Sometimes a lawsuit is so ludicrous that the judge tasked with deciding whether to dismiss it questions whether it was filed in bad faith.
Such is the case with a lawsuit that attorney Donna Grodner filed against Black Lives Matter on behalf of an unidentified Baton Rouge police officer who was seriously injured in July 2016 when a protester threw a piece of concrete at the officer’s head. The lawsuit claims that Black Lives Matter is responsible for the injuries the officer suffered.
If you just thought to yourself, “But Black Lives Matter is a social movement. You can’t sue a social movement,” then congratulations—you are already 100 percent smarter than Ms. Grodner.
The lawsuit also claims that activist DeRay Mckesson incited the violence that led to the officer’s injuries and seeks to hold him accountable for it.
“’Black Lives Matter,’ as a social movement cannot be sued … in a similar way that a person cannot plausibly sue other social movements such as the Civil Rights movement, the LGBT rights movement, or the Tea Party movement,” Jackson wrote before dismissing the lawsuit with prejudice.
With prejudice! That’s a big deal. A dismissal with prejudice means that the cop won’t ever again be able to file a lawsuit arising from the injuries he suffered at the rally and that he tried to pin on Mckesson and Black Lives Matter generally.
Judges routinely permit plaintiffs to amend their complaints to fix small deficiencies. Perhaps the plaintiff originally sued the wrong person or entity, or neglected to include enough facts that would meet the fairly low bar for a dismissal-proof complaint.
But sometimes, a complaint can’t be fixed. And that was the case here. No amendments or extra time to build a case were going to fix this hot mess of a lawsuit.
Not only did the cop try to hold Mckesson specifically liable for his injuries—which, the court noted “would impermissibly impose liability on Mckesson for merely exercising his [First Amendment] right of association”—he also tried to hold Black Lives Matter, both the social movement and, bizarrely, the hashtag, responsible.
Why did the cop choose Mckesson? Maybe the cop saw the viral photo of Mckesson’s arrest during the demonstration in Baton Rouge. Maybe the cop recognized Mckesson’s name from the New York Times profile featuring him and Ferguson, Missouri, activist Johnetta Elzie.
Whatever the reason, the lawsuit was ridiculous. You can’t sue a hashtag—and you can’t just pick a Black person out of a hat, decide he’s the leader of a movement, and then sue him for the actions of other people in that same movement.
While the lawsuit is certainly worthy of mocking, it is nonetheless important to recognize it for what it is: a blatant attempt to silence Black people who are exercising their First Amendment rights and protesting their treatment at the hands of the police.
Imagine if the court permitted the cop to complain that the person who threw the rock at the cop was “under the custody and control”—legalese for “in the employ of”—of Mckesson, who simply happened to be at the same rally. That would send a message to protesters and those who want to silence protesters’ voices that anytime violence breaks out, facts could be finagled to present a particular protester as a “leader” and hold them liable for any injuries.
What’s worse is that the cop in this case used the very same stereotypes and racist tropes that contribute to the overpolicing of Black people as part of his case. Just as cops often claim that they were in fear for their life to justify shooting an unarmed Black person, this cop used that very same justification as a rationale for suing anonymously rather than under his own name.
Federal courts require a plaintiff to disclose his or her name when filing a lawsuit, with some exceptions: If the plaintiff filed a lawsuit challenging government activity, if the lawsuit compels the plaintiff to reveal intimate information, or if the lawsuit would put the plaintiff at risk for criminal prosecution, a court may allow the plaintiff to sue anonymously, as John or Jane Doe.
Why couldn’t John Doe use his name? According to court documents, John Doe contended that disclosing his identity could subject him to “violence or injury.”
Can you hear that? It’s the sweet sound of a dog whistle.
Because he was suing “Black Lives Matter”—and because Black people are frequently portrayed as violent by nature—the cop apparently worked himself into a terrified lather at the prospect of suing in his own name.
According to the cop, Mckesson was not merely an attendee at the rally. Rather, he went to Baton Rouge as a leader of Black Lives Matter and specifically to incite violence. He organized and led the protest and could be heard throughout the day giving orders and directing protesters. And to hear the cop tell it, when Mckesson saw the wall of police in riot gear protecting the cops who were arresting protesters, Mckesson could’ve told the Black Live Matter members to “stand down,” but he didn’t.
