Officer John Doe, Police Officer vs. Deray McKesson; Black Lives Matter; Black Lives Matter Network, Incorporated
BY Hughes, J.:
2021-CQ-00929 OFFICER JOHN DOE, POLICE OFFICER VS. DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES MATTER NETWORK, INCORPORATED
CERTIFIED QUESTION ANSWERED. SEE OPINION.
Weimer, C.J., concurs and assigns reasons.
Crichton, J., concurs for the reasons assigned by Chief Justice Weimer.
Genovese, J., additionally concurs in the result and assigns reasons.
Crain, J., concurs in part and assigns reasons.
Griffin, J., dissents and assigns reasons.
HUGHES, J.
We accepted the certified questions presented to this court by the United States Court of Appeals, Fifth Circuit, in Doe v. Mckesson, 2 F.4th 502 (5th Cir. 2021) (per curiam). The questions posed by the Fifth Circuit are: (1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party? (2) Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana‘s Professional Rescuer‘s Doctrine bars recovery under the facts alleged in the complaint? Id., 2 F.4th at 504. We answer the former, under the facts alleged in the complaint, in the affirmative and the latter in the negative, for the following reasons.
FACTS AND PROCEDURAL HISTORY
The plaintiff in this personal injury case named as defendants the Black Lives Matter (“BLM“) organizаtion1 and DeRay Mckesson (alleged to be a leader and co-founder of BLM). The plaintiff alleges that he was a duly commissioned police officer for the City of Baton Rouge on July 9, 2016, when he was ordered to respond to a protest “staged and organized by” BLM and DeRay Mckesson, which was in
The plaintiff alleged that Mr. Mckesson, at all material times during the July 9th protest, led “the protest and violence that accompanied the protest,” which took place outside the Baton Rouge Police Department located on Airline Highway, a heavily traveled public highway. The plaintiff further alleged that BLM and Mr. Mckesson “staged” the July 9th protest and, during the protest, their followers engaged in the “blocking of a public highway, looting of a Circle K, throwing of items stolen and violence towards police.” It was further claimed that the defendants were in Baton Rouge “for the purpose of demonstrating, protesting and rioting to incite others to violence against police and other law enforcement officers,” that the defendants “conspired to violate the law by planning to block a public highway,” and that they “knew police would be called to clear the public highway of protestors.”
As stated in the petition, when the highway in front of the police department was blocked, the Baton Rouge police department “arranged for a front line of officers in riot gear that formed a shield around officers who were to effectuate arrests and removal of Defendants from the public highway,” and the plaintiff was one of the officers designated to make arrests. The plaintiff also asserted that “the protest was peaceful until activist[s] began pumping up the crowd,” that Mr. Mckesson was “in charge of the protests,” and that he was “seen and heard giving orders throughout the day and night of the protests.” The plaintiff claimed in his petition that the protest turned into a riot, with protestors hurling full plastic water bottles at the police officers. The plaintiff further alleged that Mr. Mckesson was present during the protest, and “he did nothing to calm the crowd and, instead, he incited the violence on behalf of [BLM].” When the defendants ran out of water bottles to throw, the plaintiff claimed that a BLM protestor “picked up a piece of
In addition, the plaintiff sets forth in his petition that Alton Sterling‘s July 5, 2016 death “started a flurry of activity” by the defendants, who had staged protests in other cities that “resulted in violence and property damage.” The plaintiff cited as examples of these other activities, that: оn July 7, 2016, Lakeem Keon Scott “shot at passing car[s] along a Tennessee highway, killing one woman and wounding three others, including a police officer, while yelling, ‘[P]olice suck! Black lives matter!‘“; and, on July 7, 2016, at a BLM protest in Dallas, Texas, at least one sniper shot twelve police officers (killing five), who had been on duty to keep the peace during the protest. The plaintiff alleged other similar attacks occurred during protests and rioting in other locations across the country, and the defendants had taken credit for the protests and riots, citing Mr. Mckesson‘s statement to the New York Times, following the attack on the plaintiff, that “[t]he police want protesters to be too afraid to protest,” in addition to indicating that he intended to plan more protests.
