Supreme Court Holds That Fifth Circuit Should Have Certified State-Law Question to Louisiana’s High Court, Rather Than Decide First Amendment Question

In Mckesson v. Doe, No. 19-1108 (U.S. Nov. 2, 2020) (per curiam), the Supreme Court vacated a controversial ruling of the Fifth Circuit, holding that Louisiana tort law recognized a claim against a Black Lives Matter organizer for an injury negligently suffered by a police officer during a demonstration.

Defendant Mckesson organized a protest in Baton Rouge, Louisiana against “a shooting by a local police officer. The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a ‘piece of concrete or a similar rock-like object’ striking respondent Officer Doe” and causing “devastating injuries.”

Officer Doe’s theory was that by leading a protest with an unlawful aim (occupying a highway), Mckesson foreseeably caused his injuries. A divided panel of the Fifth Circuit held that a jury could indeed find that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto the highway. The panel majority also rejected a First Amendment defense under NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), that would “forbid[] liability for speech-related activity that negligently causes a violent act unless the defendant specifically intended that the violent act would result.”  The Fifth Circuit later deadlocked 8 to 8 on Mckesson’s petition for rehearing en banc.

Although the Supreme Court was presented with the First Amendment issue, it sidesteps ruling on the issue by deciding that the unsettled tort law ought to have been certified to the state’s high court. “The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances 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.” It observes that while “[f]ederal courts have only rarely resorted to state certification procedures, which can prolong the dispute and increase the expenses incurred by the parties,” nevertheless “[i]n exceptional instances … certification is advisable before addressing a constitutional issue.”

“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.” Certification would help resolve novel issue of state law and “would ensure that any conflict in this case between state law and the First Amendment is not purely hypothetical.”

Notably, the U.S. Supreme Court could have chosen to certify the question itself (under S. Ct. R. 19), but chooses instead to remand to the Fifth Circuit.

Justice Barrett did not participate, and Justice Thomas dissented without opinion.

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