Protest Organizer Liability for Injury to Police Officer

When is a protest organizer liable under state tort law for injury to a police officer when the protest turns violent? When is such liability blocked by the First Amendment?

The U.S. Supreme Court today summarily vacated and remanded a decision of the U.S. Court of Appeals for the Fifth Circuit. The Court of Appeals had ruled on the constitutional question without first adequately resolving the state law question.

Petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest a shooting by a local police officer. The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a “piece of concrete or a similar rock-like object,” striking respondent Officer Doe in the face. 945 F. 3d 818, 823 (CA5 2019). Officer Doe suffered devastating injuries in the line of duty, including loss of teeth and brain trauma.

Though the culprit remains unidentified, Officer Doe sought to recover damages from Mckesson on the theory that he negligently staged the protest in a manner that caused the assault. The District Court dismissed the negligence claim as barred by the First Amendment.

The officer was able to bring the case in federal court because he is a citizen of Louisiana and the defendants are citizens of other states, at least once the nebulous “Black Lives Matter” was dismissed from the case. See Doe v. Mckesson, 945 F.3d 818, 824-825 (5th Cir. 2019).

The plaintiff’s cause of action is based on state tort law. The federal constitutional question only comes in as a matter of defense, which is not sufficient for federal question jurisdiction.

But does state tort law really provide for liability in this situation? The Supreme Court has long required federal courts to address constitutional issues only when truly necessary to decide the case. If a party can win without answering the constitutional question, then that question should be left for another day.

Along with the important First Amendment question, “the dispute presents novel issues of state law peculiarly calling for the exercise of judgment by the state courts.”

[U]nder 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.

The case goes back to the Fifth to do that. The case is Mckesson v. Doe, No. 19-1108.