Doe v. McKesson, 2021-CQ-00929

CourtSupreme Court of Louisiana
Docket Number2021-CQ-00929
Decision Date25 March 2022



No. 2021-CQ-00929

Supreme Court of Louisiana

March 25, 2022



Weimer, C.J., concurs and assigns reasons.

Crichton, J., concurs for the reasons assigned by Chief Justice Weimer.

Genovese, J., additionally concurs in the result and assigns reasons.

Crain, J., concurs in part and assigns reasons. Griffin, J., dissents and assigns reasons.



We accepted the certified questions presented to this court by the United States Court of Appeals, Fifth Circuit, in Doe v. Mckesson, 2 F.4th 502 (5th Cir. 2021) (per curiam). The questions posed by the Fifth Circuit are: (1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party? (2) Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana's Professional Rescuer's Doctrine bars recovery under the facts alleged in the complaint? Id., 2 F.4th at 504. We answer the former, under the facts alleged in the complaint, in the affirmative and the latter in the negative, for the following reasons.


The plaintiff in this personal injury case named as defendants the Black Lives Matter ("BLM") organization[1] and DeRay Mckesson (alleged to be a leader and co-founder of BLM). The plaintiff alleges that he was a duly commissioned police officer for the City of Baton Rouge on July 9, 2016, when he was ordered to respond to a protest "staged and organized by" BLM and DeRay Mckesson, which was in


response to the July 5, 2016 death of Alton Sterling, who was shot by a Baton Rouge police officer when Mr. Sterling resisted arrest.

The plaintiff alleged that Mr. Mckesson, at all material times during the July 9th protest, led "the protest and violence that accompanied the protest," which took place outside the Baton Rouge Police Department located on Airline Highway, a heavily traveled public highway. The plaintiff further alleged that BLM and Mr. Mckesson "staged" the July 9th protest and, during the protest, their followers engaged in the "blocking of a public highway, looting of a Circle K, throwing of items stolen and violence towards police." It was further claimed that the defendants were in Baton Rouge "for the purpose of demonstrating, protesting and rioting to incite others to violence against police and other law enforcement officers," that the defendants "conspired to violate the law by planning to block a public highway," and that they "knew police would be called to clear the public highway of protestors."

As stated in the petition, when the highway in front of the police department was blocked, the Baton Rouge police department "arranged for a front line of officers in riot gear that formed a shield around officers who were to effectuate arrests and removal of Defendants from the public highway," and the plaintiff was one of the officers designated to make arrests. The plaintiff also asserted that "the protest was peaceful until activist[s] began pumping up the crowd," that Mr. Mckesson was "in charge of the protests," and that he was "seen and heard giving orders throughout the day and night of the protests." The plaintiff claimed in his petition that the protest turned into a riot, with protestors hurling full plastic water bottles at the police officers. The plaintiff further alleged that Mr. Mckesson was present during the protest, and "he did nothing to calm the crowd and, instead, he incited the violence on behalf of [BLM]." When the defendants ran out of water bottles to throw, the plaintiff claimed that a BLM protestor "picked up a piece of


concrete or similar rock like substance and hurled [it] into the police that were making arrests," striking the plaintiff in the face and causing him injuries to his teeth, jaw, brain, and head, along with other compensable losses.

In addition, the plaintiff sets forth in his petition that Alton Sterling's July 5, 2016 death "started a flurry of activity" by the defendants, who had staged protests in other cities that "resulted in violence and property damage." The plaintiff cited as examples of these other activities, that: on July 7, 2016, Lakeem Keon Scott "shot at passing car[s] along a Tennessee highway, killing one woman and wounding three others, including a police officer, while yelling, '[P]olice suck! Black lives matter!'"; and, on July 7, 2016, at a BLM protest in Dallas, Texas, at least one sniper shot twelve police officers (killing five), who had been on duty to keep the peace during the protest. The plaintiff alleged other similar attacks occurred during protests and rioting in other locations across the country, and the defendants had taken credit for the protests and riots, citing Mr. Mckesson's statement to the New York Times, following the attack on the plaintiff, that "[t]he police want protesters to be too afraid to protest," in addition to indicating that he intended to plan more protests.

