washington – The Supreme Court said Monday it would not take up an appeal by Black Lives Matter activist DeRay Mckesson, who is facing a lawsuit from a Baton Rouge police officer who was hit in the head with an object during a protest in July 2016.
The issue in the case was whether the leader of a protest, Mckesson in this case, could be held liable for injuries inflicted by an unidentified person when the protest leader did not authorize or direct the violent act.
The dispute arose after Alton Sterling, a black man from Baton Rouge, Louisiana, was shot and killed by a white police officer outside a convenience store on July 5, 2016. Sterling's death sparked a wave of protests against police brutality, including one that started outside the Baton Police Department Rouge on July 9, 2016.
During the demonstration, a police officer was hit in the face by a rock, piece or concrete thrown by an unidentified protester, lost his teeth and suffered a brain injury, his lawyers said. The officer, identified in court documents as John Doe, sued Mckesson for negligence in federal court, arguing that he knew the demonstration would lead to violence and failed to calm the crowd.
Mckesson, who is represented by the American Civil Liberties Union, said the First Amendment protects him from being sued.
The case has wound its way through the courts, starting with a federal district court ruling in 2017 that said Mckenson could not be sued. The U.S. Court of Appeals for the 5th Circuit reversed that decision and said Mckenson could be liable. He appealed to the Supreme Court, which remanded the dispute for further proceedings on whether state law allows the suit.
After the Louisiana Supreme Court said a protest leader could be sued for negligence, the 5th Circuit ruled in June 2023 that the lawsuit against Mckenson could move forward. The divided appeals court said Mckesson allegedly created “unreasonably unsafe conditions” by organizing the protest to begin outside the police station and failed to take steps to “dissuade his fellow protesters” once they began loot a grocery store and throw items. Mckesson, the 5th Circuit said, also led the protest on a public highway, a violation of Louisiana law.
The activist appealed again to the Supreme Court, which on Monday refused to take up Mckenson's case. In a statement regarding the denial of the appeal, Justice Sonia Sotomayor said the court's decision not to hear the case “expresses no view on the merits of Mckesson's lawsuit.” But Sotomayor pointed to a Supreme Court First Amendment decision last year and said she hopes the 5th Circuit will “give full and fair consideration to the arguments” about the ruling's impact on future proceedings in the Mckenson's case.
