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Court declines to intervene in lawsuit against Black Lives Matter organizer

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The Supreme Court on Monday declined to intervene in a lawsuit filed by a Louisiana police officer against a leader of the Black Lives Matter movement who organized a protest at which the police officer was seriously injured. The court’s denial of review in Mckesson v. Doe was part of a list of orders issued from the justices’ private conference last week.

The justices did not add any new cases to their docket for the 2024-25 term. The court currently has only two cases slated for argument in the upcoming term – less than half of what they had granted at this time last year for the 2023-24 term.

At issue in Mckesson was whether DeRay Mckesson can be held responsible for the officer’s injuries when he did not directly harm the officer himself but instead organized the demonstration and, the officer said, “knew or should have known” that violence would result.

The case is one with which the justices were already familiar. In 2019, the U.S. Court of Appeals for the 5th Circuit allowed the officer’s lawsuit to go forward. Mckesson then appealed to the Supreme Court, where he argued that the lawsuit against him was barred by the First Amendment and the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware Co., which limited the NAACP’s liability for a nonviolent protest that it organized.

In November 2020, the court sent the case back to the 5th Circuit with instructions to seek guidance from the Louisiana Supreme Court on whether state law would in fact allow Mckesson to be held liable.

After the Louisiana Supreme Court issued an opinion indicating that, under the facts alleged by the officer, a protest leader could be sued for negligence, a divided 5th Circuit issued a new opinion allowing the lawsuit to go forward. Doe had alleged, the majority wrote, that Mckesson had “organized and directed the protest in such a manner as to create an unreasonable risk that one protester would assault or batter” the officer.

Judge Don Willett dissented from the panel’s ruling. He agreed that Doe “deserves justice” and should be able to sue the person who actually injured him. But he rejected the idea that Doe can sue Mckesson, arguing that the theory on which the majority relied was “foreclosed — squarely — by the Constitution and Supreme Court precedent.”

Mckesson returned to the Supreme Court last fall, asking the justices to weigh in. But after considering the case at seven consecutive conferences, the justices denied review.

Justice Sonia Sotomayor penned a statement regarding the court’s decision to deny review. She noted that since the court of appeals issued its decision, the Supreme Court in Counterman v. Colorado “made clear that the First Amendment bars the use of an objective standard like negligence for punishing speech, and it read Claiborne and other incitement cases as demanding a showing of intent.” Because the Supreme Court may turn down cases “for many reasons,” Sotomayor stressed, the denial of review in Mckesson’s case “expresses no review about the merits of” his claim. Moreover, she added, the court of appeals should “give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.”

Over a dissent by Justice Ketanji Brown Jackson, the justices also denied review in the case of Kurt Michaels, who was convicted and sentenced to death for the murder of JoAnn Clemmons, his girlfriend’s mother. Michaels’ petition for review focused on the admission of his confession, which came after he had invoked his Miranda rights.

The U.S. Court of Appeals for the 9th Circuit wrongly concluded that the admission of the confession was harmless, Jackson wrote, because other testimony corroborated the basic facts that Michaels detailed. “When an unconstitutionally obtained confession is wrongly presented to a jury,” Jackson emphasized, “our case law is clear that rather than treating that evidence as equivalent to a compilation of other, far less weighty means of proof, courts must carefully evaluate the confession as a whole” – which the court of appeals in this case, she asserted, failed to do.

Sotomayor, joined by Jackson, also dissented from the denial of review in the case of Dillion Compton, who was convicted and sentenced to death for the murder of a prison guard. As his case came to the court, it centered on the prosecutors’ use of 13 of their 15 strikes to remove women from the initial jury pool, leaving the jury with four women and eight men. Prosecutors explained that they struck women based on their hesitations about imposing the death penalty. But the Texas Court of Criminal Appeals, Sotomayor suggested, used the wrong analysis: It should have conducted a side-by-side analysis of individual female jurors who were struck against male jurors who were allowed to serve, rather than looking at women as a group.

The justices’ next private conference is Friday, April 19.

This article was originally published at Howe on the Court

Recommended Citation: Amy Howe, Court declines to intervene in lawsuit against Black Lives Matter organizer, SCOTUSblog (Apr. 15, 2024, 11:35 AM),