A police officer who was hit in the head by a rock thrown at a 2016 demonstration in Louisiana sued DeRay Mckesson, the prominent Black Lives Matter provocateur who organized the demonstration. The officer did not allege that Mckesson threw the rock, that he called on anyone to throw rocks, or that he called on anyone to commit any act of violence. Yet, he sought to hold Mckesson liable for the damages caused when someone else threw a rock.
A federal district court dismissed the case on the pleadings. However, a panel of U.S. Court of Appeals for the Fifth Circuit reversed in a unanimous decision. Mckesson has asked the Supreme Court to review the case.
The Fifth Circuit’s ruling has two bases: (1) the action Mckesson organized, occupying a highway and shutting down traffic, is illegal and (2) the officer’s allegation that violence was the foreseeable consequence of the illegal conduct Mckesson organized states a claim for relief that should not have been dismissed at the pleading stage.
However, the decision raises obvious First Amendment concerns. Civil disobedience is a traditional means of political protest in the U.S.
This doesn’t mean that those who engage in it are immune from being penalized. To the contrary, the tradition of civil disobedience includes punishing the protesters pursuant to whatever criminal law they violate. And, of course, individuals should be held accountable for any additional criminal violations or torts they commit during the protest.
But a ruling that the organizer can also be punished for the violations of others goes too far, I believe. The Fifth Circuit’s reasoning — that because the protesters violated the law, it was foreseeable that the police would intervene and that the protesters would respond violently — would apply to almost any case of civil disobedience by non-pacifists.
Thus, the Fifth Circuit’s ruling threatens to take protests involving civil disobedience off the table. The organizers of such protests will be willing, and in some cases eager, to go to jail for breaking the law. But they are likely to be unwilling to assume the risk of a damages suit over injuries caused by others. And it is too much, in my opinion, to expect them to do so.
Free speech aside, the Fifth Circuit’s reasoning seems questionable. Was it really foreseeable that the protesters would attack the police with rocks or other potentially deadly instruments? Maybe the officer can develop facts that will establish this, in which case — putting the First Amendment aside — dismissal at the pleading stage would be improper.
However, when First Amendment concerns are taken into account, a finding of liability where it’s apparently undisputed that Mckesson did not call for violence seems highly problematic to me.
It’s important to remember that the principle laid down by the Fifth Circuit, if upheld, won’t just apply to Black Lives Matter protests. It’s easily foreseeable that conservatives will want to engage in intense forms of protests and that, when they do so, they will run afoul of this or that ordinance of a liberal jurisdiction.
I wouldn’t want to see such protests deterred, or the organizers punished, for violent acts they did not engage in or encourage.