In an amended petition, which the plaintiff later sought to file in the federal district court, [2] he detailed further incidents of violent protests by BLM leading up to the July 2016 incident in Baton Rouge, including: the April 2015 "Baltimore unrest and rioting"; the June 2015 "McKinney, Texas unrest"; the August 2015 "Earth City, Missouri, blocking rush-hour traffic" incident; the August 2015 "Ferguson unrest";


the July 7-8, 2016 BLM marches "through midtown Manhattan and up into Harlem blocking public highways"; the July 8, 2016 "protest in Nashville, Memphis, Knoxville and Chattanooga, Tennessee, blocking traffic on a public highway"; the July 9, 2016 protests on the "1-94 freeway in St. Paul, Minnesota" (during which police were attacked by protestors with "chunks of concrete, rebar, rocks, bottles, fireworks and Molotov Cocktails"); and a July 9, 2016 Phoeniz, Arizona rally (during which "rocks and other objects" were thrown at police, and protestors shouted to police officers: "We should shoot you!"). It was also alleged that during the July 9, 2016 Baton Rouge BLM protest, Mr. Mckesson "lead [sic] protestors down Airline Hwy in an attempt to reach 1-12 to block the interstate" but "OFFICER JOHN DOE's squad managed to block the effort of DeRay Mckesson to lead the protestors to I-12. DeRay Mckesson knew he was in violation of the law and actually live streamed his arrest."

Plaintiff also gave further details, in his amended petition, about public statements made by Mr. Mckesson, in which he represented himself as a BLM leader and protest organizer, including: with CNN's Wolfe Blitzer; with FOX's Sean Hannity; on Stephen Colbert's The Late Show; in a Forbes Magazine article titled "Black Lives Matter Activist DeRay Mckesson Talks Colin Kaepernick, Progress and the Future"; at the Voice of San Diego Politifest; on; and at the White House with President Obama; along with the hacking of Mr. Mckesson's Twitter account and the public disclosure of Twitter statements between Mr. Mckesson and other BLM leaders that "specifically showed an intent to use protests to have 'martial law' declared nationwide."

Based on these allegations in the federal district court, the plaintiff sought damages for the injuries he sustained at the hands of the BLM protestors, citing La. C.C. art. 2315 and claiming that the defendants knew or should have known that the demonstration and riot they staged would become violent and result in serious


personal injuries, as other similar protests had become violent and police officers were assaulted. Also, the plaintiff cited La. C.C. art. 2317, claiming the defendants are liable for the actions of the BLM protestor who directly caused the injuries at issue; he also cited La. C.C. art. 2324 in claiming the defendants are liable in solido for the plaintiff's injuries, for their intentional actions, and for conspiring to incite a protest/riot.

In response to the action, motions to dismiss were filed under Federal Rules of Civil Procedure, Rule 9(a) (asserting there is no authority for Mckesson to be sued as an agent of BLM) and Rule 12(b)(6) (asserting a failure to state a claim upon which relief can be granted), both of which the federal district court granted. See Doe v. Mckesson, 272 F.Supp.3d 841 (M.D. La. 2017). The federal appellate court ultimately reversed the district court in Doe v. Mckesson, 945 F.3d 818 (5th Cir. 2019), cert. granted, judgment vacated, ___ U.S.___, 141 S.Ct. 48, 208 L.Ed.2d 158 (2020). Thereafter, the Supreme Court granted a petition for writ of certiorari, vacated the Fifth Circuit decision, and remanded to that court for further proceedings consistent with its opinion, reasoning:

The question presented for our review is whether the theory of personal liability adopted by the Fifth Circuit violates the First Amendment. When violence occurs during activity protected by the First Amendment, that provision mandates "precision of regulation" with respect to "the grounds that may give rise to damages liability" as well as "the persons who may be held accountable for those damages." [NAACP v.] Claiborne Hardware [Co.], 458 U.S. [886, ] at 916-917, 102 S.Ct. 3409[, 73 L.Ed.2d 1215 (1982)] (internal quotation marks omitted). Mckesson contends that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only association with him was attendance at the protest.
We think that the Fifth Circuit's interpretation of state law is too uncertain a premise on which to address the question presented. The constitutional issue, though undeniably important, is implicated only if

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