Fifth Circuit Judges Ask Supreme Court to Review Mckesson Protest Liability Case
Six Fifth Circuit judges petition the Supreme Court to review DeRay Mckesson's protest liability case.
Why it matters: This petition could establish key legal precedents on liability for protest organizers, shaping civil rights litigation and protest-related legal strategies nationwide.
- Six Fifth Circuit judges filed a rare cert petition on August 1, 2026.
- The case involves DeRay Mckesson's potential liability for injuries to a police officer during a 2016 Black Lives Matter protest in Baton Rouge.
- In March 2026, the Fifth Circuit ruled Mckesson could be liable, allowing the case to go to trial.
- The U.S. Supreme Court previously vacated a Fifth Circuit decision in 2020 and remanded the case to clarify state law before constitutional issues.
On August 1, 2026, six active judges from the U.S. Court of Appeals for the Fifth Circuit—Don Willett, Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo—filed an uncommon petition for a writ of certiorari, asking the U.S. Supreme Court to review the ongoing litigation involving civil rights activist DeRay Mckesson.
The case centers on a 2016 Black Lives Matter protest in Baton Rouge, Louisiana. During the event, a police officer was injured when an unidentified individual threw a hard object. The officer sued Mckesson, alleging that as the protest organizer, he was liable for the injuries sustained. The American Civil Liberties Union has covered the case.
In March 2026, the Fifth Circuit ruled that Mckesson could potentially be held liable for the injuries, allowing the suit to proceed to trial. This decision marked a significant moment in the case's long history after years of pretrial litigation. As Judge Edith Jones of the Fifth Circuit noted, "Eight years of pretrial litigation are enough. It is time for Officer Ford to have a jury assess his claim that DeRay Mckesson’s negligence in leading a violent protest caused him to suffer injuries at the hands of rioters."
The case had previously reached the Supreme Court in 2020, which vacated a prior Fifth Circuit ruling and remanded the case for further proceedings. The high court emphasized the need to clarify Louisiana state law before addressing constitutional questions surrounding protest-related liability. This prior Supreme Court action is detailed on Justia.
The recent petition from active appellate judges is rare and signals the legal complexities and broader implications of assigning liability to protest organizers for the actions of third parties during demonstrations. A Supreme Court decision could help resolve these open questions and influence how future civil rights and protest-related cases are litigated nationwide. More details on the cert petition are available at Reason.
By the numbers:
- 6 judges — filed the certiorari petition on August 1, 2026
- March 2026 — Fifth Circuit ruled Mckesson could be liable for protest injuries
- 2020 — Supreme Court vacated Fifth Circuit decision and remanded case
What's next: Supreme Court granting the petition would be the next key development, potentially setting legal standards for protest organizer liability.