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7 Years And A Supreme Court Visit Later, Court (Again) Rules Cop Can’t Sue Activist Over Violent Acts Committed By Others

from the back-to-what-it-always-should-have-been dept

I can’t even imagine what it must be like to fight an obviously bogus lawsuit for most of a decade. That’s what activist DeRay Mckesson has been dealing with since 2017.

Mckesson participated in a protest in Baton Rouge, Louisiana all the way back in July 2016. At that protest, Officer John Ford (previously known as “John Doe”) was struck by a chunk of cement thrown by a protester. In response to this, the officer not only sued Mckesson but also a Twitter hashtag (#blacklivesmatter) and a social movement (Black Lives Matter).

Almost immediately, his lawsuit was dismissed with prejudice by a Louisiana federal court, which ruled he couldn’t sue hashtags, social movements, or even the person who organized the protest wherein the officer had been injured by someone other than the person he was suing.

That should have been the end of it. But the officer apparently had plenty of money to burn. Decisions were appealed and re-appealed and, unfortunately, the next court in line to handle the officer’s (clearly deficient) complaint was the Fifth Circuit Court of Appeals.

If any appellate court can find a way to keep a cop happy, it’s the Fifth. And so it did that very specific job, reviving the lawsuit in 2019 by reasoning that Mckesson’s decision to lead the protest onto a freeway was a negligent enough action it justified suing him over an injury caused by another protester, even if it didn’t occur during this particular bit of highway blocking.

This went to the Supreme Court, which rejected the Fifth’s (third) attempt to get this right, sending it back to the Fifth, which sent it back down to the federal court in Louisiana with the massive amounts of often-contradictory notes it had compiled during its multiple takes on the lawsuit.

Finally, after seven years of litigation, four visits to the Fifth Circuit Appeals Court, and one trip to the nation’s top court, the district court in Louisiana has issued a ruling [PDF] that brings everything full circle: this lawsuit is bullshit and always has been. (h/t Short Circuit)

Plaintiff John Ford, a Baton Rouge Police Department officer, was on duty at a demonstration in Baton Rouge on July 9, 2016, when he was struck by a heavy object thrown by an unidentified demonstrator. Ford sued Defendant DeRay Mckesson, now the sole remaining Defendant, alleging that Mckesson negligently organized and led the protest and was therefore liable under Louisiana tort law for Ford’s injuries. Now before the Court is Defendant’s Motion for Summary Judgment, which argues that Plaintiff’s action must be dismissed because the summary judgment evidence shows that Defendant did not organize the protest, breached no duty to Plaintiff, and was not the cause-in-fact of Plaintiff s injuries. Plaintiff opposes the Motion. For the reasons that follow, Defendant’s Motion will be granted, and Plaintiffs action will be dismissed with prejudice.

Even if the court was inclined to read the state tort law as capable of covering acts performed by someone other than the person being sued, it would need a whole lot more connective tissue in terms of the defendant’s involvement in the act that injured the officer.

In this case, there’s not even evidence that Mckesson organized the protest, much less led it, and… much less committed any illegal act himself or encouraged others to do so.

That section, entitled “Mckesson organized and led the protest, references a “tweet of the location and time of the protest” that Defendant acknowledged “re-tweet[ing].” The section also cites deposition testimony about the organizing of the protest, in which Defendant said that he did not know the organizers personally, and only met them on the night of the protest.

As for Plaintiff’s own recollection of the protest, he testified that he did not “hear” Defendant giving any orders during the protest, although he heard Defendant “[tell protesters] to come out into the road.” Finally, Plaintiff submitted a video filmed in part by Defendant during the protest. In the five minutes of the video before Defendant’s arrest, Defendant in no way blocks traffic, engages in violence, or gives orders to anyone. Indeed, Defendant appears to be walking in the middle of the protest rather than at the head of it.

Given this, it’s impossible to allow the lawsuit to proceed. Doing so would mean anyone in the general vicinity of any incident or occurrence that might involve (at some point) criminal activity could be sued simply for being near the protest (or whatever) where criminal activity occurred. (All emphasis in the original.)

Although Defendant may have participated in similar protests in other places, none of the specific allegations regarding his role in this protest are supported by the evidence. In other words, Plaintiffs case for causation rests solely on Defendant’s possible presence at other protests and his possible direction of some protestors into the road. The Court will not impose liability on a protest participant for the actions of an unidentified individual under these circumstances.

Hopefully, that’s the end of it. I would have to assume (although IANAL) all appeal options have been exhausted. But this cop has been particularly tenacious in this case, determined to hold perhaps the most recognizable person in this protest at least indirectly responsible for the injury he sustained while policing the protest. But the law doesn’t work that way. It never has. But somehow this lawsuit managed to be reviewed by higher courts five times before ending the way it should have ended years ago.

Filed Under: #blacklivesmatter, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, suing a hash tag, supreme court

Fifth Circuit’s Fourth Pass At Same Case Ends Just As Stupidly: Cop Can Sue One Person Because Someone Else Injured Him

from the I-guess-just-don't-organize-protests-in-the-Fifth dept

An anonymous Louisiana cop who sued, in this order:

Activist DeRay Mckesson, who spoke at the Baton Rouge demonstrations.
Black Lives Matters — a name used by several concurrent movements to protest police violence against blacks
A Twitter hashtag

still manages to have a viable lawsuit seven years later.

