Tort Law

BLM protest leader can be sued for officer’s injuries, top state court says

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The leader of a Black Lives Matter protest can be held liable for injuries to a police officer caused by another person during the demonstration, the Louisiana Supreme Court said Friday.

The state supreme court ruled March 25 in response to a certified question by the 5th U.S. Circuit Court of Appeals at New Orleans.

The plaintiff, a Baton Rouge, Louisiana, police officer, said he was injured in July 2016 when he was struck in the face by a piece of concrete or rock by one of the protesters. He alleged that BLM and protest organizer DeRay Mckesson conspired to stage the protest on a highway, an illegal act, knowing that police would be called to clear the protesters.

The protest was peaceful, the officer said, until activists “began pumping up the crowd.” But Mckesson did nothing to calm the protesters, the officer claimed.

The Louisiana Supreme Court said the officer’s claim was sufficient under state law to allow him to proceed to discovery.

The state supreme court, in an opinion by Jefferson D. Hughes III, said Mckesson ignored a foreseeable risk of violence that stemmed from blocking a public highway, which amounted to “intentional lawlessness.”

“This is not, as the dissenting opinion contends, a ‘duty to protect others from the criminal activities of third persons,’” Hughes said said. “Louisiana 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.”

Three concurring justices on the seven-member court agreed that the officer could sue but varied on their reasoning. Another justice partly concurred, and one justice dissented.

A concurring justice said the Louisiana Supreme Court was deferring to the 5th Circuit on the question of whether Mckesson was protected by the First Amendment.

The American Civil Liberties Union of Louisiana said in a March 28 press release the litigation will continue in federal court.

“The Louisiana Supreme Court may have held that there is no state law barrier to this lawsuit proceeding, but the First Amendment applies everywhere and bars this case,” said Vera Eidelman, staff attorney with the ACLU’s Project on Speech, Privacy and Technology, in the press release. “We look forward to making that clear as this litigation continues.”

The 5th Circuit had initially ruled that the officer’s suit could proceed, but the U.S. Supreme Court vacated the decision in November 2020. The Supreme Court said the Louisiana Supreme Court should be asked whether Mckesson breached a duty of care under Louisiana tort law.

The Supreme Court said there will be no need to reach the First Amendment issue unless Louisiana law permits recovery in the first place.

Hat tip to Raffi Melkonian, who is a 2022 ABA Journal Legal Rebel and tweets at @RMFifthCircuit.

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