In an amended petition, which the plaintiff later sought to file in the federal district court,2 he detailed further incidents of violent protests by BLM leading up to the July 2016 incident in Baton Rouge, including: the April 2015 “Baltimore unrest and rioting“; the June 2015 “McKinney, Texas unrest“; the August 2015 “Earth City, Missouri, blocking rush-hour traffic” incident; the August 2015 “Ferguson unrest“;
Plaintiff also gave further details, in his amended petition, about public statements made by Mr. Mckesson, in which he represented himself as a BLM leader and protest organizer, including: with CNN‘s Wolfe Blitzer; with FOX‘s Sean Hannity; on Stephen Colbert‘s The Late Show; in a Forbes Magazine article titled “Black Lives Matter Activist DeRay Mckesson Talks Colin Kaepernick, Progress and the Future“; at the Voice of San Diego Politifest; on UPROXX.com; and at the White House with President Obama; along with the hacking of Mr. Mckesson‘s Twitter account and the public disclosure of Twitter statements between Mr. Mckesson and other BLM leaders that “specifically showed an intent to use protests to have ‘martial law’ declared nationwide.”
Based on these allegations in the federal district court, the plaintiff sought damages for the injuries he sustained at the hands of the BLM protestors, citing
In response to the action, motions to dismiss were filed under
The question presented for our review is whether the theory of personal liability adopted by the Fifth Circuit violates the First Amendment. When violence occurs during activity protected by the First Amendment, that provision mandates “precision of regulation” with respect to “the grounds that may give rise to damages liability” as well as “the persons who may be held accountable for those damages.” [NAACP v.] Claiborne Hardware [Co.], 458 U.S. [886,] at 916-917, 102 S.Ct. 3409[, 73 L.Ed.2d 1215 (1982)] (internal quotation marks omitted). Mckesson contends that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only association with him was attendance at the protest.
We think that the Fifth Circuit‘s interpretation of state law is too uncertain a premise on which to address the question presented. The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these сircumstances in the first place. The dispute thus could be “greatly simplifie[d]” by guidance from the Louisiana Supreme Court on the meaning of Louisiana law. Bellotti v. Baird, 428 U.S. 132, 151, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976).
* * *
In exceptional instances ... certification is advisable before addressing a constitutional issue. See Bellotti, 428 U.S. at 151; Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 212, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960). Two aspects of this case, taken together, persuade us that the Court of Appeals should have certified to the Louisiana Supreme Court the questions (1) whether Mckesson could have breached a duty of care in organizing and leading the protest and (2) whether Officer Doe has alleged a particular risk within the scope of protection afforded by the duty, provided one exists. See 945 F.3d at 839 (opinion of Willett, J.).
First, the dispute presents novel issues of state law peculiarly calling for the exercise of judgment by the state courts. See Lehman Brothers [v. Schein], 416 U.S. [386,] at 391, 94 S.Ct. 1741[, 40 L.Ed.2d 215 (1974).] To impose a duty under Louisiana law, courts must consider “various moral, social, and economic factors,” among them “the fairness of imposing liability,” “the historical development of precedent,” and “the direction in which society and its institutions are evolving.” Posecai [v. Wal-Mart Stores, Inc.], 752 So.2d [762,] at 766 [(La. 1999)]. “Speculation by a federal court about” how a state court would weigh, for instance, the moral value of protest against the economic consequences of withholding liability “is particularly gratuitous when the state courts stand willing to address questions of state law on certification.” Arizonans for Official English v. Arizona, 520 U.S. 43, 79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotation marks and alteration omitted).
Second, certification would ensure that any conflict in this case between state law and the First Amendment is not purely hypothetical. The novelty of the claim at issue here only underscores that “[w]arnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State‘s law.” Ibid. The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit. But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights—without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We express no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand.
McKesson v. Doe, ___ U.S. ___, 141 S.Ct. 48, 50-51, 208 L.Ed.2d 158 (2020).
On remand, the Fifth Circuit Court of Appeals certified two questions to this court, stating in pertinent part as follows:
[W]e hereby certify the following determinative questions of law to the Supreme Court of Louisiana, by which responses we will be bound for the purposes of this case:
1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party?
2) Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana‘s Professional Rescuer‘s Doctrine bars recovery under the facts alleged in the complaint?
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Should the Supreme Court of Louisiana accept our request for answers to these questions, we disclaim any intention or desire that it confine its reply to the precise form or scope of the questions certified. Along with our certification, we transfer this case‘s record, our previous opinion, and the briefs submitted by the parties. We will resolve this case in accordance with any opinion provided on these questions by the Supreme Court of Louisiana. Accordingly, the Clerk of this Court is directed to transmit this certification and request to the Supreme Court of Louisiana in conformity with the usual practice of this court.
