Officer John Doe, Police Officer v. Deray Mckesson; Black Lives Matter; Black Lives Matter Network, Incorporated

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #013
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 25th day of March, 2022 are as follows:
BY Hughes, J.:
2021-CQ-00929 OFFICER JOHN DOE, POLICE OFFICER VS. DERAY MCKESSON;
BLACK LIVES MATTER; BLACK LIVES MATTER NETWORK,
INCORPORATED
CERTIFIED QUESTION ANSWERED. SEE OPINION.
Weimer, C.J., concurs and assigns reasons.
Crichton, J., concurs for the reasons assigned by Chief Justice Weimer.
Genovese, J., additionally concurs in the result and assigns reasons.
Crain, J., concurs in part and assigns reasons.
Griffin, J., dissents and assigns reasons.

S
UPREME COURT OF LOUISIANA
NO
. 2021-CQ-00929
O
FFICER JOHN DOE, POLICE OFFICER
VE
RSUS
DE
RAY MCKESSON, ET AL.
ON
CERTIFIED QUESTION FROM THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
HU
GHES, J.
We accepted the certified questions presented to this court by the United
States Court of Appeals, Fifth Circuit, in Doe v. Mckesson , 2 F.4th 502 (5th Cir.
2021) (per curiam). The questions posed by the Fifth Circuit are: (1) Whether
Louisiana law recogni zes a duty, under the facts alleged in the complaint, or
otherwise, not to negligently precipitate the crime of a third party? (2) Assuming
Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe,
whether Louisiana’s Professional Rescuer’s Doctrine bars recovery under the facts
alleged in the complaint? Id., 2 F.4th at 504. We answer the former, under the facts
alleged in the complaint, in the affirmative and the latter in the negative, for the
following reasons.
FACTS AND PROCEDURAL HISTORY
The plaintiff in this personal injury case named as defendants the Black Lives
Matter (“BLM”) organization
1 and DeRay Mckesson (alleged to be a leader and co-
founder of BLM). The plaintiff alleges that he was a duly commissioned police
officer for the City of Baton Rouge on July 9, 2016, when he was ordered to respond
to a protest “staged and organized by” BLM and DeRay Mckesson, which was in
1 BLM was dismissed in the federal district court proceedings, and that dismissal is not at issue in
the questions certified to this court by the Fifth Circuit Court of Appeals and will not be discussed
herein.
03/25/22

2

response to the July 5, 2016 death of Alton Sterling, who was shot by a Baton Rouge
police officer when Mr. Sterling resisted arrest.
The plaintiff alleged that Mr. Mckesson, at all material times during the July
9th protest, led “the protest and violence that accompanied the protest,” which took
place outside the Baton Rouge Police Department located on A irline Highway, a
heavily traveled public highway. The plaintiff further alleged that BLM and Mr.
Mckesson “staged” the July 9th protest and, during the protest, their followers
engaged in the “blocking of a public highway, looting of a Circle K, throwing of
items stolen and violence towards police.” It was further claimed that the defendants
were in Baton Rouge “for the purpose of demonstrating, protesting and rioting to
incite others to violence against police and other law enforcement officers,” that the
defendants “conspired to violate the law by planning to block a public highway,”
and that they “knew police would be called to clear the public highway of
protestors.”
As stated in the petition, when the highway in front of the police department
was blocked, the Baton Rouge police department “arranged for a front line of
officers in riot gear that formed a shield around officers who were to effectuate
arrests and removal of Defendants from the public highway,” and the plaintiff was
one of the officers de signated to make arrests. The plaintiff also asserted that “the
protest was peaceful until activist[s] began pumping up the crowd,” that Mr.
Mckesson was “in charge of the protests,” and that he was “seen and heard giving
orders throughout the day and nig ht of the protests.” The plaintiff claimed in his
petition that the protest turned into a riot, with protestors hurling full plastic water
bottles at the police officers. The plaintiff further alleged that Mr. Mckesson was
present during the protest, and “he did nothing to calm the crowd and, instead, he
incited the violence on behalf of [BLM].” When the defendants ran out of water
bottles to throw, the plaintiff claimed that a BLM protestor “picked up a piece of

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concrete or similar rock like substance a nd hurled [it] into the police that were
making arrests,” striking the plaintiff in the face and causing him injuries to his teeth,
jaw, brain, and head, along with other compensable losses.
In addition, the plaintiff sets forth in his petition that Alton Sterling’s July 5,
2016 death “started a flurry of activity” by the defendants, who had staged protests
in other cities that “resulted in violence and property damage.” The plaintiff cited
as examples of these other activities, that: on July 7, 2016, Lakeem Keon Scott “shot
at passing car[s] along a Tennessee highway, killing one woman and wounding three
others, including a police officer, while yelling, ‘[P]olice suck! Black lives matter!’”;
and, on July 7, 2016, at a BLM protest in Dallas, Texas, at lea st one sniper shot
twelve police officers (killing five), who had been on duty to keep the peace during
the protest. The plaintiff alleged other similar attacks occurred during protests and
rioting in other locations across the country, and the defendants had taken credit for
the protests and riots, citing Mr. Mckesson’s statement to the New York Times,
following the attack on the plaintiff, that “[t]he police want protesters to be too afraid
to protest,” in addition to indicating that he intended to plan more protests.
In an amended petition, which the plaintiff later sought to file in the federal
district court,
2 he detailed further incidents of violent protests by BLM leading up to
the July 2016 incident in Baton Rouge, including: the April 2015 “Baltimore unrest
and rioting”; the June 2015 “McKinney, Texas unrest”; the August 2015 “Earth City,
Missouri, blocking rush-hour traffic” incident; the August 2015 “Ferguson unrest”;

2 We note that, although the federal district court denied the plaintiff’s motion to amend, it did so
in conjunction with its judgment granting motions to dismiss filed by the defendants, for the failure
to state plausible claims for relief, therefore, the court in essence deemed the amended petition
futile. We summarize the additional allegations presented in the plaintiff’s amended petition since
they were implicitly considered by the certifying court herein, in Doe v. Mckesson, 945 F.3d 818,
828 (5th Cir. 2019), cert. granted, judgment vacated, ___ U.S. ___, 141 S.Ct. 48, 208 L.Ed.2d 158
(2020), discussed hereinafter (wherein the Fifth Circuit reversed the dismissal of Mr. Mckesson
and further concluded that the district court erred in refusing to allow the amendment of the
plaintiff’s petition; in discussing the plaintiff’s amended complaint, the court began with, “The
amended complaint only bolsters these conclusions….”).

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the July 7-8, 2016 BLM marches “through midtown Manhattan and up into Harlem
blocking public highways”; the July 8, 2016 “protest in Nashville, Memphis,
Knoxville and Chattanooga, Tennessee, blocking traffic on a public highway”; the
July 9, 2016 protests on the “1-94 freeway in St. Paul, Minnesota” (during which
police were attacked by protestors with “chunks of concrete, rebar, rocks, bottles,
fireworks and Molotov Cocktails”); and a July 9, 2016 Phoeniz, Arizona rally
(during which “rocks and other objects” were thrown at police, and protestors
shouted to police officers: “We should shoot you!”). It was also alleged that during
the July 9, 2016 Baton Rouge BLM protest, Mr. Mckesson “lead [sic] protestors
down Airline Hwy in an attempt to reach 1-12 to block the interstate” but “OFFICER
JOHN DOE’s squad managed to block the effort of DeRay Mckesson to lead the
protestors to I-12. DeRay Mckesson knew he was in violation of the law and actually
live streamed his arrest.”
Plaintiff also gave further details, in his amended petition, about public
statements made by Mr. Mckesson, in which he represented himself as a BLM leader
and protest organizer, including: with CNN’s Wolfe Blitzer; with FOX’s Sean
Hannity; on Stephen Colbert’s The Late Show; in a Forbes Magazine article titled
“Black Lives Matter Activist DeRay Mckesson Talks Colin K aepernick, Progress
and the Future”; at the Voice of San Diego Politifest; on UPROXX.com; and at the
White House with President Obama; along with the hacking of Mr. Mckesson’s
Twitter account and the public disclosure of Twitter statements between Mr.
Mckesson and other BLM leaders that “specifically showed an intent to use protests
to have ‘martial law’ declared nationwide.”
Based on these allegations in the federal district court, the plaintiff sought
damages for the injuries he sustained at the hands of the BLM protestors, citing La.
C.C. art. 2315 and claiming that the defendants knew or should have known that the
demonstration and riot they staged would become violent and result in serious

5

personal injuries, as other similar protests had become violent and police officers
were assaulted. Also, the plaintiff cited La. C.C. art. 2317, claiming the defendants
are liable for the actions of the BLM protestor who directly caused the injuries at
issue; he also cited La. C.C. art. 2324 in claiming the defendants are liable in solido
for the plaintiff’s injuries, for their intentional actions, and for conspiring to incite a
protest/riot.
In response to the action, motions to dismiss were filed under Federal Rules
of Civil Procedure, Rule 9(a) (asserting there is no authority for Mckesson to be sued
as an agent of BLM) and Rule 12(b)(6) (asserting a failure to state a claim upon
which relief can be granted), both of which the federal district court granted. See
Doe v. Mckesson, 272 F.Supp.3d 841 (M.D. La. 2017). The federal appellate court
ultimately reversed the district court in Doe v. Mckesson , 945 F.3d 818 (5th Cir.
2019), cert. granted, judgment vacated, ___ U.S. ___, 141 S.Ct. 48, 208 L.Ed.2d 158
(2020). Thereafter, the Supreme Court granted a petition for writ of certiorari,
vacated the Fifth Circuit decision, and remanded to that court for further proceedings
consistent with its opinion, reasoning:
The question presented for our review is whether the theory of
personal liability adopted by the Fifth Circuit violates the First
Amendment. When violence occurs during activity protected by the
First Amendment, that provision mandates “ precision of regulation”
with respect to “the grounds that may give rise to damages liability” as
well as “the persons who may be held accountable for those damages.”

