from the United States District Court for the Middle District
JOLLY, ELROD, and WILLETT, Circuit Judges.
GRADY JOLLY, CIRCUIT JUDGE.
WITHDRAW the court's prior opinion of August 8, 2019, and
substitute the following opinion.
a public protest against police misconduct in Baton Rouge,
Louisiana, an unidentified individual hit Officer John Doe
with a heavy object, causing him serious physical injuries.
Following this incident, Officer Doe brought suit against
"Black Lives Matter," the group associated with the
protest, and DeRay Mckesson, one of the leaders of Black
Lives Matter and the organizer of the protest. Officer Doe
later sought to amend his complaint to add Black Lives Matter
Network, Inc. and #BlackLivesMatter as defendants. The
district court dismissed Officer Doe's claims on the
pleadings under Federal Rule of Civil Procedure 12(b)(6), and
denied his motion to amend his complaint as futile. Because
we conclude that the district court erred in dismissing the
case against Mckesson on the basis of the pleadings, we
REMAND for further proceedings relative to Mckesson. We
further hold that the district court properly dismissed the
claims against Black Lives Matter. We thus REVERSE in part,
AFFIRM in part, and REMAND for further proceedings consistent
with this opinion.
9, 2016, a protest illegally blocked a public highway in
front of the Baton Rouge Police Department
headquarters. This demonstration was one in a string of
protests across the country, often associated with Black
Lives Matter, concerning police practices. The Baton Rouge
Police Department prepared by organizing a front line of
officers in riot gear. These officers were ordered to stand
in front of other officers prepared to make arrests. Officer
Doe was one of the officers ordered to make arrests. DeRay
Mckesson, associated with Black Lives Matter, was the prime
leader and an organizer of the protest.
presence of Mckesson, some protesters began throwing objects
at the police officers. Specifically, protestors began to
throw full water bottles, which had been stolen from a nearby
convenience store. The dismissed complaint further alleges
that Mckesson did nothing to prevent the violence or to calm
the crowd, and, indeed, alleges that Mckesson "incited
the violence on behalf of [Black Lives Matter]." The
complaint specifically alleges that Mckesson led the
protestors to block the public highway. The police officers
began making arrests of those blocking the highway and
participating in the violence.
point, an unidentified individual picked up a piece of
concrete or a similar rock-like object and threw it at the
officers making arrests. The object struck Officer Doe's
face. Officer Doe was knocked to the ground and
incapacitated. Officer Doe's injuries included loss of
teeth, a jaw injury, a brain injury, a head injury, lost
wages, "and other compensable losses."
the Baton Rouge protest, Officer Doe brought suit, naming
Mckesson and Black Lives Matter as defendants. According to
his complaint, the defendants are liable on theories of
negligence, respondeat superior, and civil conspiracy.
Mckesson subsequently filed two motions: (1) a Rule 12(b)(6)
motion, asserting that Officer Doe failed to state a
plausible claim for relief against Mckesson; and (2) a Rule
9(a)(2) motion, asserting that Black Lives Matter is not an
entity with the capacity to be sued.
Doe responded by filing a motion to amend. He sought leave to
amend his complaint to add factual allegations to his
complaint and Black Lives Matter Network, Inc. and
#BlackLivesMatter as defendants.
district court granted both of Mckesson's motions,
treating the Rule 9(a)(2) motion as a Rule 12(b)(6) motion,
and denied Officer Doe's motion for leave to amend,
concluding that his proposed amendment would be futile. With
respect to Officer Doe's claims against
#BlackLivesMatter, the district court took judicial notice
that it is a "hashtag" and therefore an
"expression" that lacks the capacity to be sued.