Doe v. Mckesson, 2 F.4th 502, 504 (5th Cir. 2021).
This court accepted the Fifth Circuit‘s certification request. Doe v. McKesson, 21-00929, p. 1 (La. 7/8/21), 320 So.3d 416, 417.
CERTIFIED QUESTION NO. 1: Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party?
Though later vacated by the Supreme Court, directing certification of the questions to this court, in Doe v. Mckesson, 945 F.3d at 826-32, the Fifth Circuit previously answered the first certified question it now poses to this court, stating in pertinent part:
[W]e turn to Officer Doe‘s negligence theory. Officer Doe alleges that Mckesson was negligent for organizing and leading the Baton Rouge demonstration because he “knew or should have known” that the demonstration would turn violent. We agree as follows.
Louisiana Civil Code article 2315 provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The Louisiana Supreme Court has adopted a “duty-risk” analysis for assigning tort liability under a negligence theory. This theory requires a plaintiff to establish that (1) the plaintiff suffered an injury; (2) the defendant owed a duty of care to the plaintiff; (3) the duty was breached by the defendant; (4) the conduct in question was the cause-in-fact of the resulting harm; and (5) the risk of harm was within the scope of protection afforded by the duty breached. Lazard v. Foti, 859 So.2d 656, 659 (La. 2003). Whether a defendant owes a plaintiff a duty is a question of law. Posecai v. Wal-Mart Stores, Inc., 752 So.2d 762, 766 (La. 1999); see Bursztajn v. United States, 367 F.3d 485, 489 (5th Cir. 2004) (“Under Louisiana law, the existence of a duty presents a question of law that ‘varies depending on the facts, circumstances, and context of each case and is limited by the particular risk, harm, and plaintiff involved.‘” (quoting
Genovese, J., additionally concurs in the result and assigns reasons:
While I agree with the result in this Court‘s decision, I write separately to express my response to these two certified questions.
Answer to Question No. 1:
Louisiana tort law is governed by
Answer to Question No. 2:
No. The Professional Rescuer Doctrine does not bar recovery under Louisiana law.3
CRAIN, J. concurs in part and assigns reasons.
I agree with the result reached by the majority regarding “duty.” I write separately to clarify why I believe Louisiana law recognizes potential liability for the negligent precipitation of a crime of a third party. This certified question requires scrutiny of two elements of a tort claim: 1) duty, a purely legal question based on broad policy considerations; and 2) scope of the duty, a mixed question of law and fact that depends on the circumstances of each case.1 The line between these distinct elements is often blurred.
Applicable Law
Under the traditional duty-risk analysis applicable to negligence claims, a plaintiff must prove five elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant‘s conduct failed to conform to the applicable standard (the breach element); (3) the defendant‘s substandard conduct was a cause-in-fact of the plaintiff‘s injuries (the cause-in-fact element); (4) the defendant‘s substandard conduct was a legal cause of the plaintiff‘s injuries (the scope of the duty element); and (5) actual damages (the
The starting point for determining whether a duty exists is
More specific duties can also arise from other codal, statutory, administrative and local laws, as well as private contracts. See Ardoin v. Hartford Acc. & Indem. Co., 360 So. 2d 1331, 1334 (La. 1978). When a duty arises from a public source of law, the enacting body has recognized, as a matter of public policy, a duty to act or not aсt in a certain manner. See Boyer v. Johnson, 360 So. 2d 1164, 1169 (La. 1978) (because statute satisfied the duty element, analysis of the statutory violation was at the scope of the duty stage to determine whether the statute was designed to protect particular plaintiff from particular type of harm); See Lazard v. Foti, 02-2888 (La. 10/21/03), 859 So. 2d 656, 660-61, quoting Hill v. Lundin & Assoc., 260 La. 542, 256 So. 2d 620, 622 (1972) (“Where the rule of law upon which a plaintiff relies for imposing a duty is based on a statute, the court attempts to interpret legislative intent as to the risk contemplated by the legal duty, which is often a resort to the court‘s own judgment of the scope of protection intended by the legislature.“)
Absent a duty from a public source of law, there are limits to liability where the courts will not recognize certain torts. Reynolds v. Bordelon, 14-2362 (La. 6/30/15), 172 So. 3d 589, 595. While Article 2315 creates broad accountability for fault, the “duty” inquiry can narrow the scope of potential liability and financial responsibility. It contemplates whether an entire category of defendants should be excluded from liability. Reynolds, 172 So.3d 589. This is a policy-driven decision that considers various moral, social, and economic factors. Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 766 (La. 1999). These policy considerations can compel a court to make a categorical “no duty” rule regarding certain acts or actors. Id. Structuring the duty inquiry broadly allows a court to determine whether Louisiana will exclude liability as to “whole categories of claimants” or “of claims under any circumstances.”2 Frank L. Maraist & Thomas C. Galligan, Jr., 1 Louisiana Tort Law § 5.02[5] (2020), citing Pitre v. La. Tech Univ., 673 So. 2d 585, 596 (La. 1996) (Lemmon, J., concurring). Examples where Louisiana courts have found no duty at this broad categorical level are: Reynolds, 172 So.3d 589 (no duty to prevent negligent spoliation of evidence); and Carrier v. City of Amite, 10-0007 (La. 10/19/10), 50 So. 3d 1247, 1249 (no duty for retailer to fit a helmet to customer at point of sale). Categorical rejection of civil tort liability for classes of acts or actors by finding no duty is rare.
