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Can Black Lives Matter protest organizer be liable for officer's injury? Supreme Court vacates ruling for cop

By Debra Cassens Weiss

November 2, 2020, 1:15 pm CST

The U.S. Supreme Court on Monday vacated a decision allowing a Louisiana police officer to sue the organizer of a Black Lives Matter protest for a serious injury caused when a different protester threw a heavy object.

In a per curiam opinion, the Supreme Court vacated a ruling against protest organizer DeRay Mckesson by the 5th U.S. Circuit Court of Appeals at New Orleans.

But the case isn’t over. The Supreme Court said the Louisiana Supreme Court should be asked whether Mckesson breached a duty of care under Louisiana tort law and, if so, whether the officer alleged a risk that is within the duty’s scope of protection.

Justice Clarence Thomas dissented without issuing an opinion. Justice Amy Coney Barrett did not take part in the decision. A Supreme Court spokeswoman said Barrett did not participate in any cases considered by the Supreme Court at its case conference last week, SCOTUSblog reports.

The 5th Circuit had ruled that Mckesson could be liable for negligently directing the protest onto a highway, with the foreseeable effect of a violent confrontation with a police officer.

The cert petition had asked the Supreme Court to decide whether the 5th Circuit’s theory of liability violated the First Amendment.

The Supreme Court said there is no need to reach the First Amendment issue unless Louisiana law permits recovery in the first place. In this case, certification of the question to the Louisiana Supreme Court is appropriate, the Supreme Court said.

“We conclude that the 5th Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights—without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court,” the Supreme Court said.

Mckesson commented in a press release by the American Civil Liberties Union, which had sought review of the 5th Circuit decision.

“Today’s decision recognizes that holding me liable for organizing a protest because an unidentifiable person threw a rock raises First Amendment concerns,” Mckesson said. “I’m gratified that the Supreme Court vacated the ruling below, but amazingly, the fight is not over.”

According to the ACLU, allowing the 5th Circuit ruling to stand “would have dismantled civil rights era Supreme Court precedent safeguarding the First Amendment right to protest.”

The case is Mckesson v. Doe.