A police officer who was injured during a Black Lives Matter protest in Baton Rouge, Louisiana, back in 2016 can sue Black Lives Matter leader DeRay Mckesson and other organizers, a federal appeals court ruled last month — and the unanimous ruling by the panel could have blown up Mckesson’s defense.
According to The Associated Press, the protest was spurred by the death of Alton Sterling, an African-American man who was shot and killed by police during a confrontation three years ago. Sterling was on the ground when, officers say, he reached for his pockets. After several warnings, Sterling was shot and killed.
A .38-caliber revolver was later found in Sterling’s pockets, according to The Washington Post.
None of the police officers were charged.
However, liberal movements don’t necessarily wait for facts and, during a July 9, 2016, demonstration, Mckesson — Black Lives Matter’s most visible organizer, who had traveled to Baton Rouge to join the protests — led people to block a highway.
According to the officer — identified only as “John Doe” — this created the conditions that caused him to be injured by a concrete block that was thrown at him.
In 2017, the lawsuit was dismissed by a lower court, which ruled that the demonstration was protected on First Amendment grounds, according to the AP.
The federal judge also ruled that Black Lives Matter, being a nebulous movement of loosely affiliated groups, wasn’t organized enough to be sued, the AP reported.
“But the 5th U.S. Circuit Court of Appeals ruled Wednesday that the officer should be able to argue that Mckesson, a prominent Baltimore activist, didn’t exercise reasonable care in leading protesters onto the highway, setting up a police confrontation in which the officer was injured by a thrown concrete block,” the AP reported.
And while the overall ruling is carried in dry, legal language, two sentences stand out that give some indication that the court was not pleased with the “lawlessness” on display at the protest.
“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,” Circuit Judge E. Grady Jolly wrote in the unanimous decision, which allowed the officer’s lawsuit to go forward.
“By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.”
The ruling stressed that it was not the final finding in the case.
“Our ruling at this point is not to say that a finding of liability will ultimately be appropriate,” it stated.
“We are simply required to decide whether Officer Doe’s claim for relief is sufficiently plausible.”
However, the 5th Circuit Court did rule that the lower court ruled correctly regarding whether Black Lives Matter could be sued.
“[W]e find that the district court did not err in concluding that Officer Doe’s complaint has failed plausibly to allege that Black Lives Matter is an entity capable of being sued,” Jolly wrote.
It was still bad news for McKesson.
“I’m disappointed and troubled by the 5th Circuit’s reversal of the district court decision. I am currently exploring my legal options and will respond formally soon,” Mckesson told the AP after the ruling was announced.
Meanwhile, the lawyer for Officer Doe, Donna Grodner, told the AP the decision was a “a stand-up victory for the Baton Rouge PD.”
And it is.
For those protesting the death of Alton Sterling, the facts of the case were never important.
After two years of investigation, according to CNN, one officer was fired for violating use of force regulations during the confrontation with Sterling by threatening to shoot him too quickly.
Fair enough. This still obscures the fact that Sterling was resisting arrest, had a handgun and was allegedly reaching for it.
However, facts or no facts, Americans have the right to protest.
What they don’t have the right to do is to use the right to protest to put anyone — especially law enforcement officers — in a position of danger.
We’ll certainly see what happens in the case of Officer Doe and DeRay Mckesson, but the 5th U.S. Circuit Court of Appeals made the right decision.
The Constitution doesn’t allow anyone, no matter how just their cause, to put the safety of another person at risk under the aegis of free speech.
Whether or not that makes Mckesson liable for Officer Doe’s injury is a matter for a court to decide, but it’s not something that can be brushed off by hiding behind a specious interpretation of the First Amendment.
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