In contrast, when the question presented is whether a stated duty will be extended to support liability for a particular circumstance, analysis of the defendant‘s conduct should be in terms of the scope of the duty. See Louisianа Tort Law at § 5.02[7]. The question is, “should this plaintiff recover from this defendant for these particular damages that arose in this particular manner?” Id. at § 3.05. This inquiry is fact-specific. Id. The scope of the duty is generally not a policy question; it is a matter of common sense, justice and fairness. Id. at 5.02[7]. At this stage of the analysis, foreseeability and ease of association of the injury are relevant
It is important to separate the duty and scope of the duty questions because each has consideratiоns unique to itself.3, 4 Whether a duty exists is a question of law. Faucheaux v. Terrebonne Consolidated Government, 92-0930 (La.3/25/93), 615 So.2d 289, 292. The scope of the duty presents a mixed question of fact and law. Parents of Minor Child v. Charlet, 13-2879, p. 6 (La. 4/4/14), 135 So.3d 1177, 1181.
The Certified Question
We accepted the following certified question from the Fifth Circuit: “1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party?” Because the threshold element of “duty” is analyzed at the categorical level, I believe the certified question should be framed more broadly to both respond to the federal court and to be consistent with Louisiana law.5 The more pertinent question is: “Does a protest
Duty
The parties have not cited, nor have we found, any specific codal, statutory, administrative or local law that addresses the duty applicable to this case. Consequently, starting with the foundational basis for tort liability in Louisiana, Article 2315, we must determine whether moral, social and econоmic considerations support our recognition of such a duty or the categorical exclusion of it. Posecai, 752 So.2d 762. To answer this question, relevant policy factors must be considered: (1) deterrence of unreasonable conduct, or encouraging reasonable conduct; (2) economic considerations; (3) justice and fairness of potentially imposing liability; (4) allocation of judicial resources; and (5) predictability.7
Deterrence
Finding the existence of a duty will make an actor potentially civilly liable. The potential for civil liability may deter future conduct. So, exposing a protest organizer to civil liability for failing to exercise reasonable care so that the protest is carried out in a lawful manner should deter undesirable conduct (i.e. unlawful protests) and encourage desirable conduct (i.e. lawful protests). This factor weighs in favor of recognizing a duty.
This factor considers who will bear the financial loss for the alleged injury. Finding a duty potentially places that loss on the defendant. Finding no duty will result in the victim bearing the financial loss associated with his injury. Thus, this factor balances the need for compensating victims against a protest organizer‘s responsibility to pay. The purpose of tort damages is to make the victim whole. Bellard v. Am. Cent. Ins. Co., 2007-1335 (La. 4/18/08), 980 So. 2d 654, 668. Recognizing a duty that results in compensating victims injured when a protest is conducted unlawfully furthers the purpose of making the victim whole. An innocent victim in these circumstances should not be categorically denied recovery.
Further, while a protest organizer cannot be deemed to know of or condone every action that may cause an injury during the protest, the critical part of the proposed duty is whether the organizer used reasonable care so that the protest was conducted in a lawful manner. If the protest is organized, led, and effectuated in a lawful manner, a plaintiff generally will be unable to show a breach of the stated duty аnd the defendant will not bear the cost of injury. If, however, the organizer does not use reasonable care so that the protest occurs in a lawful manner, the expectation that he will absorb the financial loss instead of a victim is reasonable.
