John Doe v. DeRay Mckesson ( 2019 )

Case: 17-30864 Document: 00515238710 Page: 1 Date Filed: 12/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 17-30864 December 16, 2019
Lyle W. Cayce
Clerk
OFFICER JOHN DOE, Police Officer,
Plaintiff - Appellant
v.
DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES MATTER
NETWORK, INCORPORATED,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
Before JOLLY, ELROD, and WILLETT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
We WITHDRAW the court’s prior opinion of August 8, 2019, and
substitute the following opinion.
During a public protest against police misconduct in Baton Rouge,
Louisiana, an unidentified individual hit Officer John Doe with a heavy object,
causing him serious physical injuries. Following this incident, Officer Doe
brought suit against “Black Lives Matter,” the group associated with the
protest, and DeRay Mckesson, one of the leaders of Black Lives Matter and the
organizer of the protest. Officer Doe later sought to amend his complaint to
add Black Lives Matter Network, Inc. and #BlackLivesMatter as defendants.
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The district court dismissed Officer Doe’s claims on the pleadings under
Federal Rule of Civil Procedure 12(b)(6), and denied his motion to amend his
complaint as futile. Because we conclude that the district court erred in
dismissing the case against Mckesson on the basis of the pleadings, we
REMAND for further proceedings relative to Mckesson. We further hold that
the district court properly dismissed the claims against Black Lives Matter.
We thus REVERSE in part, AFFIRM in part, and REMAND for further
proceedings consistent with this opinion.
I.
On July 9, 2016, a protest illegally blocked a public highway in front of
the Baton Rouge Police Department headquarters. 1 This demonstration was
one in a string of protests across the country, often associated with Black Lives
Matter, concerning police practices. The Baton Rouge Police Department
prepared by organizing a front line of officers in riot gear. These officers were
ordered to stand in front of other officers prepared to make arrests. Officer
Doe was one of the officers ordered to make arrests. DeRay Mckesson,
associated with Black Lives Matter, was the prime leader and an organizer of
the protest.
In the presence of Mckesson, some protesters began throwing objects at
the police officers. Specifically, protestors began to throw full water bottles,
which had been stolen from a nearby convenience store. The dismissed
complaint further alleges that Mckesson did nothing to prevent the violence or
to calm the crowd, and, indeed, alleges that Mckesson “incited the violence on
behalf of [Black Lives Matter].” The complaint specifically alleges that
Mckesson led the protestors to block the public highway. The police officers
1 This case comes to us on a motion to dismiss, so we treat all well-pleaded facts as
true.
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began making arrests of those blocking the highway and participating in the
violence.
At some point, an unidentified individual picked up a piece of concrete
or a similar rock-like object and threw it at the officers making arrests. The
object struck Officer Doe’s face. Officer Doe was knocked to the ground and
incapacitated. Officer Doe’s injuries included loss of teeth, a jaw injury, a brain
injury, a head injury, lost wages, “and other compensable losses.”
Following the Baton Rouge protest, Officer Doe brought suit, naming
Mckesson and Black Lives Matter as defendants. According to his complaint,
the defendants are liable on theories of negligence, respondeat superior, and
civil conspiracy. Mckesson subsequently filed two motions: (1) a Rule 12(b)(6)
motion, asserting that Officer Doe failed to state a plausible claim for relief
against Mckesson; and (2) a Rule 9(a)(2) motion, asserting that Black Lives
Matter is not an entity with the capacity to be sued.
Officer Doe responded by filing a motion to amend. He sought leave to
amend his complaint to add factual allegations to his complaint and Black
Lives Matter Network, Inc. and #BlackLivesMatter as defendants.
II.
The district court granted both of Mckesson’s motions, treating the Rule
9(a)(2) motion as a Rule 12(b)(6) motion, and denied Officer Doe’s motion for
leave to amend, concluding that his proposed amendment would be futile.
With respect to Officer Doe’s claims against #BlackLivesMatter, the district
court took judicial notice that it is a “hashtag” and therefore an “expression”
that lacks the capacity to be sued. With respect to Officer Doe’s claims against
Black Lives Matter Network, Inc., the district court held that Officer Doe’s
allegations were insufficient to state a plausible claim for relief against this
entity. Emphasizing the fact that Officer Doe attempted to add a social
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movement and a “hashtag” as defendants, the district court dismissed his case
with prejudice. Officer Doe timely appealed.
III.
When considering a motion to dismiss under Rule 12(b)(6), we will not
affirm dismissal of a claim unless the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief. Alexander v. Verizon
Wireless Servs., L.L.C., 875 F.3d 243, 249 (5th Cir. 2017). “We take all factual
allegations as true and construe the facts in the light most favorable to the
plaintiff.” Id. (citing Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017)). To
survive, a complaint must consist of more than “labels and conclusions” or
“naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007) (internal quotation marks and brackets omitted)). Instead, “the
plaintiff must plead enough facts to nudge the claims across the line from
conceivable to plausible.” Hinojosa v. Livingston, 807 F.3d 657, 684 (5th Cir.
2015) (internal quotation marks, brackets, and ellipses omitted) (quoting
Iqbal, 556 U.S. at 680). 2
2 Federal Rule of Civil Procedure Rule 9(a)(2) states that, if a party wishes to raise an
issue regarding lack of capacity to be sued, “a party must do so by a specific denial.” Rule
12(b) does not specifically authorize a motion to dismiss based on a lack of capacity.
Nonetheless, we have permitted Rule 12(b) motions arguing lack of capacity. See, e.g., Darby
v. Pasadena Police Dep’t, 939 F.2d 311 (5th Cir. 1992). Where the issue appears on the face
of the complaint, other courts have done the same and treated it as a Rule 12(b)(6) motion.
See, e.g., Klebanow v. N.Y. Produce Exch., 344 F.2d 294, 296 n.1 (2d Cir. 1965) (“Although the
defense of lack of capacity is not expressly mentioned in [R]ule 12(b), the practice has grown
up of examining it by a 12(b)(6) motion when the defect appears upon the face of the
complaint.”); Coates v. Brazoria Cty. Tex., 894 F. Supp. 2d 966, 968 (S.D. Tex. 2012) (“Whether
a party has the capacity to sue or be sued is a legal question that may be decided at the Rule
12 stage.”); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1294 (3d ed. 2018) (“An effective denial of capacity . . . creates an issue of fact.
Such a denial may be made in the responsive pleading or, if the lack of capacity . . . appears
on the face of the pleadings or is discernible there from, the issue can be raised by a motion
to dismiss for failure to state a claim for relief.” (footnotes omitted)). Thus, we review the
district court’s dismissal for lack of capacity de novo and apply the Rule 12(b)(6) standard.
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A district court’s denial of a motion to amend is generally reviewed for
abuse of discretion. Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th
Cir. 2016). However, where the district court’s denial of leave to amend was
based solely on futility, we instead apply a de novo standard of review identical
in practice to the Rule 12(b)(6) standard. Id. When a party seeks leave from
the court to amend and justice requires it, the district court should freely give
it. Fed. R. Civ. P. 15(a)(2).
IV.
We start with whether we have jurisdiction to hear this case, raising sua
sponte its potential absence. Neither the district court nor any party addressed
this issue in prior proceedings or on appeal. Officer Doe sued Mckesson and
Black Lives Matter. 3 The complaint alleges that Black Lives Matter is a
national unincorporated association, Doe v. Mckesson, 272 F. Supp. 3d 841, 849
(M.D. La. 2017), which, for diversity purposes, is a citizen of every state where
a member is a citizen, Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1258
(5th Cir. 1988). Officer Doe, as the party invoking federal jurisdiction, bore the
burden of establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). But the complaint fails to allege with sufficiency the
membership of Black Lives Matter. 4 Such failure to establish diversity
jurisdiction normally warrants remand—if there was some reason to believe
that jurisdiction exists, i.e., some reason to believe both that Black Lives
3 We are addressing here Officer Doe’s claims against Black Lives Matter Network,
Inc., the potential unincorporated association, not against #BlackLivesMatter, the hashtag.
4 In his Proposed Amended Complaint, Officer Doe did allege that Black Lives Matter
is a “chapter-based national unincorporated association that is organized under the laws of
the State of California, though it allegedly is also a partnership that is a citizen of California
and Delaware.” Doe, 272 F. Supp. 3d at 851 (internal quotations omitted). But since an
association, or a partnership for that matter, is considered a citizen of every state in which
its constituent members/partners are citizens, Officer Doe still failed to allege Black Lives
Matter’s citizenship by omitting the citizenship of its constituent members.
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Matter’s citizenship could be demonstrated with a supplemented record and
that it is diverse from the plaintiff—or dismissal of the case. See MidCap
Media Fin., LLC v. Pathway Data, Inc., 929 F.3d 310, 316 (5th Cir. 2019).
Yet we need not resort to either here. Even assuming arguendo that
Black Lives Matter were nondiverse and thus that the parties were nondiverse
at the time of filing this lawsuit, such “lack of [diversity] jurisdiction can be
cured when the non-diverse party is dismissed in federal court.” 16 Front
Street, L.L.C. v. Miss. Silicon, L.L.C., 886 F.3d 549, 556 (5th Cir. 2018). This
“method of curing a jurisdictional defect ha[s] long been an exception to the
time-of-filing rule.” Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 572
(2004); see, e.g., Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73 (1996) (holding that
“diversity became complete” when a nondiverse party settled and was
dismissed from the case and that therefore “[t]he jurisdictional defect was
cured”) (emphasis removed); McGlothin v. State Farm Mut. Ins. Co., 925 F.3d
741, 744 (5th Cir. 2019) (holding that the dismissal of nondiverse defendants
for failure of service of process “created complete diversity; and, therefore, the
district court had jurisdiction”) (citations omitted).