[NAACP v.] Claiborne Hardware [Co.], 458 U.S. [886,] at 916-917,
102 S.Ct. 3409[, 73 L.E d.2d 1215 (1982)] (internal quotation marks
omitted). Mckesson contends that his role in leading the protest onto
the highway, even if negligent and punishable as a misdemeanor,
cannot make him personally liable for the violent act of an individual
whose only association with him was attendance at the protest.
We think that the Fifth Circuit’s interpretation of state law is too
uncertain a premise on which to address the question presented. The
constitutional issue, though undeniably important, is implicated only if
Louisiana law permits recovery under these circumstances in the first
place. The dispute thus could be “greatly simplifie[d]” by guidance
from the Louisiana Supreme Court on the meaning of Louisiana law.
Bellotti v. Baird , 428 U.S. 132, 151, 96 S.Ct. 2857, 49 L.Ed.2d 844
(1976).
* * *

6

In exceptional instances … certification is advisable before
addressing a constitutional issue. See Bellotti, 428 U.S. at 151, 96 S.Ct.
2857; Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 212, 80 S.Ct. 1222,
4 L.Ed.2d 1170 (1960). Two aspects of this case, taken together,
persuade us that the Court of Appeals should have certified to the
Louisiana Supreme Court the questions (1) whether Mckesson could
have breached a duty of care in organizing and leading the protest and
(2) whether Officer Doe has alleged a particular risk within the scope
of protection afforded by the duty, provided one exists. See 945 F.3d
at 839 (opinion of Willett, J.).
First, the dispute presents novel issues of state law peculiarly
calling for the exercise of judgment by the state courts. See Lehman
Brothers [v. Schein ], 416 U.S. [386,] at 391, 94 S.Ct. 1741[, 40
L.Ed.2d 215 (1974).] To impose a duty under Louisiana law, courts
must consider “various moral, social, and economic factors, ” among
them “the fairness of imposing liability,” “the historical development
of precedent,” and “the direction in which society and its institutions
are evolving.” Posecai [v. Wal-Mart Stores, Inc.], 752 So.2d [762,]
at 766 [(La. 1999)]. “Speculation by a federal court about” how a state
court would weigh, for instance, the moral value of protest against the
economic consequences of withholding liability “is particularly
gratuitous when the state courts stand willing to address questions of
state law on certification.” Arizonans for Official English v. Arizona, 520 U.S. 43, 79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal
quotation marks and alteration omitted).
Second, certification would ensure that any conflict in this case
between state law and the First Amendment is not purely hypothetical.
The novelty of the claim at issue here only underscores that “[w]arnings
against premature adjudication of constitutional questions bear
heightened attention when a federal court is asked to invalidate a State’s
law.” Ibid. The Louisiana Supreme Court, to be sure, may announce
the same duty as the Fifth Circuit. But under the unusual circumstances
we confront here, we conclude that the Fifth Circuit should not have
ventured into so uncertain an area of tor t law—one laden with value
judgments and fraught with implications for First Amendment rights—
without first seeking guidance on potentially controlling Louisiana law
from the Louisiana Supreme Court. We express no opinion on the
propriety of the Fifth Cir cuit certifying or resolving on its own any
other issues of state law that the parties may raise on remand.

McKesson v. Doe, ___ U.S. ___, 141 S.Ct. 48, 50-51, 208 L.Ed.2d 158 (2020).
On remand, the Fifth Circuit Court of Appeals certified two questions to this
court, stating in pertinent part as follows:
[W]e hereby certify the following determinative questions of law
to the Supreme Court of Louisiana, by which responses we will be
bound for the purposes of this case:
1) Whether Louisiana law recognizes a duty, under the facts
alleged in the complaint, or otherwise, not to negligently precipitate the
crime of a third party?

7

2) Assuming Mckesson could otherwise be held liable for a
breach of duty owed to Officer Doe, whether Louisiana’s Professional
Rescuer’s Doctrine bars recovery under the facts alleged in the
complaint?
* * *
Should the Supreme Court of Louisiana accept our request for
answers to these questions, we disclaim any intention or desire that it
confine its reply to the precise form or scope of the questions certified.
Along with our certification, we transfer this case’s record, our previous
opinion, and the briefs submitted by the parties. We will resolve this
case in accordance with any opinion provided on these questions by the
Supreme Court of Louisiana. Accordingly, the Clerk of this Court is
directed to transmit this certification and request to the Supreme Court
of Louisiana in conformity with the usual practice of this court.

Doe v. Mckesson, 2 F.4th 502, 504 (5th Cir. 2021).
This court accepted the Fifth Circuit’s certification request. Doe v.
McKesson, 21-00929, p. 1 (La. 7/8/21), 320 So.3d 416, 417.
CERTIFIED QUESTION NO. 1: Whether Louisiana law recognizes a duty,
under the facts alleged in the complaint, or otherwise, no t to negligently
precipitate the crime of a third party?

Though later vacated by the Supreme Court, directing certification of the
questions to this court, in Doe v. Mckesson , 945 F.3d at 826 -32, the Fifth Circuit
previously answered the first certified question it now poses to this court, stating in
pertinent part:
[W]e turn to Officer Doe’s negligence theory. Officer Doe
alleges that Mckesson was negligent for organizing and leading the
Baton Rouge demonstration because he “knew or should have known”
that the demonstration would turn violent. We agree as follows.
Louisiana Civil Code article 2315 provides that “[e]very act
whatever of man that causes damage to another obliges him by whose
fault it happened to repair it.” The Louisiana Supreme Court has
adopted a “duty -risk” analysis for assigning tort liability under a
negligence theory. This theory requires a plaintiff to establish that (1)
the plaintiff suffered an injury; (2) the defendant owed a duty of care to
the plaintiff; (3) the duty was breached by the defendant; (4) the
conduct in question was the cause-in-fact of the resulting harm; and (5)
the risk of harm was within the scope of protection afforded by the duty
breached. Lazard v. Foti, 859 So.2d 656, 659 (La. 2003). Whether a
defendant owes a plaintiff a duty is a question of law. Posecai v. Wal-
Mart Stores, Inc. , 752 So.2d 762, 766 (La. 1999); see Bursztajn v.
United States, 367 F.3d 485, 489 (5th Cir. 20 04) (“Under Louisiana
law, the existence of a duty presents a question of law that ‘varies
depending on the facts, circumstances, and context of each case and is
limited by the particular risk, harm, and plaintiff involved.’” (quoting

8

Dupre v. Chevron U.S. A., Inc., 20 F.3d 154, 157 (5th Cir. 1994))).
There is a “universal duty on the part of the defendant in negligence
cases to use reasonable care so as to avoid injury to another.” Boykin
v. La. Transit Co., 707 So.2d 1225, 1231 (La. 1998). Louisiana courts
elucidate specific duties of care based on consideration of
various moral, social, and economic factors, including the
fairness of imposing liability; the economic impact on the
defendant and on similarly situated parties; the need for an
incentive to prevent future harm; the nature of defendant’s
activity; the potential for an unmanageable flow of
litigation; the historical development of precedent; and the
direction in which society and its institutions are evolving.
Posecai, 752 So.2d at 766.
We first note that this case comes before us from a dismissal on
the pleadings alone. In this context, we find that Officer Doe has
plausibly alleged that Mckesson breached his duty of reasonable care
in the course of organizing and leading the Baton Rouge demonstration.
The complaint alleges that Mckesson planned to block a public
highway as part of the protest. And the complaint specifically alleges
that Mckesson was in charge of the protests and was seen and heard
giving orders throughout the day and night of the protests. Blocking a
public highway is a criminal act under Louisiana law. See La. Rev.
Stat. Ann. § 14:97. Indeed, the complaint alleges that Mckesson
himself was arrested during the demonstration. It was patently
foreseeable that the Baton Rouge police would be required to respond
to the demonstration by clearing the highway and, when necessary,
making arrests. Given the intentional lawlessness of this aspect of the
demonstration, Mckesson should have known that leading the
demonstrators onto a busy highway was likely to provoke a
confrontation between police and the mass of demonstrators, yet he
ignored the foreseeable danger to officers, bystanders, and
demonstrators, and notwithstanding, did so anyway.
By ignoring the foreseeable risk of viol ence that his actions
created, Mckesson failed to exercise reasonable care in conducting his
demonstration. This is not, as the dissenting opinion contends, a “duty
to protect others from the criminal activities of third persons.” See
Posecai, 752 So.2d at 766. Louisiana does not recognize such a duty.
It does, however, recognize a duty not to negligently cause a third party
to commit a crime that is a foreseeable consequence of negligence. See
Brown v. Tesack , 566 So.2d 955 (La. 1990). The former mea ns a
business owner has no duty to provide security guards in its parking lot
if there is a very low risk of crime. See Posecai, 752 So.2d at 770. The
latter means a school can be liable when it negligently disposes of
flammable material in an unsecured dumpster and local children use the
liquid to burn another child. See Brown, 566 So.2d at 957. That latter
rule applies here too: Mckesson owed Doe a duty not to negligently
precipitate the crime of a third party. And a jury could plausibly find
that a violent confrontation with a police officer was a foreseeable
effect of negligently directing a protest.
Officer Doe has also plausibly alleged that Mckesson’s breach of
duty was the cause -in-fact of Officer Doe’s injury and that the injury
was within the scope of the duty breached by Mckesson. It may have
been an unknown demonstrator who threw the hard object at Officer

