Protesters vulnerable to liability suits after appeals court ruling

Court allowed officer to proceed in his suit alleging negligence against Black Lives Matter activist

(Reuters) - A federal appeals court in Louisiana decided last week that a cop can sue a protest organizer for injuries caused by another person during a demonstration, ratifying a novel legal theory that threatens to further suppress protests and First Amendment rights more broadly.

The 5th U.S. Circuit Court of Appeals on June 16 allowed an officer who filed anonymously to proceed in his suit alleging negligence against Black Lives Matter activist DeRay Mckesson. The court held that it’s plausible that Mckesson is liable for the officer’s injuries because they were a foreseeable consequence of his negligent planning: Mckesson planned to block a public highway — a crime in Louisiana — which made it likely that a violent confrontation with police would ensue, according to the 5th Circuit.

The court’s ruling overlooked the fundamental legal principle that while certain categories of speech and action may be impermissible under state law, they are nonetheless protected by the U.S. Constitution, as dissenting judge Don Willett pointed out.

The appeals court, to my mind, ignores the central role of civil disobedience — demonstrations that are peaceful, and sometimes unlawful — in securing our most fundamental American rights. And it exposes advocacy groups and organizers to what one former U.S. Supreme Court justice described as the “threat of destruction by lawsuit” of our fragile rights of political association.

A spokesperson for the Fifth Circuit told me the judges are unable to comment on the ruling, noting that it might soon be up for an en banc appeal before all the judges of the circuit and may be reviewed by the Supreme Court.

Attorneys representing Mckesson and the unnamed officer didn’t respond to my requests for comment.

The July 2016 demonstration took place outside the Baton Rouge Police Department, in the aftermath of the killing of Alton Sterling, a Black man who was shot to death in the city during an encounter with police. The plaintiff officer during the demonstration was struck by a rock or a similar object thrown by an unidentified protester, according to the 5th Circuit ruling.

There is no dispute that Mckesson did not encourage or call for violence and did not act in concert with the person who threw the object. And a 40-year-old precedent from the U.S. Supreme Court in NAACP v. Claiborne holds that protest leaders are constitutionally protected from liability for unlawful acts by other demonstrators as a general matter, so long as they don’t specifically direct or incite imminent violence. Importantly, the Claiborne decision involved a boycott organizer who used highly charged and inflammatory rhetoric, even threatening to break the necks of boycott breakers.

That, in a nutshell, is exactly why you hardly ever hear about lawsuits seeking to hold advocacy groups and protest leaders responsible for the actions of unruly or even violent attendees. Indeed, the "majority opinion cites none," Willett wrote in dissent.

The Fifth Circuit’s ruling simply approved a new avenue — the notion of "negligent protest" — to sue protest leaders, even though that theory of liability is "incompatible with the First Amendment and is foreclosed — squarely — by Supreme Court precedent," as Willett wrote.

The police officer’s unusual complaint has bounced up and down the court system for several years now. It was dismissed by a federal district court in 2017, before the 5th Circuit revived some claims two years later.

Mckesson then appealed to the Supreme Court, and the justices vacated the 5th Circuit’s ruling in 2020, saying the Louisiana high court needed to weigh in because of the “novelty of the claim at issue” in the case.

The 5th Circuit’s ruling came after the Louisiana high court held that state tort law allows protest organizers to be held responsible for the actions of other demonstrators.

The complaint’s extraordinary “negligent protest” theory would mean that organizers can be held “liable for all foreseeable damages that occurred during mass demonstrations —including those caused by the unlawful acts of counter-protesters and agitators not associated with a group or movement,” legal scholar Timothy Zick wrote in a 2021 paper about the rising "costs of dissent" and protest. Zick is a professor at William & Mary Law School.

Indeed, the judiciary became one of the most powerful levers available to opponents of the 1960s civil rights movement who sought to drown out the voices of people seeking to abolish segregation laws and expand civil rights protections, as the NAACP pointed out in a brief in the case against Mckesson.

State court decisions “left segregationists with a clear tactical advantage” and sent a clear message: they could cripple civil rights groups and leaders simply by alleging some connection, however tenuous, between some illegal act and their activities, the NAACP wrote.

The Fifth Circuit’s analysis of the rights of the parties in Mckesson’s case parallels those rulings from the 1960s, and similarly opens the door for opponents to disrupt modern civil rights advocates and movements through spurious litigation.