With respect to Officer Doe's claims against Black Lives
Matter Network, Inc., the district court held that Officer
Doe's allegations were insufficient to state a plausible
claim for relief against this entity. Emphasizing the fact
that Officer Doe attempted to add a social movement and a
"hashtag" as defendants, the district court
dismissed his case with prejudice. Officer Doe timely
considering a motion to dismiss under Rule 12(b)(6), we will
not affirm dismissal of a claim unless the plaintiff can
prove no set of facts in support of his claim that would
entitle him to relief. Alexander v. Verizon Wireless
Servs., L.L.C., 875 F.3d 243, 249 (5th Cir. 2017).
"We take all factual allegations as true and construe
the facts in the light most favorable to the plaintiff."
Id. (citing Kelly v. Nichamoff, 868 F.3d
371, 374 (5th Cir. 2017)). To survive, a complaint must
consist of more than "labels and conclusions" or
"naked assertions devoid of further factual
enhancement." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007) (internal quotation marks and brackets
omitted)). Instead, "the plaintiff must plead enough
facts to nudge the claims across the line from conceivable to
plausible." Hinojosa v. Livingston, 807 F.3d
657, 684 (5th Cir. 2015) (internal quotation marks, brackets,
and ellipses omitted) (quoting Iqbal, 556 U.S. at
district court's denial of a motion to amend is generally
reviewed for abuse of discretion. Thomas v. Chevron
U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016).
However, where the district court's denial of leave to
amend was based solely on futility, we instead apply a de
novo standard of review identical in practice to the Rule
12(b)(6) standard. Id. When a party seeks leave from
the court to amend and justice requires it, the district
court should freely give it. Fed.R.Civ.P. 15(a)(2).
start with whether we have jurisdiction to hear this case,
raising sua sponte its potential absence. Neither the
district court nor any party addressed this issue in prior
proceedings or on appeal. Officer Doe sued Mckesson and Black
Lives Matter. The complaint alleges that Black Lives
Matter is a national unincorporated association, Doe v.
Mckesson, 272 F.Supp.3d 841, 849 (M.D. La. 2017), which,
for diversity purposes, is a citizen of every state where a
member is a citizen, Getty Oil Corp. v. Ins. Co. of N.
Am., 841 F.2d 1254, 1258 (5th Cir. 1988). Officer Doe,
as the party invoking federal jurisdiction, bore the burden
of establishing jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). But the
complaint fails to allege with sufficiency the membership of
Black Lives Matter. Such failure to establish diversity
jurisdiction normally warrants remand-if there was some
reason to believe that jurisdiction exists, i.e., some reason
to believe both that Black Lives Matter's citizenship
could be demonstrated with a supplemented record and
that it is diverse from the plaintiff-or dismissal of the
case. See MidCap Media Fin., LLC v. Pathway Data,
Inc., 929 F.3d 310, 316 (5th Cir. 2019).
need not resort to either here. Even assuming arguendo that
Black Lives Matter were nondiverse and thus that the parties
were nondiverse at the time of filing this lawsuit, such
"lack of [diversity] jurisdiction can be cured when the
non-diverse party is dismissed in federal court." 16
Front Street, L.L.C. v. Miss. Silicon, L.L.C., 886 F.3d
549, 556 (5th Cir. 2018). This "method of curing a
jurisdictional defect ha[s] long been an exception to the
time-of-filing rule." Grupo Dataflux v. Atlas Glob.
Grp., L.P., 541 U.S. 567, 572 (2004); see,
e.g., Caterpillar, Inc. v. Lewis, 519 U.S. 61,
73 (1996) (holding that "diversity became complete"
when a nondiverse party settled and was dismissed from the
case and that therefore "[t]he jurisdictional defect was
cured") (emphasis removed); McGlothin v. State Farm
Mut. Ins. Co., 925 F.3d 741, 744 (5th Cir. 2019)
(holding that the dismissal of nondiverse defendants for
failure of service of process "created complete
diversity; and, therefore, the district court had
jurisdiction") (citations omitted).
the district court took judicial notice that Black Lives
Matter was a social movement and therefore a non-juridical
entity lacking the capacity to be sued. Doe, 272
F.Supp.3d at 850; see infra Part V.C. The court
subsequently dismissed Black Lives Matter as a defendant.