9

Doe, but by leading the demonstrators onto the public highway and
provoking a violent confrontation with the police, Mckesson’s
negligent actions were the “but for” causes of Officer Doe’s injuries.
See Roberts v. Benoit, 605 So.2d 1032, 1052 (La. 1992) (“To meet the
cause-in-fact element, a plaintiff must prove only that the conduct was
a necessary antecedent of the accident, that is, bu t for the defendant’s
conduct, the incident probably would not have occurred.”).
Furthermore, as the purpose of imposing a duty on Mckesson in this
situation is to prevent foreseeable violence to the police and bystanders,
Officer Doe’s injury, as alleged in the pleadings, was within the scope
of the duty of care allegedly breached by Mckesson.
The amended complaint only bolsters these conclusions. It
specifically alleges that Mckesson led protestors down a public
highway in an attempt to block the interstate. The protestors followed.
During this unlawful act, Mckesson knew he was in violation of law
and livestreamed his arrest. Finally, the plaintiff’s injury was suffered
during this unlawful action. The amended complaint alleges that it was
during this struggle of the protestors to reach the interstate that Officer
Doe was struck by a piece of concrete or rock- like object. It is an
uncontroversial proposition of tort law that intentionally breaking, and
encouraging others to break, the law is relevan t to the reasonableness
of one’s actions.
We iterate what we have previously noted: Our ruling at this
point is not to say that a finding of liability will ultimately be
appropriate. At the motion to dismiss stage, however, we are simply
required to decide whether Officer Doe’s claim for relief is sufficiently
plausible to allow him to proceed to discovery. We find that it is.
* * *
…The district court erred by dismissing Officer Doe’s
complaint—at the pleading stage —as barred by the First Amendment.
We emphasize that this means only that, given the facts that Doe
alleges, he could plausibly succeed on this claim. We make no
statement (and we cannot know) whether he will.

(Footnotes omitted.)
We find this recitation of the law by the Fifth Circuit both relevant to the first
certified question posed to this court and an accurate summary of the pertinent
Louisiana law on this issue. Under the allegations of fact set forth in the plaintiff’s
federal district court petition, it could be found that Mr. Mckesson’s actions, in
provoking a confrontation with Baton Rouge police officers through the commission
of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to
public safety), directly in front of police headquarters, with full knowledge that the
result of similar actions taken by BLM in other parts of the country resulted in
violence and injury not only to citizens but to police, would render Mr. Mckesson

10

liable for damages for injuries, resulting from these activities, to a police officer
compelled to attempt to clear the highway of the obstruction. Louisiana’s Civil Code
Article 2315 requires that “[ e]very act whatever of man that causes damage to
another obliges him by w hose fault it happened to repair it.” (Emphasis added.)
Louisiana law would give the plaintiff an opportunity to prove the allegations made
at trial, since “[i]n ruling on an exception raising the objection of no cause of action,
the court must determine whether the law affords any relief to the claimant if he
proves the factual allegations in the petition at trial” and “[a]ny reasonable doubt
concerning the sufficiency of the petition must be resolved in favor of finding that a
cause of action has been s tated.” See United Teachers of New Orleans v. State
Board of Elementary & Secondary Education , 07-0031, p. 9 (La. App. 1 Cir.
3/26/08), 985 So.2d 184, 193.
CERTIFIED QUESTION NO. 2: Assuming Mckesson could otherwise be held
liable for a breach of duty owed to Officer Doe, whether Louisiana’s
Professional Rescuer’s Doctrine bars recovery under the facts alleged in the
complaint?

“The professional rescuers rule … essentially states that a professional
rescuer, such as a fireman or a policeman, who is injured in the performance of his
duties, ‘assumes the risk’ of such an injury and is not entitled to damages.” Worley
v. Winston, 550 So.2d 694, 696 (La. App. 2 Cir.), writ denied, 551 So.2d 1342 (La.
1989). Prior to the enactment of pure comparative fault in Louisiana, 3 via the
amendments to La. C.C. art. 2323 by 1996 La. Acts, 1st Ex. Sess, No. 3, a
rudimentary form of the common-law Professional Rescuer’s Doctrine4 (though not

3 By means of 1996 La. Acts, 1st Ex. Sess., No. 3, “the legislature … amended La. C.C. arts. 2323
and 2324(B) … to abolish solidary liability among non -intentional tortfeasors and to place
Louisiana in a pure comparative fault system.” Dumas v. State ex rel. Department of Culture,
Recreation & Tourism , 02- 0563, p. 9 (La. 10/15/02), 828 So.2d 530, 535. See also Hall v.
Brookshire Brothers , 02- 2404, p. 16 (La. 6/27/03), 848 So.2d 559, 569 (“In 1996 … the
legislature enacted a system of pure comparative fault in Louisiana.”). “[T]he 1996 legislation …
extended the comparative fault principles to virtually all at- fault actors.” Frank L. Maraist et al.,
Answering A Fool According to His Folly: Ruminations on Comparative Fault Thirty Years on,
70 La. L. Rev. 1105, 1132 (2010).

4 “Louisiana courts appear simply to have borrowed the assumption of risk doctrine from the

11

so-called) was considered by this court in Briley v. Mitchell, 238 La. 551, 115 So.2d
851 (1959), and Langlois v. Allied Chemical Corporation , 258 La. 1067, 1070,
249 So.2d 133 (1971). Similar results were reached in the plaintiff’s favor in both
the Briley and the Langlois cases, which held that the plaintiff/professional rescuers
were not precluded from recovering damages for injuries against a tortfeasor, who
was strictly liable, under the law existing at the time of the tort, for a hazard in his
custody (in the former, a wild animal and, in the latter, a hazardous chemical).
In Langlois, this court recognized that “[u]sually, the assumption of risk
doctrine will apply where the nature of the relationship of the parties appears to exact
consent from the one injured to be exposed to possible harm. In such situations the
plaintiff understands the risk involved and accepts the risk as well as the inherent
possibility of damage because of the risk. … A plaintiff who with full knowledge
and appreciation of the danger voluntarily exposes himself to the risks and embraces
the danger cannot recover damages for injury which may occur.” Langlois, 258 La.
at 1086, 249 So.2d at 140 (emphasis added). This court further held: “We must
examine the plaintiff’s appreciation and knowledge of the risks, his ability to avoid
or minimize the risks, and whether he has consented to encounter the risk. The
interests of the parties must be balanced. Plaintiff is not required to surrender
valuable rights and privileges because defendant’s conduct threatens him. Yet if the
plaintiff could readily avoid or mitigate the damage caused by defendant’s conduct
and he knows how to do so, he cannot act in such a manner as to invite injury.” Id.,
258 La. at 1086 -87, 249 So.2d at 141 (emphasis added). In Langlois, this court
specifically pointed out that the defendant/tortfeasor was not the party being rescued.
The Langlois court recognized that “[a]ny voluntariness on the part of [the

common law.” Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1130 (La. 1988) . The
Professional Rescue’s Doctrine is a type of assumption of the risk. Beaupre v. Pierce County ,
161 Wash.2d 568, 576, 166 P.3d 712, 717 (2007).

12

plaintiff/firefighter] could only be found if we assume a waiver because he became
a fireman,” it also recognized that “[f]iremen, police officers, and others who in their
professions of protecting life and property necessarily endanger their safety do not
assume the risk of all injury without recourse against others.” Langlois, 258 La.
at 1087-88, 249 So.2d at 141 (citing Briley v. Mitchell, 238 La. 551, 115 So.2d 851
(1959)) (emphasis added). The court found that the plaintiff had “acted in response
to duty, and his exposure to the risk in line with that duty was minimal,” however,
he “did not embrace a known danger with that co nsent required by law to bar his
recovery for defendant’s fault.”
5 Id., 258 La. at 1088-89, 249 So.2d at 141.
Notwithstanding, it has been posited that the Professional Rescuer’s Doctrine
is no longer viable in Louisiana in light of this court’s decision in Murray v.
Ramada Inns, Inc., and the amendments to La. C.C. art. 2323(A) by 1996 La. Acts,
1st Ex. Sess, No. 3, enacting pure comparative fault in Louisiana and resulting in its
current provisions, directing:
In any action for damages where a person suffers injury, death, or loss,
the degree or percentage of fault of all persons causing or contributing
to the injury, death, or loss shall be determined, regardless of whether
the person is a party to the action or a nonparty, and regardless of the
person’s insolvency, ability to pay, immunity by statute, including but
not limited to the provisions of R.S. 23:1032, or that the other person’s
identity is not known or reasonably ascertainable. If a person suffers
injury, death, or loss as the result partly of his own negligence and
partly as a result of the fault of another person or persons, the amount
of damages recoverable shall be reduced in proportion to the degree or
percentage of negligence attributable to the person suffering the injury,
death, or loss.

