The Fifth Circuit comes for the First Amendment right to protest

[NWRatCon]

The Fifth Circuit comes for the First Amendment right to protest (Vox)​

For more than four years, a rogue federal appeals court has given life to a highly dubious lawsuit targeting DeRay Mckesson, a prominent figure within the Black Lives Matter movement. The United States Court of Appeals for the Fifth Circuit’s decisions would not only strip Mckesson of his First Amendment-protected right to organize mass protests against police violence, it threatens all Americans’ ability to organize any protest.

On Friday, the Fifth Circuit handed down its latest decision in Doe v. Mckesson, the case at the heart of this crusade against the First Amendment. Under the Fifth Circuit’s latest approach, a protest organizer who commits even a minor legal violation — in this case the court faulted Mckesson for leading a protest “in front of the Baton Rouge police station” and for attempting “to block a public highway” — may potentially be held liable for the illegal actions of someone else who attended the protest.

In 2016, Mckesson helped organize and lead a protest near the Baton Rogue Police Department building, following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at the plaintiff in the Mckesson case, a police officer identified in court documents by the pseudonym “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, experienced “injuries to his teeth, jaw, brain, and head, along with other compensable losses.”

There is no question that whoever threw this object should be held liable for their illegal action. But even Judge Jennifer Elrod, the author of the latest Mckesson opinion, admits that “it is clear that Mckesson did not throw the heavy object that injured Doe.” That should be the end of this case, as the First Amendment provides robust safeguards against holding protest leaders responsible for the actions of a single rogue protester.

Instead, Elrod devises a tortured legal theory that effectively allows Doe to sue Mckesson for the actions of the unknown assailant. In doing so, Elrod rather flagrantly disobeys at least two landmark Supreme Court decisions.


The Fifth Circuit is populated by authoritarians, no question, but this article is worthy of the read just for the sheer audacity of the ruling. The author is not wrong in claiming the Fifth Circuit has gone rogue. The implications to fundamental rights of their rulings are staggering. It would be interesting to see how their analysis would play in a Jan. 6 suit against Trump...

 

[Napoleon]

The organizer of an event is liable for what transpires at that event. Why is that controversial to some people? That’s what insurance is for.

 

[reflechissez]

The organizer of an event is liable for what transpires at that event. Why is that controversial to some people? That’s what insurance is for.

I'm not sure you want to use this "argument."

 

[Loulit01]

The organizer of an event is liable for what transpires at that event. Why is that controversial to some people? That’s what insurance is for.

Cool! Which company insures protests? Progressive? State Farm? Lloyds of London? Noneonthis planet? I need to know!

 

[Napoleon]

Cool! Which company insures protests? Progressive? State Farm? Lloyds of London? Noneonthis planet? I need to know!

I suggest asking some event organizers. For example, Stonewall Columbus purchases insurance for the annual Pride Parade and Festival. It’s not just a good idea - it’s legally required to secure the permit.

 

[Loulit01]

I suggest asking some event organizers. For example, Stonewall Columbus purchases insurance for the annual Pride Parade and Festival. It’s not just a good idea - it’s legally required to secure the permit.

That's a party, not a protest. Get a grip.

 

[Integrityrespec]

The Fifth Circuit comes for the First Amendment right to protest (Vox)​

For more than four years, a rogue federal appeals court has given life to a highly dubious lawsuit targeting DeRay Mckesson, a prominent figure within the Black Lives Matter movement. The United States Court of Appeals for the Fifth Circuit’s decisions would not only strip Mckesson of his First Amendment-protected right to organize mass protests against police violence, it threatens all Americans’ ability to organize any protest.

On Friday, the Fifth Circuit handed down its latest decision in Doe v. Mckesson, the case at the heart of this crusade against the First Amendment. Under the Fifth Circuit’s latest approach, a protest organizer who commits even a minor legal violation — in this case the court faulted Mckesson for leading a protest “in front of the Baton Rouge police station” and for attempting “to block a public highway” — may potentially be held liable for the illegal actions of someone else who attended the protest.

In 2016, Mckesson helped organize and lead a protest near the Baton Rogue Police Department building, following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at the plaintiff in the Mckesson case, a police officer identified in court documents by the pseudonym “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, experienced “injuries to his teeth, jaw, brain, and head, along with other compensable losses.”

There is no question that whoever threw this object should be held liable for their illegal action. But even Judge Jennifer Elrod, the author of the latest Mckesson opinion, admits that “it is clear that Mckesson did not throw the heavy object that injured Doe.” That should be the end of this case, as the First Amendment provides robust safeguards against holding protest leaders responsible for the actions of a single rogue protester.

Instead, Elrod devises a tortured legal theory that effectively allows Doe to sue Mckesson for the actions of the unknown assailant. In doing so, Elrod rather flagrantly disobeys at least two landmark Supreme Court decisions.


The Fifth Circuit is populated by authoritarians, no question, but this article is worthy of the read just for the sheer audacity of the ruling. The author is not wrong in claiming the Fifth Circuit has gone rogue. The implications to fundamental rights of their rulings are staggering. It would be interesting to see how their analysis would play in a Jan. 6 suit against Trump...

What's the beaf? Is this not what the left is trying to convict Trump for? They say he encouraged the storming of the Capital, "go peacefully and patriotically to the capital". That old double standard of the left.