Doe, 272 F.Supp.3d at 850. If complete diversity did
not exist before, this dismissal created the complete
diversity (since Officer Doe and Mckesson are citizens of
different states) necessary for jurisdiction in this case.
For that reason, we have jurisdiction to hear this
address Officer Doe's claims against DeRay Mckesson. The
district court did not reach the merits of Officer Doe's
underlying state tort claims, but instead found that Officer
Doe failed to plead facts that took Mckesson's conduct
outside of the bounds of First Amendment protected speech and
association. Because we ultimately find that Mckesson's
conduct at this pleading stage was not necessarily protected
by the First Amendment, we will begin by addressing the
plausibility of Officer Doe's state tort claims. We will
address each of Officer Doe's specific theories of
liability in turn- vicarious liability, negligence, and civil
conspiracy, beginning with vicarious liability.
Civil Code article 2320 provides that "[m]asters and
employers are answerable for the damage occasioned by their
servants and overseers, in the exercise of the functions in
which they are employed." A "servant," as used
in the Civil Code, "includes anyone who performs
continuous service for another and whose physical movements
are subject to the control or right to control of the other
as to the manner of performing the service." Ermert
v. Hartford Ins. Co., 559 So.2d 467, 476 (La.
1990). Officer Doe's vicarious liability theory fails at
the point of our beginning because he does not allege facts
that support an inference that the unknown assailant
"perform[ed] a continuous service" for, or that the
assailant's "physical movements [were] subject to
the control or right to control" of, Mckesson.
Therefore, under the pleadings, Mckesson cannot be held
liable under a vicarious liability theory.
move on to address Officer Doe's civil conspiracy theory.
Civil conspiracy is not itself an actionable tort. Ross
v. Conoco, Inc., 828 So.2d 546, 552
(La. 2002). Instead, it assigns liability arising from the
existence of an underlying unlawful act. Id. In
order to impose liability for civil conspiracy in Louisiana,
a plaintiff must prove that (1) an agreement existed with one
or more persons to commit an illegal or tortious act; (2) the
act was actually committed; (3) the act resulted in
plaintiff's injury; and (4) there was an agreement as to
the intended outcome or result. Crutcher-Tufts Res.,
Inc. v. Tufts, 992 So.2d 1091, 1094
(La. Ct. App. 2008); see also La. Civ. Code art.
2324. "Evidence of . . . a conspiracy can be actual
knowledge, overt actions with another, such as arming oneself
in anticipation of apprehension, or inferred from the
knowledge of the alleged co-conspirator of the impropriety of
the actions taken by the other co-conspirator."
Stephens v. Bail Enf't, 690 So.2d 124, 131 (La.
Ct. App. 1997).
Doe's complaint is vague about the underlying conspiracy
to which Mckesson agreed, or with whom such an agreement was
made. In his complaint, Officer Doe refers to a conspiracy
"to incite a riot/protest." Disregarding Officer
Doe's conclusory allegations, we find that Officer Doe
has not alleged facts that would support a plausible claim
that Mckesson can be held liable for his injuries on a theory
of civil conspiracy. Although Officer Doe has alleged facts
that support an inference that Mckesson agreed with unnamed
others to demonstrate illegally on a public highway, he has
not pled facts that would allow a jury to conclude that
Mckesson colluded with the unknown assailant to attack
Officer Doe or knew of the attack and specifically ratified
it. The closest that Officer Doe comes to such an allegation
is when he states that Mckesson was "giving orders"
throughout the demonstration. But we cannot infer from this
quite unspecific allegation that Mckesson ordered the unknown
assailant to attack Officer Doe. Lacking an allegation of
this pleading quality, Officer Doe's conspiracy claim
must and does fail.
we turn to Officer Doe's negligence theory. Officer Doe
alleges that Mckesson was negligent for organizing and
leading the Baton Rouge demonstration because he "knew
or should have known" that the demonstration would turn
violent. We agree as follows.
