        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit


                                No. 17-30864
                                                                    FILED
                                                              January 28, 2020
                                                                Lyle W. Cayce
OFFICER JOHN DOE, Police Officer,                                    Clerk

            Plaintiff – Appellant

v.

DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES MATTER
NETWORK, INCORPORATED,

            Defendants - Appellees



                Appeal from the United States District Court
                    for the Middle District of Louisiana


                       ON REQUEST FOR A POLL
                Opinion 945 F.3d 818 (5th Cir. Dec. 16, 2019)


Before JOLLY, ELROD, and WILLETT, Circuit Judges.
PER CURIAM:
      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular service and not disqualified not
having voted in favor (Fed. R. Ap. P. 35 and 5th Cir. R. 35), rehearing en banc
is DENIED. In the en banc poll, eight judges in favor of rehearing (Judge
Stewart, Judge Dennis, Judge Southwick, Judge Graves, Judge Higginson,
Judge Costa, Judge Willett, and Judge Duncan), and eight judges voted against
                                No. 17-30864

rehearing (Chief Judge Owen, Judge Jones, Judge Smith, Judge Elrod, Judge
Haynes, Judge Ho, Judge Engelhardt, and Judge Oldham).
     Judge Ho concurred with the Court’s denial of rehearing en banc, his
Concurrence is attached. Judge Dennis, joined by Judge Graves, and Judge
Higginson, joined by Judge Dennis, dissent from the Court’s denial of
rehearing en banc, their Dissents are attached.


ENTERED FOR THE COURT:


        /s/ E. Grady Jolly
United States Circuit Judge




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JAMES C. HO, Circuit Judge, concurring in denial of rehearing en banc:

      I agree with my colleagues who voted to grant rehearing en banc that
this lawsuit by a police officer against DeRay Mckesson, a leader of the Black
Lives Matter movement, should not proceed. I nevertheless voted to deny
rehearing en banc.     I write to briefly explain why, in the hope that this
explanation might help finally bring this suit to an end.
                                         I.
      Police officers and firefighters dedicate their lives to protecting others,
often putting themselves in harm’s way. These are difficult and dangerous
jobs, and citizens owe a debt of gratitude to those who are willing and able to
perform them. What’s more, police officers and firefighters assume the risk
that they may be injured in the line of duty. So they are not allowed to recover
damages from those responsible for their injuries, under a common law rule
known as the professional rescuer doctrine.
      “The professional rescuer doctrine, the fireman’s rule, is a common law
rule that either bars recovery by a professional rescuer injured in responding
to an emergency or requires the rescuer to prove a higher degree of culpability
in order to recover.” Gallup v. Exxon Corp., 70 F. App’x 737, 738 (5th Cir. 2003)
(collecting Louisiana cases).      “The Professional Rescuer’s Doctrine is a
jurisprudential rule that 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”—
particularly when the “risks arise from the very emergency that the
professional rescuer was hired to remedy.” Gann v. Matthews, 873 So.2d 701,
705–6 (La. Ct. App. 2004).
      This doctrine would seem to require immediate dismissal of this suit.
After all, there is no dispute that the officer was seriously injured in the line of
duty—specifically, while policing a Black Lives Matter protest that unlawfully
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obstructed a public highway and then turned violent. The officer deserves our
profound thanks, sympathy, and respect. But his case would appear to fall
squarely within the scope of the doctrine.
       None of the panel opinions in this case addressed the professional
rescuer doctrine, however—presumably because Mckesson never raised it. I
imagine that, if given the chance on remand, he will invoke the doctrine at last,
and that the district court will terminate this suit (again) accordingly.
       Had Mckesson raised this doctrine at an earlier stage in the suit, there
would have been no need to answer the more challenging First Amendment
questions that now animate his petition for rehearing en banc. But he did not.
So, like the panel, I turn to those questions now.
                                             II.
       Because Mckesson has thus far neglected to invoke the professional
rescuer doctrine, the panel confronted novel and interesting First Amendment
issues that are arguably worthy of rehearing en banc. But I take some comfort
in the fact that, upon closer review of the panel opinions, the constitutional
concerns that have generated the most alarm may not be as serious as feared.
       The First Amendment indisputably protects the right of every American
to condemn police misconduct. 1           And that protection secures the citizen
protestor against not only criminal penalty, but civil liability as well. See, e.g.,
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982).
       But there are important differences between the theory of liability held
invalid in Claiborne Hardware and the tort liability permitted by the panel
majority here. In Claiborne Hardware, the defendants were sued for leading



