“How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.” Louisiana's civilian approach to legal causation purports to remedy the common law's confusing and inconsistent approach to proximate causation with a simple, one-size-fits-all solution. That solution, the duty-risk analysis, employs the judge to decide legal cause by asking whether the plaintiff's harm is easily associated with the rule the defendant violated. If so, the defendant's act was the legal cause of the plaintiff's harm.
Although the duty-risk analysis seems easy, courts often fall victim to its simplicity. While an imperfect duty-risk analysis may not wreak legal havoc in garden-variety tort cases, when federal judicial review of a protestor's First Amendment defense hinges upon a court's duty-risk analysis, a flawed duty-risk analysis can affect citizens' free speech protections. The United States Court of Appeals for the Fifth Circuit's decision in Doe v. Mckesson illustrates the consequences of an imprecise, improper duty-risk analysis in a negligence case wrought with policy concerns. DeRay Mckesson is facing tortious liability for organizing a protest in which an unknown third party assaulted a police officer. In NAACP v. Claiborne Hardware Co., the United States Supreme Court held that the First Amendment offers broad, albeit qualified, protection to protest organizers from liability for violence committed at their protests. As of now, however, Mckesson enjoys no First Amendment protections.
Mckesson is an activist with Black Lives Matter (BLM). He allegedly organized a protest in Baton Rouge a few days after an officer with the Baton Rouge Police Department (BRPD) shot and killed Alton Sterling on July 5, 2016. The plaintiff, an anonymous BRPD officer suing under the alias “Officer Doe,” claimed that Mckesson directed protestors to gather outside of the BRPD building. Officer Doe alleged the demonstrators then became rowdy, looting a grocery store for water bottles to throw at officers, and Mckesson took no action to regain control of the crowd. Then, Officer Doe alleged, Mckesson intentionally took the crowd onto a public highway to force the officers outside to make arrests and confront the demonstrators. When the officers came outside, the demonstrators purportedly began throwing the stolen water bottles at the officers attempting to make arrests. Officer Doe claimed that when the demonstrators ran out of water bottles to throw, an unknown demonstrator instead threw a rock, striking him in the head. Officer Doe suffered severe injuries, but authorities never identified the unruly protestor. Without an unruly protestor to hold liable, Officer Doe filed a lawsuit against Mckesson in the United States District Court for the Middle District of Louisiana, alleging that Mckesson was liable for Officer Doe's injuries because he negligently organized and conducted the protest. Mckesson raised the First Amendment protections under Claiborne as an affirmative defense, but before the court could consider speech protections, it had to decide negligence.
Mckesson has a complicated procedural history, including an opinion already rendered from the U.S. Supreme Court. As it pertains to the scope of this Note, Officer Doe's negligence claim required the Fifth Circuit to certify a novel question of Louisiana law to the Louisiana Supreme Court: does Louisiana recognize a general duty “not to negligently precipitate the crime of a third party?” The Louisiana Supreme Court held that Louisiana does recognize such duty. The Fifth Circuit, tasked with the remaining elements of negligence--breach, cause in fact, and legal cause-- found that all three were satisfied. It then found Mckesson was not entitled to First Amendment protections under Claiborne.
On October 10, 2023, Mckesson filed a petition for certiorari on the issue of the First Amendment, and the U.S. Supreme Court is now likely to re-evaluate the limits of protestors' First Amendment protections. The Fifth Circuit's decision on the First Amendment defense in the noted case rested on the court's finding of tortious liability, so a proper negligence analysis from the Louisiana Supreme Court and the Fifth Circuit may have resulted in dismissal and prevented the First Amendment issue from reaching the Supreme Court. This Note considers how the Louisiana Supreme Court's duty imposition and the Fifth Circuit's duty-risk analysis unfairly departed from Louisiana precedent and affected the court's finding of Mckesson's liability. Part II explores the general duty imposition and the duty-risk analysis in Louisiana negligence cases. Part III discusses the Louisiana Supreme Court's answer upon certification and the Fifth Circuit's subsequent decision. Part IV argues that the Fifth Circuit certified the wrong question to the Louisiana Supreme Court, and its resulting decision departed from the policy-laden civilian tradition of the duty-risk analysis. Part V briefly concludes.
About the Author
Melanie Frederic, J.D. Candidate 2025, Tulane University Law School; B.S. 2021, Louisiana State University.
Citation
98 Tul. L. Rev. 723