Prominent Black Lives Matter activist DeRay Mckesson arrested at Alton Sterling protest in Baton Rouge _lowres

Police arrest activist DeRay Mckesson during a protest along Airline Highway, a major road that passes in front of the Baton Rouge Police Department headquarters Saturday, July 9, 2016, in Baton Rouge, La. Protesters angry over the fatal shooting of Alton Sterling by two white Baton Rouge police officers rallied Saturday at the convenience store where he was shot, in front of the city's police department and at the state Capitol for another day of demonstrations. (AP Photo/Max Becherer)

A Black Lives Matter organizer cannot be held liable for the conduct of an unidentified person who seriously injured a Baton Rouge officer during a protest after the 2016 killing of Alton Sterling, but the officer's negligence claim against the organizer can go forward, a divided federal appeals court said late Monday in its third ruling in the case this year.

Fifth U.S. Circuit Court of Appeals Judge Don Willett, the dissenting member of the three-judge panel, said he originally agreed with denying DeRay Mckesson’s First Amendment defense but has since had a “judicial change of heart.”

Willett took issue Monday with some of the reasoning of his colleagues.

“Such an exotic theory would have enfeebled America’s street-blocking civil rights movement, imposing ruinous financial liability against citizens for exercising core First Amendment freedoms,” Willett wrote in a partial dissent.

The Baton Rouge police officer, identified in court records only as John Doe, doesn’t allege that Black Lives Matter organizer DeRay Mckesson threw a chunk of concrete that seriously injured him. However, he claims that Mckesson bears some responsibility as the prime leader and an organizer of the July 9, 2016, protest outside Baton Rouge Police Department headquarters on Airline Highway.

The lengthy opinion issued Monday by the New Orleans-based 5th Circuit clarified the court's earlier decisions in the case. It was issued as a substitute for the appellate court's August ruling, which has been withdrawn.

U.S. District Judge Brian Jackson, of Baton Rouge, previously dismissed the officer's lawsuit in its entirety, citing Mckesson's First Amendment rights and noting the Black Lives Matter group was too loosely organized to sue.

In April, the 5th Circuit reinstated the suit and said the officer can sue Mckesson on the grounds that he acted negligently by leading people to block a highway outside police headquarters. The appellate court issued a second ruling in the case in August, saying the officer's complaint should not have been dismissed on First Amendment grounds, even if he was injured during a political protest.

In its third written opinion issued Monday, the 5th Circuit explained that the injured officer has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration.

"Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was likely to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway," Circuit Judge E. Grady Jolly wrote.

"This is not … a `duty to protect others from the criminal activities of third persons,'" he noted. "Louisiana law does not recognize such a duty. It does, however, recognize a duty not to negligently cause a third party to commit a crime that is a foreseeable consequence of negligence."

Jolly said Mckesson owed the officer a duty "not to negligently precipitate the crime of a third party."

"And a jury could plausibly find that a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest," the judge said.

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"We perceive no constitutional issue with Mckesson being held liable for injuries caused by a combination of his own negligent conduct and the violent actions of another that were foreseeable as a result of that negligent conduct," he added.

Jolly, however, stressed that "our ruling at this point is not to say that a finding of liability will ultimately be appropriate."

Officer Doe can unquestionably sue the rock thrower, Willett said, but “I am unconvinced he can sue the protest leader.”

“The Constitution that Officer Doe swore to protect itself protects Mckesson’s rights to speak, assemble, associate, and petition. First Amendment freedoms, of course, are not absolute — and there’s the rub: Did Mckesson stray from lawfully exercising his own rights to unlawfully exorcising Doe’s. I don’t believe he did,” Willett said.

“`Negligent protest’ liability against a protest leader for the violent act of a rogue assailant … clashes with head-on with constitutional fundamentals,” he added.

The appeals court panel, which also included Circuit Judge Jennifer Walker Elrod, sent the case back to federal district court in Baton Rouge.

Alton Sterling, a 37-year-old black man, was fatally shot after two white Baton Rouge police officers, Blane Salamoni and Howie Lake II, responded to a report that an armed man matching Sterling's description had threatened someone at a Baton Rouge convenience store. Sterling, who was found to be carrying a gun, was shot six times by Salamoni during a struggle.

Sterling’s death set off days of protests, including the July 9, 2016, demonstration on Airline Highway outside police headquarters. John Doe was among the officers at the scene to arrest protesters after they failed to clear the roadway.

Officer Doe was struck in the head and suffered the loss of teeth, a jaw injury, a brain injury and a head injury, court records indicate.

Salamoni was ultimately fired but appealed and in a settlement earlier this year was allowed to resign. Lake announced in September that he would no longer appeal a three-day suspension he received for his actions. He remains on the force.

Federal and state prosecutors determined there was insufficient evidence to bring charges against the two officers.


Email Joe Gyan Jr. at jgyan@theadvocate.com.