Here, the district court took judicial notice that Black Lives Matter was
a social movement and therefore a non-juridical entity lacking the capacity to
be sued. Doe, 272 F. Supp. 3d at 850; see infra Part V.C. The court
subsequently dismissed Black Lives Matter as a defendant. Doe, 272 F. Supp.
3d at 850. If complete diversity did not exist before, this dismissal created the
complete diversity (since Officer Doe and Mckesson are citizens of different
states) necessary for jurisdiction in this case. For that reason, we have
jurisdiction to hear this case. 5
5 All three judges on this panel agree with this conclusion.
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V.
A.
We next address Officer Doe’s claims against DeRay Mckesson. The
district court did not reach the merits of Officer Doe’s underlying state tort
claims, but instead found that Officer Doe failed to plead facts that took
Mckesson’s conduct outside of the bounds of First Amendment protected
speech and association. Because we ultimately find that Mckesson’s conduct
at this pleading stage was not necessarily protected by the First Amendment,
we will begin by addressing the plausibility of Officer Doe’s state tort claims.
We will address each of Officer Doe’s specific theories of liability in turn—
vicarious liability, negligence, and civil conspiracy, beginning with vicarious
liability.
1.
Louisiana Civil Code article 2320 provides that “[m]asters and
employers are answerable for the damage occasioned by their servants and
overseers, in the exercise of the functions in which they are employed.” A
“servant,” as used in the Civil Code, “includes anyone who performs continuous
service for another and whose physical movements are subject to the control or
right to control of the other as to the manner of performing the service.” Ermert
v. Hartford Ins. Co., 559 So. 2d 467, 476 (La. 1990). Officer Doe’s vicarious
liability theory fails at the point of our beginning because he does not allege
facts that support an inference that the unknown assailant “perform[ed] a
continuous service” for, or that the assailant’s “physical movements [were]
subject to the control or right to control” of, Mckesson. Therefore, under the
pleadings, Mckesson cannot be held liable under a vicarious liability theory.
2.
We now move on to address Officer Doe’s civil conspiracy theory. Civil
conspiracy is not itself an actionable tort. Ross v. Conoco, Inc., 828 So. 2d 546,
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552 (La. 2002). Instead, it assigns liability arising from the existence of an
underlying unlawful act. Id. In order to impose liability for civil conspiracy in
Louisiana, a plaintiff must prove that (1) an agreement existed with one or
more persons to commit an illegal or tortious act; (2) the act was actually
committed; (3) the act resulted in plaintiff’s injury; and (4) there was an
agreement as to the intended outcome or result. Crutcher-Tufts Res., Inc. v.
Tufts, 992 So. 2d 1091, 1094 (La. Ct. App. 2008); see also La. Civ. Code art.
2324. “Evidence of . . . a conspiracy can be actual knowledge, overt actions
with another, such as arming oneself in anticipation of apprehension, or
inferred from the knowledge of the alleged co-conspirator of the impropriety of
the actions taken by the other co-conspirator.” Stephens v. Bail Enf’t, 690 So.
2d 124, 131 (La. Ct. App. 1997).
Officer Doe’s complaint is vague about the underlying conspiracy to
which Mckesson agreed, or with whom such an agreement was made. In his
complaint, Officer Doe refers to a conspiracy “to incite a riot/protest.”
Disregarding Officer Doe’s conclusory allegations, we find that Officer Doe has
not alleged facts that would support a plausible claim that Mckesson can be
held liable for his injuries on a theory of civil conspiracy. Although Officer Doe
has alleged facts that support an inference that Mckesson agreed with
unnamed others to demonstrate illegally on a public highway, he has not pled
facts that would allow a jury to conclude that Mckesson colluded with the
unknown assailant to attack Officer Doe or knew of the attack and specifically
ratified it. The closest that Officer Doe comes to such an allegation is when he
states that Mckesson was “giving orders” throughout the demonstration. But
we cannot infer from this quite unspecific allegation that Mckesson ordered
the unknown assailant to attack Officer Doe. Lacking an allegation of this
pleading quality, Officer Doe’s conspiracy claim must and does fail.
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3.
Finally, we turn to Officer Doe’s negligence theory. Officer Doe alleges
that Mckesson was negligent for organizing and leading the Baton Rouge
demonstration because he “knew or should have known” that the
demonstration would turn violent. We agree as follows.
Louisiana Civil Code article 2315 provides that “[e]very act whatever of
man that causes damage to another obliges him by whose fault it happened to
repair it.” The Louisiana Supreme Court has adopted a “duty-risk” analysis
for assigning tort liability under a negligence theory. This theory requires a
plaintiff to establish that (1) the plaintiff suffered an injury; (2) the defendant
owed a duty of care to the plaintiff; (3) the duty was breached by the defendant;
(4) the conduct in question was the cause-in-fact of the resulting harm; and (5)
the risk of harm was within the scope of protection afforded by the duty
breached. Lazard v. Foti, 859 So. 2d 656, 659 (La. 2003). Whether a defendant
owes a plaintiff a duty is a question of law. Posecai v. Wal-Mart Stores, Inc.,
752 So. 2d 762, 766 (La. 1999); see Bursztajn v. United States, 367 F.3d 485,
489 (5th Cir. 2004) (“Under Louisiana law, the existence of a duty presents a
question of law that ‘varies depending on the facts, circumstances, and context
of each case and is limited by the particular risk, harm, and plaintiff involved.’”
(quoting Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994))).
There is a “universal duty on the part of the defendant in negligence cases to
use reasonable care so as to avoid injury to another.” Boykin v. La. Transit
Co., 707 So. 2d 1225, 1231 (La. 1998). Louisiana courts elucidate specific duties
of care based on consideration of
various moral, social, and economic factors, including the fairness
of imposing liability; the economic impact on the defendant and on
similarly situated parties; the need for an incentive to prevent
future harm; the nature of defendant’s activity; the potential for
an unmanageable flow of litigation; the historical development of
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precedent; and the direction in which society and its institutions
are evolving.
Posecai, 752 So. 2d at 766.
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 alleges that
Mckesson planned to block a public highway as part of the protest. And the
complaint specifically alleges that Mckesson was in charge of the protests and
was seen and heard giving orders throughout the day and night of the protests.
Blocking a public highway is a criminal act under Louisiana law. See La. Rev.
Stat. Ann. § 14:97. Indeed, the complaint alleges that Mckesson himself was
arrested during the demonstration. 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 likely 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.
This is not, as the dissenting opinion contends, a “duty to protect others from
the criminal activities of third persons.” See Posecai, 752 So. 2d at 766.
Louisiana does not recognize such a duty. It does, however, recognize a duty
not to negligently cause a third party to commit a crime that is a foreseeable
consequence of negligence. See Brown v. Tesack, 566 So. 2d 955 (La. 1990).
The former means a business owner has no duty to provide security guards in
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its parking lot if there is a very low risk of crime. See Posecai, 752 So. 2d at
770. The latter means a school can be liable when it negligently disposes of
flammable material in an unsecured dumpster and local children use the liquid
to burn another child. See Brown, 566 So. 2d at 957. That latter rule applies
here too: Mckesson owed Doe a duty not to negligently precipitate the crime of
a third party. And a jury could plausibly find that a violent confrontation with
a police officer was a foreseeable effect of negligently directing a protest. 6
Officer Doe has also plausibly alleged that Mckesson’s breach of duty was
the cause-in-fact of Officer Doe’s injury and that the injury was within the
scope of the duty breached by Mckesson. It may have been an unknown
demonstrator who threw the hard object at Officer Doe, but by leading the
demonstrators onto the public highway and provoking a violent confrontation
with the police, Mckesson’s negligent actions were the “but for” causes of
Officer Doe’s injuries. See Roberts v. Benoit, 605 So. 2d 1032, 1052 (La. 1992)
(“To meet the cause-in-fact element, a plaintiff must prove only that the
conduct was a necessary antecedent of the accident, that is, but for the
defendant’s conduct, the incident probably would not have occurred.”).
Furthermore, as the purpose of imposing a duty on Mckesson in this situation
is to prevent foreseeable violence to the police and bystanders, Officer Doe’s
injury, as alleged in the pleadings, was within the scope of the duty of care
allegedly breached by Mckesson.
The amended complaint only bolsters these conclusions. It specifically
alleges that Mckesson led protestors down a public highway in an attempt to
block the interstate. The protestors followed. During this unlawful act,
6The dissenting opinion attempts to distinguish Brown by pointing out that “we are
dealing with the criminal acts of an adult, not a child.” But the dissenting opinion does not
explain why the child/adult distinction should matter. The potential for future violent actions
by adults can be just as foreseeable as the potential for future violent actions by children.
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Mckesson knew he was in violation of law and livestreamed his arrest. Finally,
the plaintiff’s injury was suffered during this unlawful action. The amended
complaint alleges that it was during this struggle of the protestors to reach the
interstate that Officer Doe was struck by a piece of concrete or rock-like object.
It is an uncontroversial proposition of tort law that intentionally breaking, and
encouraging others to break, the law is relevant to the reasonableness of one’s
actions.
We iterate what we have previously noted: Our ruling at this point is not
to say that a finding of liability will ultimately be appropriate. At the motion
to dismiss stage, however, we are simply required to decide whether Officer
Doe’s claim for relief is sufficiently plausible to allow him to proceed to
discovery. We find that it is.
B.
Having concluded that Officer Doe has stated a plausible claim for relief
against Mckesson under state tort law, we will now take a step back and
address the district court’s determination that Officer Doe’s complaint should
be dismissed based on the First Amendment. 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.’” Doe, 272 F. Supp.
