5th Circuit Flips Cop V. Protester Case To Jury After Spending 7 Years Pretending The 1st Amendment Doesn’t Exist

“Exhaustion” is a legal term. It means plaintiffs need to explore the rest of their options before asking a court to handle their case or ask a higher court to handle a case the lower court has declared not quite exhausted enough.

“Exhaustion” is also a human term. And that’s where we are with this case, nearly nine years since a federal court first told the (then-anonymous) cop to GTFO with his weird-ass complaints against [checks original filing] Twitter, the entire Black Lives Matter social movement, and lifelong anti-police violence activist DeRay Mckesson.

The origin of this case is Mckesson’s appearance at a Black Lives Matter demonstration in Baton Rouge, Louisiana all the way back in July of 2016. So, we’re a decade in and yet, this cop (now known as John Ford) gets to keep trying to make things worse for DeRay and the First Amendment. And the Fifth Circuit Appeals Court seems hellbent on letting him do this.

The 2019 ruling made it abundantly clear Officer John Ford could not sue Twitter, a Twitter hashtag, or Mckesson for injuries he sustained when someone who was not DeRay Mckesson lobbed a projectile and hit him in the head.

This should have been obvious to everyone, even someone recently recovering from a head wound. But on appeal, the Fifth Circuit simply feigned ignorance of the law. I am not even kidding. It said Mckesson had a duty of care during his peaceful protest that it would never apply to cops who hurl flashbangs into toddler’s cribs:

Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

Yep, just because the protest closed off a roadway, Mckesson MIGHT be responsible for any other lawless activities other than his own. Mckesson was never criminally charged for blocking off a highway. Nevertheless, the court thought it might be possible that he was somehow responsible for someone else deciding to lob a chunk of concrete at nearby police officers.

The Fifth is a Circus, not a Circuit. Even the Supreme Court — as chock full of MAGA loyalists as it is — found this to be a bit too much, something it tends to find quite often when dealing with appeals bubbling up from the Fifth’s primordial ooze. It sent the case back down to the Fifth, which then decided it should make this a state law case, in obvious hopes of finding some way to keep this cop’s bullshit lawsuit alive.

The dissent in this ruling, which turfed it to the state’s top court, made it explicitly clear that the majority was twisting itself into legal pretzels just to give this aggrieved cop several more bites of this rotting apple:

Indeed, the lone “inciteful” speech quoted in Doe’s complaint is something Mckesson said not to a fired-up protestor but to a mic’ed-up reporter—the day following the protest: “The police want protestors to be too afraid to protest.” Tellingly, not a single word even obliquely references violence, much less advocates it. Temporally, words spoken after the protest cannot possibly have incited violence during the protest. And tacitly, the majority opinion seems to discard the suggestion that Mckesson uttered anything to incite violence against Officer Doe.

The case has now been returned to the Fifth Circuit. The Louisiana Supreme Court ruled that Mckesson’s actions could amount to the sort of negligence that might satisfy statutory requirements, but it never said one way or another whether or not it actually believed his presence at this protest approached these standards.

So, this case has been remanded (once) by the US Supreme Court due to the Fifth’s faulty logic. It has been sent back to the district level twice, with the court finding in both cases that Mckesson cannot be held liable for the actions of the person who hit the cop with a rock. A huge stack of adverse rulings have been generated by the Fifth’s refusal to respect the First Amendment and/or force the cop to sue the person who actually injured him.

And yet, the Fifth persists. Because it’s the Fifth. It draws heavily from the state Supreme Court ruling — one in which the court was only asked (1) whether such a charge might be plausible and (2) whether damages could be recovered if said accusation proved to be true. No certified question about the constitutional issues raised by suing a protester for being at a protest where someone else injured a cop. No question was asked as to whether or not it was constitutional to treat every person at a protest equally liable for any crime that might be committed during a protest.

Those questions weren’t asked because the Fifth Circuit didn’t want those answers. All it wanted was a reason to allow this cop to sue a Black protester because this was the only name the cop had managed to gather during his nine years of litigation.

And here’s a court that would move heaven and earth to prevent a lawsuit against a cop to be handled by a jury moving heaven and earth [PDF] to ensure it will happen when a cop sues a regular person. (h/t Gabriel Malor on Bluesky)

And what’s said by the court is disturbing — not just because it attempts to hold recognizable people who are easy targets for lawsuits responsible for other people’s actions, but also because it attempts to smear an entire movement (especially as personified by the defendant in this case) as inherently dangerous and unlawful. There’s a lot of loaded language here, which is especially suspect when the court is claiming the right thing to do is hand this off to an impartial jury:

[T]he district court erred because the evidence in the record corroborates Officer Ford’s testimony. As recounted above, the evidence demonstrates that Mckesson helped plan the protest, was a leader in many protests that have turned violent, amplified messages about the protest on social media, and gave orders to the crowd during the protest. Additionally, a video of Mckesson’s position near the police as they cut off the protestors from accessing the interstate substantiates the other evidence. This evidence all tends to support that Mckesson was a leader of the protest, if the jury so determines.

[…]

Mckesson supported these violent protests, and he refused to condemn the use of violence in a televised interview on CNN. Consequently, whether Mckesson breached his duty to Officer Ford and others raises a triable jury question.

The only supporting documents the court offers are those submitted by the officer. There are lots of things citing the officer’s complaint, but that’s not the stuff the court is supposed to be citing as supportive in this appeal. Remember, Doe/Ford was the losing party in the district court case. He’s the moving party, as the legal parlance goes. The appellate court is supposed to grant more deference to the non-moving party during appeals. But the Fifth has gone the other way… multiple times in the same case! The cop got his deference at the lower level as the plaintiff. He’s not supposed to get it again when he loses.

Having done the wrong thing at least twice, the court tosses it to what the majority must feel might be a sympathetic (to the cop) jury in Louisiana. While it’s always happy to terminate litigation when cops are the defendants, it’s seeming more than willing to extend litigation when it’s the cops who are suing citizens.

There’s a dissent that runs nearly as long as the majority ruling. It’s great that it’s there and that it recognizes the Fifth’s willingness to pretend the First Amendment doesn’t matter when it’s a cop that’s doing the complaining (in the legal sense of the word)[and also the regular sense of the word].

But the majority makes the rules. The Fifth has decided that — at least in this case — it will side with the moving party and pretend that holding protesters or protest organizers legally responsible for any criminal or civil violations committed by other protesters doesn’t have any affect on the First Amendment whatsoever. It’s a convenient abdication of its role of a check/balance — one delivered by court that has, for years, demonstrated it would rather see 100 innocent people punished than allow one guilty cop to suffer the consequences of their actions.