It boggles the mind. Officer John Doe was policing an anti-police violence protest allegedly organized by activist Deray Mckesson. This demonstration resulted in the blocking of a freeway, resulting in a significant police presence. Someone in the crowd threw a chunk of concrete that managed to hit Officer Doe, leading directly to this lawsuit.

The first pass was handled by the district court, which declared the officer’s case dead in the water. You can’t sue a social movement, a Twitter hashtag, or someone who organized a protest just because you were injured at that protest. It refused to extend the negligence count to cover the biggest target the injured cop could find.

That’s the last of the good news. This case has gone up and down and sideways on the judicial ladder following the officer’s appeal. In April 2019, the Fifth Circuit said there was enough of a claim under state law to allow the lawsuit to proceed, reasoning that Mckesson’s leading of protesters onto a busy highway created enough potentially culpable negligence to keep the case alive.

It took another look at this case roughly six months later. Judge Don Willett said plenty of protected speech is far more negligent but not actually criminal. But he was in the minority. The Fifth Circuit again ruled the state law negligence claims were enough to keep the case afloat.

Another appeal (this one by Mckesson) brought it to the top court in the land. The Supreme Court — usually extremely willing to give cops whatever they want — rejected this one. It sent the case back down to the Fifth Circuit with instructions to send this case to the top court in Louisiana to better explore the negligence claims. The Fifth Circuit forwarded the case to state Supreme Court, but not before noting the negligence claim might be invalid because a certain amount of danger is expected when performing police work, so getting injured may just be part of the job, rather than an actionable claim.

Five years after the lawsuit’s initial rejection in federal court, Louisiana’s top court decided the Fifth Circuit had been right all along: the cop could sue someone over injuries caused by someone else.

That decision ended up affirming all the things the Fifth Circuit Court of Appeals had been saying at regular intervals over the past two years: it’s perfectly fine for cops to sue activists because they were injured while performing government work at the site of demonstrations.

The latest decision [PDF] is mostly more of the same. The running time of the decisions continue to increase because that’s the expected side effect of extended litigation and this court’s fourth attempt to resolve the lawsuit.

The Fifth Circuit notes the Louisiana Supreme Court’s responses to the two questions it posed. First, does state law impose a burden of duty on protest organizers? And, second, is this burden (if it exists) still imposed if the person injured is subject to the state’s Professional Rescuer Doctrine, which notes first responders (including police officers) are expected to realize being injured is just part of the job?

The answers were yes and no. Yes, there’s a legal burden under state law. No, cops can sue if they’re injured while performing their first responder duties.

Working from there, the Fifth Circuit says (yet again) this stupid lawsuit can continue to move forward.

Following the guidance of the Supreme Court of Louisiana, we therefore must conclude that Louisiana tort law recognizes a negligence claim in these circumstances and that Doe has plausibly alleged such a claim. However, we reiterate that Doe’s pleading a negligence claim in no way guarantees that he will prove that claim. Doe will be required to present specific evidence satisfying each of the five elements listed above, and Mckesson will of course be entitled to introduce evidence supporting his contention that he did not breach his duty to organize and lead the protest with reasonable care. The only question before us is whether Doe is entitled to proceed to discovery on his negligence claim. We are compelled to conclude that he is.

So, the farce — now into its sixth year — will continue. And maybe all of these legal conclusions are correct instead of just ridiculous. Maybe it’s the laws that are ridiculous. But whatever the case, the findings so far have been highly problematic. Courts seem willing, if not actually compelled, to allow these sorts of suits to continue, especially if they’re filed in Louisiana. The chilling effect is apparent, but multiple decisions (other than the initial decision by the federal court) have all managed to talk around the very obvious First Amendment implications in favor of discussing how far a state negligence claim can be stretched to allow someone to sue someone else because they were injured by someone else entirely.

Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, liability, louisiana, suing a hashtag

Louisiana Cops Use Facial Recognition Tech To Arrest The Wrong Person For String Of Robberies

from the fitting-the-description-when-you-don't-fit-the-description dept

This is always going to be a thing with facial recognition. Hundreds of algorithms have been tested. Pretty much every single one does worse “recognizing” minorities than it does recognizing the predominant deployers of facial recognition tech: white males.

In 2020, the Detroit PD managed to rack up consecutive false arrests by relying far too heavily on the conclusions (badly) drawn by its facial recognition tech. This PD will rack up more false arrests in the future, seeing as its tech is wrong nearly 100% of the time.

Cops in New Jersey did the same thing later that year, arresting a man who voluntarily showed up at the station after being surprised to learn there was a warrant out for his arrest. The victim spent 10 days in jail and then the rest of his personal savings clearing his name.

The next headline-making misfire by facial recognition tech takes us down south, where the go-getters at two Louisiana law enforcement agencies combined forces to fuck up.

[A] recent attempt by the Jefferson Parish Sheriff’s Office to nab a high-end purse thief via facial recognition ended badly for a Georgia man who was jailed for almost a week over a false match, his lawyer says.