3d at 847 (quoting Claiborne Hardware, 458 U.S. at 927). The district court
then went on to find that there were no plausible allegations that Mckesson
had done so in his complaint.
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The district court appears to have assumed that in order to state a claim
that Mckesson was liable for his injuries, Officer Doe was required to allege
facts that created an inference that Mckesson directed, authorized, or ratified
the unknown assailant’s specific conduct in attacking Officer Doe. This
assumption, however, does not fit the situation we address today. Even if we
assume that Officer Doe seeks to hold Mckesson “liable for the unlawful
conduct of others” within the meaning of Claiborne Hardware, the First
Amendment would not require dismissal of Officer Doe’s complaint. 458 U.S.
at 927. In order to counter Mckesson’s First Amendment defense 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.
See id. (“[A] finding that [the defendant] authorized, directed, or ratified
specific tortious activity would justify holding him responsible for the
consequences of that activity.”). 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.
We focus here on the fact that Mckesson “directed . . . specific tortious
activity” because we hold that Officer Doe has adequately alleged that his
injuries were the result of Mckesson’s own tortious conduct in directing an
illegal and foreseeably violent protest. In Mckesson’s petition for rehearing,
he expresses concern that the panel opinion permits Officer Doe to hold him
liable for the tortious conduct of others even though Officer Doe merely alleged
that he was negligent, and not that he specifically intended that violence would
result. We think that Mckesson’s criticisms are misplaced. We perceive no
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constitutional issue with Mckesson being held liable for injuries caused by a
combination of his own negligent conduct and the violent actions of another
that were foreseeable as a result of that negligent conduct. The permissibility
of such liability is a standard aspect of state law. See Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 19 (2010) (“The conduct of
a defendant can lack reasonable care insofar as it foreseeably combines with
or permits the improper conduct of the plaintiff or a third party.”). There is no
indication in Claiborne Hardware or subsequent decisions that the Supreme
Court intended to restructure state tort law by eliminating this principle of
negligence liability.
A close reading of Claiborne Hardware makes this clear. In that case,
the Mississippi Supreme Court had found defendants liable for malicious
interference with plaintiff’s business when they executed a sustained boycott
against white-owned businesses for the purpose of securing “equal rights and
opportunities for Negro citizens.” See Claiborne Hardware, 458 U.S. at 899
(internal quotations omitted). That holding depended on the conclusion that
“force, violence, or threats” were present. See id. at 895 (citing 393 So. 2d 1290,
1301 (Miss. 1980)). This was a departure from the holding of the state
chancery court. As the United States Supreme Court clarified, “[t]he
Mississippi Supreme Court did not sustain the chancellor’s imposition of
liability on a theory that state law prohibited a nonviolent, politically
motivated boycott.” Id. at 915. This distinction is key: Before the United
States Supreme Court, the only unlawful activities at issue involved “force,
violence, or threats.” If the “force, violence, [and] threats” had been removed
from the boycott, the remaining conduct would not have been tortious at all.
This posture is central to understanding what Claiborne Hardware did,
and more importantly, did not, hold. When Claiborne Hardware speaks of
violence, it speaks of the only unlawful activity at issue in the case. Consider
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its observation that “[w]hile the State legitimately may impose damages for
the consequences of violent conduct, it may not award compensation for the
consequences of nonviolent, protected activity.” Id. at 918. It could not award
compensation for the consequences of nonviolent activity because the only
potentially tortious conduct at issue was violent. Indeed, the court expressly
declined to reach the question of how it would have ruled if the nonviolent
aspects of the boycott had been found to be tortious violations of an
appropriately tailored state law. See id. at 915 n.49.
Yet the dissenting opinion reads Claiborne Hardware as creating a broad
categorical rule: “Claiborne Hardware . . . insulates nonviolent protestors from
liability for others’ conduct when engaging in political expression, even
intentionally tortious conduct, not intended to incite immediate violence.” How
does it reach this conclusion? It relies on the Claiborne Hardware chancery
court opinion that grounded liability in nonviolent protest. But the Mississippi
Supreme Court and the United States Supreme Court grounded liability solely
in the presence of “force, violence or threats.” Id. at 895. The United States
Supreme Court did not invent a “violence/nonviolence distinction” when it
explained that “[w]hile the State legitimately may impose damages for the
consequences of violent conduct, it may not award compensation for the
consequences of nonviolent, protected activity.” Id. at 918. It merely applied
black-letter tort law: Because the only tortious conduct in Claiborne Hardware
was violent, no nonviolent conduct could have proximately caused the
plaintiff’s injury. See id. (“Only those losses proximately caused by unlawful
conduct may be recovered.”).
For the same reason, the Claiborne Hardware opinion makes frequent
reference to unlawful conduct when, under the dissenting opinion’s view, it
should have spoken of violence. See, e.g., id. at 920 (“For liability to be imposed
by reason of association alone, it is necessary to establish that the group itself
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possessed unlawful goals and that the individual held a specific intent to
further those illegal aims.”); id. at 925 (“There is nothing unlawful in standing
outside a store and recording names.”); id. at 926 (“Unquestionably, these
individuals may be held responsible for the injuries that they caused; a
judgment tailored to the consequences of their unlawful conduct may be
sustained.”); id. at 927 (“There are three separate theories that might justify
holding Evers liable for the unlawful conduct of others.”); id. at 933 (“At times
the difference between lawful and unlawful collective action may be identified
easily by reference to its purpose.”). In every instance, if the Court were
creating a violence/nonviolence distinction it would have replaced “unlawful”
with “violent.” It did not, because it created no such demarcation. Rather, it
addressed the case before it, where the only tortious conduct was violent. 7
This supposed violence/nonviolence distinction also does not square with
the case law. Take New York Times Co. v. Sullivan, 376 U.S. 254 (1964). That
case held that a public officer cannot “recover[] damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement
was made with ‘actual malice’—that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.” Id. at 279–80. But
defamation is a nonviolent tort, and statements made about public officers are
often shouted during political protests. If the dissenting opinion’s
7 The dissenting opinion concedes that the First Amendment does not “protect[]
individuals from all liability as long as their speech was nonviolent.” Rather, the dissenting
opinion contends, “Claiborne Hardware supports the proposition that an individual cannot
be held liable for violence if his speech did not ‘authorize[], direct[], or ratif[y]’ violence.” But
the basis of potential liability in this case is Mckesson’s actions and conduct in directing the
illegal demonstration, not his speech and advocacy. Elsewhere, the dissenting opinion
describes its thesis this way: “encouraging [] unlawful activity cannot expose Mckesson to
liability for violence because he didn’t instruct anyone to commit violence.” But that still
overreads Claiborne Hardware; if this were the rule, then a protest leader who directs
protesters to occupy an empty business could not be held liable for a violent confrontation
that foreseeably follows between a protester and a business owner or police officer.
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interpretation is correct, then it would seem that even the narrow “actual
malice” exception to immunity was eliminated by Claiborne Hardware, at least
for statements made during a protest.
Neither do recent cases vindicate this understanding. The Seventh
Circuit examined a boycott similar to the one in Claiborne Hardware, this time
a boycott by a union of a hotel and those doing business with the hotel. See
520 S. Mich. Ave. Assocs., Ltd. v. Unite Here Local 1, 760 F.3d 708 (7th Cir.
2014). The court found that it was “undisputed that the Union delegations all
attempted to communicate a message on a topic of public concern.” Id. at 723.
But the court nonetheless held that the boycotters could be found liable if they
had crossed the line into illegal coercion, because “prohibiting some of the
Union’s conduct under the federal labor laws would pose no greater obstacle to
free speech than that posed by ordinary trespass and harassment laws.” Id.
The court’s benchmark for liability was illegality, not violence. The court
concluded that if “the Union’s conduct in this case is equivalent to secondary
picketing, and inflicts the same type of economic harm, it too may be prohibited
without doing any harm to First Amendment liberties.” Id. The dissenting
opinion cannot be squared with this outcome.
Finally, the violence/nonviolence distinction does not make sense.
Imagine protesters speaking out on a heated political issue are marching in a
downtown district. As they march through the city, a protester jaywalks. To
avoid the jaywalker, a car swerves off the street, and the driver is seriously
injured. If the dissenting opinion’s interpretation of Claiborne Hardware is
correct, the First Amendment provides an absolute defense to liability for the
jaywalker in a suit by the driver. The dissenting opinion says that “preventing
tortious interference is not a proper justification for restricting free speech
(unlike preventing violence)” because Claiborne Hardware cemented a
“violence/nonviolence distinction.” The theory seems to be that because
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tortious interference is nonviolent, it cannot be tortious if done for a political
reason. So too with every nonviolent tort? What about nonviolent criminal
offenses done for a political reason? The dissenting opinion does not seem to
believe that engaging in a protest provides a protestor immunity for violating
La. Rev. Stat. Ann. § 14:97. What is the logic behind immunizing protestors
from nonviolent civil liability while retaining their nonviolent criminal
liability? 8
We of course acknowledge that Mckesson’s negligent conduct took place
in the context of a political protest. It is certainly true that “the presence of
activity protected by the First Amendment imposes restraints on the grounds
that may give rise to damages liability and on the persons who may be held
accountable for those damages.” Claiborne Hardware, 458 U.S. at 916–17. But
Claiborne Hardware does not insulate the petitioner from liability for his own
negligent conduct simply because he, and those he associated with, also
intended to communicate a message. See id. at 916 (“[T]he use of weapons,
gunpowder, and gasoline may not constitutionally masquerade under the guise
of advocacy.” (internal quotation marks and citations omitted)). Furthermore,
although we do not understand the petitioner to be arguing that the Baton
Rouge police violated the demonstrators’ First Amendment rights by
attempting to remove them from the highway, we note that the criminal
conduct allegedly ordered by Mckesson was not itself protected by the First
Amendment, as Mckesson ordered the demonstrators to violate a reasonable
time, place, and manner restriction by blocking the public highway. See Clark
v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (reasonable time,
place, and manner restrictions do not violate the First Amendment). As such,
8 The dissenting opinion does not engage with our reading of Claiborne Hardware, nor
does it grapple with the staggering consequences of its approach.
