Court: “Black Lives Matter” can’t be sued because it’s a movement, not an entity
Case also dismissed against DeRay McKesson, finding his statements were constitutionally protected.
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….
* * *
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
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Comments
“The law is a clumsy hammer, not a scalpel.”
—Me
There are a lot of things the law cannot fix. There are a lot it can. I believe in the rule of law.
The KKK was destroyed by the courts using torts. So I don’t understand this decision.
The KKK was a “thing”. You’ll find it marching down Pennsylvania Ave. with hundreds of American flags flying and thousands of marchers. Because it was that “thing”, it could be legally targeted.
BLM is an amorphous “movement”, and that is by design. People with evil intent learn from the lessons reaped by people of evil intent. Sometimes, it takes time for the law to catch up. Which is, really, what we want, if we think about it.
There has to be some “planning” or “collusion” for these events and some interstate movement but you are right…. it is by design amorphous on the outside… but there has to be cohesive direction and funding even though peripheral to the movement.
There is no difference between the KKK, black lives matters or the likes of antifa. None.
http://blacklivesmatter.com/
https://intlantifadefence.wordpress.com/donate/
— Go try finding the KKK website.
— Or who to look up in the KKK to donate $800,000.00.
EXPOSED: Hillary Clinton Moved 800K From Her Campaign To Fund ANTIFA:
http://www.thegatewaypundit.com/2017/09/exposed-hillary-clinton-moved-800k-campaign-help-fund-antifa/
The judge is right. The Prof. is right.
You’re chronologically confused, legally confused, and just typically confused.
The KKK today is not the one successfully sued decades ago.
A web site is not an entity. Whoever owns the site is an entity, and if anyone can show that the site’s owner has harmed him or her, they can subpoena GoDaddy to identify the owner so he, she, or it can be sued. But whoever that is is not “black lives matter”, it’s just someone or a group of someones who believes in that cause.
The KKK was a specific organization, not an idea, which is why it could be sued. It lost that suit, the plaintiff took everything it had, and as a result it no longer exists and can no longer be sued.
I disagree. If they have a Bank Account – they are an entity that can be sued.
Where did you get the idea that they have a bank account? There is no “they” to have one.
If BLM is a movement and not an entity, what happens with all the money that has been donated to the BLM “Movement”? Where does the IRS stand on monies going into BLM and how this money is used? Who is responsible for obtaining permits in various cities for this movement to protest? Surely there must be an entity, or individual(s)somewhere responsible for this terrorist movement and all the monies that have been donated.
If they pay Taxes – they are an entity.
If they do not pay taxes – they are felons.
What are you talking about? Where did you get the idea that any money has been donated to the movement? There are various people and entities that support the “BLM” idea, and that accept donations to fund their activities whatever they may happen to be. Each of them can certainly be sued, if you can identify something they’ve done wrong. But “BLM” is an idea, not an entity, and has never raised a penny or done anything, legal or illegal. You can no more sue it than you can sue “anti-vaxxers” or “the mafia”.
I’m not a lawyer but this sounds like BS, your right, the amount of money being channeled into this racist organization… there has to be a there there.
What organization? The plaintiff did not identify any organization, just “black lives matter”. Tell me, do you think you can sue “the mafia”, or “drug dealers”, or “bad drivers”?!
Oh BLS and all its individual members CAN be sued and should be sued.
I just want to sue somebody.
They learned from the Tea Party: keep it diverse and real.
There is evidently ZERO interest of ANY law enforcement to go undercover into BLM and find that it is in fact an organization , has activist leadership and a money trail.
BLM is being protected like the KKK was in the 1920s. The cops would not go after the KKK for decades…. they were protected for a long time. BLM is the same and the irony is not lost on me.
Well, if AG Sessions was awake, heads would be rolling.
No, if AG Sessions is awake, someone is connecting the dots and is smart enough to stay quiet about it until indictments are ready.
“If” being the key word.
I think, with respect to Sessions, that would be assuming facts not in evidence.
The court did not address or cite LA RS sec. 12-501(5) which provides:
“(5) “Unincorporated association” means an unincorporated organization, other than one created by a trust, consisting of two or more members joined by mutual consent for a common, nonprofit purpose. However, co-ownership does not by itself establish an unincorporated association, even if the co-owners share use of the property for a nonprofit purpose.”
Nor did it cite or address LA RS sec. 12-505.A which says that an unincorporated association is an entity with liabilities. (http://legis.la.gov/legis/Law.aspx?d=76591).
