Yesterday the Louisiana Supreme Court accepted a pair of certified questions from the U.S. Fifth Circuit. The underlying case, Doe v. Mckesson, arose from a Black Lives Matter protest that, according to the complaint, descended into a riot. The complain alleges that one of the protesters (identity unknown) threw a chunk of concrete, hitting a police officer in the head and causing brain damage and other injuries. The officer sued DeRay Mckesson as the alleged organizer of the protest for negligently triggering the riot. The certified questions:
- Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party?
- Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana’s Professional Rescuer’s Doctrine bars recovery under the facts alleged in the complaint?
The case has had an interesting procedural history. The district court dismissed the suit on First Amendment Grounds. A three-judge panel of the Fifth Circuit reversed. The equally divided Fifth Circuit denied en banc rehearing. Mckesson petitioned the U.S. Supreme Court for certiorari, raising the question “whether the theory of liability adopted by the Fifth Circuit violates the First Amendment.” The U.S. Supreme Court vacated the panel opinion. The Court concluded that “the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented.” Translation: “The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place.” The Court then wrote for four paragraphs extolling the benefits of certifying difficult state-law questions to the state supreme court, and remanded “for further proceedings consistent with this opinion.” Consistently with the Supreme Court’s opinion, the Fifth Circuit certified the questions, and the Louisiana Supreme Court accepted them.