It started out as a personal injury claim.
A Baton Rouge police officer maimed by a rock during a Black Lives Matter protest in 2016 sued one of the protest’s most prominent organizers. Lower courts dismissed the case, but appeals judges ruled that it should be tried.
Then it became a problem of freedom of expression.
The defendant – DeRay Mckesson, from Baltimore – partnered with the ACLU and took it to the United States Supreme Court under the banner of First Amendment protection.
Now, Doe v. Mckesson was reduced to a matter of state policy.
The 5th Circuit Court of Appeals on Friday asked the Louisiana High Court to rule on the following issues:
- Does the state recognize the duty not to “negligently precipitate” someone else to commit a crime?
- Does case law prevent professional first responders such as police and firefighters from suing for damages for injuries sustained in the line of duty?
“We will resolve this matter in accordance with any advice provided on these matters by the Louisiana Supreme Court,” wrote 5th Circuit Justices Jennifer Walker Elrod, E. Grady Jolly and Don Willett in their latest ruling on the lawsuit.
United States Supreme Court gives partial victory to Black Lives Matter activist after policeman sues
Lawyers on both sides said they welcomed the decision.
“We look forward to bringing all issues to Louisiana state court,” Mckesson’s attorney David Goldberg said on a phone call. “And we are confident that they will see the serious problems with this type of trial, both under state law and under First Amendment law.”
Donna Grodner, who represents the BRPD officer, said she was eager to tackle the legal doctrine cited by the circuit court. That is, the so-called professional rescuer or firefighter rule, which states that first responders assume the risk of injury to themselves on the job and, therefore, do not have the right to sue for damages.
“We are very pleased that the issue of whether the firefighter’s rule stems from and is based on Louisiana law will be decided by the Louisiana Supreme Court,” Grodner told The Advocate in an email. Later, she added: “The ruling on this crucial touchstone issue will save years of long-awaited litigation where it is decided as soon as possible. “
The case has taken several bizarre twists and turns since it was filed during the 17 hours that Mckesson was in custody following his arrest during a July 7, 2016 protest against the BRPD murder of Alton Sterling.
On the one hand, the BRPD officer – a public employee – filed his complaint as John Doe, “for his protection,” his lawyer explained. During this time, he named Black Lives Matter and Mckesson as the accused without accusing them of attacking him or telling anyone else. On the contrary, he claims that Mckesson should have anticipated the violence during the demonstration and suffered the consequences.
A federal judge initially dismissed the case, citing a US Supreme Court ruling widely seen as protecting protesters from being prosecuted for damage they did not personally cause. But a conservative 5th Circuit panel ruled that a jury should hear the case on the grounds that “a violent confrontation with a police officer was a foreseeable effect of neglect to lead a protest” on a road.
Civil rights activists have hesitated with the move, saying it could have a chilling effect on nationwide protests. Bearing in mind the implications of free speech, the ACLU asked the United States Supreme Court to consider Mckesson’s appeal.
In a 7-1 decision, the country’s highest court overturned the appeal decision, saying 5th Circuit judges should consider state law before considering “moral, social and economic ”deeper.