An Ill-Advised Lawsuit Against Black Lives Matter Activists

Last July, Gavin Long, a black, 29-year-old former Marine, ambushed police in Baton Rouge, Louisiana, killing three officers and wounding three more before being killed. Now one of the wounded, who was rendered permanently disabled in the shooting, has filed a federal lawsuit against the Black Lives Matter movement and activists including DeRay Mckesson and Johnetta Elzie, whom he blames for inciting the attack.

The unnamed police officers’ injuries were so grave, and so grievously unfair, that it’s not hard to understand this officer’s urge to hold someone accountable. But blaming Black Lives Matter is wrong.

Black Lives Matter believes that political activism can change police departments. A suicide note found in Gavin Long’s car advanced a contrary proposition, that only killing cops would bring change. He called his murders a “necessary evil,” writing, “I must bring the same destruction that bad cops continue to inflict upon my people, upon bad cops as well as good cops in hopes that the good cops (which are the majority) will be able to stand together to enact justice & punishment against bad cops b/c right now the police force & current judicial system is not doing so.”

The killer also posted a coded video to YouTube before he acted, stating that “there are no affiliations—I thought my own thoughts, I made my own decisions, I’m the one whose got to listen to the judgment.” The video includes a list of groups with which he associated. Black Lives Matter wasn’t even among those groups. The Washington Post reports that “an exhaustive investigative report determined Long had not attended any of the Black Lives Matter demonstrations in Baton Rouge” following the controversial police killing of Alton Sterling. He “believed protests were a waste of time.”

And having observed Mckesson in particular since the beginning of the Black Lives Matter movement, over the course of many interviews, live streams, and panel discussions, I cannot recall a single instance of rhetoric from him that constitutes incitement. He clearly believes marching, tweeting, and the specific policy reforms set forth in Campaign Zero are the way to achieve his desired political ends.

Nor does the legal  complaint  present any quotations from him or any Black Lives Matter leader that constitute incitement. Passages like the following are typical of the complaint:

In 2016, as a leader of BLACK LIVES MATTER, DERAY MCKESSON and the other Defendants planned the Summer of Chaos, Weekend of Rage, and used the internet and social media to organize, stage and orchestrate protests and to attend and/or lead multiple protests and violence that accompanied the protests including, among many others, those in Ferguson, Missouri; Baltimore, Maryland; McKinney, Texas; Dallas, Texas; and Baton Rouge, Louisiana.

The Baton Rouge protests, in large part, took place outside the Baton Rouge PoliceDepartment located in front of the former Woman’s Hospital on Airline Highway. This place is the same area where this shooting took place.

And:

The DEFENDANTS knew or should have known that the physical contact and rioting was likely to result when they used the internet and social media to organize, stage and orchestrate multiple protests in numerous cities on the same weekend. DEFENDANTS knew that BLACK LIVES MATTER protests had in the past become violent and that other police officers had been injured by objects thrown at them by protesters.

In numerous past protests, protesters led by BLACK LIVES MATTER had thrown objects at police and that police had been injured; yet, nothing was said or done to dissuade future conduct. DeRay McKesson was directing the activity of the protestors and inciting lawless actions, including blocking of a public highway and allowing protestors to the throw object sat the police, which justifies holding him liable for the unlawful conduct that caused injuries.

The plaintiff has requested a jury trial. Justice would be much better served if a judge instead throws out this lawsuit at the earliest possible date, sparing Black Lives Matter and the particular activists who are named the expense of mounting a defense.

The ability of Americans to exercise their rights to free speech and freedom of association would be grievously harmed if activists organizing in opposition to government policies—or in protest of killings like the one that inspired the demonstrations in Baton Rouge—are held liable for violent acts they never urged, on the theory that they “knew or should have known that violently mentally disturbed persons would be aroused.” That speculative standard, excerpted from the complaint, would render Tea Partiers, pro-lifers, Occupy Wall Street participants, NRA leaders, and all manner of other dissidents perpetually vulnerable to financial ruin anytime an unaffiliated lunatic violently attacked anyone that they had harshly criticized.

This is the second time that Mckesson has been sued by a Baton Rouge police officer represented by the same attorney. As David Roland, director of litigation at the Freedom Center of Missouri, told PBS, “It’s easier to dissuade protests, to chill speech, using the threat of a civil suit at least in some ways. It can’t result in someone going to jail, but it can result in them being bankrupt.” In his estimation, the new lawsuit “first and foremost was intended to be a shot across the bow to anyone who has been publicly critical of police. It’s saying, ‘Unless you expressly disavow tactics that we don’t like, we’re going to come after you.’” Anyone who values principled dissent or the ability to speak freely should hope it fails.