Case: 17-30864 Document: 00515915418 Page: 1 Date Filed: 06/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 25, 2021
No. 17-30864
Lyle W. Cayce
Clerk
Officer John Doe, Police Officer,
Plaintiff—Appellant,
versus
DeRay Mckesson; Black Lives Matter; Black Lives
Matter Network, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:16-CV-742
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before Jolly, Elrod, and Willett, Circuit Judges.
Per Curiam:
This case arose out of a protest alleged to have been organized and led
by defendant DeRay Mckesson in Baton Rouge, Louisiana, in response to the
police shooting of Alton Sterling. According to the complaint, the defendant
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No. 17-30864
directed the protest to a public highway in front of a police station. 1 The
police began making arrests and attempting to clear the highway. Some
protesters began throwing various objects at the police. Officer John Doe was
struck in the face by a piece of concrete or similar rock-like object. As a result,
he lost teeth and suffered injury to his jaw and brain. The individual who
threw the object has not been identified.
Officer Doe brought suit against Mckesson in the Baton Rouge,
Louisiana, federal district court, alleging that his injuries resulted from
Mckesson’s negligence in organizing and leading the protest. The district
court dismissed Officer Doe’s claim under Federal Rule of Civil Procedure
12(b)(6). It found that the facts alleged did not fall into one of the specific
categories of conduct for which an individual can be held liable for the
tortious activity of an associate. Doe v. Mckesson, 272 F. Supp. 3d 841, 847–
48 (M.D. La. 2017). Officer Doe appealed to this court.
I.
In Doe v. Mckesson, 945 F.3d 818 (5th Cir. 2019), vacated,
141 S. Ct. 48
(2020), a divided panel of this court found that Officer Doe’s complaint had
stated a cause of action under Louisiana law against Mckesson. The theory
of liability accepted by this court was that Officer Doe had plausibly alleged
that Mckesson knew or should have known that the protest he led onto a
public highway would turn confrontational and violent, and thus that, in the
course of organizing and leading that protest, he breached a duty of
reasonable care owed to Officer Doe and persons similarly situated. Stated
more generally, we found that Louisiana law recognized “a duty not to
1
The case was dismissed by the district court under Federal Rule of Civil
Procedure 12(b)(6). Consequently, the alleged facts are taken directly from the plaintiff’s
complaint.
2
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No. 17-30864
negligently cause a third party to commit a crime that is a foreseeable
consequence of negligence,” and that Officer Doe had plausibly alleged a
violation of that duty in illegally blocking a public highway. Doe, 945 F.3d at
826–27. We denied Mckesson’s petition for rehearing en banc. Doe v.
Mckesson, 947 F.3d 874 (2020). He petitioned the Supreme Court of the
United States for a writ of certiorari.
Although Mckesson’s petition to the Supreme Court focused on
whether holding him liable for Officer Doe’s injuries was consistent with the
First Amendment, the Supreme Court declined to address that issue. See
Mckesson v. Doe, 141 S. Ct. 48, 49–51 (2020) (per curiam). It found our
interpretation of Louisiana law “too uncertain a premise on which to address
. . . [t]he constitutional issue . . . .”
Id. at 50. It found that this “dispute
presents novel issues of state law peculiarly calling for the exercise of
judgment by the state courts.”
Id. at 51. Although federal courts are
generally presumed competent to apply state law, the Supreme Court
suggested that we should have pursued the certification procedure made
available by the Supreme Court of Louisiana 2 before engaging in the
politically fraught balancing of “various moral, social, and economic factors”
that is required before imposing a duty under Louisiana law.
Id. at 50–51
(citations omitted). Today, in following the direction of the Supreme Court,
we respectfully certify the relevant questions of law, set out below, to the
Supreme Court of Louisiana. 3
2
Supreme Court of Louisiana Rule XII, §§ 1–2 provides that a federal court of
appeals may, upon its own motion, certify determinative questions of Louisiana law when
it appears as though there is no clear controlling precedent from the Supreme Court of
Louisiana.
3
A resolution by the Supreme Court of Louisiana of the certified questions will
bind this court to apply that determination in deciding this case.
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II.
In the meantime our attention has been drawn to a separate aspect of
Louisiana law, the Professional Rescuer’s Doctrine, 4 that could be
dispositive. 5 That doctrine, put succinctly, is a judge-made rule that
“essentially states that a professional rescuer, such as a fireman or a
policeman, who is injured in the performance of his duties, assumes the risk
of such an injury and is not entitled to damages.” Gann v. Matthews, 873 So.
2d 701, 705 (La. App. 1st Cir. 2004) (citation and internal quotation marks
omitted). The parties disagree as to whether this doctrine bars Officer Doe
from recovering. See Mckesson Suppl. Br., Dec. 18, 2020, Doc. No.
00515679716; Doe Suppl. Br., Dec. 18, 2020, Doc. No. 00515678655. We
have found limited guidance from the opinions of the Supreme Court of
Louisiana on how this doctrine might apply to the particular facts of this case.
Because we find this to be a close question of law, which also raises a
significant issue of state policy, we further take this opportunity to
respectfully elicit guidance on this issue from the Supreme Court of
Louisiana.
III.
