It started as a personal injury claim before expanding into a U.S Supreme Court case with sweeping implications for activism and First Amendment rights. Now, Doe v. McKesson has been narrowed to a matter of state policy.
The legal battle dates back to 2016, when a Baton Rouge police officer maimed by a rock during a Black Lives Matter protest sued one of the demonstration’s more prominent organizers.
A trial court rejected the claim, but the 5th Circuit Court of Appeals thought it should go to trial.
It became a free speech issue a few years later when the defendant — Baltimore native DeRay Mckesson — teamed up with the ACLU and took it to the U.S. Supreme Court under the banner of protecting the First Amendment.
But U.S justices last fall refused to hear the case until Louisiana’s high court weighed in.
And so, on Friday, a trio of appellate judges asked Louisiana’s Supreme Court to opine on the following questions:
- Does the state recognize a duty to “not negligently precipitate” someone else to commit a crime?
- Does case law prevent professional first responders such as police and firefighters from suing for damages over injuries sustained in the line of duty?
“We will resolve this case in accordance with any opinion provided on these questions by the Supreme Court of Louisiana,” 5th Circuit judges Jennifer Walker Elrod, E. Grady Jolly and Don Willett wrote in their latest order.
A Baton Rouge policeman’s lawsuit against a prominent Black Lives Matter activist over injuries the policeman claims he suffered during 2016 p…
Attorneys on both sides said they welcome the ruling.
“We’re looking forward to being able to get all of the issues in front of the Louisiana state court,” Mckesson’s lawyer David Goldberg said in a phone call. “And we’re confident that they’re going to see the serious problems that this kind of lawsuit poses, both under state law and as a matter of First Amendment law.”
Donna Grodner, who represents the BRPD officer, said she’s eager to grapple with the legal doctrine cited by the circuit court. That is, the so-called professional rescuer’s or fireman’s rule, which holds that first responders assume the risk of getting hurt on the job and, thus, aren’t entitled to sue for damages.
“We are very excited that the issue, of whether the fireman’s rule arises out of and is grounded in Louisiana law, will be decided by the Louisiana Supreme Court,” Grodner told The Advocate in an email. Later, she added: “The decision on this critical touchstone issue will save years of much-anticipated litigation where it is decided sooner rather than later.”
The case has taken several strange twists since it was filed during the 17 hours Mckesson was in police custody after his arrest during a July 9, 2016, protest against BRPD killing Alton Sterling.
For one, the BRPD officer — a public employee — lodged his complaint as a John Doe, “for his protection,” his attorney explained. Meanwhile, he named Black Lives Matter and Mckesson as defendants without accusing them of attacking him or telling anyone else to. Rather, he claims Mckesson should have anticipated violence at the protest and face consequences for it.
A federal judge initially tossed the case, citing a U.S Supreme Court ruling widely viewed as protecting protesters from getting sued for damages they didn’t personally cause. But a conservative panel in the 5th Circuit ruled that a jury should hear the case on the basis that “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto a road.
Civil rights advocates balked at the decision, saying it could have a chilling effect on protests nationwide. With free-speech implications in mind, the ACLU asked the U.S. Supreme Court to consider Mckesson’s appeal.
In a 7-1 decision, the nation’s highest court reversed the appellate ruling, saying 5th Circuit judges should consider state law before wading into deeper “moral, social, and economic factors.”