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Officer’s suit in protest injury goes to Louisiana court

October 20, 2021 GMT

NEW ORLEANS (AP) — Louisiana’s Supreme Court is now faced with the question of whether a police officer — seriously injured by an unknown assailant in a 2016 demonstration against police brutality — has grounds to pursue a lawsuit against the high-profile protest organizer under state law.

It’s an unusual position for the state’s seven high court justices. The lawsuit against Black Lives Matter activist DeRay McKesson was filed in federal court and appeals reached the U.S. Supreme Court before federal judges asked the state’s highest court to weigh in.

The lawsuit says the Baton Rouge police officer, identified as John Doe, suffered serious brain and facial injuries when he was hit by a rock or some other projectile in a protest after the fatal police shooting of Alton Sterling in 2016.

A federal district judge threw out the lawsuit. It was revived by a divided panel of the 5th U.S. Circuit Court of Appeals in New Orleans. McKesson went to the U.S. Supreme Court.

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Although the case involves arguments on who is liable for damages that occur during activities protected by the First Amendment, the U.S. Supreme Court sidestepped a constitutional ruling in November, saying matters of state law need to be settled first.

The 5th Circuit then asked the Louisiana Supreme Court to review the case, emphasizing two key questions: Did McKesson have a duty “not to negligently precipitate” a crime by someone else at the protest? Also, are “professional rescuers,” such as firefighters or police officers, barred from collecting damages for injuries suffered while performing their risky duties?

The Louisiana justices heard arguments Wednesday afternoon.

Attorney Donna Grodner, representing the officer, said McKesson and other protesters were inviting confrontation when they marched on a highway in front of Baton Rouge police headquarters and that violence should have been expected.

“The confrontation was planned, orchestrated and that’s what they wanted,” she said.

Representing McKesson, attorney David Goldberg said there is nothing in the record to indicate McKesson wanted violence and nothing in state law to make him responsible for the act of a third party. Knowing there would be a confrontation is different from knowing there will be violence, Goldberg argued.

“If you intend violence to occur, the way to do that is encourage people to commit violence,” he said.

Grodner cited a court precedent in which a retailer was found liable when someone attacked a customer in its parking lot and stole jewelry. Goldberg argued that a protest on public property is different and holding a protest organizer liable for an unknown protester’s actions could chill protest activities protected by the First Amendment.

The justices gave no indication when they would rule.