A federal appeals court judge is warning that her colleague's decision to revive a lawsuit against a Black Lives Matter activist poses a threat to First Amendment rights.
In a 2-1 decision, a three-judge appeals panel in the Fifth Circuit Court of Appeals ruled Thursday that a police officer’s lawsuit against DeRay Mckesson deserves a jury trial. Mckesson, who organized a protest at which the officer was injured, has been accused of negligence. The dissenting judge warned the decision “imperils First Amendmeant liberties,” while Mckesson called the lawsuit “ludicrous.”
The case revolves around a 2016 protest in Baton Rouge, Louisiana, following the death of Alton Sterling, a 37-year-old Black man shot by police outside a convenience store. Mckesson joined hundreds of others at the protest, where officer John Ford was injured by a "rock-like" object thrown by an unknown individual. The lawsuit does not suggest Mckesson hurled the object or even knew about it.
Mckesson is a Black Lives Matter activist who rose to prominence during the 2014 protests in Ferguson, Missouri, after Michael Brown, a Black 18-year-old, was fatally shot by a white police officer. A federal court had previously ruled in Mckesson’s favor in what the American Civil Liberties Union described as a “crucial win for the First Amendment right to protest.”
The majority opinion, by Judges Edith H. Jones, a Ronald Reagan nominee, and Andrew Oldham, a Donald Trump appointee, found that years of back-and-forth in the U.S. legal system were enough, and while it wasn't certain whether Ford would win, he deserved the trial.
"It is time for Officer Ford to have a jury assess his claim that DeRay Mckesson’s negligence in leading a violent protest caused him to suffer injuries at the hands of rioters.”
Dissenting, Judge Carolyn King — a Jimmy Carter appointee — argued that Mckessson was not the right person to put on trial.
“Officer John Ford was tragically injured in his line of duty. Someone should be held accountable. But Officer Ford has not come close to demonstrating that Mckesson is that someone,” she wrote.
She argued that in seeking to offer the officer a legal outlet to sue over his injuries, the judges essentially made Mckesson responsible.
"In so doing, it imperils First Amendment liberties.”
Mckesson said in a statement that the decision was disappointing not just for him, but also for "every person who cherishes the right to protest.”
“The purpose of this lawsuit was not just to silence me, but to make people afraid to show up to protests because they might get sued for someone else’s behavior," he said.
Mckesson's attorneys with the ACLU decried the decision and said they would continue to seek justice. An attorney for Ford did not immediately respond to a request for comment.