A detective took the algorithm at face value to secure a warrant to arrest Randal Reid, 28, in the June theft of luxury purses from a Metairie consignment shop, attorney Tommy Calogero said.

A Baton Rouge Police Department detective then adopted JPSO’s identification of Reid to secure an arrest warrant alleging he was among three men involved in another luxury purse theft the same week at a shop on Jefferson Highway, court records show.

This “adoption” of a mismatch made its way into the hands of Georgia law enforcement. Officers in Dekalb County, Georgia pulled over Reid and surprised him with the news he was wanted for robberies committed in a state he’d never visited. He was booked into the county jail on November 25. He was finally released on December 1, after the Jefferson Parish Sheriff’s Office “rescinded” the warrant.

Now, Reid’s lawyer does admit the facial match was pretty close, calling his client a “spitting facial image.” But it’s not just faces that need to match. The rest of the description should match as well. And that’s where things diverge. The suspect captured on store cameras was at least 40 pounds heavier. The suspect also did not have a mole on his face, like Reid does. Unless officers were inclined to believe Reid lost 40 pounds in five months while growing a mole on his face, Reid should have been released immediately.

But that didn’t happen. And it shows yet another problem with relying solely on facial recognition tech to obtain arrest warrants: the only thing this tech looks at is faces. There’s a lot more to a person than the set of physical features residing above the neck.

Then there’s the rest of the ridiculousness surrounding this screw up. Law enforcement officers don’t mind being wrong. That’s just another attack vector for warrantless searches and cash seizures. They just hate it when everybody else finds out that they’re wrong. That’s when they go into lockdown mode, preventing the press from accessing anything that might further expose their careless patterns and practices.

Sheriff Joe Lopinto’s office did not respond to several requests for information on Reid’s arrest and release, the agency’s use of facial recognition or any safeguards around it. That office also denied a formal request for the July 18 arrest warrant for Reid and copies of policies or purchases related to facial recognition, citing an ongoing investigation.

Baton Rouge police also did not respond to questions about its warrant for Reid’s arrest.

When cops score a win, they can’t stop talking about it. When things go badly, they refuse to engage with the same press they rely on to reprint press releases touting their latest triumph over evil. It’s always the same and it never gets any less annoying or stupid.

However, NOLA did manage to obtain something that’s probably going to be useful to Reid and his ongoing lawsuit.

The warrant, signed by 19th Judicial District Judge Eboni Rose, does not say how Lopinto’s office identified Reid.

That looks like a pretty serious omission. It’s going to be pretty difficult for officers to claim they acted in good faith when the warrant was obtained in bad faith. And it may get worse for the JPSO if future document releases show the agency plays fast and loose with facial recognition matches, considering nearly every tech provider warns law enforcement agencies matches should never be used as the sole basis for arrests.

Occasional failures by facial recognition tech shouldn’t just be brushed aside as the inevitable outcome of widespread use. These tools are touted as being better than fallible humans at identifying suspects. But cases like these show the tech is little better than the officers using it, who far too often decide most black men look alike so why not just arrest the next one officers come across. We need tools that make police better, more accurate, and less likely to default to their biases. So far, though, facial recognition tech is just playing into the preconceptions of officers, but allowing them to blame the machine, rather than their own impulses for blown calls.

Filed Under: arrests, baton rouge, baton rouge pd, dekalb county, facial recognition, georgia, jefferson parish, jefferson parish sheriff's office, joe lopinto, louisiana, randal reid, robberies

Louisiana Supreme Court Says Anonymous Cop Can Continue To Sue Activist Over Injuries Caused Another Protester

from the bad-laws-applied-stupidly dept

Well, this is a mess.

A lawsuit prompted by the actions of a protester at a demonstration held in Baton Rouge, Louisiana on July 9, 2016 still isn’t resolved. During that Black Lives Matter protest, some person in attendance threw a “rock-like substance” at a Baton Rouge police officer known only as “Officer Doe.”

In response, this officer sued activist DeRay Mckesson, the organizer of the protest. He also sued a movement (Black Lives Matter) and its associated hashtag. The district court tossed the lawsuit with prejudice back in October 2017, finding (quite reasonably) that none of the sued parties could be held directly responsible for the actions of a single person attending the protest. That should have been the end of it.

It wasn’t. The anonymous cop appealed. And, for some reason, the Fifth Circuit Court of Appeals decided the lawsuit could continue. The Appeals Court reasoned that because the protest blocked a road, a showdown with law enforcement should have been seen as an imminent possibility, if not a certainty.

Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain 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.

Because it reached this conclusion in reference to state law, the Appeals Court decided it didn’t need to address the far more concerning First Amendment implications of its decision.

Five months later, the Fifth Circuit had a change of heart, prompted by Judge Don Willett’s admission he had gotten it wrong the first time around. But this en banc reconsideration changed nothing. A majority of judges decided the first opinion was correct but banged the table a little harder during the second opinion. The dissent offered good arguments but could change nothing about the irrational decision to allow an anonymous cop to sue one person for injuries caused by another. The First Amendment issues, again, went unaddressed.