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no First Amendment protected activity is suppressed by allowing the
consequences of Mckesson’s conduct to be addressed by state tort law.
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. The district court erred by dismissing Officer Doe’s complaint—at the
pleading stage—as barred by the First Amendment. 9 We emphasize that this
means only that, given the facts that Doe alleges, he could plausibly succeed
on this claim. We make no statement (and we cannot know) whether he will.
C.
Now we turn our attention to whether Officer Doe has stated a claim
against Black Lives Matter. The district court took judicial notice that “‘Black
Lives Matter,’ as that term is used in the Complaint, is a social movement that
was catalyzed on social media by the persons listed in the Complaint in
response to the perceived mistreatment of African-American citizens by law
enforcement officers.” Based on this conclusion, the district court held that
Black Lives Matter is not a “juridical person” capable of being sued. See
Ermert, 559 So. 2d at 474. We first address the district court’s taking of judicial
notice, then Black Lives Matter’s alleged capacity to be sued.
Federal Rule of Evidence 201 provides that a court may take judicial
notice of an “adjudicative fact” if the fact is “not subject to reasonable dispute”
9 We emphasize, however, that our opinion does not suggest that the First Amendment
allows a person to be punished, or held civilly liable, simply because of his associations with
others, unless it is established that the group that the person associated with “itself possessed
unlawful goals and that the individual held a specific intent to further those illegal aims.”
Claiborne Hardware, 458 U.S. at 920. But we also observe that, in any event, Officer Doe’s
allegations are sufficient to state a claim that Black Lives Matter “possessed unlawful goals”
and that Mckesson “held a specific intent to further those illegal aims.” See id. Officer Doe
alleges that Black Lives Matter “plann[ed] to block a public highway,” and, in his amended
complaint, that Mckesson and Black Lives Matter traveled to Baton Rouge “for the purpose
of . . . rioting.” (emphasis added).
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in that it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot be questioned. Fed. R. Evid. 201(b). “Rule 201
authorizes the court to take notice only of ‘adjudicative facts,’ not legal
determinations.” Taylor v. Charter Med. Corp., 162 F.3d 827, 831 (5th Cir.
1998). In Taylor, we held that another court’s state-actor determination was
not an “adjudicative fact” within the meaning of Rule 201 because “[w]hether
a private party is a state actor for the purposes of § 1983 is a mixed question
of fact and law and is thus subject to our de novo review.” Id. at 830–31. We
further held that the state-actor determination was not beyond reasonable
dispute where it “was, in fact, disputed by the parties” in the related case. Id.
at 830.
We think that the district court was incorrect to take judicial notice of a
mixed question of fact and law when it concluded that Black Lives Matter is a
“social movement, rather than an organization or entity of any sort.” The legal
status of Black Lives Matter is not immune from reasonable dispute; and,
indeed, it is disputed by the parties—Doe claiming that Black Lives Matter is
a national unincorporated association, and Mckesson claiming that it is a
movement or at best a community of interest. This difference is sufficient
under our case law to preclude judicial notice.
We should further say that we see the cases relied on by the district court
as distinguishable. Each deals with judicial notice of an aspect of an entity,
not its legal form. See United States v. Parise, 159 F.3d 790, 801 (3d Cir. 1998)
(holding that the court could take judicial notice of the aims and goals of a
movement); Atty. Gen. of U.S. v. Irish N. Aid. Comm., 530 F. Supp. 241, 259–
60 (S.D.N.Y. 1981) (stating the court could take “notice that the IRA is a
‘Republican movement,’ at least insofar as it advocates a united Ireland”
(emphasis added)); see also Baggett v. Bullitt, 377 U.S. 360, 376 n.13 (1964)
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(noting that “[t]he lower court took judicial notice of the fact that the
Communist Party of the United States . . . was a part of the world Communist
movement” (emphasis added)).
Now, we move on to discuss the merits of Officer Doe’s contention that
Black Lives Matter is a suable entity. He alleges that Black Lives Matter “is
a national unincorporated association with chapter [sic] in many states.”
Under Federal Rule of Civil Procedure 17(b), the capacity of an entity “to sue
or be sued is determined . . . by the law of the state where the court is located.”
Under Article 738 of the Louisiana Code of Civil Procedure, “an unincorporated
association has the procedural capacity to be sued in its own name.” The
Louisiana Supreme Court has held that “an unincorporated association is
created in the same manner as a partnership, by a contract between two or
more persons to combine their efforts, resources, knowledge or activities for a
purpose other than profit or commercial benefit.” Ermert, 559 So. 2d at 473.
“Interpretation of a contract is the determination of the common intent of the
parties.” La. Civ. Code Ann. art. 2045. To show intent, “the object of the
contract of association must necessarily be the creation of an entity whose
personality ‘is distinct from that of its members.’” Ermert, 559 So. 2d at 474
(quoting La. Civ. Code Ann. art. 24). Louisiana law does not provide for a
public display of the parties’ intent. Id.
Louisiana courts have looked to various factors as indicative of an intent
to create an unincorporated association, including requiring dues, having
insurance, ownership of property, governing agreements, or the presence of a
formal membership structure. See Bogue Lusa Waterworks Dist. v. La. Dep’t
of Envtl. Quality, 897 So. 2d 726, 728–729 (La. Ct. App. 2004) (relying on
organization’s unfiled articles of incorporation); Friendship Hunting Club v.
Lejeune, 999 So. 2d 216, 223 (La. Ct. App. 2008) (relying on organization’s
required dues and possession of an insurance policy); see also Concerned
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Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663, 675
(E.D. La. 2010) (relying on organization’s formal and determinate membership
structure). Lacking at least some of these indicators, Louisiana courts have
been unwilling to find an intent to create an unincorporated association. See,
e.g., Ermert, 559 So. 2d at 474–475 (finding that hunting group was not an
unincorporated association because it did not own or lease the property that it
was based on, required the permission of one of its alleged members to use the
property, and lacked formal rules or bylaws).
Officer Doe has not shown in his complaint a plausible inference that
Black Lives Matter is an unincorporated association. His only allegations are
that Black Lives Matter: (1) was created by three women; (2) has several
leaders, including Mckesson; (3) has chapters in many states; and (4) was
involved in numerous protests in response to police practices. He does not
allege that it possesses property, has a formal membership, requires dues, or
possesses a governing agreement. As such, the complaint lacks any indication
that Black Lives Matter possesses the traits that Louisiana courts have
regarded as indicative of an intent to establish a juridical entity. We have no
doubt that Black Lives Matter involves a number of people working in concert,
but “an unincorporated association . . . . does not come into existence or
commence merely by virtue of the fortuitous creation of a community of
interest or the fact that a number of individuals have simply acted together.”
Id. at 474. Therefore, we find that the district court did not err in concluding
that Officer Doe’s complaint has failed plausibly to allege that Black Lives
Matter is an entity capable of being sued. 10
10 We do not address whether Officer Doe could state a claim against an entity whose
capacity to be sued was plausibly alleged, nor do we address whether Mckesson could be held
liable for the actions of that entity under state law.
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VI.
In sum, we hold that Officer Doe has not adequately alleged that
Mckesson was vicariously liable for the conduct of the unknown assailant or
that Mckesson entered into a civil conspiracy with the purpose of injuring
Officer Doe. We do find, however, that Officer Doe adequately alleged that
Mckesson is liable in negligence for organizing and leading the Baton Rouge
demonstration to illegally occupy a highway. We further find that in this
context the district court erred in dismissing the suit on First Amendment
grounds. As such, Officer Doe has pleaded a claim for relief against DeRay
Mckesson in his active complaint. 11 The district court therefore erred by
concluding that it would be futile for Doe to amend his complaint. We also hold
that the district court erred by taking judicial notice of the legal status of
“Black Lives Matter,” but nonetheless find that Officer Doe did not plead facts
that would allow us to conclude that Black Lives Matter is an entity capable of
being sued. Therefore, the judgment of the district court is AFFIRMED in part,
REVERSED in part, and the case is REMANDED for further proceedings
consistent with this opinion. 12
11 Officer Doe has complained of the lack of discovery in this case, particularly related
to his claims against the corporate defendants. Officer Doe is free to argue before the district
court that he is entitled to discovery. The district court may then decide whether, in the light
of our remand, discovery would be appropriate.
12 On appeal, Officer Doe also argues that the district court erred in denying his
request to proceed anonymously as John Doe. He argues that the public nature of his job
puts him and his family in danger of additional violence. At the district court, he listed a
number of examples of acts of violence against police officers by individuals who may have
some connection with Black Lives Matter. In its order, the district court walked through
three factors common to anonymous-party suits that we have said “deserve considerable
weight.” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). These are: (1) whether the plaintiff
is “challeng[ing] governmental activity”; (2) whether the plaintiff will be required to disclose
information “of the utmost intimacy”; and (3) whether the plaintiff will be “compelled to admit
[his] intention to engage in illegal conduct, thereby risking criminal prosecution.” Id. at 185.
