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U.S. Supreme Court gives partial victory to BLM activist after policeman sues for being injured

Deray Mckesson

The U.S. Supreme Court on Monday negated a lower court’s decision that held a lawsuit against Baltimore activist DeRay Mckesson could proceed, sending the case back to the lower court.

The 5th U.S. Circuit Court of Appeals had upheld a 2019 lower court decision that allowed a Baton Rouge police officer’s lawsuit against Mckesson to go forward. But the Supreme Court wrote in an unsigned opinion Monday that the appeals court should have sought guidance on relevant state law relating to the First Amendment from the Louisiana Supreme Court before allowing the case to proceed.

“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,” the opinion said.

The officer’s lawsuit seeks to obtain damages from Mckesson after the officer was injured during protests following Alton Sterling’s 2016 killing by Baton Rouge Police, saying Mckesson was negligent in encouraging the protest. An unidentified person threw what the Supreme Court called a “piece of concrete” or “rock-like object” at the officer, who suffered brain trauma and lost teeth.

Mckesson, a Black Lives Matter organizer, didn’t throw the object, and the officer never accused him of throwing it, the American Civil Liberties Union, which filed the petition to the nation’s highest court that was decided Monday on behalf of Mckesson, previously said.

Newly confirmed Justice Amy Coney Barrett was not involved in the decision, and Justice Clarence Thomas is the only justice listed as dissenting, the opinion said.

“Clarence Thomas is just not on the right side of any of these issues,” Mckesson said in a tweet Monday.

Mckesson told The Baltimore Sun that the 5th Circuit’s “bad” decision would have a chilling effect on protesters across the country. He said he feels optimistic about the case going forward.

“Now that it got vacated, we feel really good,” Mckesson said. “What we would love to see is a reaffirmation and a stronger affirmation about the right to protest and clarity that organizers cannot be sued as individuals for these types of claims.”

The ACLU said the decision in the case, which has been litigated for several years, has important free-speech implications.

“If the lower court decision had been left standing, it would have dismantled civil rights era Supreme Court precedent safeguarding the First Amendment right to protest,” the ACLU wrote in a news release.

An attorney listed for the police officer could not be immediately reached for comment.

“It’s not over,” Mckesson said. “This has been a long road.”


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