Mckesson v. Doe
The Supreme Court wiped out the Fifth Circuit's ruling against civil rights activist DeRay Mckesson, holding that the federal appeals court should have first asked Louisiana's own highest court to clarify state law before tackling the First Amendment question.
The decision leaves completely open whether protest leaders can be held legally responsible for violence committed by unknown participants — that question will have to wait until Louisiana's courts explain what state law actually requires.
How it got here: The district court dismissed the negligence claim on First Amendment grounds; a divided Fifth Circuit panel reversed; the full Fifth Circuit deadlocked 8–8 on rehearing; Mckesson petitioned the Supreme Court.
The Case in Depth
What happened
Civil rights activist DeRay Mckesson organized a protest in Baton Rouge, Louisiana, following a police shooting. During the demonstration, an unidentified person threw a chunk of concrete at a police officer — identified only as Officer Doe — who suffered devastating injuries including lost teeth and brain trauma. Officer Doe sued Mckesson personally, arguing that Mckesson's decision to lead protesters onto a highway in front of police headquarters was negligent and caused the assault.
The question before the Court
Can a protest organizer be personally sued for injuries caused by an unidentified person in the crowd, on the theory that organizing the demonstration was negligent?
The Court's answer
The Court did not decide whether the First Amendment bars Louisiana from holding a protest organizer liable for an unknown participant's violent act. Instead, it ruled that the Fifth Circuit moved too fast: before reaching the constitutional question, the appeals court should have asked the Louisiana Supreme Court to clarify whether state law even allows this kind of negligence claim against a protest organizer in the first place.
Because that state law question is genuinely novel and requires weighing moral, social, and economic judgments best suited to Louisiana's own courts, the Fifth Circuit's ruling was vacated and the case was sent back with instructions to pursue that state-law clarification before proceeding further.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Protest organizers and those who might sue them still have no clear answer on whether a leader can be held liable for an unidentified participant's violent act. The case goes back to the Fifth Circuit, which must now seek Louisiana Supreme Court guidance before any constitutional ruling is possible, prolonging uncertainty for activists, officers, and lawyers in future cases.
What changes now
The case returns to the Fifth Circuit, which must decide whether to certify two questions to the Louisiana Supreme Court: whether Mckesson could have breached a duty of care by organizing the protest, and whether Officer Doe's injuries fall within the scope of any such duty. Only after Louisiana's highest court answers those questions can a federal court address the First Amendment arguments. The underlying lawsuit against Mckesson remains unresolved.
What this does not decide
The Court expressly does not decide whether the First Amendment bars Louisiana from holding a protest organizer liable for an unknown crowd member's violent act. It also declines to rule on any other state law issues the parties may raise on remand, leaving all constitutional and substantive questions for later proceedings.
Concurrences and dissents
Dissent — Justice Thomas
Justice Thomas dissented without a written opinion. The text of the decision does not reveal his reasons, so the specific basis for his disagreement — whether with the decision to certify, the procedural posture, or some other aspect — is unknown from this opinion alone.
How the Court got there
The legal reasoning, step by step
- The Court started from the principle that when speech-related activity leads to violence, the First Amendment demands precision about who can be held liable and on what grounds — a standard the Court drew from NAACP v. Claiborne Hardware Co. (1982), the leading Supreme Court case on civil liability for protest-related harms. But that constitutional question only matters if Louisiana law permits the claim to begin with.
- The Fifth Circuit's interpretation of Louisiana negligence law — that Mckesson owed a duty not to 'negligently precipitate' a third party's crime by leading protesters onto a highway — was sharply contested within the Fifth Circuit itself. The panel split, the en banc court deadlocked 8–8, and individual judges raised serious doubts about both the duty question and whether Officer Doe's injury fell within the scope of any such duty. The state law foundation was far from settled.
- The Court invoked the avoidance principle: federal courts should not decide unnecessary constitutional questions. When the predicate for a constitutional ruling is an unsettled state law issue, the better course is to resolve that state law question first, before the constitutional fight begins.
- Forty-eight states, including Louisiana, have 'certification' procedures that let federal appeals courts ask the state's highest court to answer unsettled questions of state law. Certification is not required every time state law is unclear, but this case had two features that made it advisable: the Louisiana duty question involved value-laden judgments about protest, liability, and public safety that are peculiarly suited to state court resolution; and deciding a constitutional question on an uncertain state law premise risks issuing an unnecessary advisory opinion on a hypothetical conflict.
- Because the Fifth Circuit should have certified the Louisiana duty and scope-of-protection questions to the Louisiana Supreme Court before reaching the First Amendment, the Supreme Court vacated the Fifth Circuit's judgment and sent the case back for that process to occur.