DeRay’s Bad Day

It’s hard not to smile when unduly passionate ThinkProgress lawyer Ian Millhiser has something nice to say about the First Amendment, because it happens so rarely. Unfortunately, his myopia and disingenuousness got the best of him. Again.

An opinion handed down Wednesday by three Republican judges could chill the First Amendment rights of protesters — and potentially allow police to shut down political movements by filing lawsuits harassing movement leaders.

The United States Court of Appeals for the Fifth Circuit’s decision in Doe v. McKesson effectively strips First Amendment protections from protest leaders who commit minor offenses, ignoring longstanding Supreme Court precedents in the process.

Or the opinion does nothing of the sort, and Ian takes another wild flight of fantasy in condemning “three Republican judges.” The Fifth Circuit opinion reversed a grant of a motion to dismiss on the negligence cause of action, while affirming dismissal on myriad made-up causes that might have warranted Ian’s hype. But the negligence cause of action, based on Louisiana law and before a federal court on diversity jurisdiction, was sufficiently pleaded to withstand a challenge that it failed plausibility.

We first note that this case comes before us from a dismissal on the pleadings alone. In this context, we find that Officer Doe has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration. The complaint specifically alleges that it was Mckesson himself who intentionally led the demonstrators to block the highway. Blocking a public highway is a criminal act under
Louisiana law.

Are these allegations true? That’s for another day, as the allegations set forth in the complaint must be taken as true for the purposes of a motion to dismiss. The allegations put DeRay in the mix of civil disobedience, of committing a criminal act, which is entirely laudable as protests go. But what makes civil disobedience work is that it is disobedience, and those who engage in it are saying they are prepared to accept the consequences because their fight is worth whatever may happen to them.

As such, it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

Is it impossible to be negligent at a protest? Is it impossible to be negligent when leading a protest, when engaging personally in illegal conduct, when leading others to do so? Had this not happened at a protest, the plausibility of the claim would be banal and obvious, but that it occurred in the midst of a protest gives rise to a claim of First Amendment protection.

The Supreme Court has made clear that “[t]he First Amendment does not protect violence.” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). Nonetheless, the district court dismissed the complaint on First Amendment grounds, reasoning that “[i]n order to state a claim against Mckesson to hold him liable for the tortious act of another with whom he was associating during the demonstration, Plaintiff would have to allege facts that tend to demonstrate that Mckesson ‘authorized, directed, or ratified specific tortious activity.’”

The court “disagreed.”

Assuming that the First Amendment is applicable to Mckesson’s conduct, in order to counter its applicability at the pleading stage Officer Doe simply needed to plausibly allege that his injuries were one of the “consequences” of “tortious activity,” which itself was “authorized, directed, or ratified” by Mckesson in violation of his duty of care.

The injury sustained by the then-anon cop, who the court held can no longer proceed anonymously, was from a rock or piece of concrete thrown by a protester which caused significant damage to his shoulder. Not even Ian sees this as a justifiable act.

Doe alleges that the unknown person — who, again, is not DeRay McKesson — “picked up a piece of concrete or similar rock like substance and hurled [it] into the police” that were arresting protesters. Officer Doe claims he was hit by the rock and suffered serious injuries. If true, this rock-thrower’s actions are reprehensible, and whoever threw the rock belongs in prison.

Curiously, Ian has the guy going to prison already, even though he has yet to be convicted of anything. But he has a difficult relationship with due process, like the First Amendment. But it wasn’t DeRay who threw whatever did the damage. Is that where negligence ends and the First Amendment takes over?

Our discussion above makes clear that Officer Doe’s complaint does allege that Mckesson directed the demonstrators to engage in the criminal act of occupying the public highway, which quite consequentially provoked a confrontation between the Baton Rouge police and the protesters, and that Officer Doe’s injuries were the foreseeable result of the tortious and illegal conduct of blocking a busy highway. Thus, on the pleadings, which must be read in a light most favorable to Officer Doe, the First Amendment is not a bar to Officer Doe’s negligence theory.

