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On November 7, 2016, an unnamed police officer, referred to as 鈥淛ohn Doe,鈥� sued Deray Mckesson for injuries the officer sustained when an unidentified third party鈥攏ot Mckesson鈥攖hrew a 鈥渞ock-like鈥� object during the protest and hit him. The officer sued Mckesson, not the third party, on the theory that Mckesson 鈥渟hould have known鈥� that the protest 鈥渨ould become violent as other similar riots had become violent.鈥� He did not claim that Mckesson authorized or even knew of the rock-throwing. Indeed, to this day the rock thrower remains unidentified.

In 2017, the District Court of the Middle District of Louisiana dismissed Doe鈥檚 suit as barred by the First Amendment, relying on the constitutional rule that protesters and leaders cannot be held liable for the violent acts of a third party unless they specifically intended or personally 鈥渁uthorized, directed, or ratified鈥� that violence.

On appeal, the Fifth Circuit reversed the district court, holding that Mckesson could be held liable on a theory of 鈥渘egligent protest.鈥� Remarkably, the Fifth Circuit reached this conclusion in three different opinions, all issued without oral argument鈥攁n initial opinion, on April 24, 2019, issued without argument; a revised opinion, on August 8, 2019, issued after Mckesson requested rehearing; and a third opinion, on December 16, 2019, including a dissent from Judge Willett, one of the panel members who had joined the previous two opinions in full.

Following the third opinion, the Fifth Circuit also voted on whether to rehear the case as a full court. Eight of the court鈥檚 sixteen judges voted to rehear the case. Because a majority is necessary, however, the case did not go en banc.

On March 5, 2020, Mckesson鈥攔epresented by David Goldberg of Donahue & Goldberg, the ACLU and ACLU of Louisiana, and Billy Gibbons and Ian Atkinson of Schonekas, Evans, McGoey & McEachin鈥攕ought Supreme Court review.

On November 2, 2020, the U.S. Supreme Court vacated the Fifth Circuit鈥檚 opinion and directed it to ask the Louisiana Supreme Court to address whether a protest organizer could be held liable for injuries an officer sustains during a protest under Louisiana state law. While recognizing that 鈥渢he constitutional issue鈥� presented by the case is 鈥渦ndeniably important,鈥� the Court determined that the case might be 鈥済reatly simplified鈥� by guidance from the Louisiana Supreme Court on the meaning of Louisiana law. The state law theory, the Supreme Court explained, was 鈥渘ovel,鈥� 鈥渦ncertain,鈥� and 鈥渇raught with [First Amendment] implications.鈥�

On March 25, 2022, the Supreme Court of Louisiana issued an opinion concluding that, under the facts alleged in the complaint, the suit could proceed as a matter of state law.

On June 16, 2023, the Fifth Circuit issued its fourth opinion, again holding that Doe鈥檚 theory did not violate the First Amendment but, as with each new iteration of its opinion, offering a slightly different basis: This time, the Fifth Circuit explained that Doe had successfully alleged both that 1) Mckesson had 鈥渄irected his own tortious activity鈥� of creating unreasonably safe conditions; and that 2) he had 鈥渋ncited鈥� violence by 鈥渙rganiz[ing] and direct[ing] a protest . . . such that it was likely that a violent confrontation with the police would result.鈥� The court held that Mckesson did not have to intend any violence whatsoever for liability to attach.

On October 5, 2023, Mckesson again filed a petition for review by the Supreme Court. The Court denied certiorari on April 15, 2024, accompanied by a statement by Justice Sotomayor. The statement notes that the Court鈥檚 denial 鈥渆xpresses no view about the merits of Mckesson鈥檚 claim,鈥� and suggests that the Court鈥檚 2023 decision in Counterman v. Colorado, which held that negligence can never be the proper standard when it comes to speech and that intent is necessary for incitement, should govern 鈥渁ny future proceedings in this case.鈥�

The district court granted Mckesson鈥檚 motion for summary judgment and summarily dismissed this lawsuit on July 10, 2024. The court found that Doe failed to offer evidence to substantiate his claim against Mckesson even under the Fifth Circuit's sweeping 鈥渘egligent protest鈥� theory of liability. It also held that Doe's claim fails for another, independent reason; namely, as Justice Sotomayor suggested in the Supreme Court's 2024 consideration of this case, the Counterman decision forecloses the Fifth Circuit's 鈥渘egligent protest鈥� theory altogether on First Amendment grounds. Counterman reiterated that subjective intent is necessary to hold a person liable for political speech: When it comes to protest, mere negligence in the exercise of First Amendment freedoms is never enough.