The district court concluded that none of these factors applied to the facts of this case. In
response to Officer Doe’s argument regarding potential future violence, the district court
noted that the incidents Officer Doe listed did not involve Officer Doe and were not related
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AFFIRMED in part, REVERSED in part, and REMANDED.
to this lawsuit. In fact, at oral argument before the district court regarding his motion,
Officer Doe conceded that he had received no particularized threats of violence since filing
his lawsuit. The district court instead saw the incidents Officer Doe listed as evidence of “the
generalized threat of violence that all police officers face.” As a result, the district found that
Doe had not demonstrated a privacy interest that outweighs the “customary and
constitutionally embedded presumption of openness in judicial proceedings.” Id. at 186. We
agree with the district court and affirm the denial of Doe’s motion to proceed anonymously.
In so holding, we emphasize what the Supreme Court said decades ago: “What transpires in
the court room is public property.” Craig v. Harney, 331 U.S. 367, 374 (1947).
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DON R. WILLETT, Circuit Judge, concurring in part, dissenting in part:
I originally agreed with denying Mckesson’s First Amendment defense. 1
But I have had a judicial change of heart. Further reflection has led me to see
this case differently, as explained below. Admittedly, judges aren’t naturals at
backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal
judicial virtue, but not the only virtue. In my judgment, earnest rethinking
should underscore, rather than undermine, faith in the judicial process. As
Justice Frankfurter elegantly put it 70 years ago, “Wisdom too often never
comes, and so one ought not to reject it merely because it comes late.” 2
* * *
Officer John Doe was honoring his oath to serve and protect the people
of Baton Rouge when an unidentified violent protestor hurled a rock-like object
at his face. Officer Doe risked his life to keep his community safe that day—
same as every other day he put on the uniform. He deserves justice.
Unquestionably, Officer Doe can sue the rock thrower. But I am
unconvinced he can sue the protest leader. First, it is unclear whether DeRay
Mckesson owed Officer Doe a duty under Louisiana law to protect him from
the criminal acts of others. I would certify that threshold—and potentially
dispositive—issue to the Supreme Court of Louisiana. Second, the Constitution
that Officer Doe swore to protect itself protects Mckesson’s rights to speak,
assemble, associate, and petition. First Amendment freedoms, of course, are
not absolute—and there’s the rub: Did Mckesson stray from lawfully exercising
his own rights to unlawfully exorcising Doe’s. I don’t believe he did. 3
1Doe v. Mckesson, 922 F.3d 604 (5th Cir.), superseded on panel rehearing, 935 F.3d
253 (5th Cir. 2019) (Mckesson II).
2Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949)
(Frankfurter, J., dissenting).
3Although I now dissent on the First Amendment issue, I still agree with the majority
opinion that: (1) we have jurisdiction over this appeal; (2) Mckesson cannot be held
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I
Respectfully, the majority opinion is too quick to conclude that
Mckesson’s organization and leadership of the Black Lives Matter protest
amounted to negligence. Under Louisiana law, a person generally has “no duty
to protect others from the criminal activities of third persons.” 4 And to
determine whether to impose such a duty, “the court must make a policy
decision in light of the unique facts and circumstances presented.” 5 This case
raises consequential questions of Federal constitutional law—but only
potential questions. If Louisiana law does not impose a duty on protest
organizers to protect officers from the criminal violence of individual
protestors, then the First Amendment issues, however important, are moot.
The majority opinion concludes that Mckesson, as protest organizer, can
be held liable for Officer Doe’s injuries because the Constitution “does not
insulate [Mckesson] from liability for his own negligent conduct simply because
he, and those he associated with, also intended to communicate a message.” 6
Putting aside whether the Constitution, in fact, supports precisely that, 7 the
starting-point question is whether Mckesson’s conduct was negligent at all.
vicariously liable for the assailant’s actions; (3) Officer Doe failed to state a civil conspiracy
claim; (4) Officer Doe failed to adequately allege that Black Lives Matter is an unincorporated
association capable of being sued under Louisiana law; and (5) Officer Doe is not entitled to
proceed anonymously.
4 Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 766 (La. 1999).
5 Id.
6 Maj. Op. at 18.
7 See N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982) (“The right to
associate does not lose all constitutional protection merely because some members of the
group may have participated in conduct or advocated doctrine that itself is not protected.”).
Claiborne Hardware, in part, addresses what protest conduct can give rise to tort liability
consistent with the First Amendment, something that requires “precision of regulation” even
when holding someone liable for his own actions in connection with protected speech. Id. at
916.
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And step one of that inquiry is determining whether a duty exists—a pure
question of law. 8
The majority concludes that the foreseeable risk of violence alone
imposed a duty on Mckesson to exercise reasonable care to avoid that violence.
But I am unaware of any Louisiana case imposing a duty to protect against the
criminal acts of a third party absent a special relationship that entails an
independent duty. 9 The majority, as it must, accepts that Louisiana does not
8 Lazard v. Foti, 859 So. 2d 656, 659 (La. 2003).
9 See Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 101 (5th Cir. 1990) (“Ordinarily,
Louisiana law imposes no duty to protect against the criminal acts of third persons. However,
a duty to protect against foreseeable criminal misconduct may arise from a special
relationship.” (internal citations omitted)); Wellons v. Grayson, 583 So. 2d 1166, 1168–69 (La.
App. 1 Cir. 1991) (explaining that, for a party to have an obligation to protect against the
criminal acts of others, “some special relationship must exist in order for that duty to arise”).
For instance, in Posecai, the Supreme Court of Louisiana examined whether a business owed
a duty to its customers to protect against criminal acts that were reasonably foreseeable to
occur in the business’s parking lot. 752 So. 2d at 766. Importantly, the business
unquestionably owed some duty to the customer because the customer was an invitee on the
property; the question was how far that duty extended. And because, on balance, the risk of
criminal activity was reasonably foreseeable and the burden of imposing a duty to protect
against that risk was minimal, the court chose to impose a duty on the business. Id. at 768.
Consider also Brown v. Tesack, relied upon by the majority. 566 So. 2d 955 (La. 1990).
In Brown, there was no question that the school had a duty to properly dispose of hazardous
materials. Id. at 957. The school “specifically recognized” that certain flammable liquids
created an unreasonable risk to the children who played on the school’s property. Id. As in
Posecai, the question before the Supreme Court of Louisiana was whether this pre-existing
duty extended to protecting against the acts of third parties (i.e., one child abusing the
flammable liquids and burning another child). Id. The court concluded that because the harm
that occurred was not only a foreseeable consequence of a breach of the school’s already
existing duty, but was a “foreseen” harm, protecting against the risk of children taking and
misusing the hazardous liquids was within the scope of the school’s underlying duty to
properly dispose of the liquids. Id. at 957–58. Further, the underlying duty in Brown was tied
to the heightened standard of care involving children, which is not an issue in our case. See
id. at 957 (“A duty was owed both to these children and to their potential victims. . . . We
agree . . . that ‘children who possess a flammable substance can be expected to light it, to
attract other children to join in the play and to commit criminal acts or engage in other
misadventures.’ ” (quoting Brown, 556 So. 2d at 89. (Plotkin, J., dissenting) (“[T]here is no
difference between the recognizable risk of a minor’s misuse of an inherently dangerous object
and the likelihood that the minor will cause personal or property damages to others[.]”) ) ) .
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recognize such a duty. Instead, it argues, Louisiana law imposes a “duty not to
negligently cause a third party to commit a crime that is a foreseeable
consequence of negligence.” 10 Respectfully, this is a semantic distinction
without an analytic difference. And it is a distinction unsupported by
Louisiana law. 11 Doe asserts that Mckesson “did nothing to calm the crowd,”
but under Claiborne Hardware, a duty to repudiate “cannot arise unless,
absent repudiation, an individual could be found liable for those acts.” 12 Duty
is the first inquiry. And possibly the last.
Recently, in another Louisiana tort case, we stressed, “If guidance from
state cases is lacking, ‘it is not for us to adopt innovative theories of recovery
Here, the harm to Officer Doe was not within the scope of the highway-obstruction
statute that the majority alleges Doe violated, and Mckesson owed no pre-existing duty to
Doe because of a special relationship between them. Finally, the majority opinion, while
quoting the multi-factor balancing analysis required by the Louisiana Supreme Court in
Posecai, never gets around to actually applying it. Rather, the majority simply assumes that
because the harm was foreseeable, a duty necessarily exists. Louisiana law requires more.
10 Maj. Op. at 10.
11 The majority opinion attempts to distinguish between a duty to protect against a
crime and a duty not to precipitate one. But I have certainly not found any case that describes
such a difference or recognizes the majority’s proposed duty. See, e.g., Harris v. Pizza Hut of
La., Inc., 45 So. 2d 1364, 1369–70 (La. 1984) (“Louisiana has for some time employed the duty-
risk analysis to determine legal responsibility in tort claims. The pertinent inquiries are: . . .
II. Whether there was a duty on the part of the defendant which was imposed to protect
against the risk involved . . . . (emphasis added)). And, despite the majority’s contention
otherwise, both Posecai and Brown concern a duty to protect against the criminal acts of
others, which exists only where there is a pre-existing special relationship that itself imposes
a duty. See Posecai, 752 So. 2d at 766; Brown, 566 So. 2d at 957 (“[A]ll rules of conduct . . .
exist for purposes. They are designed to protect some persons under some circumstances
against some risks . . . (quoting Wex Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev.
60, 73 (1956)) (emphasis and ellipses in original)). The majority opinion never grapples with
Louisiana’s unequivocal expression that for a person to be held liable for the consequences of
others’ actions, there must be a pre-existing duty between the acting and the liable parties.
This necessity does not go away simply because the majority has rephrased the duty at issue.
12 458 U.S. at 925 n.69.
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under state law.’ ” 13 Wise words. I would be chary of making policy decisions
that create or expand Louisiana tort duties. Given the fateful First
Amendment issues, and the dearth of on-point guidance from Louisiana courts,
I would certify this res nova negligence question to the Supreme Court of
Louisiana: Does a protest’s foreseeable risk of violence impose a duty upon the
protest organizer, such that he can be held personally liable for injuries
inflicted by an unknown assailant? Because if there’s no duty, there’s no
negligence. And if there’s no negligence, there’s no case. And if there’s no case,
there’s no need to fret about the First Amendment.
