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| BLM protest in Baton Rouge in 2015 (Alisdare Hickson CC BY-NC 2.0 via Flickr) |
I wrote about the Mckesson case in April and November 2020. In the case's winding appellate disposition, the U.S. Supreme Court faulted the Fifth Circuit for jumping the gun on Mckesson's First Amendment defense and entreated the court to certify questions of state tort law to Louisiana.
It is not alleged that Mckesson himself threw any projectile at police, so the defense asserted that the intentional criminal action of a third party supervened in the chain of causation between Mckesson's organizing and police officer injury. But the Louisiana Supreme Court was unsympathetic, characterizing the pleadings as alleging related criminal conduct by Mckesson. The court reasoned:
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 liable for damages for injuries, resulting from these activities, to a police officer compelled to attempt to clear the highway of the obstruction.
The court also rejected Mckesson's the firefighter-rule defense. The common law rule (in Louisiana, "the professional rescuer's doctrine"), not universally recognized, ordinarily disallows recovery by emergency responders for injury incurred in the course of the job, upon the theory that the job is what the responder is compensated for, and responsible parties should not be deterred from summoning emergency response.
The court took the occasion of the Mckesson case to ponder whether the firefighter rule survived the statutory adoption of comparative fault in Louisiana. The rule embodies a form of implied assumption of risk, the court reasoned. Louisiana is not a pure civil law jurisdiction, but the courts rely heavily on statute in accordance with the civil law tradition. Though the legislature left the details of comparative-fault adoption to the courts to work out, the high court acknowledged, the lack of any explicit recognition of the firefighter rule left it displaced.
The case in Louisiana is Doe v. Mckesson, No. 2021-CQ-00929 (La. Mar. 25, 2022). The case in the Fifth Circuit is No. 17-30864.
