On The Front Lines

Appeals Court Chills First Amendment Activity by Allowing Cops to Retaliate Against Nonviolent Protesters

WASHINGTON, DC — The Rutherford Institute is pushing back against an effort by police to chill constitutionally-protected civil rights protests through the use of retaliatory lawsuits. In filing an amicus curiae brief with the U.S. Supreme Court in Mckesson v. Doe, Rutherford Institute attorneys are challenging a ruling by the Fifth Circuit Court of Appeals that allows law enforcement officials to hold protest organizers financially liable when officers get hurt (accidental or otherwise) while carrying out their duties at a constitutionally-protected demonstration, even when the organizers themselves did nothing to cause the injury. Incredibly, the lower court reasoned that organizers of a protest should be held responsible for engaging in activity that merely has the potential to involve police or require their presence, thereby exposing them to possible injuries. The case arose after a police officer, positioned near a group that was protesting police brutality in front of police headquarters, was hit by a projectile thrown by an unknown, unidentified individual. The injured officer sued one of the event organizers, DeRay Mckesson, for more than $75,000, despite the fact that Mckesson engaged in no acts of violence and did not incite or condone violence by others.

Attorneys Erin Glenn Busby, Lisa R. Eskow, and Michael F. Sturley of the University of Texas School of Law Supreme Court Clinic assisted in advancing the legal arguments in Mckesson.

“Police have mastered the art of the double standard: they don’t want to be held accountable for their own misconduct or that of their fellow officers, but they want to throw the book at anyone who peacefully engages in constitutionally protected activities if that person is nearby when a cop gets hurt on the job,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This is yet another Machiavellian attempt by the government to prevent Americans from exercising their First Amendment right to peacefully speak truth to power.”

In July 2016, activists took to the streets in outrage after two Baton Rouge police officers shot 37-year-old Alton Sterling six times at close range while the man was pinned to the ground. The incident, which was recorded by bystanders and shared on social media, sparked outrage in the city’s African-American community. On July 9, activists demonstrated in front of the Baton Rouge Police Department’s headquarters to protest the escalating police violence directed at black men and women nationwide and demand accountability and reforms. During the protest, DeRay Mckesson, one of the event organizers, engaged in no acts of violence and did not incite or condone violence by others. While the demonstration began peacefully, enraged protesters began throwing objects at police who were massed nearby preparing to make arrests. One officer was struck and injured by a rock thrown by an unknown protester. The injured officer brought a personal injury lawsuit against Mckesson and the “Black Lives Matter” movement, seeking more than $75,000, claiming they knew or should have known that violence would erupt during the demonstration. The lawsuit was dismissed by the trial court, which ruled that Mckesson was engaged in constitutionally protected activity and there was no allegation that he authorized or directed any violent actions. On appeal, the Fifth Circuit Court of Appeals reinstated the lawsuit, ruling that Mckesson could be liable for the officer’s injuries because Mckesson should have known police might respond to the protest, inciting violence by protesters. In its brief, The Rutherford Institute warns against allowing police to weaponize personal injury lawsuits in order to chill First Amendment activities.