Officer John Ford, a Baton Rouge police officer, was severely injured in July 2016 when a rock thrown by an unidentified rioter struck him during a Black Lives Matter protest. The injury resulted in the loss of teeth, jaw damage, and post-traumatic stress disorder, forcing Ford to leave law enforcement. Ford sued DeRay Mckesson, a prominent organizer, alleging negligence, arguing that Mckesson breached a duty of care by leading the protest in a manner that foreseeably provoked a violent confrontation with police. The case has undergone a complex procedural history, including multiple appeals, a Supreme Court decision vacating an earlier Fifth Circuit ruling to allow certification of questions to the Louisiana Supreme Court, and a subsequent affirmation that Louisiana law recognizes a duty not to negligently precipitate a third party's crime. Despite this, the district court recently granted summary judgment for Mckesson, finding insufficient evidence that he led the protest or that his actions were the cause-in-fact of Ford's injuries. Ford appealed, arguing that the record contains ample evidence of Mckesson's leadership and that the First Amendment does not shield him from liability for directing illegal acts.
The Fifth Circuit, in an opinion by Judge Edith H. Jones, reversed the district court, holding that the evidence presented creates genuine issues of material fact that must be resolved by a jury. The court applied Louisiana's 'duty-risk' theory of negligence, which requires proof of injury, duty, breach, cause-in-fact, and scope of duty. First, the court found that the Louisiana Supreme Court had already established that a duty exists to not negligently precipitate a third party's crime. The court determined that a jury could reasonably find Mckesson breached this duty by organizing and leading the protest onto a busy highway, an act that was patently illegal and foreseeably dangerous. The court rejected the district court's dismissal of evidence as 'self-serving,' noting that credibility determinations are for the jury at the summary judgment stage. The record included Officer Ford's eyewitness testimony, Mckesson's own admissions of his role in the movement, and video evidence showing Mckesson near the front of the crowd as police intervened. Second, regarding cause-in-fact, the court held that a jury could find Mckesson's actions were the 'but for' cause of the injury, as he directed the crowd into a position where violent confrontation was inevitable. Third, the court addressed the First Amendment defense. The district court had relied on Counterman v. Colorado to suggest Mckesson was immune, but the Fifth Circuit clarified that Counterman applies to criminal true threats and does not alter the civil negligence standard for protest leaders. The court reiterated that directing protestors to block traffic constitutes an immediate threat to public safety and that the First Amendment does not protect the intentional organization of lawless conduct that foreseeably harms others. The court emphasized that the rule of orderliness binds the district court to the Fifth Circuit's prior precedent in this case, which rejected the First Amendment defense.
The case is remanded to the United States District Court for the Middle District of Louisiana for trial. The reversal means that DeRay Mckesson will face a jury trial where the central questions will be whether he actually led the protest, whether his leadership breached a duty of care, and whether that breach caused Officer Ford's injuries. The decision clarifies that the First Amendment does not provide a blanket shield for protest organizers who direct illegal conduct that foreseeably results in violence, but it also leaves open the factual determination of whether Mckesson's specific actions met that threshold. The ruling reinforces the binding nature of the Fifth Circuit's prior precedent on the First Amendment issue within this specific case, preventing lower courts from using intervening Supreme Court cases like Counterman to overturn established circuit law without en banc review.
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