Judge reverses his own ruling in BLM/McKesson case

Last weekend I looked at the lawsuit brought against Black Lives Matter activist DeRay Mckesson by an anonymous police officer who was injured during a BLM protest and debated whether or not it should proceed. Given that Mckesson neither threw the rock that badly injured the officer nor was observed encouraging anyone else to throw rocks, I felt that suit was lacking and probably infringed on McKesson’s free speech rights.

Of course, my opinion wasn’t the one that mattered. After a lower court tossed the lawsuit, a Fifth Circuit panel of three judges unanimously ruled that the lawsuit should move forward. Or at least they did initially. Now, one of the three judges has issued a revised statement saying that he erred in his original vote.

In a bizarre twist to a case that could become a landmark First Amendment decision, a federal appeals court judge made a rare turnaround this week, reversing a decision he made in August and complicating the decision he had approved.

Judge Don Willett of the 5th Circuit U.S. Court of Appeals announced Dec. 16 he had been in error on Aug. 8 when he joined two colleagues in a unanimous decision that ruled the organizer of a Black Lives Matter demonstration may be liable for severe damages a police officer suffered when hit by a projectile thrown by a protester.

Judge Willett’s reversal stunned all parties, who believed the matter settled at the appellate level and were focused on Supreme Court briefs.

This is kind of stunning. Normally, to obtain a different result from the appeals court you at least have to ask them to take another look. Nobody had filed anything requesting Judge Willett to reconsider his vote. The attorneys for both parties had already moved on to prepare for a hearing before the Supreme Court. Willett apparently just decided to reverse himself without any prompting.

Of course, this doesn’t change much of anything. That still leaves the Fifth Circuit decision at 2-1 in favor of allowing the lawsuit to proceed. It’s just extremely curious, to say the least.

The real question now is how the Supremes will rule, assuming they tackle the case. If they either allow the previous court’s ruling to stand or hear the case and rule the same way, this would be a major shift in how some First Amendment cases are handled. (And probably not a good change.)

It would be rare in the extreme for DeRay Mckesson and me to agree on much of anything, but this case isn’t about Mckesson or BLM. It deals with something much larger. Mckesson obviously broke the law on the night of that protest in Baton Rouge when he deliberately led a group of his followers onto a highway with the intention of shutting down traffic. For that, he should be held accountable.

But up until that moment, they were just another group of protesters expressing their point of view. And even after they moved onto the highway, the real criminal in the events leading to this lawsuit was the person who threw the rock. If Mckesson can be bankrupted for organizing and leading a protest while not committing or encouraging any acts of violence, the same thing could happen to conservative activists organizing protests on college campuses or elsewhere.

I hate to go down the fearmongering path of invoking images of false flag attacks as McKesson’s defenders have done, but they might have a point in this case. If all it takes is for one bad actor to show up and chuck a rock at a cop from the anonymity of the crowd to nail a protest organizer with a million-dollar judgment, then it can happen to anyone. And such a scenario would prove a powerful temptation to Antifa when they don’t want to see a conservative speaker showing up a liberal university. Just some food for thought.

David Strom 6:41 PM on September 26, 2022
David Strom 4:41 PM on September 26, 2022