The Supreme Court on Monday declined to review a case in which the U.S Fifth Circuit Court of Appeals – which has jurisdiction over Louisiana, Mississippi and Texas – ruled that protest organizers can be held liable for the criminal actions of other demonstrators.
Analysts said the lower court’s original decision eliminates people’s ability to organize mass protests in Louisiana, Mississippi and Texas.
In 2016, an unnamed police officer sued prominent Black Lives Matter organizer DeRay Mckesson claiming the activist was liable for the injuries he sustained during a protest in Baton Rouge, Louisiana, following the death of Alton Sterling by the same police department.
Despite not being involved in the incident, the officer claimed that Mckesson should be held responsible because he “knew or should have known” that violence would occur at the protest.
The American Civil Liberties Union (ACLU) said the high court’s decision not to review the case does not mean the Fifth Circuit Court’s previous ruling was correct.
“The goal of lawsuits like these is to prevent people from showing up at a protest out of the fear that they might be held responsible if anything happens,” Mckesson, who is represented by the ACLU, said in a statement. “But people don’t need to be afraid to show up. The Constitution still protects our right to protest.”
Civil rights organizations argued to the Supreme Court that Mckesson cannot be held liable unless there is proof that he “directed, authorized, ratified or encouraged any act of violence at the protest.” Defense lawyers said organizers shouldn’t be responsible for the possibility of “foreseeable” violence at a protest. The ACLU said the Fifth Circuit’s “dangerous theory of liability” would place greater responsibilities on leaders than those who participate in illegal activities.
“People should not be afraid that they’ll face a ruinous lawsuit if they exercise their rights to protest,” said Vera Eidelman, a staff attorney with the ACLU Speech, Privacy and Technology Project.
In a statement, Justice Sonia Sotomayor said the court’s decision does not express any views on the merit of arguments for the First Amendment, which guarantees the right to free speech and assembly. She said the lower courts are expected to apply precedent, which prohibits holding anyone liable for negligent speech and reinforces intent as the standard.
The ACLU said it would fight to ensure the decision does not apply anywhere.
The Mckesson v Doe case was brought against Mckesson eight years ago by a police officer after an unknown person threw a “rock-like” object at the officer’s head, “injuring his teeth, jaw and brain,” according to a lawsuit.
The protest occurred in July 2016 after police killed Sterling, a 37-year-old Black man, outside a convenience store in Baton Rouge where he was selling CDs.
“It is disappointing that the court did not take the opportunity to bring this case to an end,” David Goldberg, Mckesson’s counsel of record, said in a statement. “But I am confident that the court eventually will consider and repudiate this dangerous rule of law.”
The case has gone through various courts, beginning with a district ruling in 2017 that Mckesson could not be sued. The decision was then overturned by the Fifth Circuit Court, which claimed the officer plausibly alleged “negligent protest” and that Mckesson helped create an unsafe situation by assembling outside the police department. The Louisiana Supreme Court also weighed in and said the claim could move forward. Mckesson’s team asked the Supreme Court twice to intervene.
The case will now proceed to a trial court with the benefit of Sotomayor’s statement and previous legal precedent, according to civil rights organizations.