Mckesson appealed, bringing this case to the attention of the top court in the land. The Supreme Court said the Fifth Circuit had asked good questions but arrived at the wrong answers. It remanded the case to the Appeals Court for it to determine whether or not state law could be applied to the officer’s allegations — and whether those allegations could actually be sustained given the facts of the incident.

The Fifth Circuit’s third pass mostly involved crafting questions to be answered by the state’s top court regarding state law and the allegations of the suit. But it did at least ask some very good questions about state law and the duties required of public servants in the public safety business.

In the meantime our attention has been drawn to a separate aspect of Louisiana law, the Professional Rescuer’s Doctrine, that could be dispositive. That doctrine, put succinctly, is **a judge-made rule that “essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, assumes the risk of such an injury and is not entitled to damages.**” Gann v. Matthews, 873 So. 2d 701, 705 (La. App. 1st Cir. 2004) […] We have found limited guidance from the opinions of the Supreme Court of Louisiana on how this doctrine might apply to the particular facts of this case. Because we find this to be a close question of law, which also raises a significant issue of state policy, we further take this opportunity to respectfully elicit guidance on this issue from the Supreme Court of Louisiana.

The state supreme court has reviewed the case. And it has answered both of the Fifth Circuit’s question in a way that will allow this cop to continue their seemingly quixotic quest to hold a protest organizer personally responsible for injuries sustained during the course of their normal duties at the hands of another person entirely. (h/t Michael Vario)

Black Lives Matter organizer and activist DeRay Mckesson can be sued by a Baton Rouge police officer injured during a 2016 protest, Louisiana’s state supreme court has determined.

The announcement published Friday, March 25, was meant to answer questions raised by the United States Court of Appeals for the Fifth Circuit. Those questions centered on whether the officer can sue the organizer of an event that ends in a crime.

That’s the extremely succinct summary of the court’s decision [PDF]. Had the state supreme court ruled the other way on either of the two questions, the Fifth Circuit could have dismissed the lawsuit. Instead, it has provided the cop and their stupid lawsuit two ways to continue suing someone for someone else’s act of violence.

We accepted the certified questions presented to this court by the United States Court of Appeals, Fifth Circuit, in Doe v. Mckesson, 2 F.4th 502 (5th Cir. 2021) (per curiam). The questions posed by the Fifth Circuit are: (1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party? (2) Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana’s Professional Rescuer’s Doctrine bars recovery under the facts alleged in the complaint? We answer the former, under the facts alleged in the complaint, in the affirmative and the latter in the negative…

But the law doesn’t really seem to say what the state supreme court says it does. State law appears to be less expansive than this reading by the judges handling this case. (And I’ll leave the emphasis from the original which appears to show only the person committing the act can be held responsible.)

Under the allegations of fact set forth in the plaintiff’s federal district court petition, it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety), directly in front of police headquarters, with full knowledge that the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but to police, would render Mr. Mckesson liable for damages for injuries, resulting from these activities, to a police officer compelled to attempt to clear the highway of the obstruction. Louisiana’s Civil Code Article 2315 requires that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” (Emphasis added.)

Provoking a confrontation does not guarantee violence, even if similar confrontations elsewhere in the nation (sometimes) resulted in violent acts against police officers. “Whatever” is doing most the heavy lifting here and, despite the language quoted by the court, it cannot be assumed Mckesson is even vicariously responsible for another protester’s decision to assault a police officer. This allegation would still need to be proven, as the state court admits. But by being willing to read the law this way means any protester could be sued by anyone harmed (physically or otherwise) during a protest simply because they participated in the organization of the protest or presented themselves as a figurehead of the social cause from which the protests sprung. That is a dangerous interpretation of the law.

As to the second question about whether the professional rescuer’s doctrine applies (one that assumes risk to those paid to handle risky situations), the court says state law has pretty much eliminated this doctrine in favor of allowing cops to sue people who’ve injured them. The concurring opinions disagree with this assessment. So do the dissenting opinions. But the majority says this doctrine no longer exists and the cop can continue to sue.

This heads back to the Fifth Circuit which will get yet another chance to end this buffoonery. But it’s unlikely to do so given the interpretations the Appeals Court has been given to work with by the Louisiana Supreme Court. It will likely take yet another trip to the Supreme Court to sort this all out. Meanwhile, the anonymous cop who decided to sue someone who didn’t injure them will continue to bleed Mckesson dry. And, until it’s resolved, protected First Amendment activity will have less protection in the state of Louisiana.

Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, louisiana supreme court, police

Fifth Circuit Sends Anonymous Cop's Lawsuit Againt Protest Organizer To The State's Top Court, Suggests Getting Injured Is Part Of The Job

from the ambulance-drivers-can't-be-ambulance-chasers dept

A decision that created a chilling effect on protected First Amendment activity is headed to yet another court to get the details sorted out.

It’s been more than four years since an anonymous police officer sued over injuries they sustained while responding to a protest in Baton Rouge, Louisiana. The officer was struck in the face by a thrown chunk of concrete. Rather than recognize this was an unfortunate side effect of being in the law enforcement business, the officer sued activist DeRay Mckesson — who decidedly did not throw the object that struck the officer.

