Appeals Court: Idiot Cop Can Continue To Sue A Protester Over Actions Taken By Another Protester

from the so-much-for-protected-rights-and-personal-responsibility dept

In October 2017, a Louisiana federal court tossed a lawsuit brought by an anonymous cop against:

1. Activist DeRay McKesson, who spoke at the Baton Rouge demonstrations.

2. Black Lives Matters — a name used by several concurrent movements to protest police violence against blacks

3. A Twitter hashtag

This lawsuit was dismissed with prejudice, with the judge pointing out no amount of rewording could salvage this cop’s attempt to hold DeRay McKesson — much less a social movement and a Twitter hashtag — personally responsible for injuries sustained when a protester (not DeRay McKesson) tossed a chunk of concrete at him.

This judge was similarly unimpressed when another anonymous cop attempted to do the same thing two weeks later. In both cases, the court pointed out the lawsuits targeted protected speech and relied on conclusory statements linking McKesson and the social movement to actions taken by individuals participating in the protest. Both lawsuits were dismissed with prejudice, which prevents the cops from trying to pull the same litigious tricks again.

Unfortunately for DeRay McKesson and anyone else who might attempt to lead a protest against anything, the Fifth Circuit Court of Appeals has revived the first of these dismissed lawsuits. The court isn’t permissive enough to let Officer “John Doe” sue a Twitter hashtag and a social movement. But it does say the lower court needs to examine the case again because the cop plausibly alleged DeRay McKesson could be indirectly responsible for another protester tossing projectiles at cops responding to the demonstration.

Seizing on the theory of negligence, the three-judge panel decides [PDF] McKesson’s participation in a protest that illegally blocked a road set the stage for a confrontation between police and protesters. This supposedly means McKesson could be held personally responsible for the attack on Officer Doe because… he didn’t ensure the protest remained completely legal the entire time???

We first note that this case comes before us from a dismissal on the pleadings alone. In this context, we find that Officer Doe has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration. The complaint specifically alleges that it was Mckesson himself who intentionally led the demonstrators to block the highway. Blocking a public highway is a criminal act under Louisiana law. See La. Rev. Stat. Ann. § 14:97. As such, 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 most nearly certain 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.

There’s so many things wrong with the application of the negligence theory to this set of facts. First off, protests almost always “provoke a confrontation” between protesters and law enforcement — even those that are completely legal in all other respects. Second, the illegal actions of individual members of a protest are their own. They should not be the legal responsibility of other participants in the protests.

But that’s how the court sees it. DeRay McKesson will have to defend himself against a ridiculous lawsuit because he supposedly “provoked a violent confrontation” with police officers by… blocking a road. The Appeals Court says this doesn’t necessarily mean the lower court will find McKesson is responsible after further fact finding, but it does mean someone participating in protected speech will have to foot the bill for absolving himself of actions taken by other protest participants.

As for the First Amendment, the court asks it to take a seat on the bench until Officer Doe’s done exploring his novel legal theory.

Our discussion above makes clear that Officer Doe’s complaint does allege that Mckesson directed the demonstrators to engage in the criminal act of occupying the public highway, which quite consequentially provoked a confrontation between the Baton Rouge police and the protesters, and that Officer Doe’s injuries were the foreseeable result of the tortious and illegal conduct of blocking a busy highway. Thus, on the pleadings, which must be read in a light most favorable to Officer Doe, the First Amendment is not a bar to Officer Doe’s negligence theory. The district court erred by dismissing Officer Doe’s complaint—at the pleading stage—as barred by the First Amendment.

The district court may not find in favor of Officer Doe, but the Fifth Circuit Court of Appeals has made it clear people leading protests can be held responsible for the actions of individual protesters, if any action they take makes it more likely police are going to interact with demonstrators. This allows police officers to view protesters not only as criminals in need of rounding up, but lawsuit targets if any single protester injures them. First Amendment protections don’t cover hurling projectiles at police, but the responsibility should be borne solely by those throwing objects at officers, not other participants.

