John Doe v. DeRay Mckesson
945 F.3d 818
| 5th Cir. | 2019Background
- On July 9, 2016, a protest in Baton Rouge led by DeRay Mckesson (associated with Black Lives Matter) illegally blocked a public highway; police moved to clear the roadway and make arrests.
- An unidentified protester threw a rock-like object that struck Officer John Doe, causing serious injuries; Doe sued Mckesson and “Black Lives Matter.”
- The district court dismissed Doe’s complaint under Federal Rule of Civil Procedure 12(b)(6), concluded Black Lives Matter was a non-juridical social movement incapable of being sued, and denied leave to amend as futile.
- On appeal the Fifth Circuit held it had jurisdiction (dismissal of the non-juridical defendant cured any diversity defect) and reviewed the pleadings de novo.
- The Fifth Circuit affirmed dismissal of claims against Black Lives Matter (Doe failed to plead it as an unincorporated association) but reversed as to Mckesson, finding Doe plausibly alleged negligence that could survive First Amendment scrutiny and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal jurisdiction after dismissal of non-juridical defendant | Federal diversity jurisdiction exists; if not, dismissal of non-juridical defendant cures diversity defect | No briefing below; argued Black Lives Matter is a movement and not a party | Court: jurisdiction exists because dismissal of non-juridical defendant created complete diversity, so appealable in federal court |
| Capacity: Is “Black Lives Matter” suable? | Doe: alleges Black Lives Matter is a national unincorporated association (seek to add Black Lives Matter Network, Inc.) | Mckesson: Black Lives Matter is a social movement/hashtag and lacks juridical capacity | Held: Doe failed to plausibly allege the organizational attributes required under Louisiana law; district court’s judicial‑notice of movement status was improper but dismissal affirmed on the pleadings |
| Vicarious liability / civil conspiracy for the unknown assailant | Doe: Mckesson directed/led demonstrators and is responsible for their conduct (respondeat superior; conspiracy to incite riot) | Mckesson: no control/agency over the unknown assailant; insufficient conspiracy allegations | Held: Pleadings do not support that the assailant was a “servant” or that Mckesson entered a conspiracy to commit the assault; these theories fail |
| Negligence & First Amendment interplay | Doe: Mckesson negligently organized an unlawful highway‑blocking protest creating foreseeable risk of violent confrontation that caused Doe’s injuries; First Amendment does not bar negligence liability for one’s own tortious conduct | Mckesson: First Amendment protects protest leadership and association; holding leader liable for others’ violence would impermissibly chill protected speech absent allegation he authorized, directed, or ratified violence | Held: At pleading stage Doe plausibly alleged Mckesson breached a duty by leading an illegal, foreseeably violent highway occupation; First Amendment does not categorically bar negligence claims here, so negligence claim survives to permit discovery and further proceedings |
Key Cases Cited
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (First Amendment limits on liability for protest‑related association and speech; liability requires authorization, direction, or ratification of unlawful/violent activity)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (labels/conclusions insufficient; pleading must nudge claim to plausibility)
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement requires intent, imminence, and likelihood of lawless action)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (constitutional protection for speech; limits on negligence‑based liability for speech about public officials)
- Posecai v. Wal‑Mart Stores, Inc., 752 So. 2d 762 (La. 1999) (duty‑risk analysis and factors for imposing duty under Louisiana law)
- Brown v. Tesack, 566 So. 2d 955 (La. 1990) (liability where defendant’s negligent conduct foreseeably caused a third party’s criminal act)
- Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996) (diversity cured when non‑diverse defendant is dismissed)