The officer’s argument was that Mckesson’s organization of the protest, as well as his decision to lead protesters out to block the highway in front of the police station, made him at least indirectly responsible for the injuries the officer sustained.

Somehow this lawsuit and its ridiculous premise survived two passes by the Fifth Circuit Appeals Court, with its second decision noting how angry it was that it was forced to take another look at its inexplicable first decision: the one that said that Mckesson should have know that leading protesters out into a street would result in the injury of police officers.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

This twice-made decision was appealed and the Supreme Court said the Fifth Circuit got it wrong twice. However, it didn’t necessarily affirm the right to protest and the right of protest leaders to be free of bullshit secondary liability claims. But it said the Fifth Circuit — while not incorrect to raise the issue about liability under Louisiana state law — should not have taken it on itself to define the contours of the state law and how it applied to Mckesson’s actions in relation to the officer’s injury.

The Fifth Circuit’s third pass [PDF] follows the Supreme Court’s instructions. It is sending this case to the Louisiana state Supreme Court to handle the open state law question. But it does so with some additional examination of applicable state laws that indicate the anonymous cop may find no one to sue by the time the state court is done examining it. And this is at least partly due to law blog Volokh Conspiracy and its titular creator, Eugene Volokh.

In the meantime our attention has been drawn to a separate aspect of Louisiana law, the Professional Rescuer’s Doctrine, that could be dispositive. That doctrine, put succinctly, is **a judge-made rule that “essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, assumes the risk of such an injury and is not entitled to damages.**” Gann v. Matthews, 873 So. 2d 701, 705 (La. App. 1st Cir. 2004) (citation and internal quotation marks omitted). The parties disagree as to whether this doctrine bars Officer Doe from recovering. See Mckesson Suppl. Br., Dec. 18, 2020, Doc. No. 00515679716; Doe Suppl. Br., Dec. 18, 2020, Doc. No. 00515678655. We have found limited guidance from the opinions of the Supreme Court of Louisiana on how this doctrine might apply to the particular facts of this case. Because we find this to be a close question of law, which also raises a significant issue of state policy, we further take this opportunity to respectfully elicit guidance on this issue from the Supreme Court of Louisiana.

The Fifth Circuit provides a link to the Volokh Conspiracy post raising this issue, one that called the as-yet-unraised local legal doctrine a “certain win” for Mckesson.

That’s where things stand now. Hopefully, the state Supreme Court will remind this officer that the flipside of having a lot of government-granted power is assuming the risks that come with the position. The ability to quell and/or contain protests comes with the possibility of injury. And when it’s impossible to discover who actually threw the projectile that resulted in injury, the acceptable response isn’t suing protest organizers, unaffiliated protest movements, and Twitter hashtags.

Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, police, protests

The Supreme Court Needs To Reverse The Fifth Circuit's Awful Ruling In The DeRay McKesson Case

from the not-as-much-First-Amendment-in-the-South-right-now dept

Whenever our nation’s court system resumes to normalcy, there will hopefully be another case on the Supreme Court docket that could clarify if someone who engages in protected speech can be held responsible for violent actions of someone else at the same protest.

Activist DeRay McKesson participated in a Black Lives Matter protest in Baton Rouge, Louisiana following the shooting of Alton Brown by police officers. During this protest, someone threw a chunk of concrete at a cop, injuring him. The officer — known only as “John Doe” in his filings — sued McKesson (along with the entire Black Lives Matter movement and, inexplicably, a set of Twitter hashtags).

The district court found in favor of McKesson, saying he wasn’t directly or indirectly responsible for the actions of other protesters, even if the protest began with protesters illegally blocking traffic. Officer Doe appealed. Inexplicably, the Fifth Circuit Appeals Court refused to address the First Amendment issue, finding instead that — under state law — McKesson could continue to be sued for participating in the same protest where this mystery cop was injured.

McKesson asked the Fifth Circuit to take a second look at its awful decision. It did and liked what it had said the first time around. The only exception was Judge Don Willett, who belatedly recognized the First Amendment issue was paramount and that allowing protest organizers to be personally sued for the violent actions of others was extremely bad precedent to set.

That’s where the Supreme Court might be able to help. If it takes the case, it can reverse this precedent — one that stands not-so-firmly on a 8-8 split between Fifth Circuit judges. Constitutional law professor Garrett Epps has a thorough rundown of the case’s history at The Atlantic. Epps says the wild card in play is not the recently-apologetic Judge Willett, but rather another member of the court, Judge James Ho, who seems determined to make Constitutional rights subservient to the needs and wants of police officers.

As for the First Amendment question, [Judge Ho] said, Mckesson deserves to lose.

Why? Claiborne Hardware concerned a boycott by NAACP leaders of white stores in Port Gibson, Mississippi. The boycott demanded an end to racist hiring practices in those stores. Ho now claimed this made Mckesson’s case completely different:

“The theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity. If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech. So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants’ expressive activities.”

This description of Claiborne Hardware—that the Mississippi law at issue in Claiborne Hardware contained a racial element, making the ruling applicable to protests against segregation only—is, not to put too fine a point on it, swill. I cannot find anything in the record to support it.

