Fifth Circuit Sends Anonymous Cop's Lawsuit Againt Protest Organizer To The State's Top Court, Suggests Getting Injured Is Part Of The Job

from the ambulance-drivers-can't-be-ambulance-chasers dept

A decision that created a chilling effect on protected First Amendment activity is headed to yet another court to get the details sorted out.

It's been more than four years since an anonymous police officer sued over injuries they sustained while responding to a protest in Baton Rouge, Louisiana. The officer was struck in the face by a thrown chunk of concrete. Rather than recognize this was an unfortunate side effect of being in the law enforcement business, the officer sued activist DeRay Mckesson -- who decidedly did not throw the object that struck the officer.

The officer's argument was that Mckesson's organization of the protest, as well as his decision to lead protesters out to block the highway in front of the police station, made him at least indirectly responsible for the injuries the officer sustained.

Somehow this lawsuit and its ridiculous premise survived two passes by the Fifth Circuit Appeals Court, with its second decision noting how angry it was that it was forced to take another look at its inexplicable first decision: the one that said that Mckesson should have know that leading protesters out into a street would result in the injury of police officers.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

This twice-made decision was appealed and the Supreme Court said the Fifth Circuit got it wrong twice. However, it didn't necessarily affirm the right to protest and the right of protest leaders to be free of bullshit secondary liability claims. But it said the Fifth Circuit -- while not incorrect to raise the issue about liability under Louisiana state law -- should not have taken it on itself to define the contours of the state law and how it applied to Mckesson's actions in relation to the officer's injury.

The Fifth Circuit's third pass [PDF] follows the Supreme Court's instructions. It is sending this case to the Louisiana state Supreme Court to handle the open state law question. But it does so with some additional examination of applicable state laws that indicate the anonymous cop may find no one to sue by the time the state court is done examining it. And this is at least partly due to law blog Volokh Conspiracy and its titular creator, Eugene Volokh.

In the meantime our attention has been drawn to a separate aspect of Louisiana law, the Professional Rescuer’s Doctrine, that could be dispositive. That doctrine, put succinctly, is a judge-made rule that “essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, assumes the risk of such an injury and is not entitled to damages.” Gann v. Matthews, 873 So. 2d 701, 705 (La. App. 1st Cir. 2004) (citation and internal quotation marks omitted). The parties disagree as to whether this doctrine bars Officer Doe from recovering. See Mckesson Suppl. Br., Dec. 18, 2020, Doc. No. 00515679716; Doe Suppl. Br., Dec. 18, 2020, Doc. No. 00515678655. We have found limited guidance from the opinions of the Supreme Court of Louisiana on how this doctrine might apply to the particular facts of this case. Because we find this to be a close question of law, which also raises a significant issue of state policy, we further take this opportunity to respectfully elicit guidance on this issue from the Supreme Court of Louisiana.

The Fifth Circuit provides a link to the Volokh Conspiracy post raising this issue, one that called the as-yet-unraised local legal doctrine a "certain win" for Mckesson.

That's where things stand now. Hopefully, the state Supreme Court will remind this officer that the flipside of having a lot of government-granted power is assuming the risks that come with the position. The ability to quell and/or contain protests comes with the possibility of injury. And when it's impossible to discover who actually threw the projectile that resulted in injury, the acceptable response isn't suing protest organizers, unaffiliated protest movements, and Twitter hashtags.

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Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, police, protests


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