Civil Code article 2315 provides that "[e]very act
whatever of man that causes damage to another obliges him by
whose fault it happened to repair it." The Louisiana
Supreme Court has adopted a "duty-risk" analysis
for assigning tort liability under a negligence theory. This
theory requires a plaintiff to establish that (1) the
plaintiff suffered an injury; (2) the defendant owed a duty
of care to the plaintiff; (3) the duty was breached by the
defendant; (4) the conduct in question was the cause-in-fact
of the resulting harm; and (5) the risk of harm was within
the scope of protection afforded by the duty breached.
Lazard v. Foti, 859 So.2d 656, 659 (La. 2003).
Whether a defendant owes a plaintiff a duty is a question of
law. Posecai v. Wal-Mart Stores, Inc., 752 So.2d
762, 766 (La. 1999); see Bursztajn v. United States,
367 F.3d 485, 489 (5th Cir. 2004) ("Under Louisiana law,
the existence of a duty presents a question of law that
'varies depending on the facts, circumstances, and
context of each case and is limited by the particular risk,
harm, and plaintiff involved.'" (quoting Dupre
v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir.
1994))). There is a "universal duty on the part of the
defendant in negligence cases to use reasonable care so as to
avoid injury to another." Boykin v. La. Transit
Co., 707 So.2d 1225, 1231 (La. 1998). Louisiana
courts elucidate specific duties of care based on
various moral, social, and economic factors, including the
fairness of imposing liability; the economic impact on the
defendant and on similarly situated parties; the need for an
incentive to prevent future harm; the nature of
defendant's activity; the potential for an unmanageable
flow of litigation; the historical development of precedent;
and the direction in which society and its institutions are
Posecai, 752 So.2d at 766.
first note that this case comes before us from a dismissal on
the pleadings alone. In this context, we find that Officer
Doe has plausibly alleged that Mckesson breached his duty of
reasonable care in the course of organizing and leading the
Baton Rouge demonstration. The complaint alleges that
Mckesson planned to block a public highway as part of the
protest. And the complaint specifically alleges that Mckesson
was in charge of the protests and was seen and heard giving
orders throughout the day and night of the protests. Blocking
a public highway is a criminal act under Louisiana law.
See La. Rev. Stat. Ann. § 14:97. Indeed, the
complaint alleges that Mckesson himself was arrested during
the demonstration. It was patently foreseeable that the Baton
Rouge police would be required to respond to the
demonstration by clearing the highway and, when necessary,
making arrests. Given the intentional lawlessness of this
aspect of the demonstration, Mckesson should have known that
leading the demonstrators onto a busy highway was likely to
provoke a confrontation between police and the mass of
demonstrators, yet he ignored the foreseeable danger to
officers, bystanders, and demonstrators, and notwithstanding,
did so anyway.
ignoring the foreseeable risk of violence that his actions
created, Mckesson failed to exercise reasonable care in
conducting his demonstration. This is not, as the dissenting
opinion contends, a "duty to protect others from the
criminal activities of third persons." See
Posecai, 752 So.2d at 766. Louisiana does not recognize
such a duty. It does, however, recognize a duty not to
negligently cause a third party to commit a crime that is a
foreseeable consequence of negligence. See Brown v.
Tesack, 566 So.2d 955 (La. 1990). The former means a
business owner has no duty to provide security guards in its
parking lot if there is a very low risk of crime. See
Posecai, 752 So.2d at 770. The latter means a school can
be liable when it negligently disposes of flammable material
in an unsecured dumpster and local children use the liquid to
burn another child. See Brown, 566 So.2d at 957.
That latter rule applies here too: Mckesson owed Doe a duty
not to negligently precipitate the crime of a third party.
And a jury could plausibly find that a violent confrontation
with a police officer was a foreseeable effect of negligently
directing a protest.