Might seeking an appeal be worthwhile? Isn’t there an issue of disputed fact or does that not matter in a civil law jurisdiction?
I think you’re giving the “Black Lives Matters” “movement” too much credit. No one has “ownership” of the concept.
Let’s do a thought exercise: whom could trademark “Black Lives Matter?” Until you can identify whom would have the right to use that concept and exclude others, you don’t have an entity. Further: Whom could include or exclude from membership, or open a bank account in the name of Black Lives Matter (in this case; in other jurisdictions it may be different)? Again, until you can identify someone actually in “control” then you don’t have an “entity” to be sued.
The Court is right here. You’ve got a loose coalition of groups, that don’t really agree on any one particular set of governing principles, that are appearing under a loose banner of a movement.
It’s too amorphous to be even an unincorporated association. Really what it is, is a group of organizations that have come together and are protesting in the same physical location, at the same time, on a couple of shared points of view that they all seem to support. Each of those organizations though has their own structure. THOSE can be sued if they behave badly, or their individual members can be sued if the individuals behave badly, but the OTHER groups, merely by presence and uniting under one conceptual framework isn’t enough to create some sort of joint liability.
Concepts and movements do not receive cash in their bank accounts; entities do.
“Black lives matter” has no bank account and has never received any cash. The plaintiff has the burden of identifying the defendants; this plaintiff failed to do so. Assuming there was such an entity, how would it know that it was being sued?
If an organisation needed a blank cheque to get even more involved in violent protesting this is it. They now have legal support in their back pocket that they are untouchable.
That is not what the decision says.
The Decision says that you have to sue a legal entity, and that “Black Lives Matter” isn’t itself an entity, but a movement (a concept, without any particular governing principles).
The decision basically says find the underlying entity that supported or encouraged the violence, and sue THEM. Or find the individual that committed the tortious act, and sue them personally.
Chuck, you aren’t listening to what Im saying.
BLM already knew it was untouchable but this case gives them an extra level of legal cover that they are TRULY untouchable!
No, it doesn’t. You’re an idiot. No person or group of people has any more license to break the law now than they ever had. If any person or set of people or actual organization, whether incorporated or not, harms someone in some identifiable way, they can very easily be sued. All the plaintiff has to do is say who they are and what they’ve done.
Here’s an example even you might understand Gangs are terrible groups and commit all sorts of crimes, and they can certainly be sued. But you can’t sue “the gangs”. You have to identify which gang has harmed you, and how, and sue only that gang, or its members. Try filing a suit against “the gangs”, or “the mafia”, or “organized crime”, and you’ll be laughed out of court.
“cheque”
Where in the UK are you?
Try suing “antisemites”, or “white supremacists”. You can’t. You can sue individuals, or groups, but not concepts. Nor can you sue “criminals”.
By the way, the plaintiff did eventually identify a specific organization to sue, “Black Lives Matter, Inc.”. But he failed to identify what that organization had done to him. If he could do that (and if it actually exists and he didn’t make it up), he would certainly be able to sue it.
Lessee…
The judge was correct. The Prof. says the judge was correct. The only lawyers posting here agree with the judge and the Prof.
Yet, while this is a legal blog, we have ignorant posters stomping their feet and insisting this ruling was wrong.
And down-thumbing people who know what they’re talking about.
There’s a lot wrong with this.
http://blacklivesmatter.com/getinvolved/
“Get Involved in the fight for Black Lives
Contact a local chapter, make a donation,
make a purchase, find resources and actions.”
This seems pretty organized, for something that has no organization. Although if you want to find that “local chapter” you’ll have to provide some info about yourself before they’ll provide any about those local resources.
a web site can say anything it likes. But whoever owns this site has a name, which isn’t simply “black lives matter”. That entity, whoever or whatever it is, absolutely can be sued if it ever does anything to be sued for. GoDaddy will happily tell you who it is, if presented with a valid subpoena for the information. You just have to have a case first, so you can issue that subpoena.
I assume DeRay was personally served (with process and notice). Who the heck was served for “Black Lives Matter”?
And the reason that the KKK was put out of business is because those dummies actually held title to real property in the name of the ….
Wait for it ….
The “KKK”!
DeRay was served both in his own name and in the name of this alleged organization that he allegedly ran. He refused service for the organization, saying, essentially, “Who dat?”, and the judge agreed. The plaintiff then found an actual organization and attempted to have it substituted as the defendant, and the judge said “OK, you can sue them, if you have something to sue them for; what would that be, specifically?”