947 F.3d 874
5th Cir.2020Background
- A police officer (Doe) was seriously injured while policing a Black Lives Matter protest that unlawfully blocked a public highway and became violent.
- Doe sued protest leader DeRay Mckesson, alleging Mckesson ordered demonstrators to violate a time/place/manner restriction (blocking the highway) and is therefore civilly liable for resulting injuries.
- A 2–1 Fifth Circuit panel held Mckesson could be liable on a content-neutral theory tied to unlawful obstruction and the foreseeable consequences of that conduct (Doe v. Mckesson, 945 F.3d 818).
- Mckesson sought rehearing en banc; the Court denied rehearing en banc (the poll split 8–8). Opinions concurring and dissenting were filed.
- Judge Ho concurred in the denial but emphasized the professional rescuer (fireman’s-rule) doctrine could bar Doe’s suit if raised; Judges Dennis and Higginson dissented, arguing the panel misapplied Louisiana duty-risk analysis and threatened First Amendment protections for protest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McKesson can be held civilly liable for injuries caused by third-party violence at a protest | Mckesson ordered unlawful highway obstruction; injuries were a foreseeable consequence of that unlawful conduct | First Amendment protects protest activity; imposing liability for third-party actions risks content-based punishment and chills protected speech | Panel majority allowed liability on a content-neutral theory tied to unlawful obstruction; rehearing en banc denied so panel opinion remains (no en banc resolution of merits) |
| Whether the liability theory violates Claiborne’s prohibition on content-based civil liability | Doe argues liability rests on unlawful conduct (blocking highway), not on protest content | McKesson argues imposing damages for protest leaders for third-party acts is equivalent to content-based liability condemned in Claiborne | Court (in concurrence) emphasized difference: content-neutral liability for unlawful obstruction is distinguishable from Claiborne; en banc denied, so panel’s limiting language stands for now |
| Applicability of the professional rescuer doctrine (fireman’s rule) as a bar to recovery | Doe seeks recovery despite his status as an on-duty officer | McKesson (not raised earlier) could invoke professional rescuer doctrine to argue officer assumed risk and cannot recover | Concurrence (Judge Ho) noted Mckesson did not raise the doctrine earlier; if raised on remand, district court likely to dismiss under the doctrine; en banc did not decide this issue |
| Whether Louisiana law recognizes the negligence/duty theory adopted by the panel | Doe contends duty exists because statute/time/place restriction was violated and violence was foreseeable | McKesson (and dissents) argue Louisiana would not create a new tort duty for third-party assault arising from highway obstruction; duty-risk and statutory-scope tests not satisfied | Dissenting judges argue panel misapplied Louisiana duty-risk analysis and improperly recognized a new tort duty; en banc denial leaves panel decision intact but unresolved as a matter of Louisiana law |
Key Cases Cited
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (content-based civil liability for political protest is unconstitutional)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, and manner restrictions survive if content-neutral, narrowly tailored, and leave open alternatives)
- Doe v. Mckesson, 945 F.3d 818 (5th Cir. 2019) (panel opinion permitting liability tied to ordering unlawful highway obstruction)
- Gallup v. Exxon Corp., [citation="70 F. App'x 737"] (5th Cir. 2003) (describing the professional rescuer doctrine/fireman’s rule)
- Gann v. Matthews, 873 So.2d 701 (La. Ct. App. 2004) (applying professional rescuer doctrine in Louisiana context)
- Lazard v. Foti, 859 So.2d 656 (La. 2003) (statutory-duty negligence recovery limited to injuries within the scope of protection intended by the legislature)
- Posecai v. Wal-Mart Stores, Inc., 752 So.2d 762 (La. 1999) (courts should weigh moral, social, and economic factors before recognizing new tort duties)