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Comments on “Appeals Court: Idiot Cop Can Continue To Sue A Protester Over Actions Taken By Another Protester”

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76 Comments
rangda (profile) says:

Re: Re: Re: Re:

"I suspect the definition of incitement is going to expand as more and more cases arise where things like this happen."

If by that you mean members of the government are going to "expand" laws to try to exert control over and chilling effects on the populace to stifle protest then yes I agree with you.

I don’t understand why they don’t just make "disagreeing with a government employee" a crime punishable by instant death and then just shoot anyone that annoys them. I mean it works for Judge Dred so clearly it would be great for ‘Murica right?

Mason Wheeler (profile) says:

Re: Re: Re:

There’s precedent with things like the Felony Murder Rule: if you’re committing a felony, and for whatever reason something goes wrong and somebody dies, even if that was never part of the plan, even if someone else was the person who actually killed somebody, you’re still considered liable for murder as well as the felony you meant to commit, because it wouldn’t have happened without your felonious actions.

If we can accept that (and I see no good reason not to) then why not also the idea that if you’re holding an illegal demonstration and violence quite foreseeably breaks out, you can be held liable for the results of the violence which would not have happened without your actions, even if you weren’t personally the one being violent?

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: Re:

Title 14

§97. Simple obstruction of a highway of commerce

Simple obstruction of a highway of commerce is the intentional or criminally negligent placing of anything or performance of any act on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, which will render movement thereon more difficult.

Whoever commits the crime of simple obstruction of a highway of commerce shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both.

Though the code doesn’t say, it sure looks more like a misdemeanor rather than a felony, so your theory guilt by association does not work.

Mason Wheeler (profile) says:

Re: Re: Re:2 Re:

This article misses the point:

He’s done a lot of growing up behind bars, shedding his child’s skin and the reckless decision-making that came with it. “I know I did wrong. I know I committed a crime. From the very beginning I’ve never disputed that. If they had brought me a burglary plea bargain I would have signed it, because I was guilty. I made a bad choice, and I gladly take responsibility for it,” he said.

But the one thing that he does not accept is that he is a murderer. “I’m not a killer,” he said.

No one is saying that he is; they’re saying that it doesn’t matter. By doing something that 1) he knew full well was illegal (mens rea) and 2) led directly to somebody getting killed, he is still responsible for the death even though he is clearly not directly the killer. In other words, it is indisuputable that, had he and his friends not decided to rob the house, his friend would not have been shot and killed by the house’s owner defending himself against robbers.

Anonymous Coward says:

Re: Re: Re: Re:

There are so many problems with that arguement. First off it isn’t even all felonies – you can’t get felony murder for a lot of things. If you commit a pump and dump scheme and an old man who invested dies of a heart attack when it drops 80% that isn’t elgible for felony murder. Second and most importantly protesting without proper permits isn’t a felony!

Anonymous Coward says:

Re: Re: Re: Re:

Mr. Wheeler –

You’re correct, sir. But you see, then Cushing couldn’t somehow blame everything on a police officer.

He’s traumatized because they remind him of the masculine males that picked on him in his school years. Therefore, he’s made it is raison d’etre in life to whine about them. (It’s called being a pussy.)

Anonymous Coward says:

Re: Re:

The real cause of the incitement is the actions of the police. That is where the cops should be focusing their efforts. Clean up the corrupt police situation and the anger that the community feels will go away. If the police had the same scrutiny that the protesters had, there would never be this problem in the first place.

Anonymous Coward says:

Re: Re: Re:

Sorry, but two wrongs don’t make a right. The guy in question created the incident when he lead the protest into a BUSY HIGHWAY with the FULL INTENTION of blocking traffic, which is plain ass stupid and is ILLEGAL because it creates hazards both to the protesters and to the motorists using the highway.

An entirely peaceful protest doesn’t seek to create unsafe conditions by their own actions. This protest crossed the line when it created an unsafe environment either by stupidity or maliciousness.

Responsibility attaches to the first illegal act created in criminal law. It’s not a stretch for it to attach to the first illegal act in civil liability.

If you don’t like that, change the law (and good luck with doing it.)