Doe has also plausibly alleged that Mckesson's breach of
duty was the cause-in-fact of Officer Doe's injury and
that the injury was within the scope of the duty breached by
Mckesson. It may have been an unknown demonstrator who threw
the hard object at Officer Doe, but by leading the
demonstrators onto the public highway and provoking a violent
confrontation with the police, Mckesson's negligent
actions were the "but for" causes of Officer
Doe's injuries. See Roberts v. Benoit, 605 So.2d
1032, 1052 (La. 1992) ("To meet the cause-in-fact
element, a plaintiff must prove only that the conduct was a
necessary antecedent of the accident, that is, but for the
defendant's conduct, the incident probably would not have
occurred."). Furthermore, as the purpose of imposing a
duty on Mckesson in this situation is to prevent foreseeable
violence to the police and bystanders, Officer Doe's
injury, as alleged in the pleadings, was within the scope of
the duty of care allegedly breached by Mckesson.
amended complaint only bolsters these conclusions. It
specifically alleges that Mckesson led protestors down a
public highway in an attempt to block the interstate. The
protestors followed. During this unlawful act, Mckesson knew
he was in violation of law and livestreamed his arrest.
Finally, the plaintiff's injury was suffered during this
unlawful action. The amended complaint alleges that it was
during this struggle of the protestors to reach the
interstate that Officer Doe was struck by a piece of concrete
or rock-like object. It is an uncontroversial proposition of
tort law that intentionally breaking, and encouraging others
to break, the law is relevant to the reasonableness of
iterate what we have previously noted: Our ruling at this
point is not to say that a finding of liability will
ultimately be appropriate. At the motion to dismiss stage,
however, we are simply required to decide whether Officer
Doe's claim for relief is sufficiently plausible to allow
him to proceed to discovery. We find that it is.
concluded that Officer Doe has stated a plausible claim for
relief against Mckesson under state tort law, we will now
take a step back and address the district court's
determination that Officer Doe's complaint should be
dismissed based on the First Amendment. The Supreme Court has
made clear that "[t]he First Amendment does not protect
violence." N.A.A.C.P. v. Claiborne Hardware
Co., 458 U.S. 886, 916 (1982). Nonetheless, the district
court dismissed the complaint on First Amendment grounds,
reasoning that "[i]n order to state a claim against
Mckesson to hold him liable for the tortious act of another
with whom he was associating during the demonstration,
Plaintiff would have to allege facts that tend to demonstrate
that Mckesson 'authorized, directed, or ratified specific
tortious activity.'" Doe, 272 F.Supp.3d at
847 (quoting Claiborne Hardware, 458 U.S. at 927).
The district court then went on to find that there were no
plausible allegations that Mckesson had done so in his
district court appears to have assumed that in order to state
a claim that Mckesson was liable for his injuries, Officer
Doe was required to allege facts that created an inference
that Mckesson directed, authorized, or ratified the unknown
assailant's specific conduct in attacking Officer Doe.
This assumption, however, does not fit the situation we
address today. Even if we assume that Officer Doe seeks to
hold Mckesson "liable for the unlawful conduct of
others" within the meaning of Claiborne
Hardware, the First Amendment would not require
dismissal of Officer Doe's complaint. 458 U.S. at 927. In
order to counter Mckesson's First Amendment defense at
the pleading stage, Officer Doe simply needed to plausibly
allege that his injuries were one of the
"consequences" of "tortious activity,"
which itself was "authorized, directed, or
ratified" by Mckesson in violation of his duty of care.
See id. ("[A] finding that [the defendant]
authorized, directed, or ratified specific tortious activity
would justify holding him responsible for the consequences of
that activity."). Our discussion above makes clear that
Officer Doe's complaint does allege that Mckesson
directed the demonstrators to engage in the criminal act of
occupying the public highway, which quite consequentially
provoked a confrontation between the Baton Rouge police and
the protesters, and that Officer Doe's injuries were the
foreseeable result of the tortious and illegal conduct of
blocking a busy highway.
focus here on the fact that Mckesson "directed . . .
