A lawsuit seeking damages against a Black Lives Matter (BLM) organizer involved in a violent 2016 BLM demonstration where a Baton Rouge police officer was severely injured can proceed under state law, the Louisiana Supreme Court said.
In its 6-1 decision, the high court on March 25 did not rule on the underlying facts of the case. Instead, it answered questions posed by the U.S. Fifth Circuit Court of Appeals about whether the specifics of Louisiana law would allow the plaintiff, an unidentified police officer, to file a personal injury lawsuit against defendant DeRay Mckesson and BLM.
The court found that Louisiana law recognizes that people in Mckesson’s situation have a duty not to negligently take part in the crime of a third party. The officer suffered injuries to his teeth, jaw, brain and head after a third party – not McKesson – hurled a piece of concrete or rock at police.
In addition, the court examined whether the Louisiana’s Professional Rescuer’s Doctrine, which states that police and firefighters generally assume the risks of injuries and are not entitled to damages, would bar the officer from recovering compensation. That doctrine should be abrogated due to the way the events unfolded, the court said.
“Under the allegations of fact set forth in the plaintiff’s federal district court petition, it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway) … directly in front of police headquarters, with full knowledge that the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but to police, would render Mr. Mckesson liable for damages for injuries … to a police officer compelled to attempt to clear the highway of the obstruction,” the court’s majority said.
An official with the American Civil Liberties Union (ACLU), which is supporting Mckesson’s defense, said that despite the Louisiana court’s ruling, federal rights to free speech and expression would ultimately decide the outcome of the case.
“Under the First Amendment, protesters – including protest organizers – cannot be held liable for the unlawful acts of others that they did not direct, order or incite,” Vera Eidelman, an attorney with the ACLU’s Speech, Privacy and Technology Project, told the Louisiana Record in an email. “The Louisiana Supreme Court may have held that there is no state-law barrier to this lawsuit proceeding, but the First Amendment applies everywhere and bars this case. We look forward to making that clear as this litigation continues.”
The plaintiff’s attorney told the Record that the issues in the case do not involve free speech.
"There really are no First Amendment issues because the protest/riot organized by McKesson violated the reasonable time, place and manner restriction of the First Amendment," attorney Donna Grodner said in an email.