(Emphasis added.) In addition, as amended by Act No. 3, Paragraph (B) of 2323
now states: “The provisions of Paragraph A shall apply to any claim for recovery
of damages for injury, death, or loss asserted under any law or legal doctrine or
theory of liability, regardless of the basis of liability.” (Emphasis added.)

5 Prior to this court’s decision in Murray v. Ramada Inns, Inc., 521 So.2d at 1133, assumption
of risk was a defense that, if proven, totally barred a plaintiff’s recovery of damages.

13

Even prior to the enactment of 1996 La. Act (1st Ex. Sess.) No. 3, this court
in Murray v. Ramada Inns, Inc., interpreting the previous version of Article 2323,
held that in view of th e legislative adoption of comparative fault the
jurisprudentially-borrowed common law doctrine of assumption of risk no longer
had a place in Louisiana tort law. Murray v. Ramada Inns, Inc. , 521 So.2d at
1132. In so holding, this court reasoned that if the Legislature had intended to
preserve the defense as a total bar to recovery, it could have easily and expressly
stated that intention in Article 2323; however, there is no doubt that the Legislature
intended by its amendment of Article 2323 to eliminate contributory negligence as
a complete bar to recovery and to make comparative fault applicable to those cases
in which the plaintiff’s conduct may result in a reduction of recovery. Murray, 521
So.2d at 1133. Beyond that clearly expressed intention, this court further observed
that the Legislature left the “tough details, ” regarding the scope and application of
Article 2323, “for the courts to decide.” Id. The Murray court concluded that “the
survival of assumption of risk as a total bar to recovery would be inconsistent with
[A]rticle 2323’s mandate that contributory negligence should no longer operate as
such a bar to recovery.” Id.
Despite Murray’s general abrogation of the application of assumption of risk
in Louisiana tort cases, this court therein excepted from its ruling those cases “where
the plaintiff, by oral or written agreement, expressly waives or releases a future right
to recover damages from the defendant,” if “no public policy concerns would
invalidate such a waiver (see also La. Civil Code art. 2004), the plaintiff’s right to
recover damages may be barred on a release theory,” and “in the sports spectator or
amusement park cases (common law’s “implied primary” assumption of risk
cases).” Murray, 521 So.2d at 1134. However, Murray expressed the view that in
each of these two exceptions, the better analysis would, in the former, to have been
by “[a]pplying duty/risk analysis to this situation, it can be concluded that the

14

defendant has been relieved by contract of the duty that he otherwise may have owed
to the plaintiff,” and in the latter to “rather than relying on the fiction that the
plaintiffs in such cases implicitly consented to their injuries, the sounder reasoning
is that the defendants were not liable because they did not breach any duty owed to
the plaintiffs.”6 Id. Even in stating the exceptions to its abrogation of assumption
of risk, Murray instructs that the better analysis is under the duty/risk analysis o f
comparative fault.
We note that Murray made no express exception relative to the Professional
Rescuer’s Doctrine, which is based on an implied (not express) assumption of risk.
Also, though the Louisiana Legislature has enacted statutes to bar some pla intiffs’
recovery, which may be said to modify the pure comparative fault now set forth in
La. C.C. 2323 and to statutorily deny recovery to such plaintiffs based on their own
“specified risky or blameworthy conduct or activities” (see Frank L. Maraist et al.,
supra at 1132- 35), no such statute has been cited to this court codifying the
Professional Rescuer’s Doctrine. 7 Thus, neither this court, nor this state’s

6 Murray, 521 So.2d at 1134-35, further explained:

For example, in the classical baseball spectator setting, the case for
negligence may often fall short on the question of whether the defendant breached
a duty owed to the plaintiff. While a stadium operator may owe a duty to spectators
to provide them with a reasonably safe area from which they can watch the game,
it is generally not considered reasonable to require the stadium operator to screen
all spectator areas from flying baseballs. Even while applying assumption of risk
terminology to these types of cases, courts have simultaneously recognized that the
defendant was not negligent because his conduct vis -a-vis the plaintiff was not
unreasonable. See Lorino v. New Orleans Baseball & Amusement Co., 16 La.
App. [95,] at 96, 133 So. [408,] at 408 [(La. App. Orl. 1931)] (“It is well known ...
that it is not possible ... for the ball to be kept at all times within the confines of the
playing field.”) On the other hand, the failure to protect spectator areas into which
balls are frequently hit, such as the area behind home plate, might well constitute a
breach of duty. These types of cases will turn on their particular facts and may be
analyzed in terms of duty/risk. The same analysis applies in other cases where it
may not be reasonable to require the defendant to protect the plaintiff from all of
the risks associated with a particular activity. ...

7 See, e.g., La. R.S. 9:2798.4 (denying tort recovery to one injured while “ operating a motor
vehicle, aircraft, watercraft, or vessel” with a “blood alcohol concentration of 0.08 percent or more
by weight based on grams of alcohol per one hundred cubic centimeters of blood” or “while he
was under the influence of any controlled dangerous substance described in R.S. 14:98(A)(1)(c)
or R.S. 40:964”); La. R.S. 9:2800.10 (denying tort recovery to one injured while perpetrating “a
felony offense during the commission of the offense or while fleeing the scene of the offense ”);

15
legislature, has deemed it appropriate to recognize an express exception for the
Professional Rescuer’s Doctrine to Murray’s abrogation of assumption of risk or
La. C.C. 2323’s mandate of pure comparative fault in this state.
Accordingly, we answer the Fifth Circuit Court of Appeals’ second certified
question: In view of the current directive of La. C.C. art. 2323 that “[i]n any action
for damages where a person suffers injury, death, or loss, the degree or percentage
of fault of all persons causing or contributing to the injury, death, or loss shall be
determined…” (emphasis added) and this court’s holding in Murray v. Ramada
Inns, Inc. , 521 So.2d 1123, 1132 (La. 1988), abrogating assumption of risk, we
conclude that the Professional Rescuer’s Doctrine has likewise been abrogated in
Louisiana both legislatively and jurisprudentially.
DECREE
We have answered the certified questions as set forth in this opinion. Pursuant
to Rule XII, Supreme Court of Louisiana, the judgment rendered by this court upon
the questions certified shall be sent by the clerk of this court under its seal to the
United States Court of Appeals for the Fifth Circuit and to the parties.
La. R.S. 14:19 (denying tort recovery against a person to one injured while committing “a forcible
offense against the person or a forcible offense or trespass against property in a person’s lawful
possession, provided that the force or violence used must be reasonable and apparently necessary
to prevent such offense”); La. R.S. 14:63(H) (denying tort recovery to one injured while entering
a “structure, wat ercraft, movable or immovable property without express, legal or implied
authorization, or who without legal authorization, remains upon the structure, watercraft, movable
or immovable property after being forbidden by the owner, or other person with authority to do
so” unless resulting from “the intentional acts or gross negligence of the owner, lessee or
custodian”).

SUPREME COURT OF LOUISIANA
NO. 2021-CQ-00929
OFFICER JOHN DOE, POLICE OFFICER
VS.
DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES
MATTER NETWORK, INCORPORATED
ON CERTIFIED QUESTION FROM THE
UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT
WEIMER, C.J., concurring.
I respectfully concur, adopting a slightly different analytical approach to the
questions posed. In doing so, I recognize and emphasize that this court’s role in
addressing a certified question is to respond to the question posed by the federal court
and not to decide the underlying case. The fact-intensive analysis to ultimately
decide this case is left for the federal court where this matter is pending. That being
said, with respect to the certified questions presented, I offer the following.
Certified Question No. 1: Whether Louisiana law recognizes a duty, under
the facts alleged in the complaint, or otherwise, not to negligently precipitate the
crime of a third party?
In Louisiana, the foundation of any delictual action lies in Louisiana Civil
Code article 2315, which provides: “Every act whatever of man that causes damage
to another obliges him by whose fault it happened to repair it.” Louisiana Civil Code
article 2316 similarly provides: “Every person is responsible for the damage he
occasions not merely by his action, but by his negligence, his imprudence, or his want
of skill.” This foundational basis for tort liability in Louisiana creates a broad
obligation on everyone to act with reasonable care to avoid injury to another. Boykin
v. La. Transit Co., Inc., 96-1932, p. 10 (La. 3/4/98), 707 So.2d 1225, 1231.
03/25/22

In applying La. C.C. art. 2315 to a specific factual situation, Louisiana courts
utilize the duty-risk analysis which requires a plaintiff to prove five elements: (1)
defendant had a duty to conform his conduct to a specific standard (the duty element);
(2) defendant’s conduct failed to conform to the applicable standard (the breach
element); (3) defendant’s substandard conduct was a cause-in-fact of plaintiff’s
injuries (the cause-in-fact element); (4) defendant’s substandard conduct was a legal
cause of plaintiff’s injuries (the scope of the duty element); and (5) actual damages.
Boykin, 96-1932 at 8, 707 So.2d at 1230. If a plaintiff fails to prove any one of the
five elements, a defendant is not liable. Id.
While Article 2315 creates broad accountability for fault, the “duty” inquiry
can narrow the scope of potential liability and financial responsibility. Thus, the
threshold inquiry in a negligence action is whether the defendant owed the plaintiff
a duty. Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La. 11/30/99), 752 So.2d
762, 766.1 This is a policy-driven decision that considers various moral, social, and
economic factors. Id. Relevant factors in determining the existence of a duty include
“the fairness of imposing liability; the economic impact on the defendant and on
similarly situated parties; the need for an incentive to prevent future harm; the nature
of defendant’s activity; the potential for a unmanageable flow of litigation; the
historical development of precedent; and the direction in which society and its
institutions are evolving.” Id.
The factors outlined by this court in Posecai and other cases weigh in favor of
finding a general duty exists “not to negligently precipitate the crime of a third party.”
1 Specific duties can arise from codal, statutory, administrative and local laws, as well as private
contracts and custom. See Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331, 1334 (La.
1978); see also Reynolds v. Bordelon, 14-2362, pp. 7-8 (La. 6/30/15), 172 So.3d 589, 595-596. The
parties have not cited, nor have we found, any specific codal, statutory, administrative or local law
that addresses the duty at issue here.
2