In Ho’s estimation, not participating in the right kind of protest strips protesters of their First Amendment protections and makes them civilly responsible for the acts of other attendees. Since this protest of the killing of a black man by cops didn’t agitate against racists laws, McKesson can be sued for an injury sustained by a police officer while policing the protest. Nothing in settled law supports Ho’s view, but Ho’s vote still counts and that makes an 8-8 tie as good as a win for the anonymous cop.

As Epps sees it, this is Judge Ho being Judge Ho — a judge who has a track record for siding with law enforcement officers for dubious reasons, including one case where he criticized the lawyer of a 12-year-old student challenging a warrantless search of his pants pockets so harshly the Appeals Court withdrew his decision.

I have no idea why Judge Ho would distort the record this way. But I do note that he has already made clear that he sees protecting police as a major concern. He has tortured the facts of Mckesson in a way that preserves the possibility that police can sue demonstrators. Since the en banc court did not vacate it, the panel’s third opinion—demonstration organizers can be held liable for the actions of others—remains good law in the Fifth Circuit.

Letting this decision stand chills expressive activity in the Appeals Court’s jurisdiction. It allows for the punishment of expressive activity via lawsuits targeting organizers and prominent activists any time a government employee suffers an injury while responding to a demonstration. The end result will be fewer protests, which may be exactly what half the judges on this court want.

Filed Under: 1st amendment, 5th circuit, alton brown, baton rouge, black lives matter, deray mckesson, free speech, protests, supreme court

Cop Hits Woman's Car At 94 MPH, Killing Her Infant. Police Arrest Woman For Negligent Homicide.

from the this-will-surely-endear-them-to-the-community dept

This is how things go in the US, where law enforcement is treated like a favored religion and everyone who isn’t on the inside is just grist for prosecution mills. Here’s the setup, via Matt Pearce.

A Baton Rouge police officer was arrested Friday on a count of negligent homicide, accused of going 94 mph in a Corvette when he caused an off-duty crash on Airline Highway that killed an infant and injured six others.

The officer, Christopher Manuel, 28, was driving north in a 2007 Chevrolet Corvette shortly after 8 p.m. Oct. 12 on Airline Highway when it struck a Nissan at the intersection at Florline Boulevard that was occupied by four adults and three children.

All of the occupants of the Nissan were taken to the hospital. One of those passengers, a 1-year-old baby, Seyaira Stephens, later died.

The van made a left turn in front of the off-duty officer. Both vehicles had a green light. The speed limit on this road was 50 mph. The speed the officer was traveling was verified by his Corvette’s black box. Here’s the positive news:

Manuel, of 8508 Greenwell Springs Road, was booked into East Baton Rouge Parish Prison on a count of negligent homicide and speeding, Sgt. L’Jean McKneely, police spokesman, said.

The officer was booked and made bond. So far, so good. Here comes the avalanche of bad news.

Manuel, who has been on paid administrative leave since the accident, will remain on paid leave until after an internal investigation is concluded, McKneely said.

Due process, I suppose, even if it was clear the officer was traveling at nearly twice the posted speed limit. Much of the information needed to conclude the investigation was already in his department’s hands, thanks to the Corvette’s airbag control module, which recorded this data at the time of impact.

But if there’s going to be any justice done, it’s going to be severely delayed.

That investigation will not begin until he recovers from his injuries and is released to work by a doctor.

That’s the sort of thing never extended to lowly civilians. No officer has ever told an injured arrestee to heal up before worrying about answering questions. No law enforcement agency has backburnered an investigation simply because its subject can’t move around on their own yet.

But these investigations took no time to complete. No one at the Baton Rouge PD waited around for victims of the officer’s reckless driving to be fully healed before they began their arrests.

Just weeks after a Baton Rouge police officer was arrested on negligent homicide and accused of causing a crash that injured several people and killed a baby, the child’s mother was also arrested on the same charge because police said she failed to properly secure the baby’s car seat.

Brittany Stephens, 20, was arrested Tuesday after police found that her daughter’s car seat was not secured and the straps were not adjusted correctly for the child’s height, according to her arrest report. Police said the “lack of securing the seat to the vehicle and the loose straps are a contributing factor in the death” of the child and “show gross negligence” on the mother’s part.

Ah, the healing power of criminal charges, brought against someone involved in an accident that was no fault of her own. She (and her daughter) were just passengers in the van. Not to worry, the police issued citations to everyone else in the vehicle the officer hit. But the mother of the infant the cop killed is facing the same charges he is. And she’s not going to be given a chance to rest up before the police move forward with their investigation. The PD has already wrapped this one up and forwarded charges to the DA’s office.

East Baton Rouge District Attorney Hillar Moore III said Tuesday his office has not yet determined whether Stephens or Manuel will face charges, but prosecutors “will review all reports, charges and arrests and make the appropriate decisions based upon facts and law.”

There is nothing right about this, not even technically. The reckless driving performed by the officer should nullify the culpability of the people in the car he hit. While Officer Manuel may have had the right of way, his excessive speed changed the contours of the incident. In a case involving law enforcement officers manufacturing a reason to stop a car, a court pointed out unsafe driving by officers nullifies moving violations performed by other drivers.

