Deray sued by Cop for Incitement: Far-Fetched

Deray McKesson

Deray sued by Cop for Incitement:  Far-Fetched

by Susan Basko, esq.

Update August 2019: In 2016, a Baton Rouge, Louisiana, police officer sued Deray McKesson, a Baltimore school teacher and founder of Project Zero.  The lawsuit, filed as a "Doe," claimed that McKesson was a leader of Black Lives Matter and that he was responsible for the actions of another protester who had thrown a rock that injured the officer in his face and head.  U.S. District Judge Brian Jackson dismissed the lawsuit on the grounds of McKesson's First Amendment rights and that Black Lives Matter was  a loose affilitation, not an organization.  Officer Doe appealed and the Appeals court reinstated the case in April 2019.  McKesson requested review of the Appellate decision and in August 2019, the 5th Circuit Court of Appeals issued a substitute decision for the one it had issued in April.  This (posted below) is the 5th Circuit Court of Appeals ruling from August 2019.  In ruling on such a motion, the Court takes all well-pleaded allegations to be true -- in this case, many of the allegations made by Officer Doe are obviously not true.  The Appeals court has remanded the case back to Judge Brian Jackson to enter the Discovery phase where Doe and McKesson will each have an opportunity to locate evidence or witnesses that will show whether or not McKesson engaged in negligent acts that led to Officer Doe being injured.

In the revised ruling issued by the Fifth Circuit Court of Appeals in August 2019, the court had to take all of Officer Doe's allegations as true, because that is how a Motion to Dismiss works.  Even taking the allegations as true, the Appeals Court decided that McKesson could not be held liable for the unidentified rock-thrower's actions on a theory of vicarious liability.  Nor could McKesson, under the allegations, be held liable on a theory of civil conspiracy.  The Appeals Court did find that the allegations could show that McKesson was negligent in allegedly leading the protest group into blocking a highway, thus leading to a foreseeable violent confrontation with police.   Since these are merely allegations, the case is remanded back to the District Judge, where, most likely, discovery will take place to find evidence one way or another.

The Court of Appeals also found that Black Lives Matter could not be sued as an organization because it did not have any of the hallmarks of being an organization, but instead, is a social movement.

If I recall correctly, from what I saw online in many live-streamed videos from the protest, Deray
McKesson was merely a participant in the protest, not a leader, and was not directing anyone.  It is likely that Discovery will include all those videos.

Tuesday, November 9, 2016.  Yesterday afternoon, a lawsuit was filed against Deray McKesson of the Black Lives Matter (BLM) movement by an unnamed police officer from Baton Rouge, Louisiana.  The police officer claims that the BLM activist, popularly known as Deray, incited violence during a protest in Baton Rouge.  The officer alleges he was injured by a man who threw a rock or piece of concrete at his face.  The officer does not claim that Deray played any part in the rock throwing, nor does he name any words spoken by Deray that allegedly would cause the other man to throw the stone.  Nor does he claim that Deray ever spoke with the man who threw the rock.  Rather, he claims that Deray was present at the protest, he is a BLM leader, and that he was speaking with others at the protest.  The officer claims that Deray was "ordering" others.  The officer also sued Black Lives Matter, which is not an organization, but a movement of people nationwide in protest of police killings of Black people.  You can read about the lawsuit against Deray in this article in the Daily Kos.  There is some sort of affiliation of BLM chapters, but Deray's group does not belong to it.  Rather, he is a founder of a group called Campaign Zero, which seeks to end police violence by collecting data and strategically affecting Use of Force policies and police union contracts.

Deray was arrested at the protest in Baton Rouge, as seen on video live streamed by both himself and his friends.  At the time, Deray was walking in a legal space along the side of a road. From the video, there was nothing discernable as being illegal in Deray's actions.  He was simply walking along in a protest with his friends, when he was set upon and dragged off.  Several days after the arrests, Baton Rouge announced it would not be charging about half of those arrested, including Deray.  Such arrests still severely chill rights by making people less likely to participate in protests, which is their legal right as forms of freedom of assembly and freedom of speech.

