Showing posts with label Black Lives Matter. Show all posts
Showing posts with label Black Lives Matter. Show all posts

Friday, November 6, 2020

Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)
A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

I wrote about this case in April.  Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway.  Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer.  Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.

On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance.  The Court vacated the Fifth Circuit decision and remanded.  The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.

Both Doe's negligence theory and Mckesson's First Amendment defense are close questions.  Mckesson never countenanced a violent attack on police.  Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor.  Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.

Cases of such "negligent incitement" have long been problematic in First Amendment doctrine.  The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous.  Results have varied, and no clear rule has emerged.  Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.

I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts).  Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale.  It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer.  Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.

The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog).  The opinion was per curiam.  Justice Thomas dissented without opinion, and Justice Barrett took no part.

Monday, September 21, 2020

Man may sue police in tort, civil rights for violent beating, despite his conviction for resisting arrest

"Defund the police" has been a rallying cry in recent protests. (Photo at BLM
encampment, New York City, June 26, 2020, by Felton Davis CC BY 2.0.)
The Massachusetts Supreme Judicial Court last week vacated and remanded the trial court's judgment for police in a civil suit with racial overtones.

Authoring the unanimous opinion, Justice David A. Lowy characterized the case as "disturbing."  The court recited the facts as most favorable to the plaintiff, Mark S. Tinsley, the non-moving party.  According to that recitation, Tinsley, who is African American, was stopped by Framingham, Massachusetts, police for speeding in 2012.  Suspecting Tinsley of hiding something, police ordered Tinsley from the car, and he refused.  The traffic stop by two police officers became a physical struggle with five to pull Tinsley from the car.  Once he was out of the car, on the ground,

several police officers began beating him.  Tinsley did not resist. He tried to put his hands behind his back so that the police officers would handcuff him and thus, he thought, stop hitting him. The police officers did not stop. [One officer] struck Tinsley's collarbone and upper shoulder, and stomped on Tinsley's left hand. [A second officer] sprayed Tinsley with pepper spray. [A third officer] called Tinsley a "fucking n[word]" [footnote: "At trial, [the third officer] denied that he or any other police officer swore at Tinsley or called him 'any names.'"] and kicked Tinsley in the head. While Tinsley was on the ground, an officer handcuffed him [footnote omitted quoting Tinsley's trial testimony]. Tinsley suffered a broken nose, a broken finger, and a wound on the side of his head that required stitches.

Tinsley was convicted on counts including assault and battery (criminal), carrying a dangerous weapon ("a spring assisted knife"), and resisting arrest.  While criminal charges were pending, Tinsley sued for civil rights violation and tort claims including assault, battery, intentional infliction of emotional distress, and false arrest.  Upon two motions, the latter decided after the conclusion of the criminal proceeding, the trial court entered judgment for defendants police and town on all counts.

The question on appeal was whether the trial court properly recognized in the civil proceeding the collateral estoppel effect of Tinsley's criminal conviction.  The doctrine of collateral estoppel precludes a later civil court from re-trying facts and conclusions of law that were determined by jury and court in an earlier criminal proceeding.  Thus, after conviction, a defendant may not argue his innocence in a later case.

However, the facts deemed determined in the earlier criminal proceeding are limited to the facts that supported conviction.  Tinsley argued, and the Court agreed, that the jury's conviction was not inconsistent with Tinsley's claim of excessive force for the beating he endured on the ground, outside the car, after his arrest.  The Court reasoned that Tinsley was placed under arrest when he was seized inside the car.  Insofar as Tinsley was resisting arrest inside the car, then, collateral estoppel pertains, precluding suit on the tort of false arrest.  But the jury may have based its conviction on a fact pattern that ended before Tinsley was on the ground. So the facts of the beating, occurring after arrest, remain arguable in the civil case.

The Court explained,

Even where the use of force to effect an arrest is reasonable in response to an individual's resistance, the continued use of force may well be unreasonable, as an individual's conduct prior to arrest or during an arrest does not authorize a violation of his or her constitutional rights....  To hold differently would implicitly permit police officers, in response to a resisting individual, to exert as much force as they so choose "and be shielded from accountability under civil law," so long as the prosecutor could successfully convict the individual of resisting arrest.

Accordingly, the Court vacated judgment for defendants on the civil rights claim and the assault, battery, and IIED counts, and remanded the civil case to proceed.  The false arrest claim was properly barred.

The case is Tinsley v. Town of Framingham, No. SJC-12826 (Mass. Sept. 17, 2020).  Chief Justice Gants participated in deliberations before his death.