McKesson v. Doe, No. 19-1108, 592 U.S. _____ (S. Ct.)  November 2, 2020.

During an event protesting a police shooting in Baton Rouge, Louisiana, protesters blocked the highway in front of police headquarters. One protester threw concrete or a rock at a police officer who was clearing the highway. Having lost teeth and suffered brain trauma, the officer sued the protest event organizer.

A federal trial court dismissed the case, finding that the First Amendment barred the action A divided Fifth Circuit revered, finding some possibility for recovery under Louisiana tort law.

The Fifth Circuit did not attach precedential value to a Supreme Court case establishing that there is no liability for speech related violence unless it was deliberately intended.

The Fifth Circuit did not find the First Amendment to be a ban to tort recovery. Where petitioner directed obstruction of a highway and if the attack on the police officer was a consequence of the petitioner’s activity, the potential for tort liability could be found.

The Fifth Circuits’ dissent denounced the result, observing that a new tort of “negligent protest” could not be squared with the First Amendment.

Rehearing en banc was not granted, its denial accompanied by multiple opinions.

Petitioner McKesson asked the Supreme Court to overturn the Fifth circuit because liability for violence during protected activity must be closely circumscribed. McKesson argued that his activity was protected even if it was a misdemeanor and he had no relationship to the protester who injured the officer.

The Supreme Court has concluded that the Fifth Circuit’s analysis cannot be supported unless state law would support the action. Certification of the novel tort law question to the Louisiana Supreme court prior to ruling on any Constitutional question would have been prudent.

The Supreme Court entered a “GVR” order, granting the petition for certiorari, vacating the first Circuit judgment, and remanding to the Fifth Circuit for further proceedings in accordance with the Supreme court’s opinion.

McKesson v. Doe, No. 19-1108 (S. Ct.) November 2, 2020