An analysis of these factors leads to the conclusion: (1) the imposition of a duty is a
matter of fundamental fairness, as the potential for civil liability for a “negligent
precipitator” may deter future negligent conduct; (2) the imposition of a duty places
the economic loss on the “negligent precipitator” rather than on the injured victim;
(3) the imposition of a duty on a “negligent precipitator” of the crime of a third party
may prevent future harm; and (4) the “negligent precipitator” is better positioned to
analyze the risks involved in the conduct at issue and, thus, take precautions to avoid
them or to insure against them. These policy considerations, independently and
collectively, support recognition of a broad duty not to “negligently precipitate the
crime of a third party.”
Certified Question No. 2: Assuming Mckesson could otherwise be held liable
for a breach of duty owed to Officer Doe, whether Louisiana’s Professional Rescuer’s
Doctrine bars recovery under the facts alleged in the complaint.
The Professional Rescuer’s Doctrine is a jurisprudential rule which provides
that “a professional rescuer, such as a fireman or a policeman, who is injured in the
performance of his duties, ‘assumes the risk’ of such an injury and is not entitled to
damages.” Gann v. Matthews, 03-640, pp. 5-6 (La.App. 1 Cir. 2/23/04), 873 So.2d
701, 705. However, there are exceptions to this rule, as explained in Gann:
A professional rescuer may recover for an injury caused by a risk that is
independent of the emergency or problem he has assumed the risk to
remedy. A risk is independent of the task, and the assumption of the risk
rationale does not bar recovery, if the risk-generating object could pose
the risk to the rescuer in the absence of the emergency or specific
problem undertaken. On the other hand, “dependent” risks arise from
the very emergency that the professional rescuer was hired to remedy.
The assumption rationale bars recovery from most dependent risks
except when (1) the dependent risks encountered by the professional
rescuer are so extraordinary that it cannot be said that the parties
intended rescuers to assume them, or (2) the conduct of the defendant
may be so blameworthy that tort recovery should be imposed for the
purposes of punishment or deterrence.
3

Gann, 03-640 at 6, 873 So.2d at 705.
While historically discussed in terms of assumption of the risk, the Professional
Rescuer’s Doctrine is more appropriately understood in terms of comparative fault
and duty-risk. See La. C.C. art. 2323.2 See also Worley v. Winston, 550 So.2d 694,
697 (La.App. 2 Cir. 1989) (citing Murray v. Ramada Inns, Inc., 521 So.2d 1123
(La. 1988)).
More precisely, the rule comes in to play in determining the risks
included within the scope of the defendant’s duty and to whom the duty
is owed. It might be said that a defendant’s ordinary negligence or
breach of duty does not encompass the risk of injury to a police officer
or fireman responding in the line of duty to a situation created by such
negligence or breach of duty. A defendant’s particularly blameworthy
conduct, especially intentional criminal conduct, does encompass the
risk of injury to a policeman or fireman responding in the line of duty.
Worley, 550 So.2d at 697.
The Professional Rescuer’s Doctrine has not been abrogated. Its parameters,
and the considerations inherent in the doctrine as outlined above, may be applied by
the federal court to the specific facts of this case to determine Mckesson’s liability,
or lack thereof, under those facts.
Finally, I wish to point out that this court is deferring to the federal court the
determination of whether Mckesson benefits from protections afforded by the First
Amendment. See NAACP v. Claiborne Hardware Co., 458 U.S. 888 (1982). I
2 La. C.C. art. 2323(A) provides:
In any action for damages where a person suffers injury, death, or loss, the
degree or percentage of fault of all persons causing or contributing to the injury,
death, or loss shall be determined, regardless of whether the person is a party to the
action or a nonparty, and regardless of the person’s insolvency, ability to pay,
immunity by statute, including but not limited to the provisions of R.S. 23:1032, or
that the other person’s identity is not known or reasonably ascertainable. If a person
suffers injury, death, or loss as the result partly of his own negligence and partly as
a result of the fault of another person or persons, the amount of damages recoverable
shall be reduced in proportion to the degree or percentage of negligence attributable
to the person suffering the injury, death, or loss.
4

would note, incidentally, that Louisiana’s protection of First Amendment rights is at
least co-extensive with federal rights. See La. Const. art. 1, § 7; State v. Franzone,
384 So.2d 409, 411 (La. 1980).
5

SUPREME COURT OF LOUISIANA
NO
. 2021-CQ-00929
OFFICER JOHN DOE, POLICE OFFICER
VE
RSUS
DE
RAY MCKESSON, ET AL.
O
n Certified Question from the United States Court of Appeals for the Fifth Circuit
G
enovese, J., additionally concurs in the result and assigns reasons:
W hile I agree with the result in this Court’s decision, I write separately to
express my response to these two certified questions.
An swer to Question No. 1:
L ouisiana tort law is governed by La. C.C. art. 2315 1 and a duty/risk analysis.2
If the facts alleged in the complaint are proven at trial and the requirements of the
duty/risk analysis are met, then yes, there can be a duty owed.
Answer to Question No. 2:
No. T he Professional Rescuer Doctrine does not bar recovery under
Louisiana law.3
1 La. C.C. art. 2315(A) provides that “[e]very act whatever of man that causes damage to another
obliges him by whose fault it happened to repair it.”
2 The standard negligence analysis Louisiana courts employ in determining whether to impose
liability under La. C.C. art. 2315 is the duty/risk analysis, which consists of the following four -
prong inquiry: (1) was the conduct in question a substantial factor in bringing about the harm to
the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) did the defendant(s) owe
a duty to the plaintiff? (3) was the duty breached? and, (4) was the risk, and harm caused, within
the scope of protection afforded by the duty breached? Rando v. Anco Insulations Inc., 08-1163,
p. 26 (La. 5/22/09), 16 So.3d 1065, 1085-86 ( citing Mathieu v. Imperial Toy Corp., 94-0952 (La.
11/30/94), 646 So.2d 318, 321-22). All four inquiries must be affirmatively answered for a
plaintiff to recover. Id., 08-1163, p. 26, 16 So.3d at 1086.
3 Notably, in Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1124 (La. 1988), discussed extensively
in the majority opinion, the United States Court of Appeals for the Fifth Circuit certified a question
to this Court: “Does assumption of risk serve as a total bar to recovery by a plaintiff in a negligence
case, or does it only result in a reduction of recovery under the Louisiana comparative negligence
statute [La. C.C. art. 2323]?” This Court responded that “the common law doctrine of assumption
of risk no longer has a place in Louisiana tort law. ” Id. at 1132; see also, Worley v. Winston, 550
So.2d 694, 697 (La. App. 2nd Cir. 1989)(citing Murray, 521 So.2d 1123)(“While the professional
rescuers rule . . . has traditionally been discussed in terms of assumption of risk, under current
Louisiana tort theory the rule should, perhaps, be couched in terms of comparative fault or
duty/risk.”).
03/25/22

SUPREME COURT OF LOUISIANA
No. 2021-CQ-00929
OFFICER JOHN DOE, POLICE OFFICER
VS.
DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES
MATTER NETWORK, INCORPORATED
On Certified Question from the United States
CRAIN, J. concurs in part and assigns reasons.
I agree with the result reached by the majority regarding “duty.” I write
separately to clarify why I believe Louisiana law recognizes potential liability for
the negligent precipitation of a crime of a third party. This certified question requires
scrutiny of two elements of a tort claim: 1) duty, a purely legal question based on
broad policy considerations; and 2) scope of the duty, a mixed question of law and
fact that depends on the circumstances of each case.1 The line between these distinct
elements is often blurred.
Applicable Law
Under the traditional duty-risk analysis applicable to negligence claims, a
plaintiff must prove five elements: (1) the defendant had a duty to conform
his conduct to a specific standard ( the duty element); (2) the defendant’ s conduct
failed to conform to the applicable standard (the breach element); (3) the defendant’s
substandard conduct was a cause-in-fact of the plaintiff’ s injuries (the cause -in-
fact element); (4) the defendant’ s substan dard conduct was a legal cause of the
plaintiff’s injuries ( the scope of the duty element); and (5) actual damages (the
1 The scope of the duty element has also been referred to in terms of “scope of liability,” “scope
of the risk,” “breach of the legal cause,” “legal cause,” and “proximate cause.”
03/25/22