Accordingly, we hereby certify the following determinative questions
of law to the Supreme Court of Louisiana, by which responses we will be
bound for the purposes of this case:
4
Sometimes referred to as the “fireman’s rule” or “firefighter’s rule.”
5
We acknowledge credit to Professor Eugene Volokh for noting this issue. The
Weird Litigation Posture of the Doe v. Mckesson/Baton Rouge Black Lives Matter Protest Case,
VOLOKH CONSPIRACY (Dec. 19, 2019, 8:01 AM),
https://reason.com/volokh/2019/12/19/the-weird-litigation-posture-of-the-doe-v-
mckesson-baton-rouge-black-lives-matter-protest-case.
4
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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?
IV.
Should the Supreme Court of Louisiana accept our request for
answers to these questions, we disclaim any intention or desire that it confine
its reply to the precise form or scope of the questions certified. Along with
our certification, we transfer this case’s record, our previous opinion, and the
briefs submitted by the parties. We will resolve this case in accordance with
any opinion provided on these questions by the Supreme Court of Louisiana.
Accordingly, the Clerk of this Court is directed to transmit this certification
and request to the Supreme Court of Louisiana in conformity with the usual
practice of this court.
5
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Jennifer Walker Elrod, Circuit Judge, concurring:
During a protest-turned-riot that was alleged to have been organized
and led by defendant DeRay Mckesson in Baton Rouge, Louisiana, a police
officer was seriously injured. 1 The injured officer’s complaint specifically
alleges that Mckesson directed the protest to illegally block the public
highway in front of the Baton Rouge Police Department headquarters. Police
officers began making arrests and attempting to clear the highway. Mckesson
was “in charge of the protests” and was “seen and heard giving orders
throughout the day and night of the protests.”
The protest devolved into a violent riot. Mckesson observed as the
rioters began throwing various objects at the police, including full water
bottles that they had stolen from a nearby convenience store. Mckesson was
present and part of the riot but did nothing to calm the crowd and allegedly
“incited the violence” on behalf of the group. After the rioters ran out of
water bottles to throw, an unidentified rioter in the group under Mckesson’s
control picked up a piece of concrete or a similar heavy, rock-like object and
hurled it at Officer Doe. Officer Doe was struck in the face and immediately
knocked unconscious. His injuries included loss of teeth, a jaw injury, a brain
injury, a head injury, lost wages, “and other compensable losses.”
Officer Doe filed suit against Mckesson alleging that his injuries were
“occasioned by the intentional and/or negligent acts and/or omissions” of
Mckesson. The complaint alleges not just unlawful actions by the
1
The alleged facts are taken directly from the plaintiff’s complaint and are
accepted as true at this stage of the case, as we must do. See Innova Hosp. San Antonio, Ltd.
P’ship v. Blue Cross & Blue Shield of Georgia, Inc., 892 F.3d 719, 726 (5th Cir. 2018) (“On a
motion to dismiss, we must ‘accept all well-pleaded facts as true and view those facts in the
light most favorable to the plaintiff.’” (quoting Richardson v. Axion Logistics, L.L.C.,
780
F.3d 304, 406 (5th Cir. 2015))).
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unidentified protestor-turned-rioter but also Mckesson’s own actions in the
ensuing riot. Moreover, the complaint alleges that Mckesson not only
committed negligent actions but that he also committed intentional actions.
The complaint alleges that he is liable in solido for his “intentional actions
and for conspiring to incite a riot/protest.”
I agree that this case presents a close question of constitutional law
and a significant issue of state law, and I also agree that we should take this
opportunity to respectfully elicit guidance from the Louisiana Supreme
Court. See Barnes v. Atl. & Pac. Life Ins. Co. of Am., 514 F.2d 704, 706 (5th
Cir. 1975) (“When the state law is in doubt especially on the underlying
public policy aims, it is in the best administration of justice to afford the
litigants a consistent final judicial resolution by utilizing the certification
procedure.”).
While the text of the certified questions appears somewhat narrow to
these eyes, the Louisiana Supreme Court is not limited to the text of the
certified questions but may consider the complaint in its totality. See, e.g.,
Boardman v. United Servs. Auto. Ass’n, 742 F.2d 847, 851 n.10 (5th Cir. 1984)
(“[T]he particular phrasing used in the certified question is not to restrict
the Supreme Court’s consideration of the problems involved and the issues
as the Supreme Court perceives them to be in its analysis of the record
certified in this case.” (quoting Martinez v. Rodriquez,
394 F.2d 156, 159 n.6
(5th Cir. 1968))).
We stand to benefit from the Louisiana Supreme Court’s guidance on
the intersection of state tort law and constitutional law, as Americans should
be free to exercise their constitutional rights to free speech and assembly.
While these rights are “fundamental in our democratic society,” the
“constitutional guarantee of liberty implies the existence of an organized
society maintaining public order, without which liberty itself would be lost in
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the excesses of anarchy.” Cox v. Louisiana, 379 U.S. 536, 554 (1965).
Moreover, “[t]he control of travel on the streets is a clear example of
governmental responsibility to [e]nsure this necessary order.”
Id.
A True Copy
Certified order issued Jun 25, 2021
Clerk, U.S. Court of Appeals, Fifth Circuit
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