This is not a federal constitutional case unless it is first a state tort case.
As such, certification is counseled, if not compelled, by the twin doctrines of
constitutional avoidance and abstention. We recently remarked that “the
doctrine of constitutional avoidance is rooted in basic considerations of
federalism,” 14 adding that where a ruling on constitutionality “could be avoided
by interpretation of Louisiana law, we must give due consideration to this non-
constitutional ground for decision.” 15 This caution is less prudish than prudent,
and has a venerable, generations-long pedigree. The Supreme Court, almost
80 years ago, held that “where uncertain questions of state law must be
resolved before a federal constitutional question can be decided, federal courts
should abstain until a state court has addressed the state questions.” 16
After all, state judiciaries are equal partners in our shared duty “to say
13 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (quoting Mayo v. Hyatt
Corp., 898 F.2d 47, 49 (5th Cir. 1990)).
14 St. Joseph Abbey v. Castille, 700 F.3d 154, 168 (5th Cir. 2012).
15 Id. at 167.
Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 667 (2006) (citing Railroad
16
Comm’n v. Pullman Co., 312 U.S. 496, 501 (1941)).
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what the law is.” 17 Bombshell federal cases dominate most headlines. But as
this same panel recently emphasized, “American justice is dispensed—
overwhelmingly—in state, not federal, judiciaries.” 18 How much? “[A]
whopping 96 percent of all cases.” 19 As Justice Scalia self-deprecatingly
observed, state law (and state courts) matter far more to citizens’ everyday
lives: “If you ask which court is of the greatest importance to an American
citizen, it is not my court.” 20
State judiciaries are fundamental, not ornamental, and have been since
the Founding, when Hamilton lauded them as “the immediate and visible
guardian of life and property.” 21 (Indeed, the federal judiciary didn’t even exist
for the first several years after independence.) Hamilton’s reassurance has
endured for 232 years. Earlier this year, we again extolled the front-and-center
role of state judiciaries: “For most Americans, Lady Justice lives in the halls of
state courts.” 22
In this case, Louisiana law poses a threshold, potentially decisive
question. Only the Supreme Court of Louisiana can adjudicate it
authoritatively. Certification—inviting the state high court’s definitive word—
17 Marbury v. Madison, 5 U.S. 137, 177 (1803).
18 Thompson v. Dallas City Attorney’s Office, 913 F.3d 464, 470–71 (5th Cir. 2019)
(citing Jennifer W. Elrod, Don't Mess with Texas Judges: In Praise of the State Judiciary, 37
HARV. J.L. & PUB. POL’Y 629 (2013)).
19New NCSC Video Explains That State Courts Are Where the Action Is, NAT. CTR.
FOR STATE COURTS (Nov. 28, 2018), https://www.ncsc.org/Newsroom/at-the-Center/2018/Nov-
28.aspx.
20Thompson, 913 F.3d at 471 (quoting Justice Scalia Honors U.S. Constitution, GEO.
WASH. TODAY (Sept. 18, 2013), https://gwtoday.gwu.edu/justice-scalia-honors-us-
constitution).
21 THE FEDERALIST NO. 17 (Alexander Hamilton).
22Thompson, 913 F.3d at 470 (citing John Schwartz, Critics Say Budget Cuts for
Courts Risk Rights, N.Y. TIMES, Nov. 27, 2011, at A18 (quoting a former justice of the
Colorado Supreme Court)).
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serves the dual goals of abstention and avoidance by obviating (perhaps) the
need to confront the First Amendment at all. Avoiding unnecessary federal
constitutional rulings honors our bedrock commitment to federalism. On this
point, we have not minced words: “[T]he Supreme Court has long recognized
that concerns for comity and federalism may require federal courts to either
abstain from deciding federal constitutional issues that are entwined with the
interpretation of state law or certify the questions of state law to the state’s
highest court for an authoritative interpretation of them before reaching the
merits of the cases.” 23 Indeed, as the Supreme Court has itself stressed, our
carefully wrought system of federalism is best served by avoiding “the friction
of a premature constitutional adjudication.” 24 And certification of state-law
questions may be particularly important in First Amendment cases. 25
To my mind, there is no need for Erie guesses or crystal balls. Federal-
to-state certification is a remarkable device: workable, efficient, and
guaranteed to yield a doubt-free answer. Zero guesswork, Erie or otherwise.
And this case, by any traditional measure, hits the certification bull’s-eye: The
state-law answer is uncertain, and the federal-law question is (maybe)
unnecessary. The first adjudication of this unresolved issue, one that portends
far-reaching impact given the ubiquity of “negligent protests,” should be
decisive and authoritative, one on which the people of Louisiana can rely.
True, certification is entirely discretionary, not obligatory. And the
tipping point for certification-worthiness eludes mathematical precision; it’s
23 Carmouche, 449 F.3d at 667.
24 Pullman, 312 U.S. at 500.
25 See Clay Calvert, Certifying Questions in First Amendment Cases: Free Speech,
Statutory Ambiguity, and Definitive Interpretations, 60 B.C.L. REV. 1349, 1352 (2019).
31
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wholly subjective, with a patent, eye-of-the-beholder flavor. 26 But this case
seems a Certification 101 exemplar that calls for cooperative judicial
federalism. If consequential state-law ground is to be plowed, I believe the
Supreme Court of Louisiana should do the plowing.
It is principally the role of state judges to define and delimit state causes
of action. And state supreme courts have an irreplaceable duty: to be supreme
and to speak supremely. We should let them do so, particularly when doing so
may obviate a knotty federal question. I would leave this ruling on Louisiana
negligence law to those elected to rule on Louisiana negligence law. I would
seek conclusive word from the conclusive court as to what state law prescribes
and proscribes. I would not guess, predict, or speculate. I would certify.
II
Even assuming that Mckesson could be sued under Louisiana law for
“negligently” leading a protest at which someone became violent, the First
Amendment “imposes restraints” on what (and whom) state tort law
may punish. 27 Just as there is no “hate speech” exception to the First
26 Disclosure: My dozen years as a state high court jurist likely make me more inclined
to certify (as does my judgment that the majority reaches the wrong constitutional result).
As this is a federal constitutional case only if it is first a viable state negligence case, a state
supreme court justice would reasonably think it her job to decide an unsettled state-law issue
of far-reaching significance.
27 Claiborne Hardware, 458 U.S. at 916–17 (“Specifically, the presence of activity
protected by the First Amendment imposes restraints on the grounds that may give rise to
damages liability and on the person who may be held accountable for those damages.”). As to
what activity may be subject to liability, the Court held: “While the State legitimately may
impose damages for the consequences of violent conduct, it may not award compensation for
the consequences of nonviolent, protected activity. Only those losses proximately caused by
unlawful conduct may be recovered.” Id. at 918. As to who can be held liable for that violent
conduct, the Court held: “Civil liability may not be imposed merely because an individual
belonged to a group, some members of which committed acts of violence. For liability to be
imposed by reason of association alone, it is necessary to establish that the group itself
possessed unlawful goals and that the individual held a specific intent to further those illegal
aims.” Id. at 920.
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Amendment, 28 “negligent” speech is also constitutionally protected. 29 And
under Claiborne Hardware (and a wealth of precedent since), raucous public
protest—even “impassioned” and “emotionally charged” appeals for the use of
force—is protected unless clearly intended to, and likely to, spark immediate
violence. 30
In Claiborne Hardware, involving a years-long and sometimes violent
boycott that tortiously interfered with white-owned businesses, the Court
unanimously held that the “highly charged political rhetoric” of Charles
Evers—who “unquestionably played the primary leadership role in the
organization of the boycott”—was constitutionally protected even though Evers
vilified and urged violence against boycott breakers, warning, “if we catch any
of you going in any of them racist stores, we’re gonna break your damn neck.” 31
The Court made clear that the First Amendment does not protect words “that
provoke immediate violence” 32 or “that create an immediate panic.” 33 But
“mere advocacy of the use of force or violence does not remove speech from the
protection of the First Amendment.” 34 Because Evers only advocated for
28Matal v. Tam, 137 S. Ct. 1744 (2017) (making clear that viewpoint discrimination—
including against hateful speech that demeans—is unconstitutional).
29See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 278–80 (1964) (prohibiting
public officials from recovering damages for negligently made “defamatory falsehoods”
because permitting liability for such negligence would impose a “pall of fear and timidity . . .
upon those who would give voice to public criticism,” creating “an atmosphere in which the
First Amendment freedoms cannot survive”).
30458 U.S. at 927–28 (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (protecting
speech of Ku Klux Klan leader who threatened “revengeance” if “suppression” of the white
race continued, and defining “incitement” to mean speech that is “directed to inciting or
producing imminent lawless action and is likely to incite or produce such action”)).
31 Id. at 926–28.
32 Id. at 927.
33 Id.
34 Id. (emphasis in original).
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violence, but did not provoke or incite imminent acts of violence, the Court said
his fiery words “did not exceed the bounds of protected speech.” 35 The Court
noted there was “no evidence—apart from the speeches themselves—that
Evers authorized, ratified, or directly threatened acts of violence.” 36 In this
case, there is not even a competent allegation of such behavior.
Officer Doe does not assert that Mckesson perpetrated violence himself.
Rather, he asserts that Mckesson “incited the violence.” But Doe’s barebones
complaint specifies no words or actions by Mckesson that may have done so.
