Background
Baton Rouge police officer John Ford was seriously injured when an unidentified person threw a rock or piece of concrete at him during a July 2016 protest. Ford sued activist DeRay Mckesson and related Black Lives Matter defendants, alleging that Mckesson negligently helped lead demonstrators into a roadway and thereby created conditions in which the assault was foreseeable.
After discovery, the district court granted Mckesson summary judgment. A divided Fifth Circuit panel reversed, concluding that evidence concerning Mckesson’s role and conduct created factual issues for a jury and that the First Amendment did not bar Ford’s negligence claim. Mckesson petitioned for rehearing en banc.
The Court’s Holding
The Fifth Circuit treated the en banc petition as also requesting panel rehearing and denied both forms of rehearing. Six judges voted to rehear the case en banc, while ten voted against rehearing; Judge Kurt D. Engelhardt did not participate. The denial leaves the panel’s earlier decision in place, allowing Ford’s claim against Mckesson to proceed toward trial.
Judge James C. Ho concurred, reasoning that the case involved evidence from which a jury could classify Mckesson’s alleged conduct as unlawful obstruction rather than protected protest. Judge Don R. Willett, joined by five judges in whole or substantial part, dissented. He argued that the First Amendment forbids imposing liability for an unidentified stranger’s violence based merely on foreseeability, prominence, proximity, or alleged direction to obstruct traffic, absent proof that Mckesson authorized, directed, ratified, or intentionally incited the assault.
Key Takeaways
- The court denied both panel rehearing and rehearing en banc, leaving the prior panel ruling intact.
- The denial does not itself resolve Ford’s negligence claim on the merits; it permits the claim to proceed after the panel reversed summary judgment for Mckesson.
- The judges sharply divided over whether a negligence theory based on foreseeable violence is compatible with First Amendment protections for political advocacy.
Why It Matters
The decision preserves a path to civil liability for a prominent protest participant when a jury could find that the participant’s own unlawful conduct foreseeably contributed to violence by another person. Because the alleged assailant remains unidentified and no trial has occurred, the ruling concerns whether Ford may present his theory to a jury, not whether Mckesson is ultimately liable.
The dissent warned that the panel’s approach could chill protest organizing across ideological lines by exposing visible advocates to damages for strangers’ acts. The close en banc vote and competing opinions frame a substantial First Amendment dispute over the line between responsibility for unlawful protest conduct and impermissible liability for another person’s violence.