       1 Indeed, it is important to condemn such misconduct when it occurs. See, e.g., United
States v. Taffaro, 919 F.3d 947, 949–51 (5th Cir. 2019) (Ho, J., concurring in the judgment);
Wilson v. City of Southlake, 936 F.3d 326, 333–34 (5th Cir. 2019) (Ho, J., concurring in the
judgment).
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a boycott of white merchants. State courts subsequently held the defendants
liable for all of the economic damages caused by their boycott.
      Notably, the theory of liability rejected in Claiborne Hardware was
inherently premised on the content of expressive activity. If the defendants
had advocated in favor of the white merchants, no court would have held them
liable for such speech. So the tort liability theory adopted by the state courts
necessarily turned on the content of the defendants’ expressive activities. And
the Supreme Court rejected this content-based theory of liability as a violation
of the First Amendment. See, e.g., id. at 914 (“[T]he petitioners certainly
foresaw—and directly intended—that the merchants would sustain economic
injury as a result of their campaign. . . . [But t]he right of the States to regulate
economic activity could not justify a complete prohibition against a nonviolent,
politically motivated boycott designed to force governmental and economic
change and to effectuate rights guaranteed by the Constitution itself.”).
      By contrast, the theory of liability adopted in this case appears to be
neutral as to the content of the Black Lives Matter protest. Unlike Claiborne
Hardware, liability here turns not on the content of the expressive activity, but
on the unlawful obstruction of the public highway and the injuries that
foreseeably resulted. This is an important distinction. As Claiborne Hardware
itself observed: “While the State legitimately may impose damages for the
consequences of violent conduct, it may not award compensation for the
consequences of nonviolent, protected activity.” Id. at 918. “Only those losses
proximately caused by unlawful conduct may be recovered.” Id.
      So in sum:     Content-based damages are generally impermissible, as
Claiborne Hardware illustrates. But content-neutral rules typically survive
First Amendment challenge. See, e.g., Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989) (“Our cases make clear . . . that even in a public forum the
government may impose reasonable restrictions on the time, place, or manner
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of protected speech, provided the restrictions ‘are justified without reference to
the content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample alternative
channels for communication of the information.’”) (collecting cases).
       Applying that framework here, I do not understand the panel majority
to suggest that Mckesson may be held liable for lawfully protesting police—
that would be a textbook violation of established First Amendment doctrine,
including Claiborne Hardware—but rather for injuries following the unlawful
obstruction of a public highway. As the panel explained, “the criminal conduct
allegedly ordered by Mckesson was not itself protected by the First
Amendment, as Mckesson ordered the demonstrators to violate a reasonable
time, place, and manner restriction by blocking the public highway. As such,
no First Amendment protected activity is suppressed by allowing the
consequences of Mckesson’s conduct to be addressed by state tort law.” Doe v.
Mckesson, 945 F.3d 818, 832 (5th Cir. 2019) (citation omitted). In the face of
such limiting language, any First Amendment concern about the potential
reach of the panel majority opinion strikes me as uncertain and speculative. 2


       2   By contrast, there was no such ambiguity in a recent decision of our court—one that
presented even starker First Amendment concerns—yet we nevertheless denied rehearing
en banc. See Zimmerman v. City of Austin, 888 F.3d 163 (5th Cir. 2018). I say starker
because the First Amendment surely protects political speech at least as much as it protects
protests—and because a state surely has a greater interest in protecting police officers from
assault than in preventing citizens from donating over $350 to a city council race. As the
ACLU once noted, “[c]ontributions are crucially important in determining the level of political
debate and in implementing the freedom of association guaranteed by the First Amendment.
. . . If anything, Americans spend too little to finance the process by which their government
is chosen.” Brief of the Appellants, at 27–28, Buckley v. Valeo, 424 U.S. 1 (1976). See also
Buckley, 424 U.S. at 288 (Marshall, J., concurring in part and dissenting in part) (“[A]ll
Members of the Court agree . . . money is essential for effective communication in a political
campaign.”); Thompson v. Hebdon, 140 S. Ct. 348, 350 (2019) (per curiam) (“JUSTICE
BREYER’s opinion for the plurality observed that ‘contribution limits that are too low can . . .
harm the electoral process by preventing challengers from mounting effective campaigns
against incumbent officeholders, thereby reducing democratic accountability.”) (quoting
Randall v. Sorrell, 548 U.S. 230, 249 (2006)).
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       So if I understand the panel majority’s theory of liability correctly, it may
be expansive—and it may be wrong as a matter of Louisiana law, as Judge
Higginson’s typically thoughtful dissent suggests. But it applies with equal
force to pro-police protestors (just as it would, say, to pro-life and pro-choice
protestors alike) who unlawfully obstruct a public highway and then break out
into violence. It is far from obvious, then, that the First Amendment principles
articulated in Claiborne Hardware would have any bearing here (and we do
not ordinarily grant en banc rehearing to resolve questions of state law).
                                             ***
       Civil disobedience enjoys a rich tradition in our nation’s history. But
there is a difference between civil disobedience—and civil disobedience without
consequence. 3 Citizens may protest. But by protesting, the citizen does not
suddenly gain immunity to violate traffic rules or other laws that the rest of us
are required to follow. The First Amendment protects protest, not trespass.
       That said, this lawsuit should not proceed for an entirely different
reason—the professional rescuer doctrine.                I trust the district court will
faithfully apply that doctrine if and when Mckesson invokes it, and dismiss the
suit on remand, just as it did before. It is for that reason that I am comfortable
concurring in the denial of rehearing en banc.