specific tortious activity" because we hold that Officer
Doe has adequately alleged that his injuries were the result
of Mckesson's own tortious conduct in directing
an illegal and foreseeably violent protest. In Mckesson's
petition for rehearing, he expresses concern that the panel
opinion permits Officer Doe to hold him liable for the
tortious conduct of others even though Officer Doe
merely alleged that he was negligent, and not that he
specifically intended that violence would result. We think
that Mckesson's criticisms are misplaced. We perceive no
constitutional issue with Mckesson being held liable for
injuries caused by a combination of his own negligent conduct
and the violent actions of another that were foreseeable as a
result of that negligent conduct. The permissibility of such
liability is a standard aspect of state law. See
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 19 (2010) ("The conduct of a
defendant can lack reasonable care insofar as it foreseeably
combines with or permits the improper conduct of the
plaintiff or a third party."). There is no indication in
Claiborne Hardware or subsequent decisions that the
Supreme Court intended to restructure state tort law by
eliminating this principle of negligence liability.
reading of Claiborne Hardware makes this clear. In
that case, the Mississippi Supreme Court had found defendants
liable for malicious interference with plaintiff's
business when they executed a sustained boycott against
white-owned businesses for the purpose of securing
"equal rights and opportunities for Negro
citizens." See Claiborne Hardware, 458 U.S. at
899 (internal quotations omitted). That holding depended on
the conclusion that "force, violence, or threats"
were present. See id. at 895 (citing 393 So.2d 1290,
1301 (Miss. 1980)). This was a departure from the holding of
the state chancery court. As the United States Supreme Court
clarified, "[t]he Mississippi Supreme Court did not
sustain the chancellor's imposition of liability on a
theory that state law prohibited a nonviolent, politically
motivated boycott." Id. at 915. This
distinction is key: Before the United States Supreme Court,
the only unlawful activities at issue involved "force,
violence, or threats." If the "force, violence,
[and] threats" had been removed from the boycott, the
remaining conduct would not have been tortious at all.
posture is central to understanding what Claiborne
Hardware did, and more importantly, did not, hold. When
Claiborne Hardware speaks of violence, it speaks of
the only unlawful activity at issue in the case. Consider its
observation that "[w]hile 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. It
could not award compensation for the consequences of
nonviolent activity because the only potentially tortious
conduct at issue was violent. Indeed, the court expressly
declined to reach the question of how it would have ruled if
the nonviolent aspects of the boycott had been found to be
tortious violations of an appropriately tailored state law.
See id. at 915 n.49.
dissenting opinion reads Claiborne Hardware as
creating a broad categorical rule: "Claiborne
Hardware . . . insulates nonviolent protestors from
liability for others' conduct when engaging in political
expression, even intentionally tortious conduct, not intended
to incite immediate violence." How does it reach this
conclusion? It relies on the Claiborne Hardware
chancery court opinion that grounded liability in nonviolent
protest. But the Mississippi Supreme Court and the United
States Supreme Court grounded liability solely in the
presence of "force, violence or threats."
Id. at 895. The United States Supreme Court did not
invent a "violence/nonviolence distinction" when it
explained that "[w]hile 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. It
merely applied black-letter tort law: Because the only
tortious conduct in Claiborne Hardware was violent,
no nonviolent conduct could have proximately caused the
plaintiff's injury. See id. ("Only those
losses proximately caused by unlawful conduct may be
same reason, the Claiborne Hardware opinion makes
frequent reference to unlawful conduct when, under the
dissenting opinion's view, it should have spoken of
violence. See, e.g., id. at 920 ("For liability
to be imposed by reason of association alone, it is necessary
to establish that the group itself possessed unlawful goals
and that the individual held a specific intent to further
those illegal aims."); id. at 925 ("There
is nothing unlawful in standing outside a store and recording
names."); id. at 926 ("Unquestionably,
these individuals may be held responsible for the injuries
that they caused; a judgment tailored to the consequences of
their unlawful conduct may be sustained."); id.