2

damages element). See Lemann v. Essen Lane Daiquiris, Inc., 05–1095, p. 7 (La.
3/10/06), 923 So.2d 627, 633. If a plaintiff fails to prove any one of the
five elements, a defendant is not liable. Id. Answering the certified question before
us requires that we analyze the first and fourth elements.
The starting point for determinin g whether a duty exists is Louisiana Civil
Code article 2315, which provides, “Every act whatever of man that causes damage
to another obliges him by whose fault it happened to repair it.” Similarly, Louisiana
Civil Code article 2316 provides, “Every pers on is responsible for the damage he
occasions not merely by his act, but by his negligence, his imprudence, or his want
of skill.” This foundational basis for tort liability in Louisiana creates a broad
obligation on everyone to act with reasonable care to avoid injury to another. Boykin
v. Louisiana Transit Co., Inc., 96-1932 (La. 3/4/98), 707 So.2d1225, 1231.
More specific duties can also arise from other codal, statutory, administrative
and local laws, as well as private contracts. See Ardoin v. Hartfor d Acc. & Indem.
Co., 360 So. 2d 1331, 1334 (La. 1978). When a duty arises from a public source of
law, the enacting body has recognized, as a matter of public policy, a duty to act or
not act in a certain manner. See Boyer v. Johnson, 360 So. 2d 1164, 1169 (La. 1978)
(because statute satisfied the duty element, analysis of the statutory violation was at
the scope of the duty stage to determine whether the statute was designed to protect
particular plaintiff from particular type of harm); See Lazard v. Foti, 02-2888 (La.
10/21/03), 859 So. 2d 656, 660 -61, quoting Hill v. Lundin & Assoc., 260 La. 542,
256 So. 2d 620, 622 (1972) (“Where the rule of law upon which a plaintiff relies for
imposing a duty is based on a statute, the court attempts to interpret legislative intent
as to the risk contemplated by the legal duty, which is often a resort to the court’ s
own judgment of the scope of protection intended by the legislature.”)
Absent a duty from a public source of law, there are limits to liability where
the courts will not recognize certain torts. Reynolds v. Bordelon , 14-2362 (La.

3

6/30/15), 172 So. 3d 589, 595. While Article 2315 creates broad accountability for
fault, the “duty” inquiry can narrow the scope of potential liability and financial
responsibility. It contemplates whether an entire category of defendants should be
excluded from liability. Reynolds, 172 So.3d 589. This is a policy-driven decision
that considers various moral, soci al, and economic factors. Posecai v. Wal -Mart
Stores, Inc., 752 So. 2d 762, 766 (La. 1999). These policy considerations can compel
a court to make a categorical “no duty” rule regarding certain acts or actors . Id.
Structuring the duty inquiry broadly allows a court to determine whether Louisiana
will exclude liability as to “whole categories of claimants” or “of claims under any
circumstances.”2 Frank L. Maraist & Thomas C. Galligan, Jr., 1 Louisiana Tort Law
§ 5.02[5] (2020) , citing Pitre v. La. Tech Univ., 673 So. 2d 585, 596 (La. 1996)
(Lemmon, J., concurring). Examples where Louisiana courts have found no duty at
this broad categorical level are: Reynolds, 172 So.3d 589 (no duty to prevent
negligent spoliation of evidence); and Carrier v. City of Amite , 10 -0007 (La.
10/19/10), 50 So. 3d 1247, 1249 (no duty for retailer to fit a helmet to customer at
point of sale). Categorical rejection of civil tort liability for classes of acts or actors
by finding no duty is rare.
In contrast, when the question presented is whether a stated duty will be
extended to support liability for a particular circumstance, analysis of the
defendant’s conduct should be in terms of the scope of the duty. See Louisiana Tort
Law at § 5.02[7]. The question is, “should this plaintiff recover from this defendant
for these particular damages that arose in this particular manner?” Id. at § 3.05. This
inquiry is fact-specific. Id. The scope of the duty is generally not a policy question;
it is a matter of common sense, justice and fairness. Id. at 5.02[7]. At this stage of
the analysis, foreseeability and ease of association of the injury are relevant

2 The context for the use of “claimants” in this quote is to claimants of the no -duty defense; i.e.,
defendants argued no duty existed in defense against a plaintiff’s claim.

4

considerations. Hill, 256 So. 2d at 622, citing Prosser, Law of Torts (3rd ed. 1964),
282. The concept of “ease of association” asks how easily the risk of injury to the
plaintiff can be associated with the duty sought to be enforced. Hill,
supra. “Restated, the ease of association inquiry is simply: ‘ How easily d oes one
associate the plaintiff’ s complained -of harm with the defe ndant’s conduct? ...
Although ease of association encompasses the idea of foreseeability, it is not based
on foreseeability alone.’” Roberts v. Benoit, 605 So. 2d 1032, 1045 (La. 1991), on
reh’g (May 28, 1992).
It is important to separate the duty and scope of the duty questions because
each has considerations unique to itself. 3, 4 Whether a duty exists is a question of
law. Faucheaux v. Terrebonne Consolidated Government, 92-0930 (La.3/25/93),
615 So.2d 289, 292. The scope of the duty presents a mixed question of fact and law.
Parents of Minor Child v. Charlet, 13-2879, p. 6 (La. 4/4/14), 135 So.3d 1177, 1181.
The Certified Question
We accepted the following certified question from the Fifth Circuit: “ 1)
Whether Louisiana law recognizes a duty, under the facts alleged in the complaint,
or otherwise, not to negligently precipitate the crime of a third party?” Because the
threshold element of “duty” is analyzed at the categorical level, I believe the certified
question should be framed more broadly to both respond to the federal court and to
be consistent with Louisiana law.5 The more pertinent question is: “Does a protest

3 Notably, in Mckesson v. Doe, 141 S. Ct. 48, 51, 208 L. Ed. 2d 158 (2020) , the United States
Supreme Court framed the question as a two-part inquiry, with the broader duty distinct from the
narrower scope of that duty. In remanding to the Fifth Circuit, the Supreme Court stated the
following questions should be certified, “(1) Whether Mckesson could have breached a duty of
care in organizing and leading the protest and (2) whether Officer Doe has alleged a particular risk
within the scope of protection afforded by the duty, provided one exists.”

4 See Lazard, 859 So. 2d at 660, where elements were well defined and analyzed separately. See
also Morris v. Orleans Par. Sch. Bd., 553 So. 2d 427, 429 (La. 1989).

5 The certified question expressly contemplates reframing, stating, “Should the Supreme Court of
Louisiana accept our request for answers to these questions, we disclaim any intention or desire
that it confine its reply to the precise form or scope of the questions certified.”

5

organizer have a duty to use reasonabl e care so that the protest is conducted in a
lawful manner?”6
Duty
The parties have not cited, nor have we found, any specific codal, statutory,
administrative or local law that addresses the duty applicable to this case.
Consequently, starting with the foundational basis for tort liability in Louisiana,
Article 2315, we must determine whether moral, social and economic considerations
support our recognition of such a duty or the categorical exclusion of it. Posecai,
752 So.2d 762. To answer this question, relevant policy factors must be considered:
(1) deterrence of unreasonable conduct, or encouraging reasonable conduct; (2)
economic considerations; (3) justice and fairness of potentially imposing liability;
(4) allocation of judicial resources; and (5) predictability.7
Deterrence
Finding the existence of a duty will make an actor potentially civilly liable.
The potential for civil liability may deter future conduct. So, exposing a protest
organizer to civil liability for failing to exercise reasonable care so that the protest is
carried out in a lawful manner should deter undesirable conduct ( i.e. unlawful
protests) and encourage desirable conduct (i.e. lawful protests). This factor weighs
in favor of recognizing a duty.

6 The use of “organizer” throughout this opinion includes a “leader” who may or may not have
been involved in organizing the protest, but actively led the protest.

7 This court in Reynolds listed the following policy considerations: deterrence of undesirable
conduct, avoiding the deterrence of desirable conduct, compensation of victims, satisfaction of the
community’s sense of justice, proper allocation of resources (including judicial resources),
predictability, and deference to the legislative will. Reynolds, 172 So. 3d at 596-597.

In Posecai, this court listed the elements with a slight variation: “fairness of imposing liability; the
economic impact on the defendant and on similarly situated parties; the need for an incentive to
prevent future harm; the nature of defendant’s activity; the potential for an unmanageable flow of
litigation; the historical development of precedent; and the direction in which society and
institutions are evolving.” Posecai, 752 So.2d at 766.

6

Economic Considerations
This factor considers who will bear the financial loss for the alleged injury.
Finding a duty potentially places that loss on the defendant. Finding no duty will
result in the victim bearing the financial loss associated with his i njury. Thus, this
factor balances the need for compensating victims against a protest organizer’s
responsibility to pay. The purpose of tort damages is to make the victim whole.
Bellard v. Am. Cent. Ins. Co. , 2007 -1335 (La. 4/18/08), 980 So. 2d 654, 668 .
Recognizing a duty that results in compensating victims injured when a protest is
conducted unlawfully furthers the purpose of making the victim whole. An innocent
victim in these circumstances should not be categorically denied recovery.
Further, while a protest organizer cannot be deemed to know of or condone
every action that may cause an injury during the protest, the critical part of the
proposed duty is whether the organizer used reasonable care so that the protest was
conducted in a lawful manner. If the protest is organized, led, and effectuated in a
lawful manner, a plaintiff generally will be unable to show a breach of the stated
duty and the defendant will not bear the cost of injury. If, however, the organizer
does not use reasonable care so that the protest occur s in a lawful manner, the
expectation that he will absorb the financial loss instead of a victim is reasonable.
This factor is bolstered by Louisiana’s recognition of comparative fault, which
results in the fault of a victim who contributes to his own injury, or of a third party
who acts particularly egregiously, proportionately reducing any fault allocated to the
organizer. The proposed duty requires lawful actions by the organizer. The financial
burden associated with the failure to conform to that duty should be borne by him.
This factor weighs in favor of finding a duty.
Justice
This factor addresses society’s sense of fairness in determining whether a
reasonable person should act or not act in a certain manner. Reynolds, 172 So.3d at.

