Fifth Circuit Judges' Cert. Petition in Deray Mckesson Black Lives Matter Protest Liability Case

Fifth Circuit judges have filed a certiorari petition asking the U.S. Supreme Court to review a case involving Deray Mckesson, a prominent Black Lives Matter activist, who faces liability over a violent incident during a protest in Baton Rouge, Louisiana. The petition, authored by Judge Don Willett and joined by Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo Ramirez, argues that the lower courts have misapplied First Amendment protections by allowing a negligence-based claim against Mckesson despite the absence of evidence linking him to the violence. The case centers around an incident in which Baton Rouge Police Officer John Ford suffered serious injuries after being struck by a rock or piece of concrete during a protest. The assailant responsible for the attack has remained unidentified, and there is no indication of any connection between the attacker and Mckesson. Despite this lack of evidence, the Fifth Circuit panel ruled in favor of proceeding to trial, citing Mckesson’s visibility and presumed influence over the crowd. The judges argue that this approach violates constitutional safeguards designed to protect political speech from being penalized for unforeseen acts of violence. In their petition, the judges emphasize that the Supreme Court previously deemed the constitutional question raised in this case “undeniably important.” In 2020, the Court vacated a lower court ruling due to unresolved issues regarding state law and the application of First Amendment principles. Since then, extensive litigation, including full discovery and multiple appeals, has clarified these matters. The panel now contends that the constitutional issue is fully ripe for review: whether the First Amendment permits holding a political speaker liable under a negligence theory for an unidentified stranger’s violence without proof of authorization, direction, ratification, or intentional incitement. The judges point to key precedents such as Claiborne v. Navajo Tribe (1982), Counterman v. Colorado (1993), and Brandenburg v. Ohio (1969), all of which establish that liability for another person’s violence must be grounded in clear evidence of culpability. They argue that the panel’s decision effectively replaces traditional elements of criminal liability, such as intent and proximate causation, with subjective notions like foreseeability and prominence. This substitution, they say, undermines the constitutional distinction between advocacy and violence. The petition highlights how the panel’s reasoning relies on four flawed substitutions: transforming an allegation of directing traffic obstruction into an assertion of commanding an assault; equating participation in a national movement with control over a specific group; substituting proximity for causation; and replacing foreseeability with intent. These substitutions, according to the judges, fail to meet the constitutional standards set by the aforementioned cases. By doing so, the panel risks eroding the First Amendment’s protection of political expression. The judges warn that allowing such a theory would enable individuals to be held accountable for acts of violence committed by strangers simply because they were present at a demonstration. They stress that the Constitution does not permit prominence or perceived influence to substitute for actual culpability. Instead, they urge the Supreme Court to clarify the boundaries between protected speech and actionable harm, ensuring that political activists are not unfairly burdened by the actions of others. As the case moves forward, the Supreme Court will determine whether to accept the certiorari petition and address the broader implications of applying negligence theories to First Amendment claims. The outcome could shape future interpretations of free speech rights in the context of public demonstrations and civil liability.