## Facts

- DeRay Mckesson helped organize a July 2016 protest in Baton Rouge, Louisiana, following the police shooting of Alton Sterling.
- Protesters allegedly entered and occupied a public highway near police headquarters; the complaint attributed this to Mckesson’s direction.
- Police began making arrests to clear the highway.
- An unidentified person threw a concrete or rock-like object that struck an officer (“John Doe”) in the face, causing serious injuries.
- The assailant was never identified.
- The officer sued Mckesson for negligence, alleging Mckesson staged and directed the protest in an unlawful manner that foreseeably precipitated the third party’s assault.

## Issues

1. Whether Louisiana tort law recognizes a negligence duty and scope of liability for a protest organizer for injuries caused by an unidentified third party’s criminal act during the protest.
2. Whether, assuming such a state-law duty exists, the First Amendment permits imposing negligence-based tort liability on a protest organizer who neither intended nor directed the violence.

## Decision

- The Supreme Court vacated the Fifth Circuit’s judgment and remanded.
- The Court instructed the Fifth Circuit to consider certifying the controlling state-law questions to the Louisiana Supreme Court.
- The Court did not decide the First Amendment question.
- Justice Thomas dissented; Justice Barrett did not participate.

## Legal Principles

- When a federal constitutional question turns on unsettled state-law predicates, federal courts should seek authoritative clarification of state law (including through certification) rather than adopt contested interpretations that may create an unnecessary constitutional ruling.
- Constitutional avoidance favors resolving potentially dispositive state-law issues before adjudicating constitutional questions.
- In negligence actions involving third-party criminal conduct, the existence and scope of any duty and the relevant risk within that duty are questions of state law that can determine whether a constitutional issue must be reached.

## Conclusion

The Supreme Court required clarification of disputed Louisiana negligence doctrines before federal courts address whether the First Amendment allows holding a protest organizer civilly liable for a third party’s violence at a demonstration.


Mckesson v. Doe, 592 U.S. 1 (2020)