Louisiana is one of the most corrupt states in the union, but a broken clock is right at least twice a day.

Pixelation says:

Re: Re:

"When a site with close ties to so many attorneys ridicules so many litigants as a matter of course, one has to wonder what’s going on."

Shiva, that you? Still butt hurt over losing?

He’s ridiculing the judges. Oh, and many litigants need to be ridiculed. See above litigant for an example.

Anonymous Coward says:

Re: Re: Re:

While many individual litigants may seem worthy of ridicule, the mistakes cross into territory that could be construed as intimidation or retaliation, such as with a Title VII or other whistleblower lawsuit.

Defamation isn’t the only law on the books. Truth is not a defense in most cases. In extortion, for example, truth is almost a necessary element.

Gary (profile) says:

Re: Re:

When a site with close ties to so many attorneys

So what are you actually trying to say here? It’s suspicious that TF tries to get legal folks to contribute to the many legal issues involved in Tech, Copyright and Internet Law?

Are you saying it’s a conspiracy, and all the lawyers are out to get you, but you’ll keep making anonymous posts to spread the Truth?

Anonymous Anonymous Coward (profile) says:

Re: The Appeals Court...

Leading other people onto a highway, as a legal act or not, does not instruct them to throw rocks. So where does McKesson’s liability come from?

That is of course that McKesson did in fact lead them onto the highway, according to the appeals court this is only alleged, not proven.

Mason Wheeler (profile) says:

Re: Re: The Appeals Court...

That is of course that McKesson did in fact lead them onto the highway, according to the appeals court this is only alleged, not proven.

Which is why the lawsuit is allowed to go forward: to give an opportunity for a plausible allegation which, if true, would subject McKesson to criminal liability, to be properly proven or disproven in a court of law.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: The Appeals Court...

Yes, I know, we don’t have all the facts (and I said so), the question remains if McKesson did in fact lead them onto the highway, how does that indicate an instruction for someone in the crowd to become violent? So far, that is the only allegation, though more may come up in the remand trial.

Palm to Forehead says:

Illegal activity is NOT protected speech

I don’t agree with the conclusion, but you have to stop saying that blocking the road is protected speech.

It isn’t. Once they entered the roadway, they were no longer engaged in a protected activity, they were criminals.

I don’t care how much you like their message or claim the necessity of extreme measures, what they were doing was breaking the law. There are means of using sidewalks and public rights of way to express yourself that are open to these individuals to protest police brutality and anything else they want to protest. There are groups of people all over the country that do this every day and do so legally and peacefully, and if they had done things in that manner, and the officer were hurt in the process, the water would be clean, no so murky. McKesson’s involvement in getting the people to break the law muddies this for him.

That doesn’t make McKesson liable for someone else’s actions, but he could easily be roped into a lawsuit against the person who did throw the rock as a conspirator, if he indeed did endorse and lead the group into breaking the law, which then resulted in the attack on the officer.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: Illegal activity is NOT protected speech

If there is no official law against something, then it is not illegal. That cops don’t understand this and give you ‘the ride’ anyway might very well be an actual illegal act, though one that is very difficult, if not impossible to get action upon.

Cowardly Lion says:

Re: Illegal activity is NOT protected speech

"…Once they entered the roadway, they were no longer engaged in a protected activity, they were criminals."

I don’t agree with your premise that walking on, or traveling on, or crossing a roadway is automatically against the law. I know it’s a minor point, but surely this is what roadways are for. Yes, there were a large number of people protesting, which caused a inconvenience, but to my mind this seems to be a classic misuse of law to declare a protest illegal.

Also, it takes a court to assign criminality.

Bamboo Harvester (profile) says:

Re: Re: Illegal activity is NOT protected speech

It’s called Jaywalking when one person does it outside of marked pedestrian crossings or at corners.

When a group does it and blocks a road (without a Parade or similar Permit) so traffic can’t pass through, it’s criminal.

Courts do NOT assign criminality. They simply judge if the accused violated the laws they are charged with.

And, again, what the Appeals court decided was NOT this case, but the Prejudicial Dismissal. And they were correct to do so.