       3 Indeed, for the civil disobedient, the consequence is the point. See, e.g., Henry David
Thoreau, Civil Disobedience (1849) (“Under a government which imprisons any unjustly, the
true place for a just man is also a prison.”); Martin Luther King Jr., Letter from a Birmingham
Jail (1963) (“Of course, there is nothing new about this kind of civil disobedience. It was seen
sublimely in the refusal of Shadrach, Meshach, and Abednego to obey the laws of
Nebuchadnezzar because a higher moral law was involved. It was practiced superbly by the
early Christians, who were willing to face hungry lions and the excruciating pain of chopping
blocks before submitting to certain unjust laws of the Roman Empire. To a degree, academic
freedom is a reality today because Socrates practiced civil disobedience.”).
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                                 No. 17-30864
JAMES L. DENNIS, Circuit Judge, joined by JAMES E. GRAVES, Circuit
Judge, dissenting:
      I respectfully dissent from the court’s refusal to rehear en banc a 2–1
panel opinion that not only misapplies Louisiana’s duty-risk analysis, as Judge
Higginson’s dissent, infra, points out, but also fails to uphold the clearly
established First Amendment principles enshrined in NAACP v. Claiborne
Hardware Co., 458 U.S. 886 (1982).         Claiborne Hardware reaffirmed this
country’s “profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.” Claiborne, 458 U.S. at
913 (cleaned up). Thus, when violence or threats of violence “occur[] in the
context of constitutionally protected activity, . . . precision of regulation is
demanded,” including an inquiry into whether the defendant “authorized,
ratified, or directly threatened acts of violence.” Id. at 916, 929. The panel
majority demands no such precision.        Instead, it appears to apply a free-
wheeling form of strict liability having no resemblance to Louisiana law’s
careful duty-risk analysis, concluding that, because of his association with the
demonstrators or his failure to anticipate and prevent the rock throwing
incident, Mckesson can be held liable—despite the First Amendment
protection historically afforded protest activity—for the acts of a “mystery
attacker.” Doe v. Mckesson, 945 F.3d 818, 842 (5th Cir. 2019) (Willett, J.,
dissenting). The majority of our colleagues have thus grievously failed to do
what should have been done: Take up this case, apply the longstanding
protections of the First Amendment, and conclude, as the district court did,
that Doe’s lawsuit against DeRay Mckesson should be dismissed. See Doe v.
Mckesson, 272 F. Supp. 3d 841, 852–53 (M.D. La. 2017).




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                                  No. 17-30864
STEPHEN A. HIGGINSON, Circuit Judge, joined by JAMES L. DENNIS,
Circuit Judge, dissenting:

      The panel opinion holds that the First Amendment affords no protection
to McKesson because he was negligent under Louisiana law. I do not believe
the Louisiana Supreme Court would recognize a negligence claim in this
situation. When a negligence claim is based on the violation of a statute,
Louisiana courts allow recovery only if the plaintiff’s injury falls within “the
scope of protection intended by the legislature.” Lazard v. Foti, 859 So. 2d 656,
661 (La. 2003). An assault on a police officer by a third-party is not the
“particular risk” addressed by the highway obstruction statute. Id. Absent the
breach of this statutory duty, it is unclear on what basis the panel opinion finds
that the protest was foreseeably violent.
      To the extent that the panel opinion creates a new Louisiana tort duty,
this is “a policy decision” for Louisiana courts—not this court—to make. See
Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 766 (La. 1999); see also Meador
v. Apple, 911 F.3d 260, 267 (5th Cir. 2018). Even if we could make this policy
decision ourselves, the panel opinion does not weigh the “moral, social, and
economic factors” the Louisiana Supreme Court has identified as relevant,
including “the nature of defendant’s activity” and “the historical development
of precedent.” Posecai, 752 So. 2d at 766. In light of the vital First Amendment
concerns at stake, I respectfully suggest that these considerations counsel
against our court recognizing a new Louisiana state law negligence duty here,
at least in a case where argument from counsel has not been received.
Protestors of all types and causes have been blocking streets in Louisiana for
decades without Louisiana courts recognizing any similar claim.
      For these reasons, I dissent.




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