{"id":1569,"date":"2023-06-24T23:15:02","date_gmt":"2023-06-24T23:15:02","guid":{"rendered":"https:\/\/nulifedaily.com\/?p=1569"},"modified":"2023-06-24T23:15:48","modified_gmt":"2023-06-24T23:15:48","slug":"protesters-vulnerable-to-liability-suits-after-appeals-court-ruling","status":"publish","type":"post","link":"https:\/\/proliberation.com\/underthesun\/protesters-vulnerable-to-liability-suits-after-appeals-court-ruling\/","title":{"rendered":"Protesters vulnerable to liability suits after appeals court ruling"},"content":{"rendered":"\n

In a typical cowardly move, a police officer has filed an anonymous suit against protestors in general and BLM in particular, claiming \u201cinjuries caused by another person during a demonstration, ratifying a novel legal theory that threatens to\u00a0further suppress<\/a>\u00a0protests and First Amendment rights more broadly.\u201d<\/p>\n\n\n\n

This is the slow takedown of free speech and the constitutional right to a peaceable assembly; and the result of an offended white boy who cannot handle the fact that Black protesters have the nerve to stand up against police brutality. It is this type of vindictive, meanspirited behavior that is pervasive in US police departments and causes animosity between the community and law enforcement.<\/p>\n\n\n\n

According to a Reuters report, \u201cA federal appeals court in Louisiana decided last week that a cop can sue a protest organizer for injuries caused by another person during a demonstration, ratifying a novel legal theory that threatens to further suppress<\/a> protests and First Amendment rights more broadly.<\/p>\n\n\n\n

The 5th U.S. Circuit Court of Appeals on June 16 allowed an officer who filed anonymously to proceed in his suit alleging negligence against Black Lives Matter activist DeRay Mckesson. The court held that it\u2019s plausible that Mckesson is liable for the officer\u2019s injuries because they were a foreseeable consequence of his negligent planning: Mckesson planned to block a public highway \u2014 a crime in Louisiana \u2014 which made it likely that a violent confrontation with police would ensue, according to the 5th Circuit.<\/p>\n\n\n\n

The court\u2019s ruling<\/a> overlooked the fundamental legal principle that while certain categories of speech and action may be impermissible under state law, they are nonetheless protected by the U.S. Constitution, as dissenting judge Don Willett pointed out.<\/p>\n\n\n\n

The appeals court, to my mind, ignores the central role of civil disobedience \u2014 demonstrations that are peaceful, and sometimes unlawful \u2014 in securing our most fundamental American rights. And it exposes advocacy groups and organizers to what one former U.S. Supreme Court justice described as<\/a> the \u201cthreat of destruction by lawsuit\u201d of our fragile rights of political association.<\/p>\n\n\n\n

A spokesperson for the Fifth Circuit told me the judges are unable to comment on the ruling, noting that it might soon be up for an en banc appeal before all the judges of the circuit and may be reviewed by the Supreme Court.<\/p>\n\n\n\n

Attorneys representing Mckesson and the unnamed officer didn\u2019t respond to my requests for comment.<\/p>\n\n\n\n

The July 2016 demonstration took place outside the Baton Rouge Police Department, in the aftermath of the killing of Alton Sterling, a Black man who was shot to death in the city during an encounter with police. The plaintiff officer during the demonstration was struck by a rock or a similar object thrown by an unidentified protester, according to the 5th Circuit ruling.<\/p>\n\n\n\n

There is no dispute that Mckesson did not encourage or call for violence and did not act in concert with the person who threw the object. And a 40-year-old precedent from the U.S. Supreme Court in NAACP v. Claiborne holds that protest leaders are constitutionally protected from liability for unlawful acts by other demonstrators as a general matter, so long as they don\u2019t specifically direct or incite imminent violence. Importantly, the Claiborne decision involved a boycott organizer who used highly charged and inflammatory rhetoric, even threatening to break the necks of boycott breakers.<\/p>\n\n\n\n

That, in a nutshell, is exactly why you hardly ever hear about lawsuits seeking to hold advocacy groups and protest leaders responsible for the actions of unruly or even violent attendees. Indeed, the “majority opinion cites none,” Willett wrote in dissent.<\/p>\n\n\n\n

The Fifth Circuit\u2019s ruling simply approved a new avenue \u2014 the notion of “negligent protest” \u2014 to sue protest leaders, even though that theory of liability is “incompatible with the First Amendment and is foreclosed \u2014 squarely \u2014 by Supreme Court precedent,” as Willett wrote.<\/p>\n\n\n\n

The police officer\u2019s unusual complaint has bounced up and down the court system for several years now. It was dismissed by a federal district court in 2017, before the 5th Circuit revived some claims two years later.<\/p>\n\n\n\n

Mckesson then appealed to the Supreme Court, and the justices vacated the 5th Circuit\u2019s ruling in 2020, saying the Louisiana high court needed to weigh in because of the \u201cnovelty of the claim at issue\u201d in the case.<\/p>\n\n\n\n

The 5th Circuit\u2019s ruling came after the Louisiana high court held that state tort law allows protest organizers to be held responsible for the actions of other demonstrators.<\/p>\n\n\n\n

The complaint\u2019s extraordinary \u201cnegligent protest\u201d theory would mean that organizers can be held \u201cliable for all foreseeable damages that occurred during mass demonstrations \u2014including those caused by the unlawful acts of counter-protesters and agitators not associated with a group or movement,\u201d legal scholar Timothy Zick wrote in a 2021 paper<\/a> about the rising “costs of dissent” and protest. Zick is a professor at William & Mary Law School.<\/p>\n\n\n\n

Indeed, the judiciary became one of the most powerful levers available to opponents of the 1960s civil rights movement who sought to drown out the voices of people seeking to abolish segregation laws and expand civil rights protections, as the NAACP pointed out in a brief<\/a> in the case against Mckesson.<\/p>\n\n\n\n

State court decisions \u201cleft segregationists with a clear tactical advantage\u201d and sent a clear message: they could cripple civil rights groups and leaders simply by alleging some connection, however tenuous, between some illegal act and their activities, the NAACP wrote. The Fifth Circuit\u2019s analysis of the rights of the parties in Mckesson\u2019s case parallels those rulings from the 1960s, and similarly opens the door for opponents to disrupt modern civil rights advocates and movements through spurious litigation.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

In a typical cowardly move, a police officer has filed an anonymous suit against protestors in general and BLM in particular, claiming \u201cinjuries caused by another person during a demonstration, ratifying a novel legal theory that threatens to\u00a0further suppress\u00a0protests and First Amendment rights more broadly.\u201d This is the slow takedown of free speech and the […]<\/p>\n","protected":false},"author":2,"featured_media":1570,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[92,1,81,73],"tags":[],"class_list":{"0":"post-1569","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-editorials","8":"category-headlines","9":"category-justice","10":"category-us-news"},"_links":{"self":[{"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/posts\/1569","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/comments?post=1569"}],"version-history":[{"count":2,"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/posts\/1569\/revisions"}],"predecessor-version":[{"id":1572,"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/posts\/1569\/revisions\/1572"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/media\/1570"}],"wp:attachment":[{"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/media?parent=1569"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/categories?post=1569"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/proliberation.com\/underthesun\/wp-json\/wp\/v2\/tags?post=1569"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}