By Tim Cushing
Early last year, the Fifth Circuit Court of Appeals (which has more than its fair share of inexplicable decisions) released an inexplicable decision. The appeal arose from a lower court’s dismissal of an injured cop’s lawsuit against multiple parties over injuries he sustained when a protester threw a chunk of concrete at him.
The pseudonymous cop sued a number of entities, including “Black Lives Matter,” a Twitter hashtag, and activist DeRay Mckesson. His claims against the social movement and the social media sorting mechanic didn’t survive. But the Fifth Circuit Court felt it was plausible — under Louisiana state law — that Mckesson was somehow responsible for the injuries sustained by the cop.
According to the court, Mckesson should have known that leading protesters onto a highway would “provoke” a “confrontation” with law enforcement. Being aware of this potential provocation was enough for the court to revive Officer John Doe’s idiotic attempt to hold Mckesson personally responsible for an act of violence committed by another person.
That ridiculousness has now been undone by the Supreme Court. The nation’s top court rolls back [PDF] the Fifth Circuit’s inexplicable resurrection of the cop’s misguided claims and sends it back down the judicial food chain. Allowing this decision to stand would do damage to the First Amendment and invite similarly misguided lawsuits from plaintiffs like this one — people seeking to bleed the biggest litigation target, rather than the person who perpetrated the injurious act.
The Supreme Court says the Fifth Circuit was right to recognize the issue, but was less correct in its handling of it.
As the Fifth Circuit recognized at the outset, Louisiana law generally imposes no “‘duty to protect others from the criminal activities of third persons.’” But the panel majority held that a jury could plausibly find that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto the highway. 945 F. 3d, at 827. The dissent would have demanded something more—a “special relationship” between Mckesson and Officer Doe—before recognizing such a duty under Louisiana law.
It goes back to the courts, but not the Fifth Circuit. This one is being shipped to the Louisiana state Supreme Court, which needs to clarify the law — and the alleged duty supposedly owed by Mckesson.
The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit. But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.
This isn’t a win for Mckesson yet. But it most likely will end up that way. Reading the law the way the Fifth Circuit seemed inclined to would turn First Amendment-protected expression — like Mckesson’s attendance and participation in a protest — into an enabler of frivolous lawsuits that would introduce a chilling effect on protests and demonstrations. Allowing random people to be sued for actions perpetrated by violent outliers would dissuade a great number of people from exercising their First Amendment rights. Hopefully, the state Supreme Court will recognize the collateral damage allowing these claims to continue would produce.