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On Monday the Supreme Court sent a case filed by a police officer against prominent Black Lives Matter activist DeRay Mckesson back to the lower courts - admonishing the Fifth Circuit for making a ruling without guidance from the Louisiana Supreme Court.
The officer, named John Doe in the lawsuit, filed suit following a severe injury he sustained at a BLM protest in 2016. Mckesson organized the demonstration to protest the shooting death of Alton Sterling, which took place in Baton Rouge, Louisiana. A protester threw either a rock or piece of concrete toward police officers present at the demonstration, striking John Doe in the face. He filed suit against Mckesson, alleging that, although he was not the one who threw the rock, he "knew or should have known" that the demonstration could turn violent.
The district court dismissed Doe's case, holding that the officer's negligence claim was barred by the First Amendment. But the split Fifth Circuit panel held that the lawsuit could go forward, finding a jury could plausibly find that Mckesson was negligent because a violent altercation with police was a foreseeable effect of directing protestors onto the highway. However, Louisiana law generally does not impose a duty to protect others against third parties' criminal acts.
Mckesson's defense relies on the Supreme Court's 1982 decision in NAACP v. Claiborne Hardware Co. In that case, the justices held that protestors were not liable for damages caused by their nonviolent demonstration. Mckesson argues that this protection also applies to a speech-related activity that negligently causes a violent act unless the defendant specifically intended for the violent act to occur.
Mckesson petitioned for Supreme Court review. The justices vacated the appeals court's decision. They advised them to take a closer look at state law, saying 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."
If the question is whether the First Amendment bars the officer's claim, it is important to first determine whether state law allows Mckesson to be held liable in the first place, the justices explained. Hopefully, the Louisiana Supreme Court will be able to shed some light on the situation.
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