The U.S. Court of Appeals for the 5th Circuit building in New Orleans, Louisiana. | Wikimedia Commons/Bobak Ha'Eri//https://creativecommons.org/licenses/by/3.0/deed.en/cropped
NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit refused a request by Officer John Doe to rehear a case en banc against DeRay McKesson and Black Lives Matter in an 8-8 decision.
Judge James C. Ho concurred with the panel’s decision not to rehear the case brought by Doe against McKesson, a leader of Black Lives Matter, but notes that the case should not proceed because of a doctrine that was never raised in court.
Ho wrote focused on the Professional Rescuer Doctrine, which he says would seem to require immediate dismissal of the suit.
The officer was injured while policing a Black Lives Matter protest that blocked a highway and turned violent. Ho says that the case falls within the bounds of the Professional Rescuer Doctrine, which is commonly known as the “firefighter rule.” The doctrine states that police officers and firefighters knowingly put themselves into harmful situations as part of protecting others, and as a result, know and accept that they might be injured on the job. Because of this, they cannot sue for damages after and on-the-job injury.
“This doctrine would seem to require the immediate dismissal of this suit," Ho wrote. "After all, there is no dispute that the officer was seriously injured in the line of duty – specifically, while policing a Black Lives Matter protest that unlawfully obstructed a public highway and then turned violent. His case would appear to fall squarely within the scope of this doctrine.”
But, McKesson never raised this argument in court, and this led the court to what Ho called “more-challenging First Amendment" issues.
“The First Amendment indisputably protects the right of every American to condemn police misconduct," Ho wrote. "And that protection secures the citizen protestor against not only criminal penalty, but civil liability as well.”
Using that framework, Ho wrote, “I do not understand the panel majority to suggest that McKesson may be held liable for lawfully protesting police – that would be a textbook violation of established First Amendment doctrine, including Claiborne Hardware – but rather for injuries following the unlawful obstruction of a public highway.
"As the panel explained, 'the criminal conduct allegedly ordered by McKesson was not itself protected by the First Amendment, as McKesson ordered the demonstrators to violate a reasonable time, place, and manner restriction by blocking the public highway. As such, no First Amendment protected activity is suppressed by allowing the consequences of McKesson’s conduct to be addressed by state tort law.'”
Judges Stephen Higginson and James Dennis disagreed with the panel decision that McKesson does not get protection under the First Amendment. Higginson wrote in his dissent, joined by Dennis, that "Louisiana courts allow recovery only if the plaintiff’s injury falls within 'the scope of protection intended by the Legislature,'” and says that the assault on a police officer by a third party "is not the 'particular risk' addressed by the highway obstruction statute."
Without breach of the statute, "it is unclear on what basis the panel opinion finds that the protest was foreseeably violent,” Higginson wrote.