Doe v. Mckesson
Not yet published in federal reporter (Certification Order) (2021)
Rule of Law:
A federal appellate court may certify novel and determinative questions of state law to the state's highest court when there is no clear controlling precedent and the resolution of these state law issues is necessary to avoid addressing complex federal constitutional questions prematurely, especially when public policy considerations are involved.
Facts:
- DeRay Mckesson organized and led a protest in Baton Rouge, Louisiana, in response to the police shooting of Alton Sterling.
- Mckesson directed the protest to a public highway in front of a police station, where police began making arrests and attempting to clear the highway.
- Some protesters began throwing various objects at the police.
- Officer John Doe was struck in the face by a piece of concrete or a similar rock-like object.
- As a result of being struck, Officer Doe lost teeth and suffered injuries to his jaw and brain.
- The individual who threw the object that injured Officer Doe has not been identified.
Procedural Posture:
- Officer John Doe sued DeRay Mckesson in the U.S. District Court for the Middle District of Louisiana, alleging negligence.
- The district court dismissed Officer Doe’s claim under Federal Rule of Civil Procedure 12(b)(6), finding the alleged facts did not fall into a category for which an individual could be held liable for an associate's tortious activity.
- Officer Doe appealed the district court's dismissal to the U.S. Court of Appeals for the Fifth Circuit (Appellant: Officer Doe, Appellee: Mckesson).
- A divided panel of the Fifth Circuit found that Officer Doe's complaint stated a cause of action under Louisiana law, concluding Mckesson could be liable for breaching a duty of reasonable care by leading a protest onto a public highway that he should have known would turn violent.
- The Fifth Circuit denied Mckesson's petition for rehearing en banc.
- Mckesson petitioned the Supreme Court of the United States for a writ of certiorari (Petitioner: Mckesson, Respondent: Officer Doe).
- The Supreme Court of the United States vacated the Fifth Circuit's judgment and remanded the case, finding the Fifth Circuit's interpretation of Louisiana law too uncertain to address the constitutional issues raised.
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Issue:
Does Louisiana law recognize a duty for a protest organizer not to negligently cause a third party to commit a crime, and, assuming such a duty, does Louisiana's Professional Rescuer's Doctrine bar recovery for a police officer injured during the performance of duties under these circumstances?
Opinions:
Majority - Per Curiam
No, the Fifth Circuit does not directly answer the issue. Instead, it determined that the questions must be certified to the Supreme Court of Louisiana. The court explained that the U.S. Supreme Court had previously vacated the Fifth Circuit's judgment, finding its interpretation of Louisiana law 'too uncertain a premise' to address a significant constitutional issue. The Supreme Court underscored that the dispute presents 'novel issues of state law peculiarly calling for the exercise of judgment by the state courts,' particularly when imposing a duty requires balancing 'various moral, social, and economic factors.' The Fifth Circuit also noted that Louisiana's Professional Rescuer's Doctrine, which generally bars professional rescuers from recovering damages for injuries sustained in the line of duty, could be dispositive. Given the limited guidance from the Louisiana Supreme Court on how this doctrine might apply to the specific facts of the case and its significance as an issue of state policy, the court decided to certify two questions to the Supreme Court of Louisiana for binding resolution: 1) whether Louisiana law recognizes a duty not to negligently precipitate the crime of a third party under the alleged facts, and 2) whether the Professional Rescuer's Doctrine bars recovery under these facts.
Concurring - Jennifer Walker Elrod
Yes, Circuit Judge Elrod concurs with the decision to certify the questions to the Supreme Court of Louisiana. She highlights the serious injuries sustained by Officer Doe and elaborates on the plaintiff's allegations that Mckesson directed the protest to illegally block a public highway and was 'in charge' of the protest, allegedly inciting violence while observing rioters throwing objects at police. Judge Elrod emphasizes that the complaint alleges both negligent and intentional actions by Mckesson. She agrees that certification is the best administration of justice because the case involves a 'close question of constitutional law and a significant issue of state law' where the state law is doubtful regarding underlying public policy aims. She further notes that the Louisiana Supreme Court is not confined to the precise phrasing of the certified questions but can consider the complaint in its totality, and that this process helps balance fundamental constitutional rights like free speech and assembly with the governmental responsibility to maintain public order.
Analysis:
This case highlights the careful balance federal courts must strike between applying state law and deferring to state supreme courts on novel or unsettled legal questions, especially when constitutional issues are implicated. The certification process prevents federal courts from making speculative rulings on state law that could prematurely lead to a constitutional decision. It also underscores the complexity of establishing liability for protest organizers when third-party actions cause harm, particularly when free speech rights are involved. The ultimate resolution by the Louisiana Supreme Court will have significant implications for protest organizers, law enforcement, and tort law in Louisiana.
