Supreme Court dismisses appeal from Black Lives Matter leader found responsible for violent assault on police officer. The Supreme Court’s decision not to take up Deray Mckesson’s appeal represents a pivotal moment in the ongoing debate surrounding the responsibilities and liabilities of protest organizers. At the heart of this case lies a collision between First Amendment rights and the legal consequences of organizing public demonstrations, particularly when those demonstrations escalate into violence.
In 2016, Mckesson, a prominent civil rights activist associated with the Black Lives Matter movement, organized a protest in Baton Rouge, Louisiana, following the fatal shooting of Alton Sterling, an African American man, by local police. The protest aimed to draw attention to issues of police brutality and systemic racism, echoing similar demonstrations across the United States at the time. However, what began as a peaceful gathering soon descended into chaos when clashes erupted between some protesters and law enforcement officers.
The pivotal moment in this legal saga occurred when an unidentified individual allegedly hurled a “rock-like” object at a police officer, causing severe injuries, including the loss of teeth and a brain injury. The injured officer, identified only as “John Doe,” subsequently filed a lawsuit against Mckesson, alleging that his negligence and incitement had contributed to the violent turn of events.
The crux of the officer’s argument rested on the assertion that Mckesson “should have known” that the protest had the potential to become violent, given the historical context of similar demonstrations associated with the Black Lives Matter movement.
“The pattern was set: out-of-state protesters representing BLM fly into a town, gather, block a highway, engage and entice police, loot, damage property, injure bystanders, injure police. By July 9, 2016, when McKesson organized the Baton Rouge protest/riot—he had no reason to expect a different outcome—police will be injured,” lawyers for the officer wrote in their brief.
The legal battle ensued, traversing through various levels of the judicial system, with the Fifth Circuit Court ultimately ruling in favor of allowing the case to proceed. The court’s decision hinged on the notion that Mckesson had “directed his own tortious activity” by creating unreasonably dangerous conditions and had “incited” violence by organizing and directing the protest in a manner that made a violent confrontation with the police likely.
However, Mckesson and his legal team, represented by the American Civil Liberties Union (ACLU), vehemently contested these allegations, arguing that holding him liable would constitute a violation of his First Amendment rights. They maintained that Mckesson’s role as an organizer was protected speech under the Constitution, and that imposing liability on him would have a chilling effect on the exercise of free expression and assembly rights guaranteed by the First Amendment.
Despite these arguments, the Supreme Court’s decision not to review Mckesson’s case leaves the lower court’s ruling intact, thereby allowing the lawsuit against him to proceed. However, Justice Sonia Sotomayor, in a separate opinion respecting the court’s denial, emphasized that the decision should not be construed as an endorsement of the lower court’s reasoning. Importantly, Sotomayor highlighted the significance of the court’s recent decision in Counterman v. Colorado, which established a higher threshold for convicting individuals of making violent threats.
In her opinion, Sotomayor suggested that the principles outlined in Counterman should inform how lower courts approach cases involving allegations of incitement or liability against protest organizers. By emphasizing the need for a careful consideration of First Amendment protections in such cases, Sotomayor’s opinion signals a recognition of the delicate balance between safeguarding free speech and addressing legitimate concerns about public safety and accountability.
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