As law students were once taught in first-year Torts, negligently setting in motion a series of events that are reasonably foreseeable to do harm is sufficient to establish liability. As they were also taught in first-year Con Law, the commission of a crime does not gain cover from the First Amendment’s right of association, even if it’s for a worthy cause.

Will the soon-to-be-revealed copper be able to make his case against DeRay Mckesson, that he personally engaged in criminal conduct and led the protesters into a foreseeably violent confrontation with police, resulting in the plaintiff being injured? Who knows, but that engaging in a violent protest could conceivably invoke Louisiana’s negligence cause of action (and apparently, without a state “Fireman’s Rule” that precludes a cause of action by police or firefighters who are injured in the performance of their duty) just isn’t that much of a stretch.

Still, it’s nice to see Ian mention the First Amendment, to know that he isn’t committed to its total repeal, but just the parts that involve Free Speech and the Free Exercise of Religion.

34 thoughts on “DeRay’s Bad Day

  1. David Meyer-Lindenberg

    “Unduly passionate,” though a great phrase, has never seemed so unsubtle as when applied to Ian.

  2. Richard Kopf


    Thanks for highlighting this state law case and Ian Millhiser’s intentional or sloppy misreading of it. Millhiser never even clearly articulates that this was a diversity case brought in federal court in which the the district judge and the Fifth Circuit were obligated to apply the law of the forum state, Louisiana.

    I read the complaint. It is hyperlinked in the Slate article.

    On the negligence claim, I, too, might have been initially inclined to toss it on causation grounds. Was DeRay’s supposed negligence in organizing the protect the direct (proximate) cause of some guy throwing a rock at the cops or on the pleadings was that connection too tenuous?

    But after reading paragraphs 17-20 of the complaint, I would not have done so. In short, the Fifth Circuit was cleary correct in sending the negligence claim, and only that claim, back to the district court.*

    All the best.


    * In my experience, negligence claims almost always survive motions to dismiss.

    1. SHG Post author

      My bet is that DeRay will prevail at summary judgment on the causation issue, but that doesn’t resolve the plausibility question at the MTD stage. As for the First Amendment tension, that’s a tougher problem when civil disobedience is executed by the person being sued. Had he not personally led his protesters into a situation where physical confrontation was essentially unavoidable, the argument would hold far more water.

      [Why did the chicken cross the road? To get diversity jurisdiction.]

      1. Richard Kopf

        If I were the King (or Queen) I would abolish diversity jurisdiction. I also hate removal of state cases based on diversity jurisdiction where the removing defendant is represented by a Biglaw associate. I suspect that the kid representing the removing defendant wants to buttress his or her background synopsis on the firm’s website with a cite to a federal case.

        Why do I hate diversity jurisdiction? Too many damn chicken cross the road! While it was not true once a long time ago, the state court trial judges are now just as good and fair as those of us with golden toilets.

        All the best.


        1. SHG Post author

          “Just as good and fair”? Are you damning with faint praise? And why would a federal judge possibly want a reduction in status?

            1. Guitardave

              I’m good with lazy…more time for naps…( i found your official GD approved theme song )

  3. Joe O.

    The great thing about Ian is that he will soon be in a position to argue the opposite of what he argues now. He will certainly do so and he will do so with a clear conscience. Because he is Ian.

  4. Jake

    Oooh. [Ed. Note: Your probation officer nixed this comment. You still don’t get to play lawyer here or go off topic.]

    1. SHG Post author

      I appreciate that this post was irresistible to you, but this post was about law, a subject about which you have nothing to contribute.

  5. Jardinero1

    The injury which occurred is not atypical for these types of events. One day, or multi-day special event liability coverage is available, to the organizer, for rallies, parades, etc. I personally don’t dabble in it, but some insurance agents make a market in this type of coverage. Just saying, financial loss from lawsuits such as this one can be easily mitigated against, if the event organizer cares enough to consider it.

  6. ElSuerte

    Seems like this could swallow any protest, even if it wasn’t civilly disobedient, because cops are always gonna show up at these things.

    1. SHG Post author

      It only seems that way to the exceptionally shallow (are you Ian hiding behind that ‘nym?). There are a number of intervening factors in play, not to mention idiosyncratic Louisiana state law, that preclude the rush to hysteria. And, not to point out the obvious, but if you want to engage in civil disobedience and there is a price to pay, isn’t that what civil disobedience is all about?

