An unidentified police officer who was injured by a rock thrown during a “Black Lives Matter” protest in July 2016 sued activist DeRay McKesson and Black Lives Matter.

The case was thrown out on a motion to dismiss because (1) as to McKesson, the court found no specific actions alleged against him that showed he directed specific acts of violence, much less the specific act that harmed the officer; and (2) as to Black Lives Matter, the court found that it was not an entity that could be sued, but merely a social movement.

A copy of the full Order (pdf.)is embedded at the bottom of this post.

Here is a summary of the Court’s ruling:

Plaintiff’s alleged injuries in this case – which he claims to have suffered in the line of duty as a police officer while responding to a demonstration – are not to be minimized. Plaintiff has failed, however, to state a plausible claim for relief against an individual or entity that both has the capacity to be sued and falls within the precisely tailored category of persons that may be held liable for his injuries, which he allegedly suffered during activity that was otherwise constitutionally protected….

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The Court finds that Plaintiff’s Complaint suffers from numerous deficiencies; namely, the Complaint fails to state a plausible claim for relief against Mckesson and it names as a Defendant a social movement that lacks the capacity to be sued….

The Court’s ruling is likely the correct one. Organizing a protest that starts peacefully but then turns violent does not make the organizer responsible, unless there is some evidence of direction of the violence. There were not statements alleged against McKesson showing he directed the violence.

Also, “Black Lives Matter” as a movement is not actually a legal entity. The people or groups who participate can be sued, but you need to show that the person or entity did something. Merely gathering under the name of Black Lives Matter does not mean there is an entity “Black Lives Matter” that can be sued.

Deray McKesson

The court held that any speech McKesson allegedly made was constitutionally protected, and did not constitute direction for specific violence. Merely being in a crowd or part of an event, even if you helped organize it, in which violence takes place was not enough.

“Setting aside his conclusory allegations, Plaintiff has pleaded facts that merely demonstrate that Mckesson exercised his constitutional right to association and that he solely engaged in protected speech at the demonstration that took place in Baton Rouge on July 9, 2016. Because Plaintiff has failed to plead sufficient, nonconclusory factual allegations that would tend to demonstrate that Mckesson exceeded the bounds of protected speech, Mckesson cannot be held liable for the conduct of others with whom he associated, and Plaintiff thus has failed to state a plausible claim for relief against Mckesson…..

In order to state a claim against Mckesson to hold him liable for the tortious act of another with whom he was associating during the demonstration, Plaintiff would have to allege facts that tend to demonstrate that Mckesson “authorized, directed, or ratified specific tortious activity.” Id. Plaintiff, however, merely states – in a conclusory fashion – that Mckesson “incited the violence” and “g[ave] orders,” (id. at ¶¶ 17, 19), but Plaintiff does not state in his Complaint how Mckesson allegedly incited violence or what orders he allegedly was giving…..

Further, Plaintiff has not pleaded sufficient factual allegations regarding Mckesson’s public speech to state a cause of action against Mckesson based on that speech. The only public speech to which Plaintiff cites in his Complaint is a onesentence statement that Mckesson allegedly made to The New York Times: “The police want protestors to be too afraid to protest.” (Id. at ¶ 24). Mckesson’s statement does not advocate – or make any reference to – violence of any kind, and even if the statement did, “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” Claiborne Hardware, 458 U.S. at 927. This statement falls far short of being “likely to incite lawless action,” which Plaintiff would have to prove to hold Mckesson liable based on his public speech. Id.

Nor can Plaintiff premise Mckesson’s liability on the theory that he allegedly “did nothing to calm the crowd.” (Id. at ¶ 19). As the United States Supreme Court stated in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), “[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence,” id. at 920.”

Black Lives Matter

“Black Lives Matter, like the “Tea Party movement,” was held not to be capable of being sued. There might be individuals or groups that are a part of the movement who could be sued if unlawful conduct were pleaded. But the movement itself doesn’t actually exist for judicial purposes.

The Court finds that “Black Lives Matter,” as Plaintiff uses that term in his Complaint, refers to a social movement. Although many entities have utilized the phrase “black lives matter” in their titles or business designations, “Black Lives Matter” itself is not an entity of any sort. Therefore, all claims against “Black Lives Matter” must be dismissed because social movements lack the capacity to be sued….

The Court notes that the phrase “black lives matter” has been utilized by various entities wishing to identify themselves with the “Black Lives Matter” movement. Plaintiff himself has identified one such entity and seeks leave of court to add that entity as a Defendant: Black Lives Matter Network, Inc. (See Doc. 52-4 at ¶ 3). These entities undoubtedly are “juridical persons” capable of being sued, and therefore the issue of such an entity’s capacity would not impede Plaintiff from filing suit against it. “Black Lives Matter,” as a social movement, cannot be sued, however, in a similar way that a person cannot plausibly sue other social movements such as the Civil Rights movement, the LGBT rights movement, or the Tea Party movement….”

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Court Order Dismissing Police Officer Case Against Deray McKesson, Black Lives Matter by Legal Insurrection on Scribd