[T]he Court finds as a matter of fact and law that Defendant did not fail to yield to the cruiser because the cruiser was not proceeding in a lawful manner. Rather, the cruiser was itself speeding on a dark, rainy night at low visibility further compromised by road glare. By proceeding in such a reckless manner – and in violation of both state and local law – Ofc. Davis forfeited the preferential status afforded a lawful driver under the right-of-way statute.

This isn’t apples-to-apples (the court making this declaration was in Ohio, not Louisiana, where this accident took place) but it’s a good rule of thumb. If someone is driving 44 mph over the speed limit, they’ve effectively forfeited their right-of-way status. A left turn taken in front of a speeding officer should give the officer zero preferential treatment in the eyes of the law. The officer should be 100% culpable for the damage and loss of life. Arresting a mother who lost her infant to an officer’s reckless actions is needlessly cruel and serves zero deterrent purpose. Her daughter can’t be killed again.

The way the Baton Rouge PD is handling this ensures Officer Manuel’s eventual conviction will also have zero deterrent value. It shows officers the PD is willing to arrest victims of their unlawful actions and give them all the time they want — with pay! — to heal up before they’re forced to confront the results of their recklessness. If the DA is smart, the charges against the mother will vanish and the cop will be rung up for his negligent actions.

Filed Under: baton rouge, brittany stephens, christopher manuel, negligent homicide, police, seyaira stephens

from the flipping-the-'fool-for-a-client'-adage dept

If you’re a cop patrolling a demonstration and you get hit by a flying rock, you most likely shrug it off as the hazards of work and set out making an arrest. If you’re one anonymous Baton Rouge cop, you sue ethereal non-entities and someone who did nothing more than speak at the protests where the officer was injured. (h/t Adam Steinbaugh)

We don’t know who this cop is but we do know his lawyer, who had this to say about the recently-tossed lawsuit.

The officer’s attorney, Donna Grodner, said in an email that she was “not at liberty to discuss the case.”

This explains everything. Actually, considering the lawsuit aped one of Larry Klayman’s more… um… inventive litigation escapades, the less said about the tossed suit, the better. In no particular order, AnonCop sued:

1. Activist DeRay Mckesson, who spoke at the Baton Rouge demonstrations.

2. Black Lives Matters — a name used by several concurrent movements to protest police violence against blacks

3. A Twitter hashtag

The suit has been tossed — hard — by a Louisiana federal court. Dismissed with prejudice [PDF], which blocks AnonCop from attempting anything this ridiculous again — at least against these defendants.

The court waves away the allegations against Mckesson as lacking in any evidence the activist was responsible for the rock/concrete that hit the suing officer.

In his Complaint, Plaintiff alleges that Mckesson “le[]d the protest and violence that accompanied the protest.” (Id. at ¶ 3). As support for this contention, Plaintiff pleaded that Mckesson “was in charge of the protests[,] and he was seen and heard giving orders throughout the day and night of the protests.” (Id. at ¶ 17). Further, Plaintiff avers that Mckesson “did nothing to calm the crowd” during the demonstration; rather, Mckesson “incited the violence.” (Id. at ¶ 19). All of these allegations are conclusory in nature, however, and they do not give rise to a plausible claim for relief against Mckesson.

In 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.” Id. Plaintiff, however, merely states – in a conclusory fashion – that Mckesson “incited the violence” and “g[ave] orders,” (id. at ¶¶ 17, 19), but Plaintiff does not state in his Complaint how Mckesson allegedly incited violence or what orders he allegedly was giving.

Then it gets to the even more ridiculous claims. The judge point out you can’t sue Black Lives Matter because it’s something people align with, not an actual entity representing BLM ideals. It’s a movement participated in by many, but there is no official HQ for BLM all the franchisees report to.

“Black Lives Matter,” as a social movement, cannot be sued, however, in a similar way that a person cannot plausibly sue other social movements such as the Civil Rights movement, the LGBT rights movement, or the Tea Party movement. If he could state a plausible claim for relief, a plaintiff could bring suit against entities associated with those movements, though, such as the National Association for the Advancement of Colored People, the Human Rights Campaign, or Tea Party Patriots, because those entities are “juridical persons” within the meaning of Louisiana law.

Nevertheless, Plaintiff merely has identified “Black Lives Matter” as a Defendant in his Complaint, and that term connotes a social movement that is not a “juridical person” and that lacks the capacity to be sued.

It’s far more blunt about AnonCop’s hashtag defendant, #BlackLivesMatter:

Plaintiff… is attempting to sue a hashtag for damages in tort. For reasons that should be obvious, a hashtag – which is an expression that categorizes or classifies a person’s thought – is not a “juridical person” and therefore lacks the capacity to be sued. See La. Civ. Code art. 24. Amending the Complaint to add “#BlackLivesMatter” as a Defendant in this matter would be futile because such claims “would be subject to dismissal”; a hashtag is patently incapable of being sued.

The officer hoped to amend his lawsuit to include Black Lives Matter, Inc., which he discovered to be the entity on the receiving end of a donation he presumably made in hopes of finding a defendant he could actually sue. The court agrees this might make for a serviceable (in the legal sense of the word) defendant, but says there’s nothing linking the recipient of his investigatory donation to the rock that hit his face.

