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Black Lives Matter Leader Secures Temporary SCOTUS Win

Nov. 2, 2020, 2:51 PM

The U.S. Supreme Court sent back a case finding that protest organizers can be held accountable for injuries to police when events turn violent, saying the lower court should have let state courts weigh in.

The lower court had allowed a suit by an injured officer against Black Lives Matter leader DeRay Mckesson to go forward. A twist in the case involves a judge who first sided with the plaintiff but then reversed course in a “change of heart.”

But the justices undid that ruling, saying the lower court should have “certified” questions to the Louisiana Supreme Court to settle questions of state—as opposed to federal—law.

“We think that the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented,” the court said in an unsigned opinion. Only Justice Clarence Thomas dissented. Newly confirmed Justice Amy Coney Barrett didn’t participate in the matter, which arrived at the court before she was nominated to the bench.

The officer in the case, who’s not been named, was seriously injured during a demonstration prompted by the 2016 deadly shooting of a Black man by off-duty police in Baton Rouge, La. He alleges that Mckesson “knew or should have known” that “violence would result.”

The Supreme Court’s decision to send the case back to the lower court comes after a summer of historic demonstrations against racial injustice and police brutality.

The New Orleans-based U.S. Court of Appeals for the Fifth Circuit found that even though Mckesson didn’t direct protesters to engage in violence, it was “patently foreseeable” that his order to block a public highway could lead to that outcome.

Fifth Circuit Judge Don Willett originally ruled against demonstrators, but ultimately dissented from the court’s decision. He said allowing the suit could significantly curtail future protests and “would have enfeebled America’s street-blocking civil rights movement, imposing ruinous financial liability against citizens for exercising core First Amendment freedoms.”

In his brief urging the justices to toss the case, Mckesson said it’s “not every day that a circuit judge forcefully repudiates a published decision he twice joined” or that eight judges, on their own, call for the full court to reconsider the ruling.

Invoking the historic civil rights march across the Edmund Pettus Bridge in Selma, Ala., Mckesson said the “notion that alleging a misdemeanor traffic violation causes First Amendment protections to unravel is just as shocking.”

The Supreme Court has turned away other calls to rein in qualified immunity, a doctrine that often protects law enforcement from suits over their conduct while on duty.

The case is McKesson v. Doe, U.S., No. 19-1108.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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