“Designed to End Protesting”: Louisiana Supreme Court Makes Protesters Guilty by Association
The state joins others in broadening liability and heightening the legal risks of protesting.
Daniel Nichanian | March 28, 2022
A ruling by the Louisiana Supreme Court on Friday adds to a string of developments following 2020’s George Floyd protests that threaten demonstrators with harsh penalties for the actions of others.
The court ruled that an advocate who helped organize a Black Lives Matter rally could be sued for events that took place during that rally, even though he was not involved. The case arose after a police officer was injured during a protest in Baton Rouge in 2016 and filed a lawsuit against DeRay Mckesson, a national advocate who had amplified and joined the demonstration. Mckesson rejected liability, saying his actions were protected by the First Amendment, but the court ruled against him in Friday’s 6-1 opinion.
The lone dissenter was the court’s only Black judge, Justice Piper Griffin. “The finding of a duty in this case will have a chilling effect on political protests in general as nothing prevents a bad actor from attending an otherwise peaceful protest and committing acts of violence,” wrote Griffin, who is a Democrat elected in a judicial district that contains parts of New Orleans. “The flow of political speech could hinge on which viewpoints had patrons with deeper pockets.”
Mandie Landry, a Democratic lawmaker who was already vocal against efforts to target protesters in Louisiana, echoed Griffin’s worry that the ruling risks stifling political organizing. “It seems like this is designed to end protesting,” she told Bolts. “It’s designed to chill speech.”
Landry, who is also a lawyer, says the court has applied an appallingly broad standard of negligence to protesters. “It almost seems like anyone who goes to, or is near, or talks about, or even reshares a graphic about a protest could potentially be sued under this,” she said. Jonathan Miller, chief program officer at the Public Rights Project, calls the ruling the latest example of a broader trend where “states seek to hold all involved in peaceful marches accountable for any violence that might occur, even if they do not start it, control it, or participate in it.”
“It is an attempt to stop mobilizations in their tracks out of fear of personal liability or responsibility for all who participate in such mobilizations,” Miller told Bolts.
The lawsuit against Mckesson is one in a number of recent cases where cops and courts have ensnared Black Lives Matter supporters. Police investigated a Utah senator in 2020 for allegedly donating money to a fund that Black Lives Matter protesters used to buy red paint that they spilled in front of the district attorney’s office. Also in 2020, police in Portsmouth, Virginia, filed charges against local Black leaders, including a state senator, who were present at a rally where people toppled a Confederate statue. The police also tried to sideline prosecutor Stephanie Morales, who is Black, though she eventually asserted control and dismissed the charges.
“If that scares us and bothers us in this instance where it became national news because elected officials are charged, you got to think about the many times where people are being charged and lives are being ruined where nobody’s watching,” Morales told Bolts about the events in Portsmouth.
Other states have pushed guilt-by-association for demonstrators since the protests of 2020, adopting new statutes that broaden who can be punished for what happens at a protest. In 2021, Florida passed a law championed by Republican Governor Ron DeSantis that created new felony charges that can be used against people who are present at a rally that is deemed violent, even if they were not involved in any criminal action. In August 2020, Tennessee lawmakers made it a felony to camp overnight outside the state capitol after sustained protests earlier that summer. (In both states, a felony conviction also means losing the right to vote, sometimes for life, turning the electoral process into another legal minefield.)
“It’s an ever-present issue for us,” Chris Kaiser, advocacy director at the ACLU of Louisiana, who is monitoring the 2022 session, told Bolts about efforts to criminalize protests. “There are all these dots in our criminal code that can be connected in a demonstration setting that can land people in serious criminal trouble. That constellation of laws that is continually amended has a chilling effect on assembly and free speech.”
One such amendment in Louisiana is House Bill 150, adopted in 2020, which made it a crime of violence punishable with up to six months in jail to splash water at a police officer.
Landry was the only lawmaker, out of the 122 from both parties who voted on the bill, to oppose the measure. She says the bill had no purpose other than piling on a new criminal statute that risks being abused. “There’s already plenty of laws that say you can’t hurt someone and that you can’t attack a police officer,” she said. “To keep adding on extra penalties, extra situations, seems like it’s just designed to chill behavior, to further scare people, and to broaden the net.”
Louisiana lawmakers could escalate their targeting of protesters this spring with a measure that exposes people around demonstrations to the threat of being killed with impunity.
HB 101, filed by Republican Danny McCormick, would justify homicides committed by people under the guise of protecting property from being damaged “during a riot,” and critics stress that this is a term with a low threshold. “A riot is three people under Louisiana law,” Landry said. “That’s a wide open hole for someone to kill people, like teenagers and children who might be just trespassing or breaking into a car.” McCormick did not reply to a request for comment on the bill, which echoes laws passed in recent years that grant immunity to drivers who run over protesters who were blocking a public street.
The lawsuit against Mckesson is now likely to return to federal courts; the U.S. Supreme Court had asked Louisiana’s high court to weigh in.
Mckesson’s liability stands in stark contrast with the extremely limited liability that police face thanks to qualified immunity, a legal doctrine that routinely shields them from civil lawsuits.
In December 2016, just months after the Black Lives Matter protest in Baton Rouge, police officers in Shreveport, Louisiana, on the other side of the state, pulled over a Black man named Gregory Tucker for minor traffic violations and proceeded to violently beat him. When Tucker tried suing the officers, federal courts shielded them by invoking qualified immunity (ultimately over the objections of Justice Sonia Sotomayor).
Louisiana Republicans blocked efforts to narrow qualified immunity in both 2020 and 2021, even after the state House passed a bill championed by Democratic Representative Edmond Jordan last year. Supporters are mounting another effort in this year’s session. Landry is cautiously optimistic that restricting qualified immunity is now drawing more support from Republicans, but she also notes that lawmakers are cracking down on the protesters who put qualified immunity on their legislative agenda in the first place.
“If you don’t have the right to protest something, what change can you make?” she asked. “How do you make change if laws are being passed to restrict voting and you can’t depend on the courts?”