Should a BLM activist be sued for damages caused by a protester?

In 2016, a group of protesters was led out onto a Louisiana highway by Black Lives Matter activist DeRay Mckesson in an illegal effort to shut down traffic. Police arrived and began arresting people who refused to clear the highway, including Mckesson himself. At that point, things turned ugly and some of the protesters began attacking the police. One unidentified officer was struck in the head with a rock, suffering serious injuries in the process.

The rock thrower was never identified nor brought to justice. In response, the officer (identified only as John Doe) took McKesson to court to sue him, claiming that he was negligent and should have known that his actions could lead to such injuries. A lower court rejected the case, but on appeal, the Fifth Circuit overruled, allowing the suit to move forward. Now Mckesson’s attorneys have asked the Supreme Court to review the decision. (WaPo)

Civil rights lawyers have asked the Supreme Court to intervene in a lawsuit that activists and legal scholars fear could have wide-reaching consequences for protest organizers across the country.

A police officer, who was hit in the head by a rock thrown at a 2016 demonstration in Louisiana, sued prominent Black Lives Matter organizer DeRay Mckesson on the premise that Mckesson should have foreseen the possibility of violence at the protest and be held accountable for it. Mckesson didn’t throw the rock or tell anyone else to throw it…

Legal scholars and lawyers with the American Civil Liberties Union balked at the decision. They said allowing the case to proceed in the face of civil rights protections long guaranteed to protesters could pave the way for similar lawsuits and have a chilling effect on protest organizers nationwide.

The attitude over at the WaPo is clear. They don’t want the officer to be able to sue Mckesson because of the “chilling effect” it could have on free speech. They go so far as to invoke the specter of false flag attacks, where opponents of whatever group is organizing a protest could show up and throw a rock. They quote an ACLU spokesman who says that such an attack could, “bankrupt a movement they disagree with.”

Wait a minute. I thought that the Washington Post regularly wrote off claims of false flag attacks as conspiracy theories. Don’t they?

Anyway, let’s return to the question at hand. Should the officer be able to sue Mckesson? As far as I’m concerned, the answer (perhaps shockingly) is no. But it should teach us something about hate crimes, thought crimes, personal responsibility and related issues.

Nobody (including the wounded officer) is claiming that Mckesson threw the rock. And in the end, the person who threw the rock is the one responsible for the officer’s injuries. The Fifth Circuit found that Mckesson was “liable in negligence” for leading the protesters onto the highway illegally. In that regard, I would certainly agree he’s liable for any damage caused by the traffic being stopped, but somebody involved in that “protest” made the decision to pick up a rock and throw it. To me, this isn’t so much an issue about worries over free speech as one of personal responsibility for each person’s actions.

The reason I put “protest” in scare quotes here is that Mckesson’s stunt was not a protest. It stopped being a protest when he decided to lead everyone onto a thoroughfare and bring traffic to a halt. That’s a riot, not a protest. And when somebody starts chucking rocks at the police, it’s a dangerous riot. The injuries to the officer were not minor. He was treated for brain damage as well as injuries to his teeth and jaw. This was a serious assault.

But, again, Mckesson neither threw the rock nor could it be shown that he encouraged anyone to throw rocks. Holding him responsible for unanticipated, unplanned (if totally unsurprising) violence by his BLM followers shouldn’t be how the system works. There’s probably any number of things that he could be sued for, but this isn’t one of them. I’m not sure what the Fifth Circuit was thinking when they overturned this, but I’ll be surprised if the Supreme Court doesn’t agree to hear the case and then toss it.