at 927 ("There are three separate theories that might
justify holding Evers liable for the unlawful conduct of
others."); id. at 933 ("At times the
difference between lawful and unlawful collective action may
be identified easily by reference to its purpose."). In
every instance, if the Court were creating a
violence/nonviolence distinction it would have replaced
"unlawful" with "violent." It did not,
because it created no such demarcation. Rather, it addressed
the case before it, where the only tortious conduct was
supposed violence/nonviolence distinction also does not
square with the case law. Take New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). That case held that a
public officer cannot "recover damages for a
defamatory falsehood relating to his official conduct unless
he proves that the statement was made with 'actual
malice'-that is, with knowledge that it was false or with
reckless disregard of whether it was false or not."
Id. at 279-80. But defamation is a nonviolent tort,
and statements made about public officers are often shouted
during political protests. If the dissenting opinion's
interpretation is correct, then it would seem that even the
narrow "actual malice" exception to immunity was
eliminated by Claiborne Hardware, at least for
statements made during a protest.
do recent cases vindicate this understanding. The Seventh
Circuit examined a boycott similar to the one in
Claiborne Hardware, this time a boycott by a union
of a hotel and those doing business with the hotel. See
520 S. Mich. Ave. Assocs., Ltd. v. Unite Here Local 1,
760 F.3d 708 (7th Cir. 2014). The court found that it was
"undisputed that the Union delegations all attempted to
communicate a message on a topic of public concern."
Id. at 723. But the court nonetheless held that the
boycotters could be found liable if they had crossed the line
into illegal coercion, because "prohibiting some of the
Union's conduct under the federal labor laws would pose
no greater obstacle to free speech than that posed by
ordinary trespass and harassment laws." Id. The
court's benchmark for liability was illegality, not
violence. The court concluded that if "the Union's
conduct in this case is equivalent to secondary picketing,
and inflicts the same type of economic harm, it too may be
prohibited without doing any harm to First Amendment
liberties." Id. The dissenting opinion cannot
be squared with this outcome.
the violence/nonviolence distinction does not make sense.
Imagine protesters speaking out on a heated political issue
are marching in a downtown district. As they march through
the city, a protester jaywalks. To avoid the jaywalker, a car
swerves off the street, and the driver is seriously injured.
If the dissenting opinion's interpretation of
Claiborne Hardware is correct, the First Amendment
provides an absolute defense to liability for the jaywalker
in a suit by the driver. The dissenting opinion says that
"preventing tortious interference is not a proper
justification for restricting free speech (unlike preventing
violence)" because Claiborne Hardware cemented
a "violence/nonviolence distinction." The theory
seems to be that because tortious interference is nonviolent,
it cannot be tortious if done for a political reason. So too
with every nonviolent tort? What about nonviolent
criminal offenses done for a political reason? The
dissenting opinion does not seem to believe that engaging in
a protest provides a protestor immunity for violating La.
Rev. Stat. Ann. § 14:97. What is the logic behind
immunizing protestors from nonviolent civil liability while
retaining their nonviolent criminal liability?
course acknowledge that Mckesson's negligent conduct took
place in the context of a political protest. It is certainly
true that "the presence of activity protected by the
First Amendment imposes restraints on the grounds that may
give rise to damages liability and on the persons who may be
held accountable for those damages." Claiborne
Hardware, 458 U.S. at 916-17. But Claiborne
Hardware does not insulate the petitioner from liability
for his own negligent conduct simply because he, and
those he associated with, also intended to communicate a
message. See id. at 916 ("[T]he use of weapons,
gunpowder, and gasoline may not constitutionally masquerade
under the guise of advocacy." (internal quotation marks
and citations omitted)). Furthermore, although we do not
understand the petitioner to be arguing that the Baton Rouge
police violated the demonstrators' First Amendment rights
by attempting to remove them from the highway, we note that
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. See
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,
293 (1984) (reasonable time, place, and manner restrictions
do not violate the First Amendment). As such, no First
Amendment protected activity is suppressed by allowing the
consequences of Mckesson's conduct to be addressed by
state tort law.
