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Jack Greiner Published 5:17 a.m. ET Dec. 24, 2019

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The United States Court of Appeals for the Fifth Circuit issued a recent ruling reversing the dismissal of a negligence case brought by a Baton Rouge police officer against Black Lives Matter activist DeRay Mckesson. The officer was injured in a protest McKesson organized in July, 2016.

The majority decision is interesting, but this is a case where the dissent may get more of the attention. In any event, the First Amendment issues matter.

The injured police officer filed the suit anonymously, so the opinion referred to him as Officer Doe. The court recited the facts as follows: On July 9, 2016, a protest illegally blocked a public highway in front of the Baton Rouge Police Department headquarters. . . . The Baton Rouge Police Department prepared by organizing a front line of officers in riot gear. These officers were ordered to stand in front of other officers prepared to make arrests. Officer Doe was one of the officers ordered to make arrests. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest. In the presence of Mckesson, some protesters began throwing objects at the police officers. . . . The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson incited the violence on behalf of [Black Lives Matter]. . . . At some point, an unidentified individual picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Does face. Officer Doe was knocked to the ground and incapacitated. Officer Does injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, and other compensable losses.

Officer Doe contended thatMckesson was negligent for organizing and leading the Baton Rouge demonstration because he knew or should have known that the demonstration would turn violent.

In reversing the trial courts dismissal of Officer Does suit, the appellate court relied heavily on the fact that part of the protest involved the unlawful act of blocking a public highway. In the appellate courts view, that meant it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. This knowledge apparently imposed a duty on Mckesson to exercise reasonable care in conducting his demonstration. Which means, I guess, he had a duty to make sure none of the protestors got violent. Seems like a tough standard to put on Mckesson.

And dissenting judge Don Willett (appointed by President Trump for anyone who is curious) agreed. He was skeptical that Mckesson assumed any such duty, framing the question whether the mere fact that a protest may become violent means that the protest organizer is liable for any violence that occurs. And as he noted, if theres no duty, theres no negligence. And if theres no negligence, theres no case. He urged the federal court to certify the case to the Louisiana Supreme Court to determine if Mckesson even had a duty. But he was outvoted.

Judge Willett also noted that even if Mckesson owed some sort of amorphous duty, the First Amendment would prevent the case from going forward. Judge Willett wrote that the First Amendment protects even impassioned and emotionally charged appeals for the use of force . . . unless [it is] clearly intended to, and likely to, spark immediate violence. The complaint cited to no facts to demonstrate Mr. Mckesson ever directed his followers to engage in direct acts of violence, nor does it indicate that Mr. Mckesson directed or controlled the assailant who actually injured Officer Doe. Absent those type of allegations,Mckessons speech, including his efforts to organize the protest, was protected by the First Amendment.

Judge Willett noted that in his last protest, Martin Luther King led demonstrators in a march down the streets of Memphis. During the march, some young men began breaking storefront windows. Police moved in and peaceful demonstrators as well as looters were injured. As Judge Willett noted, [h]ad Dr. King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as magnificenta promissory note to which every American was to fall heirwould countenance his personal liability.

Judge Willett admitted that he had initially voted with the majority, but decided to change his mind. In doing so, pointed to one of my favorite quotes from Justice Felix Frankfurter, who said 70 years ago, [w]isdom too often never comes, and so one ought not to reject it merely because it comes late.

I think hes right.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Does the First Amendment matter to Black Lives Matter? - The Cincinnati Enquirer