Doe v. McKesson is a lawsuit asking whether a protest organizer can be personally sued when someone else at the demonstration injures a police officer. As of 2024, the Fifth Circuit Court of Appeals says yes: activist DeRay Mckesson can face negligence liability for an officer struck by a rock at a 2016 Baton Rouge protest, even without any proof that Mckesson threw anything, told anyone to throw anything, or wanted violence to happen. The Supreme Court has twice declined to review that ruling, but Justice Sotomayor used the second denial to tell lower courts they need to reconsider the case in light of Counterman v. Colorado, which held that the First Amendment does not allow speech to be punished on a negligence standard.
The Baton Rouge Protest and the Injury
On July 9, 2016, hundreds of people gathered in Baton Rouge, Louisiana, to protest the police killing of Alton Sterling. Mckesson, a prominent activist, helped organize and lead the demonstration. Protesters moved onto a public highway and blocked traffic. Police moved in to clear the road and make arrests, and during that confrontation an unidentified person threw a hard, rock-like object that struck an officer in the face, causing brain trauma and lost teeth.1Supreme Court of the United States. Mckesson v. Doe The thrower was never identified. No one has claimed Mckesson told anyone to throw anything.
The injured officer, identified in court records as John Doe, sued Mckesson personally. The theory was not that Mckesson attacked the officer or ordered the attack. It was that Mckesson negligently organized and led the protest in a way that made violence foreseeable. The federal district court threw the case out on First Amendment grounds. The Fifth Circuit reversed, and the case has been working through the appellate system ever since.2Fifth Circuit Court of Appeals. Doe v. Mckesson
The “Negligent Protest-Leading” Theory
The Fifth Circuit built its ruling on a chain of foreseeability. Blocking a public highway is a crime under Louisiana law.3Justia. Louisiana Code 14-97 – Simple Obstruction of a Highway of Commerce Because Mckesson led protesters onto an interstate, the court reasoned, it was “patently foreseeable” that police would respond, and once officers confronted a large group engaged in criminal activity, a violent clash was foreseeable too. On that chain, the court concluded Mckesson had breached a duty of care by organizing the protest in a way that created an unreasonable risk someone would assault an officer.2Fifth Circuit Court of Appeals. Doe v. Mckesson
The move is novel. Traditional negligence law does sometimes allow liability for a third party’s criminal act if your conduct made the crime foreseeable. Applying that framework to protest organizing was new. In practical terms, the court’s rule is this: if you organize a protest that involves illegal activity, and someone at that protest commits violence, you can be sued for the violence as a foreseeable consequence of what you organized. Mckesson never directed anyone to throw anything. His role in leading protesters onto the highway was treated as enough.
How This Collides With Existing First Amendment Law
Two Supreme Court cases have long defined this area. Brandenburg v. Ohio (1969) held that the government cannot punish advocacy of illegal action unless the speech is directed at producing imminent lawless action and is likely to produce it.4Justia. Brandenburg v. Ohio Nobody claims Mckesson’s speech met that bar.
NAACP v. Claiborne Hardware Co. (1982) is the closer fit. During a civil-rights-era boycott, some participants committed violence, and the Supreme Court held that the NAACP and its leaders could not be sued for that violence without a finding that they authorized, directed, or ratified it. Imposing liability based on association alone, the Court wrote, would “impermissibly burden the rights of political association that are protected by the First Amendment.”5Justia. NAACP v. Claiborne Hardware Co. Claiborne identified three ways an organizer could be responsible for others’ violence: authorizing or directing the conduct, giving speeches likely to incite imminent lawless action, or providing specific instructions to carry out violent acts.