Plaintiff’s only attempt at characterizing the unidentified tortfeasor as an agent of Black Lives Matter Network, Inc., is located in paragraph 37 of the Proposed Amended Complaint, in which Plaintiff alleges that the tortfeasor was a “member of Defendant Black Lives Matter, under the control and custody of Defendants.” Not only does Plaintiff specifically fail to mention Black Lives Matter Network, Inc., whatsoever, but Plaintiff also fails to allege that such an agency relationship existed between the tortfeasor and “Defendants” with anything more than a “[t]hreadbare recital[] of the elements” of agency, “supported by [a] mere conclusory statement[].” Iqbal, 556 U.S. at 678. Further, Plaintiff has failed to plead that Black Lives Matter Network, Inc., in particular, “had knowledge and specifically ratified” the unidentified tortfeasor’s act of throwing a rock at Plaintiff, Claiborne Hardware, 458 U.S. at 930; Plaintiff merely alleges, in a conclusory fashion, that “Black Lives Matter leadership ratified all action taken during the protest,” and that “Black Lives Matter promoted and ratified” the tortious conduct that gave rise to this suit.

If the officer has more money to waste, he can appeal the decision. But the caselaw is rock solid: you can’t sue hashtags, social movements, or people who happened to be in the same city as the person who threw a rock at your head.

Filed Under: #blacklivesmatter, baton rouge, black lives matter, deray mckesson, donna grodner, hashtag, lawsuit

Store Owner Sues Baton Rouge Police For Seizing His CCTV Recording Of Alton Sterling Shooting

from the store-entirely-self-service-apparently dept

I don’t get to use the phrase “with alacrity” that often, but Baton Rouge store owner Abdullah Muflahi’s filing of a lawsuit against the Baton Rouge police can only be described as that.

Following the shooting of Alton Sterling by Baton Rouge police officers, Muflahi’s store was raided by law enforcement officers who took the hard drive containing the store’s surveillance camera footage of the altercation. So far, everyone involved has refused to discuss the illegal seizure of Muflahi’s recording equipment, deferring to the FBI and its investigation of the shooting — which would be something if the FBI would answer questions about the seizure and current location of the hard drive.. but it won’t talk about it either.

Hence the speedily-filed lawsuit by Muflahi, as reported by Mike Hayes of Buzzfeed:

The owner of the Triple S Food Mart in Baton Rouge where Alton Sterling was fatally shot on July 5 says police detained him for hours while seizing his security footage of the incident without a warrant, according to a lawsuit [PDF] filed Monday.

28-year-old Abdullah Muflahi says that police at the scene placed him in a locked police car for four hours and denied him access to his cell phone, preventing him from contacting his family or an attorney.

According to the lawsuit, police wouldn’t even allow Muflahi to go back into his store to use the restroom during his detention, forcing him to urinate outside of his store in full view of the public. And his detention didn’t end there. Muflahi was taken back to the Louisiana State Police headquarters and held for another two hours while officers questioned him.

This all sounds very suspicious, illegal, and retaliatory. Muflahi not only had CCTV footage of the shooting, but also filmed it with his own cell phone, providing one of the two “unofficial” accounts of the arrest. While it’s fantastic that a recent Supreme Court decision may have resulted in officers’ reluctance to seize/search Muflahi’s cell phone, the Fourth Amendment itself seemed to have little effect on their decision to enter his store and seize his recording equipment without a warrant. While the recording could correctly be described as “evidence,” that doesn’t excuse a warrantless entry or seizure.

The lawsuit, unfortunately, is a little thin when it comes to establishing anything that might overcome the immunity that shields individual officers from the consequences of their actions. While it does suggest the Baton Rouge Police Department’s training is inadequate, it really doesn’t go into detail as to why the court should be expected to believe this assertion. However, it does make an allegation that could be interesting if the court decides to explore it.

[Baton Rouge Police Chief Carl Dabadie] has negotiated a contract with a union representing police officers that provides a blanket indemnification for police officers who are sued by the public from all claims no matter what the circumstances under which the claim arise and further provides that meritorious complaints about police officers are purged from employment files after only 18 months. Both contract provisions encourage aggressive conduct by police officers by minimizing consequences.

It’s common knowledge that police union contracts are generally constructed to shield officers from not only public scrutiny, but internal misconduct investigations as well. Most of these are complemented by a “Law Enforcement Bill of Rights” that gives officers up to three days to ignore questions about alleged misconduct or excessive force. These “extra rights” are often granted in the face of police union pressure, and the unions themselves are heavily-involved in the drafting of department discipline policies. Unions also help fired officers regain their positions, making it even harder for law enforcement agencies to rid themselves of the “bad apples” continually spoiling the rest of the “bunch.”

While there’s zero chance any decision would result in an alteration of the union’s relationship with the Baton Rouge police department or the policies it helped draft, any discussion would at least shine a little more light on how these unions tend to make bad policing/policies even worse.

Filed Under: 4th amendment, abdullah muflahi, alton sterling, baton rouge, evidence, video