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 civil rights group is urging the nation's highest court to overturn a lower-court ruling that said a Black Lives Matter organizer has no First Amendment defense to a lawsuit filed by a Baton Rouge officer who was injured while trying to arrest protesters after the 2016 killing of Alton Sterling.

The American Civil Liberties Union and the organizer, DeRay Mckesson, are arguing to the U.S. Supreme Court that the decision from the 5th U.S. Circuit Court of Appeals would gut civil rights-era protest rights if allowed to stand.

The Baton Rouge police officer, identified in court records only as John Doe, doesn’t claim Mckesson threw the chunk of concrete that seriously injured him. However, he claims 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.

Mckesson, of Baltimore, counters that the goal of such lawsuits is to prevent people from showing up at a protest "out of the fear that they might be held responsible if anything happens."

"If this precedent lasts, it could make organizers all across the country responsible for all types of things they have no control over, such as random people coming into a protest and causing problems. We can't let that happen," Mckesson said in a written statement.

Officer Doe's attorney, Donna Grodner, replied by saying Mckesson "is not the victim in all of this."

"Instead, it is the law enforcement across this country that has had to defend against repeated criminal acts taken under the guise of First Amendment protest/riots," she wrote in a statement of her own.

David Cole, the ACLU's national legal director, said the Supreme Court has long recognized that peaceful protesters cannot be held liable for the unintended, unlawful actions of others.

"If the law had allowed anyone to sue leaders of social justice movements over the violent actions of others, there would have been no Civil Rights Movement,'' he said.

U.S. District Judge Brian Jackson, of Baton Rouge, dismissed Officer Doe's suit in late 2017, citing Mckesson's First Amendment rights and noting the Black Lives Matter group was too loosely organized to sue.

But the New Orleans-based 5th U.S. Circuit reinstated the suit and said the officer can sue Mckesson on the grounds he acted negligently by leading people to block a highway outside police headquarters.

Circuit Judge E. Grady Jolly wrote in the court's 2-1 decision that Mckesson should have known that leading the demonstrators onto a busy highway "was most nearly certain 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.”

The appellate court panel also said the officer's complaint should not have been dismissed on First Amendment grounds, even if he was injured during a political protest.

"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," Jolly added.

In legal papers filed at the U.S. Supreme Court in early December, Mckesson's attorneys argue the 5th Circuit decision "warrants review and reversal" by the high court because the "gulf" between the appeals court ruling and controlling Supreme Court precedent "is as wide as it could be."

They argue that previous rulings have specifically condemned the argument that protest organizers should be able to foresee that others might cause injuries. 

One of those attorneys, David Goldberg, said in a written statement that, "Unless the Supreme Court reverses this travesty, these kinds of suits will become fearsome and illegitimate weapons wielded to silence people who have important, but uncomfortable things to tell their fellow citizens."

Officer Doe's attorney said she doubts the Supreme Court will decide to review the matter.

"From a commonsense standpoint and just simple civil liberties, we simply do not believe that the United States Supreme Court will find any fault in the Fifth Circuit majority opinion," Grodner said. "Moreover, we do believe the ruling is consistent with Supreme Court precedent."

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. During a struggle, Salamoni shot Sterling six times.

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

Doe was struck in the head and suffered the loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, “and other compensable losses,” according to the 5th Circuit.

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.