A negligence theory does none of those things. Judge Don Willett, dissenting in part in the Fifth Circuit, said as much. “Passive negligence is the opposite of ‘authorization,'” he wrote, “just as ‘doing nothing’ is the opposite of ‘incitement.'” He warned the majority’s approach would be “a boon to anyone who might wish to quash protest using a heckler’s (or rock-thrower’s) veto,” and called simple negligence “far too low a threshold,” one that would have “enfeebled America’s street-blocking civil rights movement.”2Fifth Circuit Court of Appeals. Doe v. Mckesson
The Detour Through Louisiana State Law
The Supreme Court took up the case in 2020 and, in a per curiam opinion, vacated the Fifth Circuit’s judgment without deciding the First Amendment question. The Court said the Fifth Circuit “should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights—without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.”6Supreme Court of the United States. Mckesson v. Doe If Louisiana law didn’t recognize this kind of negligence claim, there was no constitutional question to answer.
On March 25, 2022, the Louisiana Supreme Court answered that Louisiana law does recognize a duty not to negligently precipitate a third party’s crime, and that the Professional Rescuer’s Doctrine (a rule that generally blocks first responders from suing over risks inherent in their jobs) did not bar Officer Doe’s claim.7Supreme Court of Louisiana. Doe v. McKesson – Supreme Court of Louisiana Opinion With that clearance, the Fifth Circuit reaffirmed its earlier ruling on June 16, 2023, and the case went back up.1Supreme Court of the United States. Mckesson v. Doe
The 2024 Denial and Sotomayor’s Counterman Signal
On April 15, 2024, the Supreme Court denied Mckesson’s second petition for review. That left the Fifth Circuit’s ruling standing. But Justice Sotomayor issued a statement accompanying the denial that reads as instruction rather than commentary. The Fifth Circuit’s 2023 opinion came before Counterman v. Colorado, and Sotomayor said she expected “full and fair consideration” of Counterman’s impact in any future proceedings.1Supreme Court of the United States. Mckesson v. Doe
Counterman, decided in June 2023, dealt with criminal prosecution for online threats, but the standard it announced reaches further. The Court held that the First Amendment requires at least a recklessness showing before speech can be punished, and it rejected objective negligence as a basis for liability. Making liability turn on what a reasonable person would think about a communication, the majority wrote, “reduces culpability to negligence,” and that is not enough when First Amendment interests are at stake.8Supreme Court of the United States. Counterman v. Colorado
Sotomayor drew the connection explicitly. She wrote that Counterman “made clear that the First Amendment bars the use of ‘an objective standard’ like negligence for punishing speech,” and that the Court’s incitement cases “demand a showing of intent.” She quoted Counterman: “the First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”1Supreme Court of the United States. Mckesson v. Doe The Fifth Circuit’s foreseeability chain is exactly the kind of objective, reasonable-person analysis Counterman rejects. A denial of certiorari expresses no formal view on the merits, but the roadmap Sotomayor left is plain.
What This Means for Protest Organizers
Inside the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, the current rule allows an organizer to be sued for injuries caused by an unknown third party if the organizer directed protesters into illegal conduct and violence was foreseeable. That is the law in those states until a court revisits it. Organizers there face a personal financial risk that does not clearly exist in other parts of the country, where Claiborne’s authorization-or-direction requirement still controls.
The broader picture remains open. If other circuits adopt the Fifth Circuit’s negligence theory, organizing any protest involving civil disobedience could expose the organizer to personal liability for anything that happens on site, including acts they had no knowledge of and no connection to. The point Willett made in dissent cuts to the practical stakes: under a pure foreseeability rule, someone who wants to shut a protest down can do so by committing violence at it and letting the organizer absorb the lawsuit.
Several states have also passed laws since 2020 that raise criminal penalties for blocking traffic during protests and, in some cases, add new civil liability for organizers. Those statutes run parallel to this case rather than out of it, but they push in the same direction.
The litigation itself is not finished. With the Supreme Court declining to resolve the constitutional question, the next moves belong to the district court, where the negligence claim would go to trial, and to Mckesson’s attorneys, who now have a Supreme Court justice’s explicit invitation to argue that Counterman forecloses the theory against him. Whether the lower courts accept that argument will decide whether negligent protest-leading becomes a recognized cause of action or a doctrine that does not survive its first serious First Amendment test.