Fifth Circuit’s Fourth Pass At Same Case Ends Just As Stupidly: Cop Can Sue One Person Because Someone Else Injured Him
An anonymous Louisiana cop who sued, in this order:
- Activist DeRay Mckesson, who spoke at the Baton Rouge demonstrations.
- Black Lives Matters - a name used by several concurrent movements to protest police violence against blacks
- A Twitter hashtag
still manages to have a viable lawsuit seven years later.
It boggles the mind. Officer John Doe was policing an anti-police violence protest allegedly organized by activist Deray Mckesson. This demonstration resulted in the blocking of a freeway, resulting in a significant police presence. Someone in the crowd threw a chunk of concrete that managed to hit Officer Doe, leading directly to this lawsuit.
The first pass was handled by the district court, which declared the officer's case dead in the water. You can't sue a social movement, a Twitter hashtag, or someone who organized a protest just because you were injured at that protest. It refused to extend the negligence count to cover the biggest target the injured cop could find.
That's the last of the good news. This case has gone up and down and sideways on the judicial ladder following the officer's appeal. In April 2019, the Fifth Circuit said there was enough of a claim under state law to allow the lawsuit to proceed, reasoning that Mckesson's leading of protesters onto a busy highway created enough potentially culpable negligence to keep the case alive.
It took another look at this case roughly six months later. Judge Don Willett said plenty of protected speech is far more negligent but not actually criminal. But he was in the minority. The Fifth Circuit again ruled the state law negligence claims were enough to keep the case afloat.
Another appeal (this one by Mckesson) brought it to the top court in the land. The Supreme Court - usually extremely willing to give cops whatever they want - rejected this one. It sent the case back down to the Fifth Circuit with instructions to send this case to the top court in Louisiana to better explore the negligence claims. The Fifth Circuit forwarded the case to state Supreme Court, but not before noting the negligence claim might be invalid because a certain amount of danger is expected when performing police work, so getting injured may just be part of the job, rather than an actionable claim.
Five years after the lawsuit's initial rejection in federal court, Louisiana's top court decided the Fifth Circuit had been right all along: the cop could sue someone over injuries caused by someone else.
That decision ended up affirming all the things the Fifth Circuit Court of Appeals had been saying at regular intervals over the past two years: it's perfectly fine for cops to sue activists because they were injured while performing government work at the site of demonstrations.
The latest decision [PDF] is mostly more of the same. The running time of the decisions continue to increase because that's the expected side effect of extended litigation and this court's fourth attempt to resolve the lawsuit.
The Fifth Circuit notes the Louisiana Supreme Court's responses to the two questions it posed. First, does state law impose a burden of duty on protest organizers? And, second, is this burden (if it exists) still imposed if the person injured is subject to the state's Professional Rescuer Doctrine, which notes first responders (including police officers) are expected to realize being injured is just part of the job?
The answers were yes and no. Yes, there's a legal burden under state law. No, cops can sue if they're injured while performing their first responder duties.
Working from there, the Fifth Circuit says (yet again) this stupid lawsuit can continue to move forward.
Following the guidance of the Supreme Court of Louisiana, we therefore must conclude that Louisiana tort law recognizes a negligence claim in these circumstances and that Doe has plausibly alleged such a claim. However, we reiterate that Doe's pleading a negligence claim in no way guarantees that he will prove that claim. Doe will be required to present specific evidence satisfying each of the five elements listed above, and Mckesson will of course be entitled to introduce evidence supporting his contention that he did not breach his duty to organize and lead the protest with reasonable care. The only question before us is whether Doe is entitled to proceed to discovery on his negligence claim. We are compelled to conclude that he is.
So, the farce - now into its sixth year - will continue. And maybe all of these legal conclusions are correct instead of just ridiculous. Maybe it's the laws that are ridiculous. But whatever the case, the findings so far have been highly problematic. Courts seem willing, if not actually compelled, to allow these sorts of suits to continue, especially if they're filed in Louisiana. The chilling effect is apparent, but multiple decisions (other than the initial decision by the federal court) have all managed to talk around the very obvious First Amendment implications in favor of discussing how far a state negligence claim can be stretched to allow someone to sue someone else because they were injured by someone else entirely.