This factor is bolstered by Louisiana‘s recognition of comparative fault, which results in the fault of a victim who contributes to his own injury, or of a third party who acts particularly egregiously, proportionately reducing any fault allocated to the organizer. The proposed duty requires lawful actions by the organizer. The financial burden associated with the failure to conform to that duty should be borne by him. This factor weighs in favor of finding a duty.
Justice
This factor addresses society‘s sense of fairness in determining whether a reasonable person should act or not act in a certain manner. Reynolds, 172 So.3d at.
Allocation of Judicial Resources
This factor addresses judicial economy and the potential for an unmanageable flow of litigation if a duty is recognized. Anecdotally, it is reasonable to expect relatively low occurrences of planned, unlawful protests, making the likelihood оf injury from one improbable. The infrequency of such events supports the conclusion that judicial resources will not be unduly burdened by imposing the proposed duty. Further, the First Amendment protects lawful protests. Placing lawful protests beyond the reach of civil liability, while recognizing potential civil liability for unlawful protests, will make overloaded dockets unlikely. This factor weighs in favor of finding a duty.
Predictability
This factor looks at whether the alleged tortfeasor or the victim is better positioned to analyze the risks involved in an unlawful protest and, thus, take precautions to avoid them or to insure against them. A protest organizer who plans or leads an unlawful protest is best positioned to predict and, therefore protect against, the risks of that conduct. The act of organizing and leading a protest in a reasonable and lawful fashion should require precautions to counter the risks
These policy considerations, independently and collectively, support our recognition of a protest organizer‘s duty to use reasonable care so that a protest is conducted in a lawful manner. Recognizing such a duty negates any contention that a protest organizer, as a matter of law, is categorically excluded in all instances from liability for harm occurring during a protest.
Scope of the Duty
To fully respond to the certified question, the analysis also requires a determination of whether that duty extends to cover the injury in this case, which is the “scope of the duty” element. The extent of protection owed a particular plaintiff depends on the particular facts and circumstances of the case and is determined on a case-by-case basis to avoid making a defendant the insurer of all persons against all harms. Todd v. State Thrоugh Dep‘t of Soc. Servs., Off. of Cmty. Servs., 96-3090 (La. 9/9/97), 699 So. 2d 35, 39. Here, the specific facts must be scrutinized to determine whether the risk of a third party criminal act harming a responding police officer is within the scope of the organizer‘s duty to exercise reasonable care so that the protest is conducted lawfully.8 That is, will a reasonable person associate the injury suffered by Officer Doe with the risks posed by Mckesson‘s conduct?
Foreseeability and ease of association are factors in deciding whether a duty extends to cover a particular risk of harm. Id. Therefore, it is necessary to address whether the defendant‘s alleged conduct foreseeably resulted in the plaintiff being
The plaintiff alleges Mckesson knew of previоus protests sponsored by or identified with Black Lives Matter turning violent. The petition cites prior protests across the country associated with this movement where police officers were injured or killed. Because previous protests provoked a police response, a police response to the subject protest was certainly foreseeable, if not desired. Given the alleged prior incidents and the alleged intent to incite violence against police, the violence committed against a responding police officer at this protest was foreseeable.
It is also alleged that Mckesson organized the protest on a main, highly trafficked highway in front of the Baton Rouge Police headquarters and in violation of traffic laws. (See
The facts alleged require the conclusion that the protest was organized to provoke a police response. It is alleged that Mckesson “incited” the protesters and did nothing to stop them when the protest turned violent. It was foreseeable that a police officer would suffer injury when responding to a situation that occurred, at least in part, because Mckesson did not use care to сonduct the protest in a lawful manner. Based on the facts alleged in the petition, it was foreseeable that a police officer may get hurt by the criminal actions of a third party during this protest. The facts alleged are sufficient to establish an ease of association between Mckesson‘s duty and the plaintiff‘s injury. Because it is alleged that Mckesson, with knowledge that such protests could turn violent, staged a protest in direct contravention of law, thereby provoking the police to respond, a person can easily associate the injury to the police officer with the alleged conduct. Once a confrontation is provoked, it is reasonable that the provocateur be potentially responsible for the foreseeable consequences which result from the confrontation.
