The Supreme Court declined Monday to stop a police officer's lawsuit against a Black Lives Matter activist who led the 2016 protest where he was injured by another individual.

Black Lives Matter activist DeRay Mckesson had asked the justices to decide whether the First Amendment prevents a protest leader from being held personally liable for violence perpetrated by another individual when the organizer "neither authorized, directed, nor ratified" the act. A Baton Rouge officer sued Mckesson after he was hit in the head with a rock during a 2016 protest, alleging he "incited the violence" and "did nothing to calm the crowd," according to the complaint.

The justices decision not to take up the case left in place a lower court's ruling allowing the lawsuit to proceed.

"Because this Court may deny certiorari for many reasons, including that the law is not in need of further clarification, its denial today expresses no view about the merits of Mckesson's claim," Justice Sonia Sotomayor wrote in a statement accompanying the denial.


Sotomayor noted that the Supreme Court's recent ruling in Counterman v. Colorado made it clear "that the First Amendment bars the use of 'an objective standard' like negligence for punishing speech." The court held in Counterman that a speaker cannot be held liable for making a "true threat" unless he made them recklessly with understanding of their threatening nature.

"Although the Fifth Circuit did not have the benefit of this Court's recent decision in Counterman when it issued its opinion, the lower courts now do," she wrote. "I expect them to give full and fair consideration to arguments regarding Counterman's impact in any future proceedings in this case."

The Fifth Circuit held in 2023 that the officer "plausibly alleged that Mckesson breached his duty in the course of the latter's organizing and leading the Black Lives Matter protest at issue here," allowing him to press a negligence claim.

Fifth Circuit Judge Don Willett, a Trump appointee, wrote in a dissent that the officer "deserves justice" and can sue the rock-thrower, but not the protest leader.

"The Constitution that Officer Doe swore to protect itself protects Mckesson's rights to speak, assemble, associate, and petition," he wrote.

Black Lives Matter was founded in 2013 and grew in prominence in the following years. Riots swept the country during the summer of 2020 following the death of George Floyd.
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