 

[Napoleon]

That's a party, not a protest. Get a grip.

The event in the case was a violent riot not a protest. You get a grip.

 

[NWRatCon]

I suggest asking some event organizers. For example, Stonewall Columbus purchases insurance for the annual Pride Parade and Festival. It’s not just a good idea - it’s legally required to secure the permit.

That's not even in the same league as the issue. Do you ever think before you post, or is it always just knee jerk?

 

[NWRatCon]

The event in the case was a violent riot not a protest. You get a grip.

Bullshit. Again. Writing without even bothering to read. Bye, again.

 

[Loulit01]

The event in the case was a violent riot not a protest. You get a grip.

No one insures protests>

 

[NWRatCon]

No one insures protests>

I think it was just an effort to disrupt the thread. Again. It's a constant theme. Same players, over and over, don't even bother to read the article.

 

[NWRatCon]

Getting back to the actual topic, rather than the disingenuous diversions, the article lays out the actual standard that the Supreme Court has articulated:

"In rare cases, a protest leader may be held liable for someone else’s violent actions, but one of three circumstances must exist:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

None of these circumstances are present in Mckesson. There is no allegation that Mckesson directed anyone to hurl a rock at a police officer, or that he endorsed the attack on Office Doe after it occurred. Indeed, there is no allegation that Mckesson encouraged violence of any kind, or even that he engaged in the kind of “emotionally charged rhetoric” that the Supreme Court held was protected in Claiborne." NAACP v. Claiborne Hardware (1982). (Interestingly, all three obtain on January 6.)

The Fifth Circuit's approach in this and other cases is, "they can't overturn them all". The Supreme Court has already corrected the court once in this case, Citing Claiborne.

 

[Napoleon]

That's not even in the same league as the issue. Do you ever think before you post, or is it always just knee jerk?

Of course it’s in the same league and it’s also common sense. If you organize an event at your house and someone falls down the stairs and breaks their neck - they can sue you for that. That’s why you buy personal liability coverage as part of your home insurance policy. Similarly, someone who gets run over by a Pride float can sue Stonewall Columbus for that. So they carry insurance.

Organizations which organize legal street events - which require a permit - are legally required to provide proof of that insurance to secure the permit. Organizing an unlawful assembly to play frogger on the highway and bash a cop’s head in with a rock shouldn’t mean that you don’t have the same liability as those organizers who follow the rules and the law. It was McKesson’s event. He is liable for what happens just as the organizer of a lawful assembly is for theirs.

 

[NWRatCon]

Just to complete the record, it should be noted that the court that originally heard the issue dismissed the Complaint for failure to state a claim, and properly cited Claiborne in its ruling. This was in 2017. The Fifth Circuit reached down to reopen the case, even though the trial court made no error.

Therefore, the Court finds that Plaintiff has failed to plead a plausible claim for relief against any of the Defendants that he identified in his Proposed Amended Complaint. The Court thus denies Plaintiff leave to amend his Complaint because the "filing of the amended complaint would be futile." Varela , 773 F.3d at 707.

D. Dismissal with Prejudice​

For the reasons stated above, the Court finds that Plaintiff has failed to state a plausible claim for relief against either Mckesson or "Black Lives Matter," the only Defendants named in Plaintiff's initial Complaint. See discussion supra Section II.A–.B. Under normal circumstances, the Court would dismiss this matter without prejudice to provide Plaintiff with an opportunity to ameliorate the deficiencies that the Court has identified in his Complaint.

Plaintiff has had ample opportunity, however, following the briefing and argument on Defendant's Rule 12 and Rule 9 Motions to demonstrate to the Court that he can state a plausible claim for relief against an individual or entity. In response to the arguments raised by Mckesson in his Motions and by the Court during oral argument on the Motions, Plaintiff nonetheless produced a Proposed Amended Complaint that not only fails to state a plausible claim for relief against any of the named Defendants, but that also attempts to hold a hashtag liable for damages in tort. The Court therefore finds that granting leave to Plaintiff to attempt to file a Second Proposed Amended Complaint would be futile. The Court also notes that Plaintiff's attempt to bring suit against a social movement and a hashtag evinces either a gross lack of understanding of the concept of capacity or bad faith, which would be an independent ground to deny Plaintiff leave to file a Second Proposed Amended Complaint. The Court therefore shall dismiss this matter with prejudice. See Cent. Laborers' Pension Fund v. Integrated Elec. Servs. Inc. , 497 F.3d 546, 556 (5th Cir. 2007) (citing Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ).

III. CONCLUSION​

Accordingly,

IT IS ORDERED that Defendant DeRay Mckesson's Motion to Dismiss (Doc. 15) is GRANTED.

IT IS FURTHER ORDERED that Defendant DeRay Mckesson's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 9(a) (Doc. 43) is GRANTED. IT IS FURTHER ORDERED that the Motion to File Amended Complaint for Damages (Doc. 52) filed by Plaintiff is DENIED.

IT IS FURTHER ORDERED that the above-captioned matter is DISMISSED WITH PREJUDICE.

 

[Napoleon]

Just to complete the record, it should be noted that the court that originally heard the issue dismissed the Complaint for failure to state a claim, and properly cited Claiborne in its ruling. This was in 2017. The Fifth Circuit reached down to reopen the case, even though the trial court made no error.

You should probably read the 5th Circuit’s decision.