      Protest isn’t a free ride for crime, but a decision to suffer the consequences of one’s actions because the cause is worth it.

  7. Crystal

    My issue with holding an organizer accountable for the tortious actions of participants (or, as this opinion goes further to state, the results of any confrontation with law enforcement that they did not take “reasonable care” to avoid — they are not just saying the organizers had a “duty of care” to law enforcement or bystanders but also to the demonstrators themselves) simply because of the illegality of the location of the protest is threefold.

    1) I was late to the April 7, 2003, protest of the Carlyle Group in Manhattan. I had planned to stay on the side of the street I was legally allowed to be on, and not block half the sidewalk. Approximately 10 individuals did plan to engage in law-breaking activity — and did so, by sitting down in front of the building (vs remaining on the opposite side of the street) and linking arms, blocking the entrance. Such planned events are often called “non-violent direct actions” by protesters. Those 10 people knew their actions were illegal, and were willing to face arrest. However, police instead decided to arrest everyone — including an 81-year-old man and a 73-year-old woman. Several of those arrested experienced injuries, mostly from handcuffs but some from excessive force in arrest.

    Because I heard on the radio that arrests were occurring, and my planned role that day was to be a Legal Observer/Green Hat, I instead drove to the NLG office to help prepare “jail support”. We ran off about 150 copies of our “You May Be Out But You’re Not Done — Resources After Arrest” material, then went to One Police Plaza to wait on those arrested to be released. The plan for our assembly — at a corner opposite from One Police Plaza, and not blocking more than half the sidewalk either — was to greet the people who were arrested as they were released, give hem the pamphlet, and ensure they had a way home — we had a stack of Metro cards to give to people that were loaded with about enough money for a fare/transfer to get someone back home who came in from any of the five boroughs.

    We, too, were threatened with arrest — if we did not stand in a “protest pen” they had set up there for the “half of the sidewalk” they wanted us on. It had been a pretty intense winter up there (the President’s Day Blizzard of 2003 was that year) and even though it was April that “protest pen” held 8 inches of uncleared snow. Fortunately we were all trained and able to negotiate a way to continue our jail support assembly, but had we stood where they said we had to, it would have been risking frostbite.

    Essentially, the “legality” of location of a protest is completely up to police/local laws, and is enforced arbitrarily. Obstructing a roadway is a crime in many states, but when given permission via a permit to do so, protests can be held in roadways. Even though the City of New York settled the lawsuit filed by 52 people who had been arrested that day when they were following the law, they were still arrested and several injured “but for” the decision by protest organizers to allow 10 people to engage in “non-violent direct action” at the same time as what they billed and publicized as a “legal protest” (they wouldn’t have come if they didn’t believe it was legal). Who is this precedent saying was responsible for their injuries? Not the police (who accepted responsibility by settling), but the organizer for allowing the “non-violent direct action” across the street.

    2) As you can see, many protests involve some form of law-breaking — even if it is not a violent form, or a form that could that could have a foreseeable result of more than officers coming with the paddy-wagon and taking people away (the “free fingerprinting and photography” as we used to call it). And often the “law” broken has to do with where a person decides to do something — sitting in your living room arm-in-arm isn’t illegal, doing so in front of a business is. Handing out legal aid pamphlets on a public sidewalk was considered illegal by the NYPD and we had to negotiate with them to avoid imminent arrest. It doesn’t take much for police to respond or have a confrontation.

    Yet the foreseeable result in this case — the police sending out the paddy-wagon — is what they are saying is enough for a person to be not just held criminally responsible for their own non-violent but illegal activity, but for an organizer to be held civilly responsible for whatever happens during the confrontation with police. Any illegal activity, no matter how much care is taken to ensure that people do not react in a violent way when arrested, is therefore being deemed as sufficient grounds to sue an organizer should something go wrong in the arrests.