For Rule 12(b)(6) purposes, we accept well-pleaded facts as true and view them
in the light most favorable to the plaintiff. 37 But “a legal conclusion couched as
a factual allegation” need not be accepted as true. 38 Gauzy allegations that
offer only “labels and conclusions” or “naked assertion[s] devoid of further
factual enhancement” do not suffice. 39 Doe’s allegations—“[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory
35 Id. at 929.
36 Id.
37 SGK Props., L.L.C. v. U.S. Bank Nat’l Ass’n, 881 F.3d 933, 943 (5th Cir. 2018).
Confusingly, the majority opinion relies on Officer Doe’s proposed amended complaint even
though the district court denied Doe’s request to file an amended complaint. The controlling
complaint for the purposes of our analysis should be Doe’s original complaint. See Matter of
Life Partners Holdings, Inc., 926 F.3d 103, 112 n.2 (5th Cir. 2019) (accepting facts as alleged
in Third Amended Complaint, even where district court improperly denied plaintiff’s request
to file its Proposed Fourth Amended Complaint, because the Third Amended Complaint was
“the live pleading at the time of dismissal”); Stem v. Gomez, 813 F.3d 205, 209, 215–17 (5th
Cir. 2016) (relying on facts as alleged in original complaint where district court denied leave
to amend); Leal v. McHugh, 731 F.3d 405, 407 & n.1 (5th Cir. 2013) (same). But even if I
accepted the facts alleged in Doe’s Amended Complaint as true, the First Amendment would
still prohibit imposing liability against Mckesson for the violent acts of others because, as the
majority agrees, Mckesson did not authorize, direct, or ratify any violent conduct.
38 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
39Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). The majority opinion rightly disregards Doe’s “conclusory allegations”
against Black Lives Matter. See Maj. Op. at 8.
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statements”—fail the 12(b)(6) plausibility standard. 40
Doe strings together various unadorned contentions—that Mckesson
was “present during the protest,” “did nothing to calm the crowd,” “directed”
protestors to gather on the public street in front of police headquarters, and
“knew or should have known . . . that violence would result” from the protest
that Mckesson “staged.” Even taking these impermissibly conclusory
allegations as true, the complaint lacks sufficient factual detail to state a claim
for negligence, much less to overcome Mckesson’s First Amendment defense.
For example, Doe does not allege:
• What orders Mckesson allegedly gave, how he led the protest,
or what he said or did to incite violence.
• How Mckesson “controlled” or “directed” the unidentified
assailant who injured Officer Doe.
• How statements that Mckesson made to the media after the
protest amount to a ratification of violence.
Without these and other fleshed-out facts, the complaint utterly fails to link
Mckesson’s role as leader of the protest demonstration to the mystery
attacker’s violent act. In short, Doe’s skimpy complaint is heavy on well-worn
conclusions but light on well-pleaded facts.
Indeed, the lone “inciteful” speech quoted in Doe’s complaint is
something Mckesson said not to a fired-up protestor but to a mic’ed-up
reporter—the day following the protest: “The police want protestors to be too
afraid to protest.” Tellingly, not a single word even obliquely references
violence, much less advocates it. Temporally, words spoken after the protest
cannot possibly have incited violence during the protest. And tacitly, the
majority opinion seems to discard the suggestion that Mckesson uttered
anything to incite violence against Officer Doe.
40 Iqbal, 556 U.S. at 678.
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With “speech” off the table, the majority seems to endorse an alternative
liability theory—that Mckesson “authorized, directed, or ratified specific
tortious activity” 41 by leading others to block a public highway. The majority
credits Doe’s abstract, one-sentence contention that Mckesson “knew or should
have known that violence would result.” 42 Mind you, Doe’s complaint contains
no specific allegations that Mckesson advocated imminent violence, just this
bald, conclusory assertion that he negligently allowed violence to occur.
This novel “negligent protest” theory of liability seems incompatible with
the First Amendment and foreclosed—squarely—by controlling Supreme
Court precedent. Even assuming, for argument’s sake, that Mckesson directed
others to stand in the highway 43 and that violating this criminal law
constitutes a tort, 44 I disagree with the suggestion that directing any tort would
strip a protest organizer of First Amendment protection. Even Evers of
Claiborne Hardware would be liable under the majority’s analysis. After all,
the economic harm inflicted in Claiborne Hardware was “the result of [Evers’s]
own tortious conduct in organizing a foreseeably violent protest.” 45 Evers
41Claiborne Hardware, 458 U.S. at 927 (“[A] finding that [Evers] authorized, directed,
or ratified specific tortious activity would justify holding him responsible for the
consequences of that activity.”).
42 See Maj. Op. at 18 (“But Claiborne Hardware does not insulate the petitioner from
liability for his own negligent conduct simply because he, and those he associated with, also
intended to communicate a message.” (emphasis in original)).
43The majority opinion states that “Officer Doe’s complaint does allege that Mckesson
directed the demonstrators to engage in the criminal act of occupying the public highway,”
adding that Doe “specifically alleges that Mckesson led protestors down a public highway in
an attempt to block the interstate.” But the lone assertion of purposeful highway-blocking in
Doe’s scanty complaint is this sentence: “DEFENDANTS conspired to violate the law by
planning to block a public highway.” Even if “planning” equates to directing, the majority
properly holds that Doe failed to state a claim that Mckesson engaged in any conspiracy. Id.
at 260.
44 La. Rev. Stat. Ann. § 14:97.
45Maj. Op. at 13 (emphasis in original). Similarly, in Eastern Railroad Presidents
Conference v. Noerr Motor Freight Inc., the Supreme Court held that a campaign with an
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engaged in the tort of “malicious interference with the plaintiff’s business.” 46
He even threatened during a meeting that “any ‘uncle toms’ who broke the
boycott would ‘have their necks broken’ by their own people.” 47 And violence
was not just foreseeable; “several” clashes had already occurred. 48 Despite all
that, the Supreme Court ruled Evers to be constitutionally protected. Because
Evers did not specifically direct violence, the Supreme Court was unwilling to
find him liable for violence. 49 And because preventing tortious interference is
not a proper justification for restricting free speech (unlike preventing
violence), it refused to hold Evers liable for the economic harms resulting from
the boycott he led. 50
anticompetitive purpose and effect was permissible under the First Amendment, even though
the Sherman Act prohibits individuals from restraining trade or creating monopolies,
because “[t]he right of petition is one of the freedoms protected by the Bill of Rights, and we
cannot, of course, lightly impute to Congress an intent to invade these freedoms.” 365 U.S.
127, 138 (1961).
46 Claiborne Hardware, 458 U.S. at 891.
47 Id. at 900 n.28.
48 Id. at 903.
49 Id. at 927.
50 Id. at 914–15 (“[T]he petitioners certainly foresaw—and directly intended—that the
merchants would sustain economic injury as a result of their campaign[;] . . . however . . .
[t]he right of the States to regulate economic activity could not justify a complete prohibition
against a nonviolent, politically motivated boycott designed to force governmental and
economic change and to effectuate rights guaranteed by the Constitution itself. . . . We hold
that the nonviolent elements of petitioners’ activities are entitled to the protection of the First
Amendment.”). The majority opinion overlooks these statements by the Supreme Court and
instead points to proceedings that occurred in the state chancery and supreme courts to argue
that the tortious conduct that Evers unequivocally led was not at issue before the Claiborne
Hardware Court. But the Court never made such an assertion. To the contrary, the Supreme
Court observed that it was not deciding “the extent to which a narrowly tailored statute
designed to prohibit certain forms of anticompetitive conduct or certain types of secondary
pressure may restrict protected First Amendment activity. No such statute is involved in this
case. Nor are we presented with a boycott designed to secure aims that are themselves
prohibited by a valid state law.” Id. at 915 n.49. The Supreme Court did not here say that no
one committed tortious conduct; the Court affirmed that a generic statute against tortious
interference is not the type of narrowly tailored law that can restrict protected First
Amendment speech. And because it is not such a narrowly tailored law, directing others to
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In other words, when the Supreme Court observed that Evers could be
held liable if he “authorized, directed, or ratified specific tortious activity,” it
was clarifying that Evers could be held liable for violence he directly incited
because violence is a tortious activity that unequivocally falls outside First
Amendment protection. 51 This violence/nonviolence distinction 52 is cemented
later in Claiborne Hardware when the Court restates the same three-verb
standard to explain why Evers could not be liable despite his intentionally
violate it could not impose liability on Evers generally, and it certainly could not impose
liability on him for the violence of others. Id. at 914–15; see also Bradenburg, 395 U.S. at 448
(“A statute which fails to draw [a] distinction [between teaching about the need for violence
and “steeling” a group to commit violence] impermissibly intrudes upon the freedoms
guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation
speech which our Constitution has immunized from governmental control.”).
51 Claiborne Hardware, 458 U.S. at 927. This is not to say the First Amendment
protects individuals from all liability as long as their speech was nonviolent. Instead,
Claiborne Hardware supports the proposition that an individual cannot be held liable for
violence if his speech did not “authorize[], direct[], or ratif[y]” violence. Id. (“[A] finding that
[Evers] authorized, directed, or ratified specific tortious activity would justify holding him
responsible for the consequences of that activity.” (emphasis added)).