The judge wasn’t having any of this nonsense, even noting that the allegations offered by the cop to support his request to proceed anonymously were “irresponsible” and “false.” “Specifically, [Officer Doe] attempts to link the defendants and the Black Lives Matter movement with acts of violence against the police, presumably to suggest that Mr. Mckesson poses a risk of danger.”
The cop alleged that Lakeem Keon Scott shot several people in Tennessee while yelling “Police suck! Black lives matter”; that “activities of Black Lives Matter” were associated with the mass shooting in Dallas; and that an unidentified “Black Lives Matter leader called for attacks on police at a rally in Portland, Oregon.”
The cop had no evidence linking these acts of violence to Mckesson, aside from, presumably, “they were Black and he’s Black; I rest my case.” The court noted that Mckesson had repeatedly called for nonviolent protests. It also said that permitting the cop to proceed anonymously would lend support to the officer’s “irresponsible and false” allegations that Mckesson and Black Lives Matter are linked to these acts of violence.
In order to hold Mckesson liable for the rock-throwing protester’s specific behavior, he would have had to authorize, direct, or ratify it. The only allegation the cop offered to support his claim that Mckesson incited violence is a one-sentence statement that McKesson made to the New York Times: “The police want protesters to be too afraid to protest.”
And this, Judge Jackson pointed out, is protected First Amendment speech. Even if Mckesson had advocated the use of force or violence, his speech would still be protected. In order to hold Mckesson liable based on his public speech, the cop would have to demonstrate that his words were “likely to incite lawless action.”
In other words, if Mckesson had said, “Yeah! Throw that rock!” or shouted “Kill whitey!” or something similar, maybe he could be held liable.
“Mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment,” Jackson wrote in his order citing a 1982 U.S. Supreme Court case, NAACP v. Claiborne Hardware Co. That principle comes from a landmark 1969 First Amendment case, Brandenburg v. Ohio, involving the Ku Klux Klan.
But Mckesson’s quoted statement doesn’t advocate violence at all. And even if it somehow did, it would have to actually be likely to incite violence. Stating “the police want protesters to be too afraid to protest” doesn’t come close to “let’s hit a bunch of cops upside the head with rocks” or the like.
Certainly Judge Jackson seemed to get it: “The Court also notes that Plaintiff’s attempt to bring suit against a social movement and a hashtag evinces either a gross lack of understanding of the concept of capacity or bad faith.”
Ouch. “Bad faith” is not a word any lawyer wants a judge to lob at them.
Judge Jackson also said that “a lawsuit that alleges that a hashtag—which is, in essence, an idea—is liable in tort for damages can be properly categorized as fantastic or delusional.” Jackson italicized the word “hashtag” which in judge-ese is essentially the same as yelling. And he did so twice.
It’s hard to look at this lawsuit as anything other than bad faith. It’s an attempt to delegitimize the movement by painting its activists and allies as responsible for the violent acts of a few people. It’s an attempt to punish people for exercising their right to freedom of speech and freedom of assembly. And it’s part and parcel of a strategy to paint Black Lives Matter and its supporters as being anti-police. It permits the mind to automatically link any crime against police to Black Lives Matter—whether the perpetrator identified with the movement, shouted the words in anger, or said nothing at all.
I suspect it’s also a way of bankrupting already struggling activists. It costs a lot of money to defend a lawsuit, even if the suit never makes it past the motion to dismiss stage.
And certainly if I were Mckesson’s lawyer, I’d be seriously contemplating filing a Rule 11 motion for sanctions against Donna Grodner, who, by the way, has another lawsuit pending against Black Lives Matter and Mckesson on behalf of a sheriff’s deputy who survived a deadly shooting that took the lives of three other Baton Rouge police officers on July 17, 2016. (That motion is also pending before Judge Jackson and will likely get tossed out as well.)
Rule 11 permits sanctions against an attorney who files a pleading for an improper purpose or that contains frivolous arguments. Is there anything more frivolous than trying to sue a hashtag? You’d be hard-pressed to find it.