La. state supreme court says Deray McKesson can be sued for 2016 protest

BLM activist DeRay McKesson part of class action lawsuit against city of Baton Rouge
BLM activist DeRay McKesson part of class action lawsuit against city of Baton Rouge
Published: Mar. 25, 2022 at 5:24 PM CDT
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BATON ROUGE, La. (WAFB) - Black Lives Matter organizer and activist DeRay Mckesson can be sued by a Baton Rouge police officer injured during a 2016 protest, Louisiana’s state supreme court has determined.

The announcement published Friday, March 25, was meant to answer questions raised by the United States Court of Appeals for the Fifth Circuit. Those questions centered on whether the officer can sue the organizer of an event that ends in a crime.

The officer, identified in a lawsuit as John Doe instead of by name, claims he was seriously wounded after demonstrators began to “loot a Circle K” for water bottles.

The officer claimed those bottles were later thrown at police officers, a court filing shows. The officer claims he was hit in the face and was knocked to the ground, which resulted in some of his teeth being knocked out. He also reportedly suffered an injury to his jaw and brain, the lawsuit states.

“When the Defendants ran out of the water bottles, they were throwing at the Baton Rouge City Police, a member of Defendant Black Lives Matter...then picked up a piece of concrete or similar rock-like substance and hurled into the police that were making arrests,” according to the officer’s lawsuit.

The demonstration was part of larger demonstrations in the aftermath of the police killing of Alton Sterling.

Mckesson was listed by name as a defendant in the lawsuit for his alleged role in encouraging residents to attend the demonstration where the officer was injured.

The lawsuit does not accuse Mckesson of throwing the items or knowing the identity of the person who threw the items. Instead, it says Mckesson orchestrated the demonstration by bringing national attention to it through his social media pages. Given violent confrontations at similar demonstrations around the country, Mckesson should have been able to foresee tensions would boil over into the bottles and rocks being thrown, the lawsuit states.

Federal Judge Brian Jackson challenged that argument in 2017, concluding Mckesson “solely engaged in protected speech” through First Amendment rules that protect peaceful demonstrators from suffering for the actions of violent demonstrators.

The lawsuit was reinstated in April of 2019 when an appeals court ruled the officer could claim negligence.

In an opinion issued later in August of 2019, the Fifth Circuit Court of Appeals doubled down, arguing the lawsuit should never have been dismissed under First Amendment claims. The opinion noted Mckesson, and other demonstrators were allegedly involved in blocking a highway, which sparked a confrontation with law enforcement.

The appeals court ruled if a crime was committed, the First Amendment did not shield protesters from liability for the consequences.

The U.S. Supreme Court was given the case in 2020 but chose not to address the First Amendment issue head-on. The nation’s high court challenged the negligence ruling Monday, Nov. 1, 2020, in an opinion, arguing the lower federal courts need to first establish through Louisiana’s Supreme Court if the state has laws that would allow the officer to sue Mckesson.

The court noted that without first establishing that laws are in place in Louisiana for an organizer to be held liable for the violent behavior of a third-party actor, whether Mckesson is protected under the First Amendment wouldn’t matter since the lawsuit would lack the legal basis to head to trial.

With those questions now answer the federal appeals court can reconsider arguments about the case.

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