After Supreme Court Rulings, Lower Court Dismisses Suit Against BLM Activist

Police arrest activist DeRay McKesson during a protest along Airline Highway, a major road that passes in front of the Baton Rouge Police Department headquarters in Baton Rouge, La., on July 9, 2016. (AP Photo/Max Becherer)

A federal district court threw out a police officer’s lawsuit against prominent Black Lives Matter activist DeRay Mckesson last week.

The dismissal came after the Supreme Court on April 15 rejected Mr. Mckesson’s request to review the case. The court seemed to struggle with the case, taking it up at eight of the justices’ private conferences before finally rejecting the petition three months ago.

Civil libertarians at the time said the decision hindered the ability of people to exercise their First Amendment right to protest.

The case dates to 2016 when Baton Rouge, Louisiana, policeman John Ford sued after being injured at a protest in which Mr. Mckesson was involved. The protest was called to draw attention to the death of Alton Sterling, a black man who was shot by Baton Rouge police as he allegedly attempted to wrest a gun away from officers.

At the protest, an unidentified person threw a chunk of concrete that struck Mr. Ford, who suffered a head injury and the loss of teeth. He sued, claiming Mr. Mckesson and Black Lives Matter were liable under Louisiana law for negligently organizing and leading the protest. Mr. Mckesson denied he organized the demonstration.

The lawsuit claimed the defendants created an unsafe environment by assembling protesters outside of a police station, failing to prevent looting, and directing the protesters onto a public highway, which is against the law in Louisiana.

In 2017, U.S. District Judge Brian A. Jackson held that neither Mr. Mckesson nor Black Lives Matter could be sued over the incident.

The judge held that he was bound by a 1982 precedent on civil liability for others’ “wrongful acts” carried out “in the context of constitutionally protected activity.” Because Mr. Ford didn’t present evidence showing Mr. Mckesson “authorized, directed, or ratified specific tortious activity,” the First Amendment barred the lawsuit seeking to hold Mr. Mckesson responsible for damages under state law, the judge found.

A tortious act is a voluntary action that harms another person.

The police officer appealed. In 2019, the U.S. Court of Appeals for the Fifth Circuit revived the lawsuit as to Mr. Mckesson, but dismissed the claim against Black Lives Matter, finding it wasn’t a legal entity capable of being sued.

The case then went before the Supreme Court in 2020. The court found the Fifth Circuit’s decision on the applicability of a state law was “too uncertain.” The Supreme Court directed the lower court to take another look at whether the state law allowed the kind of claim that the policeman had brought.

In June 2023, the Fifth Circuit allowed Mr. Ford’s lawsuit against Mr. Mckesson to advance because, in its view, the officer’s lawsuit contained plausible claims.

Mr. Mckesson appealed, and on April 15 of this year, the Supreme Court denied without comment his petition seeking review of the Fifth Circuit’s decision.

The case found its way back to Judge Jackson who, on July 10, granted Mr. Mckesson’s motion to dismiss the case with prejudice, meaning the claim may not be refiled.

Mr. Mckesson had argued the claim had to be thrown out because the evidence demonstrated he didn’t organize the protest and wasn’t responsible for Mr. Ford’s injuries.

Judge Jackson again held that Mr. Ford’s claims were insufficient under the First Amendment and Louisiana law.

He noted that Mr. Ford argued Mr. Mckesson engaged in violence at the protest, claiming the activist “likely threw his water bottle at police,” based on police officers’ observation that he retrieved a water bottle.

The judge wrote that this was an “absurdly speculative inferential leap,” given that Mr. Ford testified he neither witnessed nor was told that Mr. Mckesson threw a water bottle.

“Numerous run-of-the-mill scenarios come to mind well before a conclusion that [Mr. Mckesson] threw his water: [Mr. Mckesson] could have given the bottle to another person, or put it in his pocket, or thrown it away in a trash can after drinking it.”

Mr. Ford’s “‘evidence’ on this issue is not evidence at all, but idle speculation,” Judge Jackson wrote.

The American Civil Liberties Union (ACLU), which was involved in Mr. Mckesson’s legal defense, hailed the new ruling.

“The Supreme Court has long recognized that peaceful protesters cannot be held liable for the unintended, unlawful actions of others, and we’re delighted to see that the district court came to the same conclusion,” ACLU legal director David Cole said in a written statement.

Reached for comment, Mr. Ford’s attorney, Donna Grodner of Baton Rouge, said, “Here, we go again,” by email. She didn’t elaborate.