7

598. The reasonable person standard asks “whether reasonable persons would
expect certain behavior in certain situations and, conversely, whether reasonable
persons can be expected to be exposed to liability in certain situations. ” Id. It is
reasonable for citizens to expect that a protest be conducted in a lawful manner.
Doing so protects everyone’s right to assemble, speak, and protest, while also
protecting their safety. While protests, both lawful and unlawful, are part of our
nation’s history and identity, we are also a country of laws. Attaching civil liability
to unlawful protests furthers the rule of law. Thus, imposing a duty to use reasonable
care when organizing and conducting a protest is supported by a societal sense of
fairness, justice, and order.
Allocation of Judicial Resources
This factor addresses judicial economy and the potential for an unmanageable
flow of litigation if a duty is recognized. Anecdotally, it is reasonable to expect
relatively low occurrences of plan ned, unlawful protests, making the likelihood of
injury from one improbable. The infrequency of such events supports the conclusion
that judicial resources will not be unduly burdened by imposing the proposed duty.
Further, the First Amendment protects la wful protests. Placing lawful protests
beyond the reach of civil liability, while recognizing potential civil liability for
unlawful protests, will make overloaded dockets unlikely. This factor weighs in
favor of finding a duty.
Predictability
This factor looks at whether the alleged tortfeasor or the victim is better
positioned to analyze the risks involved in an unlawful protest and, thus, take
precautions to avoid them or to insure against them. A protest organizer who plans
or leads an unla wful protest is best positioned to predict and, therefore protect
against, the risks of that conduct. The act of organizing and leading a protest in a
reasonable and lawful fashion should require precautions to counter the risks

8

associated with unlawful p rotests. Those risks are best calculated and avoided by
the organizer. The predictability factor favors the recognition of a duty.
These policy considerations, independently and collectively, support our
recognition of a protest organizer’s duty to u se reasonable care so that a protest is
conducted in a lawful manner. Recognizing such a duty negates any contention that
a protest organizer, as a matter of law, is categorically excluded in all instances from
liability for harm occurring during a protest.
Scope of the Duty
To fully respond to the certified question, the an alysis also requires a
determination of whether that duty extends to cover the injury in this case, which is
the “scope of the duty” element. The extent of protection owed a particular plaintiff
depends on the particular facts and circumstances of the case and is determined on a
case-by-case basis to avoid making a defendant the insurer of all persons against all
harms. Todd v. State Through Dep’t of Soc . Servs., Off. of Cmty. Servs. , 96-3090
(La. 9/9/97), 699 So. 2d 35, 39 . Here, the specific facts must be scrutinized to
determine whether the risk of a third party criminal act harming a responding police
officer is within the scope of the organizer’s duty to exercise reasonable care so that
the protest is conducted lawfully. 8 That is, will a reasonable person associate the
injury suffered by Officer Doe with the risks posed by Mckesson’s conduct?
Foreseeability and ease of association are factors in deciding whether a duty
extends to cover a particular risk of harm. Id. Therefore, it is necessary to address
whether the defendant’s alleged conduct foreseeably resulted in the plaintiff being

8 At this point, it bears emphasizing that this issue is before us at a preliminary stage where we
must accept all allegations in the petition or complaint as true. Indus. Companies, Inc. v. Durbin,
02-0665 (La. 1/28/03), 837 So. 2d 1207, 1212. These allegations may ultimately not be proven at
trial. Thus, while the scope of the duty question requires us to make certain determinations based
on the facts as alleged, these facts must still be established before the trier of fact. We offer no
opinion on the me rits. Instead, we only resolve whether Louisiana law allows for tort recovery
under these alleged facts.

9

injured by the criminal act of a third party and whether such injury is easily
associated with the articulated duty, namely, a protest organizer’s duty to use
reasonable care so that a protest is conducted in a lawful manner.9
The plaintiff alleges Mckesson knew of previous protests sponsored by or
identified with Black Lives Matter turning violent. The petition cites prior protests
across the country associated with this movement where police officers were injured
or killed. Because previous protests provoked a police response, a police response
to the subject protest was certainly foreseeable, if not desired. Given the alleged
prior incidents and the alleged intent to incite violence against police , the violence
committed against a responding police officer at this protest was foreseeable.
It is also alleged that Mckesson organized the protest on a main, highly
trafficked highway in front of the Baton Rouge Police headquarters and in violation
of traffic laws. (See La. R.S. 14:97, penalizing intentional or criminally negligent
obstruction of highways.) Again, a police response to confront potentially riotous
protestors and to manage a likely dangerous traffic situation was foreseeable. In
fact, while the traffic law that prevents obstructin g a highway does not provide the
basis for the duty recognized here, organizing the p rotest to violate that statute is
alleged to have been either calculated, or at least expected, to provoke a police
response and, thus, a confrontation with the protestors.10 Having allegedly organized

9 The primary allegations set forth in the plaintiff’s petition are more particularly summarized as:
(1) Mckesson “staged and organized” a protest on behalf of Black Lives Matter; (2) Mckesson
knew of the violence that resulted in other previous Black Lives Matter protests; (3) Mckesson
was in “Baton Rouge for the purpose of demonstrating, protesting and rioting to i ncite others to
violence against police and other law enforcement officers ;” (4) Mckesson staged “a
protest/demonstration at the intersections of Airline and Goodwood Boulevard, which is the
location of the Baton Rouge Police Department and which is a know n public highway;” (5)
Mckesson “knew police would be called to clear the public highway of protestors;” (6) Mckesson
“was in charge of the protest and he was seen and heard giving orders throughout the day and night
of the protests;” and (7) Mckesson “did nothing to calm the crowd and, instead, he incited the
violence.”

10 For statutory violations, Louisiana has rejected a negligence per se theory, favoring, instead,
analysis at the scope of the duty stage. The court in Weber v. Phoenix Assur. Co. of New York, 273
So. 2d 30, 33 (La. 1973) stated, “ Moreover, violation of a criminal statute in combination with
some resultant harm does not, in and of itself, impose civil liability. We must determine whether

10

the protest to provoke that confrontation, it was easily foreseeable that the resulting
injury could occur.
The facts alleged require the conclusion that the protest was organized to
provoke a police response. It is alleged that Mckesson “incited” the protesters and
did nothing to stop them when the protest turned violent. It was foreseeable that a
police officer would suffer injury when responding to a situation that occurred, at
least in part, because Mckesson did not use care to conduct the protest in a lawful
manner. Based on the facts alleged in the petition, it was foreseeable that a police
officer may get hurt by the criminal actions of a third party during this protest. The
facts alleged are sufficient to establish an ease of association between Mckesson’s
duty and the plaintiff’s injury. Because it is alleged that Mckesson, with knowledge
that such protests could turn violent, staged a protest in direct contravention of law,
thereby provoking the police to respond, a person can easily associate the injury to
the police officer with the alleged conduct. Once a confrontation is provoked, it is
reasonable that the provocateur be potentially responsible for the foreseeable
consequences which result from the confrontation.
“Special Relationship”
This court has generally refrained from finding a duty to protect persons from
the criminal acts of third parties. See Harris v. Pizza Hut of Louisiana, Inc. , 455
So.2d 1364, 1371 (La. 1984). Generally, there is no duty to protect against or control
the criminal acts of third part ies unless a “special relationship exists [between the
victim and the non-criminal defendant] to give rise to such a duty.” Beck v. Schrum,
41,647 (La. App. 2 Cir. 11/1/06), 942 So. 2d 669, 672 . While there is no
jurisprudential definition of a “special relationship,” cases finding such a
relationship impose some higher degree of care solely because the relationship

the prohibition in the statute is designed to protec t from the harm or damage which ensues from
its violation.”

11

affords the victim a reasonable expectation of protection or safety. Restatement
(Second) of Torts, § 315.11
Here, the defendants assert, and the plaintiff does not refute , that no special
relationship existed between Mckesson and the injured police officer. Generally,
that would end the inquiry and no liability or financi al responsibility would attach
to Mckesson for the criminal acts of the unknown criminal. However, close review
of the “special relationship” cases reveal that th ese cases involve defendants held
liable not for their own involvement in the criminal acts, but because their failure to
act allowed for the criminal act. That rule of law does not apply when the defendant
is alleged to have affirmatively acted to create the circumstance that facilitated the
violent act. As noted by Dean Prosser, circumstances beyond those arising from a
special relationship may give rise to responsibility for intentional torts of third
parties. In his treatise, he writes, “There are other situations in which the defendant
will be held liable because his affirmative conduct has greatly increased the risk or

