Civil rights activist DeRay Mckesson has an important judicial ally in his long-running quest to defeat a former police officer’s lawsuit that seeks to hold him liable for someone else injuring the officer during a 2016 protest in Louisiana. Judge Don Willett, a Donald Trump appointee on the U.S. Court of Appeals for the 5th Circuit, just called on the Supreme Court to intervene on Mckesson’s behalf after the judge’s colleagues declined to do so.
Willett, who was appointed to the New Orleans-based court during Trump’s first term and was listed then as a potential high court pick, called on the justices to take Mckesson’s case and “restore the constitutional line between advocacy and violence.”
The appellate judge conceded that political speakers can be held accountable for violence they commit or intentionally incite. But he said they can’t be “conscripted as insurers of a crowd — or as substitute defendants for an unknown assailant — simply because they were visible, prominent, and nearest the microphone.”
The assailant in Baton Rouge was never identified. The police officer, John Ford, sued Mckesson for negligence, arguing he should be held responsible for that unknown person’s actions.
Ford alleged that Mckesson “was in charge of the protests” that occurred after a white Baton Rouge officer’s fatal shooting of a Black man, Alton Sterling. The plaintiff said the protest was peaceful until Mckesson and other Black Lives Matter demonstrators “began pumping up the crowd.” Ford said he was “struck fully in the face and immediately knocked down and incapacitated” with injuries that included “loss of teeth, injury to jaw, injury to brain and head as well as lost wages and other compensable losses.” He left law enforcement and began working in construction.
Mckesson said Ford’s complaint contained “nothing more than unsupported, conclusory allegations that fail to state a plausible claim for relief.”
The Louisiana judge presiding over his case, Obama appointee Brian Jackson, sided with Mckesson. He said Ford couldn’t show that “merely leading some individuals onto the road at some point during a protest could cause an unidentified person to hit Plaintiff in the face with concrete at some other time.” The judge further said that under the latest Supreme Court precedent, Mckesson can’t be held liable for negligence for actions taken while exercising his First Amendment rights.
A divided 5th Circuit panel overruled the district judge. Noting that the litigation has been ongoing for years and has been through preliminary phases at all levels of the court system, the three-judge panel said it was finally time for Ford’s case to move forward.
“Eight years of pretrial litigation are enough,” wrote Reagan appointee Edith Jones, joined by Trump appointee Andrew Oldham. She said it was “time for Officer Ford to have a jury assess his claim that DeRay Mckesson’s negligence in leading a violent protest caused him to suffer injuries at the hands of rioters.”
Jones and Oldham issued the ruling over dissent from Judge Carolyn Dineen King, a Jimmy Carter appointee who said the majority “imperils First Amendment liberties.”
On Thursday, Willett agreed in a dissent from the full circuit’s refusal to reconsider the matter. Breaking from his GOP-appointed colleagues, he warned that the decision to let the case against Mckesson proceed was badly mistaken and would have negative consequences far beyond this case if left uncorrected.
“Those inclined to applaud today’s result should consider how the same rule will operate in tomorrow’s case,” the judge cautioned. “Today’s defendant is associated with Black Lives Matter. Tomorrow’s may be a gun-rights advocate, a pro-life leader, a pastor protesting a government mandate, or parents addressing a school-board meeting.”
“Constitutional rules cannot turn on the cause, the crowd, or the speaker,” Willett continued, stressing that the First Amendment “must protect advocacy without regard to whether the cause is popular or unpopular, favored or disfavored. Otherwise, constitutional guarantees become fair-weather guarantees.”
He lamented that his colleagues on the circuit court failed to step in.
“Now the Supreme Court should,” he said.
In a post on X, Mckesson called Willett’s dissent “powerful” and said the high court “is our only option now.”
Mckesson is better off petitioning the justices backed by Willett’s dissent than he would be without it. But it remains to be seen whether he can attract sufficient interest from the Supreme Court, where it takes four justices to agree to grant review of a petition.
A force pulling in the opposite direction is embodied by Judge James Ho, a 5th Circuit colleague of Willett’s who wrote a concurring opinion to explain why he thought Mckesson’s case didn’t warrant rehearing. Like Willett, Ho was appointed to the court in Trump’s first term, but he still seems to be actively positioning himself for a Supreme Court seat.
Ho said he agreed with Willett about the First Amendment’s importance. But he said he parted ways with his “distinguished dissenting colleague” because he saw “no violation of viewpoint neutrality in this case — only the dutiful application of a simple principle” that the amendment protects protest, not trespass. He said Ford showed “ample evidence for a jury to put this case in the category of trespass, not protest.”
As he has done in other contexts, such as when he voted against First Amendment protection for a drag show, Ho said it was important not to be swayed by “cultural elites,” which in this latest case would appear to mean backing constitutional protection for Mckesson.
“We must apply the same standards, regardless of whether the views at issue are favored or disfavored by judges, cultural elites, or society at large,” Ho wrote.
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