Mckesson v. Doe

In July 2016, DeRay Mckesson, a prominent Black Lives Matter activist, organized a protest in Baton Rouge, Louisiana, following the police killing of Alton Sterling. Protesters occupied a highway in front of police headquarters. During the demonstration, an unidentified individual threw a rock-like object that struck Baton Rouge police officer John Doe in the face, causing severe injuries including loss of teeth and brain trauma. Because the assailant was never identified, Officer Doe sued Mckesson on a negligence theory, alleging that Mckesson negligently staged the protest in a manner that foreseeably led to the assault. The district court dismissed the claim as barred by the First Amendment, but a divided Fifth Circuit reversed. The U.S. Supreme Court granted certiorari and decided the case on November 2, 2020.

On November 2, 2020, the Supreme Court issued a per curiam decision vacating and remanding the Fifth Circuit's judgment by a 7-1 vote. The Court held that the Fifth Circuit should have certified the uncertain state-law questions to the Louisiana Supreme Court before reaching the First Amendment issue. Justice Thomas dissented, and Justice Barrett took no part. On remand, the Louisiana Supreme Court found that state law permitted the negligence claim. In June 2023, the Fifth Circuit reaffirmed that Mckesson could be liable under a negligence theory. Mckesson petitioned for certiorari again, and on April 15, 2024, the Supreme Court denied review. Justice Sotomayor issued a statement noting that the denial expressed no view on the merits and that the Fifth Circuit should give full consideration to recent First Amendment precedents.

Whether the First Amendment and NAACP v. Claiborne Hardware Co. bar a state-law negligence action against a protest organizer for injuries caused by an unidentified third party's violent act at a demonstration, and whether a protest leader can be held liable under a "negligent protest" theory for failing to prevent foreseeable violence.

The case has significant implications for protest organizers' legal exposure under the First Amendment. The Fifth Circuit's "negligent protest" theory, left intact by the Supreme Court's denial of certiorari, applies in Texas, Louisiana, and Mississippi, potentially exposing protest leaders to ruinous financial liability for third-party violence they did not direct or intend. Civil rights advocates warn that this standard could chill political demonstrations and collective action across the political spectrum.