52 The majority opinion latches onto the phrase “violence/nonviolence distinction” and
appears to oversimplify it. As reiterated throughout this dissent, see, e.g., supra note 51, I do
not contend that the First Amendment protects individuals from all tortious activity as long
as it is nonviolent. Instead, I affirm the Supreme Court’s holding that a person cannot be
held liable for violent conduct that he did not intentionally incite or commit. And it is violent
conduct that is at issue here. Certainly, a libeler can be held liable for the reputational harms
caused by his libelous speech, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 348–50 (1974),
because defamation statutes are proper, narrowly tailored restrictions on the First
Amendment. But a libeler may not be held liable for the violent acts of others that the libeler
did not intend to incite with his libelous speech. See Bradenburg, 395 U.S. at 447–48; Herceg
v. Hustler Magazine, Inc., 814 F.2d 1017, 1024 (5th Cir. 1987) (refusing to impose civil
liability against Hustler for “inciting” accidental asphyxiation, observing that “[m]ere
negligence . . . cannot form the basis of liability under the incitement doctrine”); see also
Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 798 (2011) (holding that even if violent video
games make people more aggressive, California could not prohibit their sale to children). And
even if the libeler could be held so responsible, generic negligence statutes do not meet the
first necessary condition of being narrowly tailored restrictions on free speech. See infra, note
56. Without a doubt, Evers defamed certain targets of his speech, yet the Court still refused
to hold him liable for violence. See, e.g., Claiborne Hardware, 458 U.S. at 935–36 (describing
specific local store owners as “racists” and “bigots” and implying they were murderers,
rapists, and liars).
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tortious activity, including speech that advocated violence: “[A]ny such theory
fails for the simple reason that there is no evidence—apart from the speeches
themselves—that Evers authorized, ratified, or directly threatened acts of
violence.” 53 The takeaway seems clear: The First Amendment only allows civil
liability for violent conduct that “occurs in the context of constitutionally
protected activity” when that activity involves violence or threats of violence. 54
The majority opinion avers (though, notably, the complaint does not)
that Mckesson directed protestors to block a public highway. 55 But encouraging
that unlawful activity cannot expose Mckesson to liability for violence because
he didn’t instruct anyone to commit violence. 56 The Supreme Court requires
“extreme care” when attaching liability to protest-related activity. 57 The
majority’s “tortious conduct + foreseeable violence = liability for violence”
53 Id. at 929.
54 Id. at 916.
55 See supra note 43.
56 Claiborne Hardware, 458 U.S. at 916, 921, 927. The majority opinion summarily
concludes that Louisiana’s road-blocking statute is a proper time, place, manner restriction,
Maj. Op. at 18. But absent briefing from the parties, I am uncomfortable reaching such a
consequential constitutional conclusion. See, e.g., Cox v. Louisiana, 379 U.S. 536, 553–58
(1965) (invalidating a Baton Rouge ordinance that criminalized blocking public streets and
only allowed parades or meetings with prior permission of an official who had unfettered
discretion).
Also, to the extent that a tort duty can arise from the violation of statutes against
obstructing highways, “recovery will be allowed only if a rule of law on which plaintiff relied
included within its limits protections against the particular risk that plaintiff’s interests
encountered.” Lazard, 859 So. 2d at 661. And Louisiana’s prohibitions on highway-blocking
“have as their focus the protection of other motorists.” State v. Winnon, 681 So. 2d 463, 466
(La. App. 2 Cir. 1996). More attenuated harm is likely outside the scope of a defendant’s duty
under La. Rev. Stat. Ann. § 14:97. See, e.g., Thomas v. Ballard, 577 So. 2d 149, 151 (La. App.
1 Cir. 1991). I could find no Louisiana case extending the scope of the negligence duty created
by La. Rev. Stat. Ann. § 14:97 beyond the traffic-accident context. And I thus doubt that an
intentional assault on a police officer is the “particular risk” addressed by the statute. Lazard,
859 So. 2d at 661.
57 Claiborne Hardware, 458 U.S. at 927.
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formula—with no parsing between violent tortious conduct (actionable) and
nonviolent tortious conduct (nonactionable)—is at odds with the “precision of
regulation” required to overcome the First Amendment. 58 Indeed, if it were
that easy to plead around Claiborne Hardware and hold protest leaders
personally liable for the violence of an individual protestor, there would be
cases galore holding as much. The majority opinion cites none.
The bar set by Claiborne Hardware is much higher than the majority
opinion gives it credit for. For example, plaintiffs may only recover “losses
proximately caused by unlawful conduct.” 59 This requires naming “specific
parties who agreed to use unlawful means” and “identifying the impact of such
unlawful conduct.” 60 Doe’s complaint does not allege specific facts indicating
an agreement or any kind of agency relationship between Mckesson and the
unidentified protestor, or that Mckesson encouraged or incited violent acts.
Officer Doe does not allege facts supporting that Mckesson had an affirmative
duty to intervene, and under Claiborne Hardware, protest organizers cannot
be held strictly liable for the violent actions of rogue individuals. 61
To reconcile the majority opinion (negligently disregarding potential
violence is not protected) with Claiborne Hardware (intentionally advocating
violence is protected), we must accept that one who expressly and purposely
calls for violence is somehow not behaving negligently to the risk that violence
may result. But “[m]ere negligence . . . cannot form the basis of liability under
the incitement doctrine[.]” 62 To hold otherwise seems fanciful, as does allowing
58 Id. at 916, 921.
59 Id. at 918.
60 Id. at 933–34.
61Id. at 920 (“Civil liability may not be imposed merely because an individual belonged
to a group, some members of which committed acts of violence.”).
62 Hustler Magazine, Inc., 814 F.2d at 1024.
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common-law tort principles to trump constitutional free-speech principles. 63
Claiborne Hardware held that Evers’s leadership of an intentionally tortious
and foreseeably violent boycott did not forfeit his First Amendment defense.
Reading Claiborne Hardware as authorizing liability for violence on the basis
of urging any unlawful activity—no matter how attenuated from the violence
that ultimately occurred—paints with startlingly broad strokes.
Holding Mckesson responsible for the violent acts of others because he
“negligently” led a protest that carried the risk of potential violence or urged
the blocking of a road is impossible to square with Supreme Court precedent
holding that only tortious activity meant to incite imminent violence, and likely
to do so, forfeits constitutional protection against liability for violent acts
committed by others. 64 With greatest respect, I disagree with the majority
opinion’s First Amendment analysis—both its substance and its necessity.
III
In Hong Kong, millions of defiant pro-democracy protesters have taken
to the streets, with demonstrations growing increasingly violent. In America,
political uprisings, from peaceful picketing to lawless riots, have marked our
history from the beginning—indeed, from before the beginning. The Sons of
Liberty were dumping tea into Boston Harbor almost two centuries before Dr.
King’s Selma-to-Montgomery march (which, of course, occupied public
roadways, including the full width of the bloodied Edmund Pettus Bridge).
* * *
Officer Doe put himself in harm’s way to protect his community
(including the violent protestor who injured him). And states have undeniable
63 See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“For
the State to enforce a content-based exclusion it must show that its regulation is necessary
to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . .”).
64 See, supra, note 52.
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authority to punish protest leaders and participants who themselves commit
violence. The rock-hurler’s personal liability is obvious, but I do not believe
that Mckesson’s is—for at least two reasons.
First, this is a negligence case, and I would not take it as a given that
Mckesson owed an identifiable legal duty under Louisiana law. If no duty was
owed, then no First Amendment analysis is necessary. Before weighing United
States Supreme Court precedent on a fateful Federal question, I would invite
the Louisiana Supreme Court to issue precedent on a fundamental State
question. The tort analysis may well obviate the constitutional analysis.
Second, even assuming that Mckesson owed a duty, Doe’s skeletal
complaint does not plausibly assert that Mckesson forfeited First Amendment
protection by inciting violence. Not one of the three elements of “incitement”—
intent, imminence, likelihood—is competently pleaded here. 65 Nor does the
complaint competently assert that Mckesson directed, intended, or authorized
this attack. Our Constitution explicitly protects nonviolent political protest.
And Claiborne Hardware, among “our most significant First Amendment”
cases, 66 insulates nonviolent protestors from liability for others’ conduct when
engaging in political expression, even intentionally tortious conduct, not
intended to incite immediate violence. The Constitution does not insulate
violence, but it does insulate citizens from responsibility for others’ violence.
“Negligent protest” liability against a protest leader for the violent act of
a rogue assailant is a dodge of Claiborne Hardware and clashes head-on with
constitutional fundamentals. Such an exotic theory would have enfeebled
65 See Brandenburg, 395 U.S. at 447 (“[T]he constitutional guarantees of free
speech . . . do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action.”).
66 Cloer v. Gynecology Clinic, Inc., 528 U.S. 1099 (2000) (Scalia, J., dissenting from
denial of petition for a writ of certiorari).
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Case: 17-30864 Document: 00515238710 Page: 43 Date Filed: 12/16/2019
No. 17-30864
America’s street-blocking civil rights movement, imposing ruinous financial
liability against citizens for exercising core First Amendment freedoms. 67
Dr. King’s last protest march was in March 1968, in support of striking
Memphis sanitation workers. It was prelude to his assassination a week later,
the day after his “I’ve Been to the Mountaintop” speech. Dr. King’s hallmark
was nonviolent protest, but as he led marchers down Beale Street, some young
men began breaking storefront windows. The police moved in, and violence
erupted, harming peaceful demonstrators and youthful looters alike. Had Dr.
King been sued, either by injured police or injured protestors, I cannot fathom
that the Constitution he praised as “magnificent”—“a promissory note to which
every American was to fall heir” 68—would countenance his personal liability.
Summing up: I would certify the threshold negligence question to the
Supreme Court of Louisiana. Failing that, and given the flimsiness of Doe’s
complaint, I would hold that the First Amendment shields Mckesson from tort
liability for the rock thrower’s criminal act. In all other respects, I concur.
67 The march from Selma to Montgomery—54 miles, 54 years ago—was no sidewalk
stroll.
Martin Luther King, Jr., I Have a Dream (Aug. 28, 1963), in I HAVE A DREAM:
68
WRITINGS AND SPEECHES THAT CHANGED THE WORLD 101 (James M. Washington ed., 1992).
43