    This will have a chilling effect on all protests, as they are now making ANY form of “non-violent direct action” something an organizer can be held civilly responsible for should something go wrong. Not just blocking a road (something that annoys people greatly), but sitting down on a sidewalk, could be “tortious activity” under this precedent. Or any other illegal act, whether or not it is likely to cause violence or property damage outside of the arrest process. And the entire point of “civil disobedience” or “non-violent direct action” is to risk arrest to do it. Isn’t the arrest enough? Just how far must the liability extend? To the cost of processing arrested individuals?

    3) It is well-known among protest organizers that there are “moles” who attempt to infiltrate protest affinity groups to incite them into doing violence. Responsible protest leaders have always made efforts to prevent such people from showing up, and shut down any talk of violence, but once a protest has been made public anyone can and will come.

    Research, if you will, the attempted infiltration of the “Women’s March” — a permitted legal protest that was well-organized but made public. A right-wing agitator attempted to determine transportation routes people would be taking and suggested violent/illegal acts. Fortunately people quickly figured him out and nothing came of his attempt to disrupt such a protest, but he could have been successful at disrupting one of the largest legal demonstrations in this nation.

    And regardless of if such agitators are really “on the right side” of the protest movement’s aims (just too unstable to really accomplish anything) or are infiltrators deliberately attempting to incite the group to commit an act of violence, any precedent establishing civil liability for a protest organizer for “negligence” or “not exercising reasonable care” even though they did not order a violent act be committed but individuals decided to get violent with police means it is even easier for “infiltrators” to create trouble for groups.


    There IS a First Amendment right being infringed here, and it IS the right of freedom of association — McKesson only came to Baton Rogue at the request of others to support the Black Lives Matter movement, and is being targeted because of his notoriety and association with the protest movement.

    And once a trier of fact sees the case, they will see that there is no way that McKesson could be the only one civilly responsible for the injuries to this officer. Several other, local, protest organizers were also involved in the wave of protests following the shooting of Anton Sterling, and several are known to have threatened violence should the mayor not resign as a result of the protests. If anyone was “stirring up” the protesters and creating the risk of violence should police have to make arrest, there is documentation existing that shows many others stated things far worse.

    There is also video of McKesson’s actual arrest — showing that he was not blocking the roadway himself at the time of his arrest, nor was he directing other people to do it — in fact, he is on video telling people to *stay out* of the road. Again, material for a trier of fact to evaluate, not an appellate court on a motion to dismiss.


    TLDR: The lawsuit by this officer is BS and will be tossed once a trier of fact sees the true facts. However, precedent suggesting that *any* violation of the law is enough to create civil liability for an organizer should things escalate when arrests are made, or a rogue person decide to do more than what the organizers have (allegedly) instructed people to do, will have a chilling effect on protests nationwide. There is already criminal liability inherent in demonstrations that violate laws. Civil liability for the violent actions of others in a group does violate the right of freedom of association guaranteed by the First Amendment, especially when “tortious activity” is being defined as “anything that creates a police response”.

    1. SHG Post author

      Ordinarily, this would be trashed as off-topic, legally insipid and against the rules here. But since you put so much effort into writing your tome, I decided to post it rather than trash it, as it deserved. So, here it is, for whatever it’s worth.

        1. SHG Post author

          I made it to “2003” in the second graf and skimmed a bit after that. Life isn’t that long to waste it on such nonsense.

          1. Miles

            At least you validated her ignorant narcissism by posting it. You’re just an old softie. If Skink was running the front desk, he’d have tossed her out on her ass.

    2. Skink

      I got me a pool down here in the Swamp. Pa Clampett used to call it a “cement pond.” It’s so nice and warm, that every time I jump in, I pee in the pool. I figure it’s my pool, so I can pee in it if I want. Besides, there’s chlorine put in there by the pool guy my wife loves so much. I never tell her that I pee in the pool because she might tell the pool guy. But know what I’d never do? I’d never go piss in someone else’s pool, even if it was a cement pond. Pissing in someone else’s pool is just wrong. Know what I mean, Crystal? The lawyers and judges that hang out around the pool at this here Hotel love the pool and hate when someone comes along and pisses in its sacred waters.

      But there’s hope! We not only got us a pool, but we also got a pond. It’s out back and captures the runoff from the parking lot. As a once-great golfer once figured, “the pond is good for you.”

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