative groups also organize demonstrations, and mentioned the January 6 case and anti-abortion protests as example.

“The implications of this are way more far-reaching than this one case,” Mckesson said. He denied the plaintiff’s claim that he incited violence on the day of the event. He said he was very quickly taken into police custody despite following officers’ demands that he get out of the street. He said there has been no fact-finding process as of yet to determine the validity of the officers’ claims.

Mckesson expects this case will eventually go back to the U.S. Supreme Court for a final ruling. He is optimistic that the U.S. Supreme Court will rule in his favor and said he will not let any decision affect future efforts to organize in Louisiana.

“The U.S. Supreme Court is more likely to understand the implications of this becoming the law,” Mckesson said.

The case will return to the Fifth Circuit for further proceedings guided by the state court’s conclusion that, under state tort law, protest organizers may be held liable for the actions of those attending a protest.

This article originally published in the April 4, 2022 print edition of The Louisiana Weekly newspaper.