BALTIMORE — A federal appeals court has ordered Baltimore based activist DeRay McKesson to stand trial in a civil lawsuit filed by a former Baton Rouge, Louisiana Police officer.
The case in question has been in litigation for several years, at one point reaching the United States Supreme Court.
It surrounds McKesson's alleged role in leading a July 2016 Black Lives Matter protest in response to the killing of Alton Sterling.
According to the U.S. Court of Appeals for the Fifth Circuit, this particular protest "devolved into riots," resulting in businesses being looted and police officers getting hurt.
One of those officers was John Ford, who was struck in the face by a rock or piece of concrete thrown by a rioter, which caused permanent injury as described here by the appellate panel.
"This blow caused [Ford] to lose teeth, injure his jaw, and suffer a concussion. In the aftermath of the concussion, he has suffered lasting vision damage. As a result of the injuries and post-traumatic stress disorder caused by the incident, Officer Ford had to leave the Baton Rouge Police Department and begin a new career."
Following the incident, Ford sued Mckesson and Black Lives Matter alleging negligence and civil conspiracy.
McKesson argued the First Amendment protected him from liability.
A lower Federal District Court in Louisiana agreed, tossing Ford's initial lawsuit.
However, on appeal, the Fifth Circuit revived the case based on Ford's allegations of negligence.
McKesson then appealed to the U.S. Supreme Court, who essentially punted the case to the Louisiana State Supreme Court, seeking further clarification about the legal standing of his First Amendment claims.
In response the Fifth Circuit asked the Louisiana State Supreme Court these two specific questions:
1) 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?
2) 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 Lousiana Supreme Court ultimately answered yes to question one, and no to question two.
With that, the Fifth Circuit for a second time, ruled Ford could sue McKesson for negligence.
Yet again, the lower Federal District Court in Louisiana dismissed Ford's lawsuit, siding with McKesson.
This time the lower court concluded "there was no evidence that Mckesson led the protestors, and as a result, he owed Officer Ford no duty of care."
The District Court judge also defended McKesson's First Amendment defense, determining his "conduct was not a cause-in-fact of Officer Ford’s injuries."
Ford once more asked the Fifth Circuit to take up his case, leading to their March 19 ruling that McKesson must stand trial.
"Eight years of pretrial litigation are enough," the Fifth Circuit wrote in their latest 36 page ruling. "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."
Two of three judges on the appellate panel rebuffed the lower court's conclusion suggesting a lack of evidence that McKesson led the protests.
"After the protest was over, Mckesson sued the City of Baton Rouge in a class action lawsuit. His own court filings admit that he was a leader of the protest and argued that he was an adequate representative of the class of protestors who were arrested by police due to the “leadership” he exercised over them."
The federal appeals panel also cited as evidence a video McKesson apparently recorded on his own cell phone which they say "demonstrates that he was leading the group."
In their opinion the federal appeals judges write that McKesson "has attended hundreds of protests and received financial support for his efforts."
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They additionally make mention of his participation in the 2015 riots in Baltimore following the police custody death of Freddie Gray.
"Due to his personal experience attending and watching many protests, [McKesson] admitted to knowing that protestors blocking public highways could lead to violent clashes with police. Mckesson not only participated in protests that turned violent—he also refused to condemn political violence in an interview on national television."
When reached for comment, McKesson continued denying a leadership role in the protest.
In a statement provided to WMAR-2 News McKesson called the court's decision "disappointing," vowing to continue fighting.
"Not only for me personally, but for each and every person who cherishes the right to protest,” said Mckesson. “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. That is an affront to our First Amendment freedoms, and even after nearly ten years, I will not stop fighting this ludicrous suit in order to protect all of our rights to protest, organize, and imagine a world beyond policing.”
