Mckesson v. Doe

On November 7, 2016, an unnamed police officer, referred to as “John Doe,” sued Deray Mckesson for injuries the officer sustained when an unidentified third party—not Mckesson—threw a “rock-like” object during the protest and hit him. The officer sued Mckesson, not the third party, on the theory that Mckesson “should have known” that the protest “would become violent as other similar riots had become violent.” He did not claim that Mckesson authorized or even knew of the rock-throwing. Indeed, to this day the rock thrower remains unidentified.

In 2017, the District Court of the Middle District of Louisiana dismissed Doe’s suit as barred by the First Amendment, relying on the constitutional rule that protesters and leaders cannot be held liable for the violent acts of a third party unless they specifically intended or personally “authorized, directed, or ratified” that violence.

On appeal, the Fifth Circuit reversed the district court, holding that Mckesson could be held liable on a theory of “negligent protest.” Remarkably, the Fifth Circuit reached this conclusion in three different opinions, all issued without oral argument—an initial opinion, on April 24, 2019, issued without argument; a revised opinion, on August 8, 2019, issued after Mckesson requested rehearing; and a third opinion, on December 16, 2019, including a dissent from Judge Willett, one of the panel members who had joined the previous two opinions in full.

Following the third opinion, the Fifth Circuit also voted on whether to rehear the case as a full court. Eight of the court’s sixteen judges voted to rehear the case. Because a majority is necessary, however, the case did not go en banc.

On March 5, 2020, Mckesson—represented by David Goldberg of Donahue & Goldberg, the ACLU and ACLU of Louisiana, and Billy Gibbons and Ian Atkinson of Schonekas, Evans, McGoey & McEachin—sought Supreme Court review.

On November 2, 2020, the U.S. Supreme Court vacated the Fifth Circuit’s opinion and directed it to ask the Louisiana Supreme Court to address whether a protest organizer could be held liable for injuries an officer sustains during a protest under Louisiana state law. While recognizing that “the constitutional issue” presented by the case is “undeniably important,” the Court determined that the case might be “greatly simplified” by guidance from the Louisiana Supreme Court on the meaning of Louisiana law. The state law theory, the Supreme Court explained, was “novel,” “uncertain,” and “fraught with [First Amendment] implications.”

On March 25, 2022, the Supreme Court of Louisiana issued an opinion concluding that, under the facts alleged in the complaint, the suit could proceed as a matter of state law.

On June 16, 2023, the Fifth Circuit issued its fourth opinion, again holding that Doe’s theory did not violate the First Amendment but, as with each new iteration of its opinion, offering a slightly different basis: This time, the Fifth Circuit explained that Doe had successfully alleged both that 1) Mckesson had “directed his own tortious activity” of creating unreasonably safe conditions; and that 2) he had “incited” violence by “organiz[ing] and direct[ing] a protest . . . such that it was likely that a violent confrontation with the police would result.” The court held that Mckesson did not have to intend any violence whatsoever for liability to attach.

On October 5, 2023, Mckesson again filed a petition for review by the Supreme Court. The Court denied certiorari on April 15, 2024, accompanied by a statement by Justice Sotomayor. The statement notes that the Court’s denial “expresses no view about the merits of Mckesson’s claim,” and suggests that the Court’s 2023 decision in Counterman v. Colorado, which held that negligence can never be the proper standard when it comes to speech and that intent is necessary for incitement, should govern “any future proceedings in this case.”

The district court granted Mckesson’s motion for summary judgment and summarily dismissed this lawsuit on July 10, 2024. The court found that Doe failed to offer evidence to substantiate his claim against Mckesson even under the Fifth Circuit's sweeping “negligent protest” theory of liability. It also held that Doe's claim fails for another, independent reason; namely, as Justice Sotomayor suggested in the Supreme Court's 2024 consideration of this case, the Counterman decision forecloses the Fifth Circuit's “negligent protest” theory altogether on First Amendment grounds. Counterman reiterated that subjective intent is necessary to hold a person liable for political speech: When it comes to protest, mere negligence in the exercise of First Amendment freedoms is never enough.