On December 16, the United States Court of Appeals for the Fifth Circuit issued an opinion for the case Officer John Doe v. DeRay McKesson (Officer John Doe v. DeRay McKesson; Black Lives Matter; Black Lives Matter Network, Incorporated 17-30864). Doe is represented by Grodner & Associates. McKesson is represented by Schonekas, Evans, McGoey & McEachin as well as Donahue, Goldber & Weaver. Part of the opinion concerned the ability of the plaintiff to sue Black Lives Matter as a movement as well as its hashtag.
The police officer filed the suit in 2016 against prominent Black Lives Matter (BLM) activist DeRay Mckesson. The officer claimed he was injured during a protest after a deadly shooting in Baton Rouge. Mckesson was arrested at the protest. The protest occurred in front of the Baton Rouge Police Department. During the protest, the BLM protesters allegedly blocked a public highway, looted a Circle K store, threw stolen items, and were violent towards police officers.
On July 5, 2016, black motorist Alton Sterling was shot and killed by a police officer in Baton Rouge. On July 7, 2016, former soldier Lakeem Keon Scott shot at cars on a Tennessee highway, killing one woman and wounded three other people, including a police officer, while yelling “Police suck! Black lives matter!” That same day, five Dallas police officers were killed and another seven wounded in an ambush attack after a Black Lives Matter protest against the shootings of Sterling and Philando Castile, another motorist killed by police they day before.
On July 9, 2016, the anonymous officer was at the protest outside of the Baton Rouge Police Department. The complaint stated that the protest was meant to incite violence against law enforcement. In anticipation of violence, the police formed a first line of officers in protective riot gear, protecting officers that would be making arrests. The officer was one of the officers ordered to make arrests. Mckesson was the organizer and leader of the protest; the complaint alleges that he riled up the crowd and gave orders; the protest turned into a riot. Further, the protest blocked the highway, individuals blocking the highway and those who turned violent were arrested. Items, such as full plastic water bottles were thrown at police officers, both in protective gear and not in protective gear. When they ran out of water bottles BLM protesters began hurling pieces of concrete or a similar hard rock like material at police effectuating arrests, including the plaintiff. He was “struck fully in the face [by the concrete or rock like substance] and immediately knocked down and incapacitated. OFFICER’s injuries include loss of teeth, injury to jaw, injury to brain and head as well as lost of wages and other compensable losses.” Others were similarly attacked an injured. Mckesson mentioned that he intended to plan more protests and stated, “[t]he police want protesters to be too afraid to protest.” The complaint stated, “[i]t was unreasonable for Defendant(s) to use force on OFFICER when he was not threatening any of them and performing lawful duties under color of law.” Officer has sought relief from negligence, respondeat superior, and injuries.”
The complaint stated that Mckesson and others should have known that the protest would turn violent and should have taken measures to prevent the violence or mitigate it once it turned violent. The Baltimore Sun reported that 200 people were arrested at the incident.
The court has withdrawn its prior opinion, issued in August. The opinion, issued Monday, dismisses the officer’s claims as to Mckesson’s liability for the officer’s injuries, as well as civil conspiracy. The court did find that the officer adequately pled negligence on Mckesson’s part for organizing a protest that blocked a highway.
A complication in the case emerged from the officer’s naming of #BlackLivesMatter as a defendant in the case. The officer described BLM as an unincorporated association, while Mckesson argued that it is a community or movement. The court’s opinion held that the officer has not demonstrated that Black Lives Matter and its hashtag cannot be sued. The officer only alleged that “Black Lives Matter: (1) was created by three women; (2) has several leaders, including Mckesson; (3) has chapters in many states; and (4) was involved in numerous protests in response to police practices. He does not allege that it possesses property, has a formal membership, requires dues, or possesses a governing agreement.”
Judge Don R. Willett’s concurring opinion stated that the officer can sue the rock thrower, but he is not convinced that the officer can sue the protest leader. He stated, in sum, “I would certify the threshold negligence question to the Supreme Court of Louisiana. Failing that, and given the flimsiness of Doe’s complaint, I would hold that the First Amendment shields Mckesson from tort liability for the rock thrower’s criminal act. In all other respects, I concur.”