Mckesson v. Doe
592 U.S. 1
SCOTUS2020Background
- DeRay Mckesson organized and led a protest in Baton Rouge that allegedly directed protesters to occupy a highway near police headquarters.
- An unknown person threw a rock (or similar object) during the protest, gravely injuring Officer John Doe; the thrower remains unidentified.
- Officer Doe sued Mckesson for negligence, alleging Mckesson negligently staged and directed the highway protest, causing the assault.
- The U.S. District Court dismissed the negligence claim as barred by the First Amendment; a divided Fifth Circuit panel reversed, finding a jury could find Mckesson breached a duty and that First Amendment precedent did not categorically preclude liability.
- The Fifth Circuit denied rehearing en banc by an 8–8 vote amid multiple separate opinions questioning the panel’s state-law analysis and application of NAACP v. Claiborne Hardware Co.
- The Supreme Court granted certiorari, vacated the Fifth Circuit’s judgment, and remanded, holding the federal court should have sought guidance from the Louisiana Supreme Court on unsettled state-law questions before addressing the constitutional issues. Justice Thomas dissented; Justice Barrett did not participate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether First Amendment bars negligent tort liability for a protest leader for third-party violence | Mckesson’s direction of a highway protest made violent confrontations foreseeable and thus he can be liable for negligent conduct that precipitated the crime | First Amendment protects protest-related speech and activity; Claiborne requires intent or something more than mere negligence to attach liability for speech-related wrongs | Supreme Court declined to decide the constitutional question and remanded; directed certification of controlling state-law questions to Louisiana Supreme Court before addressing First Amendment issues |
| Whether Louisiana law imposes a duty to protect third parties from the criminal acts of protest attendees (i.e., duty to avoid negligently precipitating third-party crime) | Officer Doe: Louisiana law can recognize a duty not to negligently precipitate a third-party crime in these circumstances | Mckesson: Louisiana imposes no such duty absent a special relationship; highway-blocking statutes focus on motorists, not risks like assault on officers | Supreme Court held the Fifth Circuit should have certified unsettled questions of Louisiana law (existence/scope of duty) to the Louisiana Supreme Court and did not decide the merits |
| Whether NAACP v. Claiborne Hardware Co. precludes negligence-based liability for protest organizers absent specific intent to cause violence | Officer Doe: Claiborne does not bar liability for downstream consequences of tortious activity that was authorized or directed in violation of a duty of care | Mckesson: Claiborne forecloses imposing tort liability for protest-related activity unless the defendant intended to cause the violent act | Supreme Court did not resolve Claiborne’s application here; remanded for state-law clarification first |
Key Cases Cited
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (speech-related activity can have civil-liability consequences; precision required when regulating First Amendment activity)
- Posecai v. Wal-Mart Stores, Inc., 752 So.2d 762 (La. 1999) (Louisiana principle that generally no duty to protect others from third-party criminal acts)
- Lehman Bros. v. Schein, 416 U.S. 386 (federal courts have discretion to certify unsettled state-law questions)
- Bellotti v. Baird, 428 U.S. 132 (state-court guidance may simplify or avoid federal constitutional adjudication)
- Clay v. Sun Ins. Office Ltd., 363 U.S. 207 (certification appropriate in exceptional instances)
- Tafflin v. Levitt, 493 U.S. 455 (principle of cooperative judicial federalism and state-court competence to decide state-law issues)