Doe v. Mckesson
2 F.4th 502
| 5th Cir. | 2021Background
- Protest in Baton Rouge allegedly organized/led by DeRay Mckesson; protestors moved onto and blocked a public highway in front of the police headquarters.
- Protest deteriorated into violence; an unidentified rioter threw a heavy object that struck Officer John Doe, causing serious facial and brain injuries.
- Doe sued Mckesson in federal court alleging Mckesson negligently (and intentionally/conspiratorially) precipitated the violent conduct that caused Doe’s injuries.
- The district court dismissed under Fed. R. Civ. P. 12(b)(6), concluding the complaint did not plead a recognized basis for liability for a third party’s tort.
- A divided Fifth Circuit panel reversed, holding Doe plausibly alleged Louisiana recognizes a duty not to negligently cause a foreseeable third‑party crime; the Supreme Court vacated and remanded, declining to decide the First Amendment issue and urging certification of unresolved state‑law questions.
- On remand the Fifth Circuit certified two determinative Louisiana law questions to the Louisiana Supreme Court: (1) whether Louisiana recognizes a duty not to negligently precipitate a third‑party crime under these facts, and (2) whether the Professional Rescuer’s Doctrine bars recovery here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Louisiana recognizes a duty not to negligently precipitate a third‑party crime (as alleged) | Mckesson negligently led an illegal highway blockade and should be liable for foreseeable violent acts by third parties | Imposing such liability is legally and constitutionally problematic (including First Amendment concerns); state law does not clearly create such a duty | Certified to the Louisiana Supreme Court for authoritative answer; Fifth Circuit will be bound by that answer |
| Whether Mckesson can be held liable for intentional acts and conspiracy alleged in the complaint | Doe alleges Mckesson acted intentionally and in concert to incite violence, supporting liability in solido | Mckesson disputes sufficiency and raises defenses including constitutional and causation issues | The complaint’s allegations on intentional/conspiratorial conduct are part of the record sent with certification for state court consideration |
| Whether the Professional Rescuer’s Doctrine bars recovery by Officer Doe | Doe contends doctrine should not bar recovery for harms caused by a third‑party criminal act negligently precipitated by another | Mckesson argues the doctrine (fireman’s rule) may bar police officers from recovering injuries incurred in performance of duties | Certified to the Louisiana Supreme Court to resolve whether the doctrine precludes recovery on these facts |
| Whether federal courts should decide the First Amendment balancing before state‑law questions are resolved | Doe argues state‑law duty can be addressed and then constitutional limits applied | Mckesson urged constitutional defenses; Supreme Court stressed state‑law uncertainty makes constitutional ruling premature | Fifth Circuit follows Supreme Court guidance: decline to resolve the constitutional issue now and seek state‑law answers first |
Key Cases Cited
- Doe v. Mckesson, 945 F.3d 818 (5th Cir. 2019) (panel opinion finding plaintiff plausibly alleged a duty under Louisiana law not to negligently precipitate a foreseeable third‑party crime)
- Mckesson v. Doe, 141 S. Ct. 48 (2020) (per curiam) (Supreme Court vacated and remanded, declining to decide First Amendment issue and recommending certification of unresolved state‑law questions)
- Doe v. Mckesson, 272 F. Supp. 3d 841 (M.D. La. 2017) (district court dismissal under Rule 12(b)(6))
- Gann v. Matthews, 873 So. 2d 701 (La. Ct. App. 2004) (discussing the Professional Rescuer’s Doctrine/fireman’s rule)
- Cox v. Louisiana, 379 U.S. 536 (1965) (balancing free speech/assembly rights with governmental responsibility to preserve public order)