Anonymous Coward says:

Similar to Charlottesville, VA cases

This case seems similar to the Charlottesville cases involving Unite the Right.
Anti-protestors are trying to sue the protesters, and the protesters were trying to sue the city.

ELIZABETH SINES, ET AL.,
Plaintiffs,
v.
JASON KESSLER, ET AL.,
Defendants.
07/09/2018

JASON KESSLER, Plaintiff,
v.
CITY OF CHARLOTTESVILLE, VIRGINIA, et al., Defendants.
August 11, 2017.

Anonymous Coward says:

Re: Owie?

Owie, huh? If you actually research this past the ‘angry with my dad’ propaganda of Cushing, you’ll find out the officer has permanent brain damage.

Always the internet tough guys who’ve never been in a fight (past getting wedgied by bullies in grad school) or heard a shot fired in anger who verbally swagger the most.

OA (profile) says:

Too many problems

  • Cops are nearly invulnerable to any consequences of actions they themselves take. Should a protest leader be responsible for actions another takes?

  • Being able to sue a protest leader would make infiltrating and sabotaging a protest that much more effective.

  • When should it be "legal" (or acceptable) to make useful protest activity illegal?

  • Too often justice is not blind at all.

  • There are politicians (including the POTUS) who should be FAR more vulnerable to liability through "incitement" than this protest leader should ever be.

What we are seeing may be a further unbalancing on the judgments of legality. Increasingly, objectivity illegal and immoral acts are treated as both legal and acceptable. Meanwhile, the (often direct) reactions and responses to those acts are treated with escalating hostility. The consequences of this thinking go beyond the simple question of ‘legal or illegal?’.

That One Guy (profile) says:

Re: 'Sir, the protesters aren't violent.' 'Not YET anyway...'

Being able to sue a protest leader would make infiltrating and sabotaging a protest that much more effective.

Not just effective, flat out mandatory. If all it took to punish anyone who led/organized a protest was to have someone in the group do something illegal, then the easiest way to break up protests and prevent future ones would be to have a few ‘friends’ slip into any protest you want to bust up and start acting violent.

OA (profile) says:

Re: Re: 'Sir, the protesters aren't violent.' 'Not YET anyway...'

Exactly.

Though, I would note that police would NOT have to sue successfully. It is problematic enough just to be able to discourage protests by way of legal harassment.

Furthermore, most protests that cops are tasked with "chaperoning" have nothing to do with the cops themselves. BLM protests are directly about the police. There is a sort of conflict of interest. Anonymously suing a protest leader adds yet another layer of bad on top.

Anonymous Coward says:

Someone stop me if I’m wrong but the appeals court doesn’t seem to be addressing the actual claims. Its addressing the dismissal with prejudice. I’m not a lawyer but I’d expect them to, in that case, be considering whether there are claims to litigate or not. The claims might be ridiculous. They might even be obviously false or unprovable. However, IF (and that’s the operative word here) everything the plaintiff alleges happened was 100% true without question then you’d have a valid case I think. The appeals court is not where the truth of whay really did happen is hashed out no matter how obvious it may be. The appeals court is for questions of process and yes, I can see where officer John Doe may technically have a case that he should be allowed to ligitate, however unlikely it will be that he succeeds.

Bamboo Harvester (profile) says:

Re: Re:

Exactly. Appeals overturned the Prejudicial Dismissal.

They didn’t decide who was "right", they didn’t trample anyone’s Rights, they didn’t "award the winner".

They can now re-file again.

Frankly, they should be filing multiple suits so that if the grouped charge is dismissed with prejudice (again) they’ve still got time in the courtroom on the other "counts".

That Anonymous Coward (profile) says:

"could be indirectly responsible"

Perhaps positions for life is a really bad idea…
A court codifying that personal responsibility no longer exists or matters & you can just sue the deepest pockets as long as you and string together a theory.

We want you to allow you to this case to go forward!!!
Oh you violated someones rights but were the first one to do it that way… QI for you!

Justice stopped being blind and I think we need to get her on some meds of this MPD diagnosis.

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