DeRay Mckesson has been one of the more visible faces of the Black Lives Matter movement, even if there is some disagreement within the organization’s inner circle about whether the former Baltimore mayoral candidate’s role is overrated. Regardless, Mr. Mckesson has been deemed important enough to be the target of a lawsuit by a police officer who blames him for injuries suffered at a protest in Baton Rouge, Louisiana, three years ago.
Mr. Mckesson was definitely on hand for the protest held after the killing of Alton Sterling, a black man who was shot several times by police while selling CDs outside of a convenience store, and he even helped lead protesters to block a highway near police headquarters. There’s plenty of video to prove it.
What Mr. Mckesson didn’t do was hurl the piece of concrete that pushed over the police officer, known as John Doe in the lawsuit for his protection, and knocked out his teeth. No one could figure out who did that, but because Mr. Mckesson was highly visible at the march, the officer holds him responsible for his injuries, which were also afflicted to his jaw, brain and head.
In a blow to protesters everywhere, a federal appeals court earlier this month allowed the officer’s lawsuit seeking damages from Mr. Mckesson to proceed.
The decision by the 5th U.S. Circuit Court of Appeals is a disappointment and endorsement of an old tactic to use the courts to scare and silence protesters. It goes against Supreme Court precedent that has ruled public protest is protected under the First Amendment. (That’s probably why the case has gone largely under the radar. No one took it all that seriously.) In fact, a federal district judge first dismissed the lawsuit on First Amendment grounds before the higher court overturned that decision. The decision has the potential to set a bad precedent and hamstring future protests meant to bring attention to injustices like police brutality. It also brings to question how much responsibility protest leaders bear for other people’s actions.
The officer in court documents blamed Mr. Mckesson for doing nothing to calm the crowd and prevent the violence. He said the activist incited the riots and was seen and heard giving orders “throughout the day and night of the protests,” according to court documents. The lawsuit also claims that Mr. Mckesson and other Black Lives Matter leaders should have known violence would erupt and people could get hurt given the outcome of other protests they had led.
The arguments seem like a stretch and the accusations against Mr. Mckesson slim on details. As his attorneys pointed out in a motion to have the case dismissed, Mr. Doe said the person who injured him was “under the control and custody” of Mr. Mckesson. Let’s not forget that the culprit who threw the concrete has never been identified. Also, the Supreme Court ruled in the case NAACP v. Claiborne Hardware, Co. that protest organizers can’t be held liable for unauthorized actions of rogue individuals. Mr. Doe also does not provide any detailed quotes that show Mr. Mckesson encouraged violence.
It would be unfathomable for organizers to be held responsible for the actions of everyone at a protest. Unless Mr. Mckesson told the unknown culprit to attack the police, we think it is irresponsible to hold him responsible.
If we use such loose standards, then President Donald Trump would be a better case than Mr. Mckesson. A survey by ABC News published earlier this month found at least 36 criminal cases in which Mr. Trump’s name was invoked in direct connection with violent acts, threats of violence or allegations of assault. Most, 29 of 36, involved people echoing his rhetoric.
There is still a chance for Mr. Mckesson to be vindicated given that the 5th Circuit Court of Appeals merely allowed the case to proceed; the question of liability remains. We certainly hope that given the evidence a lower court will see the ridiculousness of the claims.
But a case like this shouldn’t be allowed to go forward at all. We can’t afford for a decision that chills the right to protest that has helped shape our civil rights history and won basic rights for the most disenfranchised.