The case initially was tossed by a federal judge, citing a Supreme Court decision widely interpreted as a shield for protesters sued for damages they didn’t directly cause. But a three-judge panel with the U.S. Court of Appeals for the 5th Circuit ruled in August that a jury should be allowed to hear the case and issue a verdict on Mckesson’s alleged negligence.
Legal scholars and lawyers with the American Civil Liberties Union balked at the decision. They said allowing the case to proceed in the face of civil rights protections long guaranteed to protesters could pave the way for similar lawsuits and have a chilling effect on protest organizers nationwide.
Even if the officer doesn’t prevail in the case, experts said damage might already be done.
“If this is allowed to stand, anybody can show up and throw a rock at a protest to bankrupt a movement they disagree with,” said Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project. “People know when they step into the street that they might have to spend some hours in jail or pay a fine. But if they might have to pay a multimillion-dollar civil judgment — that’s something they’re not prepared for, and can’t possibly be expected to prepare for.”
The ACLU earlier this month asked the Supreme Court to hear Mckesson’s appeal and urged justices to consider the potential impact on protesters’ rights.
Organizations that coordinate protests, such as the Women’s March, said the 5th Circuit’s ruling could have ramifications beyond its jurisdiction of Louisiana, Mississippi and Texas.
For starters, activists said, it raises the risks and monetary costs associated with organizing a demonstration. In addition to applying for permits and providing medics, amenities and toilets, organizers said, activists might also have to anticipate a possible lawsuit if someone in the crowd commits a violent act. That could mean legal counsel on standby and resources to cover the costs of a lawsuit.
Most activists, experts said, don’t have that kind of cash.
“To me, this is scary,” said Carmen Perez, who sits on the board of the Women’s March and is the chief executive of the Gathering for Justice, a criminal-justice reform group. “This is a huge threat to the right to protest.”
As the Women’s March solidifies plans for the group’s 2020 march on Washington, scheduled for Jan. 18, Perez said the case will be on organizers’ minds.
“We’ve always told people at our protests that this is a nonviolent direct action, and we can do as much training and support for new activists as we can, but at the end of the day, we can’t control who shows up and what they decide to do,” Perez said.
Mckesson, a Black Lives Matter activist best known for leading marches in his signature blue vest, was sued by a Baton Rouge police officer who blamed the activist for injuries he suffered at a 2016 protest over the police killing of Alton Sterling, a black man whose shooting by two police officers was captured on video.
Sterling’s was one in a series of shootings that prompted nationwide protests in 2016.
In July of that year, Mckesson led hundreds onto a busy Louisiana highway in protest. They were met by police, who arrested several demonstrators, including Mckesson, in an effort to clear the road.
The wounded officer, identified in court documents as John Doe, suffered injuries to his teeth, jaw and brain after a demonstrator threw a rock and hit the officer in the head, court documents state.
The rock thrower was never identified. Instead, the officer sued Mckesson, who had become a recognizable face in the Black Lives Matter movement.
Mckesson, according to the lawsuit, knew there was a chance someone in the crowd could become violent at the demonstration. The suit does not allege that Mckesson encouraged someone to throw a rock or to commit a violent act, but says Mckesson led a protest that gave someone else the opportunity to attack the officer.
Fifth Circuit Judge E. Grady Jolly wrote in the court’s decision allowing the case to proceed to a trial that “Mckesson is liable in negligence for organizing and leading the Baton Rouge demonstration to illegally occupy a highway” and that the lower court had “erred in dismissing the suit on First Amendment grounds.”
The federal judge who originally had dismissed the case cited the landmark 1982 Supreme Court decision NAACP v. Claiborne Hardware Co., which created a precedent for blocking lawsuits against protesters because, the Supreme Court ruled, lawsuits could be wielded by the government as a weapon against protesters that would effectively suppress free-speech rights.
“It could lead to an organizer determining that, on balance, it’s just not worth it, that it’s too burdensome and too risky for them to hold a public protest,” said Timothy Zick, a constitutional law professor at William & Mary Law School. “I think that is the real danger.”
The right to protest is among the liberties enshrined in the First Amendment. Violence at protests, however, is not a protected form of speech — and protesters can, and have, been criminally charged for violent acts.
But for decades, courts have ruled against attempts to sue protest organizers for the acts of others.
In this instance, the 5th Circuit ruled, Mckesson could be held to account because he had led people onto a state highway, breaking the law and opening up the possibility of violence.
“The vast majority of people in the aggregate are peaceful at protests, but there is always a risk of violence,” said Tabatha Abu El-Haj, a law professor at Drexel University. “If the masses really come out in force, there’s a risk of revolution. And that risk is what is supposed to drive governmental responsiveness to concerns raised at these demonstrations. . . . That risk of violence is actually critical to why people pay attention.”
The ACLU’s argument hinges on the fear that until the Supreme Court intervenes, the appellate court’s decision could be cited in future decisions. It will be weeks before the Supreme Court decides whether to hear Mckesson’s case.
Experts said government agencies and elected officials in recent years have tried to enact barriers to protesting, hoping to combat an increase in demonstrations across the country.
The National Park Service last year floated a proposal that would have altered protest regulations and required organizers to repay the federal government for security costs — an idea the agency eventually withdrew. Earlier this year, Rep. Jim Banks (R-Ind.) announced he was crafting legislation to hold protesters arrested during unpermitted demonstrations liable “for police overtime and other fees related to the action.” At least 18 state legislatures have considered similar bills.
The precedent established by the 5th Circuit’s decision in this case, scholars said, could be used as another tactic to stymie protests.
“People are using these statutes and the courts as weapons to strike back against a surge in protesting,” Zick said. “In certain quarters there’s a fear of public protest, and as much as we embrace this American notion of robust public protest and discourse, there are still a lot of people who look out at a protest and just see a mob.”
Katie Mettler contributed to this report.