935 F.3d 253
5th Cir.2019Background
- July 9, 2016 protest in Baton Rouge blocked a public highway; DeRay Mckesson organized/led the protest associated with Black Lives Matter.
- Police formed a line to clear the highway and make arrests; some protesters threw objects and an unidentified person struck Officer John Doe with a heavy object, causing serious injuries.
- Officer Doe sued Mckesson and "Black Lives Matter" (and later sought to add Black Lives Matter Network, Inc. and #BlackLivesMatter) alleging negligence, respondeat superior, and civil conspiracy.
- District court dismissed all claims under Rule 12(b)(6), treated capacity challenges as motions to dismiss, took judicial notice that "Black Lives Matter" is a social movement/hashtag, and denied leave to amend as futile.
- Fifth Circuit reversed dismissal as to Mckesson on negligence grounds (First Amendment does not bar the claim at pleading stage), affirmed dismissal as to Black Lives Matter for failure to plausibly allege an entity capable of being sued, and remanded for further proceedings as to Mckesson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vicarious liability (respondeat superior) for unknown assailant | Mckesson organized and led protest, so employer-type liability should attach | No agency/servant relationship alleged; assailant not under Mckesson's control | Claim fails — complaint lacks facts showing continuous service or right to control the assailant |
| Civil conspiracy | Mckesson conspired with others to incite riot/violence that caused Doe's injuries | Allegations are conclusory; no specific agreement with assailant to commit assault | Claim fails — no plausible facts that Mckesson agreed with assailant to injure Doe or ratified the attack |
| Negligence and First Amendment defense | Mckesson negligently led demonstrators to illegally occupy highway, creating foreseeable risk of violence; First Amendment does not shield negligent conduct | Mckesson argued First Amendment and Claiborne Hardware bar liability for associational activity absent direction/authorization of specific tortious acts | Held for plaintiff at pleading stage — negligence claim plausible; First Amendment not a bar where plaintiff alleges defendant directed illegal protest conduct that foreseeably led to harm |
| Capacity of "Black Lives Matter" to be sued | Alleged national unincorporated association with chapters; thus suable | Argued it is a social movement/hashtag not a juridical person | Held for defendant — district court erred in judicially noticing BLM's legal form, but plaintiff failed to plead facts showing BLM is an unincorporated association capable of being sued |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard — legal conclusions vs. factual allegations)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (First Amendment limits on liability for others' unlawful conduct in political activity)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (time, place, and manner restrictions and protest regulation)
- Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243 (standards on Rule 12(b)(6) review in the Fifth Circuit)