Deray and a group of others filed a federal class action lawsuit against Baton Rouge, saying the police violated the civil rights of the protesters by acting in a militarized and aggressive manner toward them.  You can read about this here in the Guardian.

This lawsuit by the Baton Rouge police officer is highly unusual in several ways:  First, if any incitement to violence had taken place, it would be a crime that could be prosecuted, and not usually handled as a private action tort, or lawsuit.  Second, it is very unusual for a police officer to sue someone as an unnamed John Doe.  Third, "incitement to violence" requires words that are an imminent call to violence, and in this case, no such words have been alleged.  It is not even alleged that Deray ever spoke to the man who threw the stone.  The known words of Deray that are heard on video have Deray stating that the protesters had been peaceful and the police had not been.  It is very far-fetched that such words could be considered incitement, aside from it being even more far-fetched that the man throwing the stone even heard the words.  Fourth, neither Deray nor his group called the protest.  It would be extremely unusual to try to hold Deray responsible for what happened at the protest.

In any protest group or other gathering, there can be people who either come to cause trouble or get caught up in the moment.  Each person is responsible for their own behavior.  Incitement involves an exhortation or urging to imminent violent action. There simply is no known evidence that any such thing happened at the Baton Rouge protest.  

The lawsuit against Deray also claims he did not try to calm down the protesters.  However, from Deray's perspective, it was the police who were out of control, overly aggressive, militarized, and acting inappropriately toward peaceful protesters.  From the videos, it looks as if Deray was simply trying to keep himself and his closest friends out of harm's way.  

What makes this lawsuit even more far-fetched is the nature of Deray himself.  For the past month or so, I have been blessed with being granted a coveted spot at seminars run by Deray at the University of Chicago Institute of Politics.  I've had the opportunity to hear and learn from Deray, to meet and listen to his closest associates in Campaign Zero and the Black Lives Matter movement.  There is no way on earth Deray incited anyone to violence.  I'd describe Deray as highly intelligent, well-spoken, calm, funny, slight nerdy,  friendly, busy, practical.  I could picture him participating in a spelling bee or a math contest, not in a gun battle. 

When Deray was arrested, he seemed surprised, so much so that naysayers online claimed it was staged. Nope, he was just a goody two shoes walking along, shocked to be arrested and hauled off for no particular reason.  The wide-eyed "deer in the headlights" look in the pics of him being arrested is genuine.  Deray's response to the lawsuit against him has been that he hopes the Baton Rouge Police will return his bookbag.  

Deray's associates from the BLM movement are strikingly brilliant and filled with hope and ideas.  One such is Sam Sinyangwe, who gathers and charts data on police department Use of Force policies and killings by police.  Another is Brittany Packnett, a graduate of the prestigious George Washington University in St. Louis, who trains educators as her full-time job and volunteers to help raise awareness for the Black Lives Matter movement.  Anyone who is hoping to find swaggering tough-talking throwbacks to the 1960 radical days will be surprised that the BLM movement is run by top-tier graduates of prestigious schools, with perfect diction, poise, grace, seemingly boundless natural energy, positive enthusiasm, and a strong dose of humor.  There is much good-natured laughter in our seminars. 

Deray was formerly a 6th grade math teacher at a Baltimore public school with violence problems.  Just yesterday, Deray stated that he disagreed with many people and thought there should be police in schools, or at least in schools with problems of violence.  But he does not think school police should be handcuffing kids and taking them to the office, but rather than they should be on hand for incidents of violence.  This does not sound like a man who would incite someone to toss a rock at another human.

If the Baton Rouge police officer suing Deray is hoping to pose Deray as a tough talking bad guy, he's got quite a surprise coming.   It is too far-fetched.

The revised 5th Circuit Court of Appeals decision of August 2019 is below:

Doe vs Deray Mckesson Appea... by suebasko on Scribd