“Special Relationship”
This court has generally refrained from finding a duty to protect persons from the criminal acts of third parties. See Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La. 1984). Generally, there is no duty to protect against or control the criminal acts of third parties unless a “special relationship exists [between the victim and the non-criminal defendant] to give rise to such a duty.” Beck v. Schrum, 41,647 (La. App. 2 Cir. 11/1/06), 942 So. 2d 669, 672. While there is no jurisprudential definition of a “special relationship,” cases finding such a relationship impose some higher degree of care solely because the relationship
Here, the defendants assert, and the plaintiff does not refute, that no special relationship existed between Mckesson and the injured police officer. Generally, that would end the inquiry and no liability or financial responsibility would attach to Mckesson for the criminal acts of the unknown criminal. However, close review of the “special relationship” cases reveal that these cases involve defendants held liable not for their own involvement in the criminal acts, but because their failure to act allowed for the criminal act. That rule of law does not apply when the defendant is alleged to have affirmatively acted to create the circumstance that facilitated the violent act. As noted by Dean Prosser, circumstances beyond those arising from a special relationship may give rise to responsibility for intentional torts of third parties. In his treatise, he writes, “There are other situations in which the defendant will be held liable because his affirmative conduct has greatly increased the risk or
The allegations in this case put Mckesson outside the limiting scope of the “special relationship” line of cases. Here, it is not alleged that Mckesson, merely because he organized a protest, must act with a higher degree of care and afford аll those who encounter the protest a certain degree of protection. Rather, it is alleged that his conduct was designed to provoke a violent encounter with the police; i.e., “his affirmative conduct has greatly increased the risk or [sic] harm to the plaintiff through the criminal acts of others.” Id. No special relationship is needed. If proven, Mckesson‘s actions provide the link between the criminal actor and the victim sufficient to attach financial responsibility to him.
Thus, while a “special relationship” typically is required to impose liability for third party conduct, here, the absence of a “special relationship” does not exclude liability. I find no merit to the proposition that a lack of a special relationship acts to bar this claim.
Conclusion
I find that Louisiana law recognizes a duty to use reasonable care so that a protest is conducted in a lawful manner. Further, based on the facts alleged in the petition, the risk of an officer being harmed by third party criminal activity is within the scope of that duty, thereby satisfying the “scope of the duty” element. To succeed on his claim, the plaintiff must also prove a breach of duty, causation-in-fact, and damages. This court was not tasked with completing that analysis, nor would it be appropriate to do so at this stage of the litigation, which asks simply whether the plaintiff has stated a cause of action. Additionally, I am also cognizant that under NAACP v. Claiborne Hardware Co., 458 U.S. 888, 925-27 (1982), the imposition of civil liability on a defendant for a violent act committed by a third party is prohibited if it arises “in the context of constitutionally-protected activity”
I respectfully concur.
GRIFFIN, J., dissents and assigns reasons.
The primary issue presented is whether, under the facts as alleged, Mr. Mckesson owes a duty to Officer Doe and whether the risk of the resulting harm was within the scope of that duty.1 Justice Crain, in his well-written concurrence, correctly observes these are two distinct inquiries with unique considerations. The Fifth Circuit conflates these two inquiries without conducting the requisite policy analysis to determine whether a duty should exist.2 See Posecai v. Wal-Mart Stores,
The assault on Officer Doe is unacceptable. Violence denigrates our political process and must be unequivocally repudiated. A balance must be struck between the freedom to express a political opinion in a peaceful manner and a respect for the rule of law. See Doe, 2 F.4th at 505 (citing Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965)). Reasonable jurists can disagree on the weighing of the moral, economic, and social factors articulated in Louisiana jurisprudence. However, for the concerns outlined above, I respectfully dissent and would refrain from imposing a duty in this matter.
Notes
Reliance on this statute is arguably questionable as Officer Doe‘s injuries do not appear to fall within “the scope of protection intended by the legislature.” Lazard v. Foti, 02-2888, p. 6, (La. 10/21/03), 859 So.2d 656, 660-61. Nevertheless, I acknowledge the allegations as to Mr. Mckesson‘s past participation in protests accompanied by violence aid in bridging the foreseeability gap apparent from reliance on the statute alone.The division into two sections, one known as “aggravated obstruction of a highway of commerce” and the other, “simple obstruction of a highway of commerce,” is to maintain consistency of form and to make the penalty fit the seriousness of the crime. The first [
La. R.S. 14:96 ] is based on the danger to human life, and the second [La. R.S. 14:97 ] on traffic obstruction.