11 Courts have found “special relationships” between: (1) parent and child, see Turner v. Bucher, 308 So. 2d 270 (La. 1975) (where actions of child are tortious by normal standards, the child’s
parents are liable whether or not they could have prevented the act of the child; see also La. Civ.
Code art. 2318; (2) employer and employee (see LeBrane v. Lewis , 292 So.2d 216 (La. 1974)
(employer was liable for employee supervisor stabbing discharged employee in an employment
related suit; see also La. Civ. Code art. 2320; (3) carrier and passenger (see generally Gross v.
Teche Lines, 21 So. 378 (La. 1945) (carrier of passengers are required to exercise the hig hest
degree of care, vigilance, and precaution for the safety of those it transport s and is liable for the
slightest negligence. See also Luckette v. Bart’s on the Lake, Ltd. 602 So.2d 108, 112, (La. App. 4
Cir. 1992) (private transport company assumed a d uty to protect third parties from the deviant
behavior of those in its custody, particularly, “predictable risks of assaults;”) (4) innkeeper and
guest (see Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048, 1053 (La.1982) (hotel liable for
damages suffered by guests who were robbed and assaulted inside their hotel room when the desk
clerk gave the robber the master key); see also Banks v. Hyatt Corp., 722 F.2d 214 (5th Cir. 1984)
(applying Louisiana law, a negligent innkeeper was liable for a third-party assault on the premises;
(5) shopkeeper and business visitor , see generally Posecai, supra; see also Green v. Infinity
Intern., Inc., 95-2356 (La. App. 1 Cir. 6/28/96), 676 So.2d 234 ) (liability can be owed when the
proprietor knows, or should know of the potential danger caused by criminal activity; (6)
restaurateur and patron , (see Harris v. Pizza Hut , 455 So.2d 1364 (La. 1984) (any business
which invites the public must take “reasonably necessary acts to guard against the predictable risk
of assaults”; (7) jailer and prisoner (see Wilson v. State, 576, So.2d 490 (La. 1991) (victims of
robbery committed by an escaped prisoner two weeks after his escape were en titled to recover
from the State corrections department; and (8) teacher and pupil (see D.C. v. St. Landry Par. Sch.
Bd., 00-01304 (La. App. 3 Cir. 3/7/01), 802 So. 2d 19, 23, writ denied, 01-0981 (La. 5/25/01), 793
So. 2d 169) (school had a duty to supervise, which encompassed the foreseeable risk that a twelve-
year-old female who leaves campus might be raped on her walk home.)

12

harm to the plaintiff through the criminal acts of others.” (Emphasis added). Prosser
and Keeton on Torts, Sec. 33, p. 201-203 (West 1984) (Footnotes omitted).
The allegations in this case put Mckesson outside the limiting scope of the
“special relationship” line of cases. Here, it is not alleged that Mckesson, merely
because he organized a protest, must act with a higher degree of care and afford all
those who encounter the protest a certain degree of protection. Rather, it is alleged
that his conduct was designed to provoke a violent encounter with the police ; i.e.,
“his affirmative conduct has greatly increased the risk or [sic] harm to the plaintiff
through the criminal acts of others.” Id. No special relationship is needed. If proven,
Mckesson’s actions provide the link between the criminal actor and the victim
sufficient to attach financial responsibility to him.
Thus, while a “special relationship” typicall y is required to impose liability
for third party conduct, here, the absence of a “special relationship” does not exclude
liability. I find no merit to the proposition that a lack of a special relationship acts
to bar this claim.
Conclusion
I find that Louisiana law recognizes a duty to use reasonable care so that a
protest is conducted in a lawful manner. Further, based on the facts alleged in the
petition, the risk of an officer being harmed by third party criminal activity is within
the sc ope of that duty, thereby satisfying the “scope of the duty” element. To
succeed on his claim, the plaintiff must also prove a breach of duty, causation-in-
fact, and damages. This court was not tasked with completing th at analysis, nor
would it be approp riate to do so at this stage of the litigation, which asks simply
whether the plaintiff has stated a cause of action. Additionally, I am also cognizant
that under NAACP v. Claiborne Hardware Co. , 458 U.S. 888, 925 -27 (1982), the
imposition of civil liabil ity on a defendant for a violent act committed by a third
party is prohibited if it arises “in the context of constitutionally -protected activity”

13

and is appropriate only if the defendant himself “authorized, directed, or ratified” or
otherwise manifested “a specific intent to further” those wrongs.” I would expressly
defer to the federal court to make any determinations about any protection afforded
by the First Amendment in this case and whether Mckesson falls with the scope of
liability authorized by Claiborne.
I respectfully concur.

SUPREME COURT OF LOUISIANA
No. 2021-CQ-00929
OFFICER JOHN DOE, POLICE OFFICER
VS.
DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES
MATTER NETWORK, INCORPORATED
On Certified Question from the United States Court of Appeals for the Fifth Circuit
GRIFFIN, J., dissents and assigns reasons.
The primary issue presented is whether, und er the facts as alleged, Mr.
Mckesson owes a duty to Officer Doe and whether the risk of the resulting harm was
within the scope of that duty .1 Justice Crain , in his well-written concurrence ,
correctly observes these are two distinct inquiries with unique considerations. The
Fifth Circuit conflates these two inquiries without conducting the requisite policy
analysis to determine whether a duty should exist.2 See Posecai v. Wal-Mart Stores,
1 In certifying the questions to this Court, it was observed that we are “not limited to the text of
the certified questions but may consider the complaint in its totality.” Doe v. Mckesson, 2 F.4th
502, 505 (5th Cir. 2021) (Elrod, J., concurring). Prior to remanding the matter, the United States
Supreme Court posed the relevant questions as “(1) whether Mckesson could have breached a duty
of care in organizing and leading the protest and (2) whether Officer Doe has alleged a particular
risk within the scope of protection afforded by the duty, provided one exists.” Mckesson v. Doe, -
-- U.S. ---, 141 S.Ct. 48, 51, 208 L.Ed.2d 158.
2 The Fifth Circuit relied heavily on La. R.S. 14:97 in that Mr. Mckesson’s leading a protest down
a public highway would foreseeably result in a confrontation with police. However, “a criminal
statute does not automatically create liability in a particular civil case, because the statute may
have been designed to protect someone other than the plaintiff, or to protect the plaintiff from some
evil other than the injury for which recovery is sought.” Boyer v. Johnson, 360 So.2d 1164, 1169
(La. 1978).
An assault on a police officer by a third party is not the risk addressed by the statute. Doe v.
Mckesson, 947 F.3d 874, 879 (5th Cir. 2020) (Higginson, J., dissenting from denial of rehearing
en banc); State v. Winnon, 28,654, p. 4 (La.App. 2 Cir. 9/25/96), 681 So.2d 463, 466 (observing
La. R.S. 14:97 contemplates the “absence of foreseeable danger to human life” and is focused on
“the protection of other motorists” from being impeded by obstructions). Under the section titled
“Scope,” the comment to La. R.S. 14:97 states:
The division into two sections, one known as “aggravated obstruction of a highway
of commerce” and the other, “simple obstruction of a highway of commerce,” is to
maintain consistency of form and to make the penalty fit the seriousness of the
03/25/22

Inc., 99-1222, p. 4 (La. 11/30/99), 707 So.2d 762, 766; Mckesson, --- U.S. ---, 141
S.Ct. at 51, 208 L.Ed.2d 158 (offering the example of “the moral value of protest
[weighed] against the economic consequences of withholding liability”). Although
Justice Crain ’s concurrence presents an exce llent analytical fr amework, I
respectfully disagree with the result reached in both his analysis and the opinion of
this Court.
It is beyond citation that political protest carri es a high m oral value in our
society. It is also true that protests which turn violent may not only result in injuries
to police and bystanders but also damage to businesses and property – deterring such
outcomes is sound policy. However, the finding of a duty in this case will have a
chilling effect on political protest s in general as nothing prevents a bad actor from
attending an otherwise peaceful protest and committing acts of violence. While in
such instances the organizers of a protest may ultimately be cleared of liability by
the trier of fact, the costs of defending a lawsuit at the pre-trial phase are significant.
Courts would see increased litigation from all sides of the political spectrum and the
flow of political speech could hinge on which viewpoints had patrons with deeper
pockets. Further, presenting such factual determinations to a jury risks the
imposition of liability based on a juror’s political views. See Snyder v. Phelps, 562
U.S. 443, 458, 131 S.Ct. 1207, 1219, 179 L.Ed.2d 172 (2011). Existing laws hold
the perpetrators of wrongful acts criminally and civilly accountable. See, e.g., La.
R.S. 14:34.2 (criminal penalties for battery of a police officer); Bell v. Whitten, 97-
2359, p. 12 (La.App. 1 Cir. 11/6/98), 722 So.2d 1057, 1064 (“ a defendant's

crime. The first [La. R.S. 14:96] is based on the danger to human life, and the
second [La. R.S. 14:97] on traffic obstruction.

Reliance on this statute is arguably questionable as Officer Doe’s injuries do not appear to fall
within “the scope of protection intended by the legislature.” Lazard v. Foti , 02-2888, p. 6, (La.
10/21/03), 859 So.2d 656 , 660-61. Nevertheless, I acknowled ge the allegations as to Mr.
Mckesson’s past participation in protests accompanied by violence aid in bridging the
foreseeability gap apparent from reliance on the statute alone.

particularly blameworthy conduct, such as intentional conduct or gross negligence,
could be said to encompass the risk of injury to a policeman responding in the line
of duty”).
The assault on Officer Doe is unacceptable. Violence denigrates our political
process and must be unequivocally repudiated. A balance must be struck between
the freedom to express a political opinion in a peaceful manner and a respect for the
rule of law. See Doe, 2 F.4th at 505 (Elrod, J., concurring) (citing Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965)). Reasonable jurists can
disagree on the weighing of the moral, economic, and social factors articulated in
Louisiana jurisprudence. However, for the concerns outlined above, I respectfully
dissent and would refrain from imposing a duty in this matter.