on the pleadings, which must be read in a light most
favorable to Officer Doe, the First Amendment is not a bar to
Officer Doe's negligence theory. The district court erred
by dismissing Officer Doe's complaint-at the pleading
stage-as barred by the First Amendment. We emphasize that
this means only that, given the facts that Doe alleges, he
could plausibly succeed on this claim. We make no
statement (and we cannot know) whether he will.
turn our attention to whether Officer Doe has stated a claim
against Black Lives Matter. The district court took judicial
notice that "'Black Lives Matter,' as that term
is used in the Complaint, is a social movement that
was catalyzed on social media by the persons listed in the
Complaint in response to the perceived mistreatment of
African-American citizens by law enforcement officers."
Based on this conclusion, the district court held that Black
Lives Matter is not a "juridical person" capable of
being sued. See Ermert, 559 So.2d at 474. We first
address the district court's taking of judicial notice,
then Black Lives Matter's alleged capacity to be sued.
Rule of Evidence 201 provides that a court may take judicial
notice of an "adjudicative fact" if the fact is
"not subject to reasonable dispute" in that it is
either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot be questioned. Fed.R.Evid. 201(b). "Rule 201
authorizes the court to take notice only of 'adjudicative
facts,' not legal determinations."
Taylor v. Charter Med. Corp., 162 F.3d 827, 831 (5th
Cir. 1998). In Taylor, we held that another
court's state-actor determination was not an
"adjudicative fact" within the meaning of Rule 201
because "[w]hether a private party is a state actor for
the purposes of § 1983 is a mixed question of fact and
law and is thus subject to our de novo review."
Id. at 830-31. We further held that the state-actor
determination was not beyond reasonable dispute where it
"was, in fact, disputed by the parties" in the
related case. Id. at 830.
think that the district court was incorrect to take judicial
notice of a mixed question of fact and law when it concluded
that Black Lives Matter is a "social movement,
rather than an organization or entity of any sort." The
legal status of Black Lives Matter is not immune from
reasonable dispute; and, indeed, it is disputed by the
parties-Doe claiming that Black Lives Matter is a national
unincorporated association, and Mckesson claiming that it is
a movement or at best a community of interest. This
difference is sufficient under our case law to preclude
should further say that we see the cases relied on by the
district court as distinguishable. Each deals with judicial
notice of an aspect of an entity, not its legal form. See
United States v. Parise, 159 F.3d 790, 801 (3d Cir.
1998) (holding that the court could take judicial notice of
the aims and goals of a movement);
Atty. Gen. of U.S. v. Irish N. Aid. Comm., 530
F.Supp. 241, 259- 60 (S.D.N.Y. 1981) (stating the court could
take "notice that the IRA is a 'Republican
movement,' at least insofar as it advocates a united
Ireland" (emphasis added)); see also Baggett v.
Bullitt, 377 U.S. 360, 376 n.13 (1964) (noting that
"[t]he lower court took judicial notice of the fact that
the Communist Party of the United States . . . was a part
of the world Communist movement" (emphasis added)).
move on to discuss the merits of Officer Doe's contention
that Black Lives Matter is a suable entity. He alleges that
Black Lives Matter "is a national unincorporated
association with chapter [sic] in many states." Under
Federal Rule of Civil Procedure 17(b), the capacity of an
entity "to sue or be sued is determined . . . by the law
of the state where the court is located." Under Article
738 of the Louisiana Code of Civil Procedure, "an
unincorporated association has the procedural capacity to be
sued in its own name." The Louisiana Supreme Court has
held that "an unincorporated association is created in
the same manner as a partnership, by a contract between two
or more persons to combine their efforts, resources,
knowledge or activities for a purpose other than profit or
commercial benefit." Ermert, 559 So.2d at 473.
"Interpretation of a contract is the determination of
the common intent of the parties." La. Civ. Code Ann.
art. 2045. To show intent, "the object of the contract
of association must necessarily be the creation of an ...