Doe v. Mckesson: liability for foreseeable injury from unlawful protest

Racial activist Deray Mckesson led a Black Lives Matter demonstration in Baton Rouge, Louisiana that illegally occupied a roadway; in the ensuing confrontations, an unidentified person threw a missile that seriously injured a police officer. Can the officer sue Mckesson for lawbreaking acts that foreseeably created dangerous conditions that led to his injury?

In August a panel of the Fifth Circuit ruled unanimously that the First Amendment did not block such a suit; earlier this month the panel reissued an altered opinion after one of its members, Judge Don Willett, changed his mind and wrote a partial dissent finding Mckesson to have a First Amendment defense. [Jonathan Adler, Volokh Conspiracy] Central to the constitutional issues at play here is the 1982 case of NAACP v. Claiborne Hardware, in which a unanimous Supreme Court held that the First Amendment can bar the imposition of civil liability on organizers of protests even when some participants commit, or threaten, acts of violence.

Eugene Volokh has now written a series of posts on the case. Part I asks: why didn’t Mckesson’s lawyers invoke doctrines precluding recovery by rescue professionals (“firefighters’ rule”) to bar the officer’s claim? Part II is on the tort law side of the case (independent of the First Amendment angle), and so far as I can see Volokh and Willett reach different conclusions. In Part III, Volokh addresses the First Amendment issues, in the light of precedents like Claiborne Hardware. While the analysis is not a simple one, Volokh is “inclined to say that the First Amendment doesn’t require” immunity for foreseeable civil harms resulting from unlawful blocking of public roads as a protest.

Filed under: Fifth Circuit, firefighters rule, First Amendment

“What Does California’s New Data Privacy Law Mean? Nobody Agrees”

The new California law on consumer data is stringent but, as is so often the case with that state’s legislation, less than pellucidly clear [Natasha Singer, New York Times] :

“Companies have different interpretations, and depending on which lawyer they are using, they’re going to get different advice,” said Kabir Barday, the chief executive of OneTrust, a privacy management software service that has worked with more than 4,000 companies to prepare for the law. “I’ll call it a religious war.”

The new law has national implications because many companies, like Microsoft, say they will apply their changes to all users in the United States rather than give Californians special treatment.

Filed under: California, privacy, technology

On “stolen” Supreme Court seats

Did Hugo Black’s appointment to the Supreme Court in 1937 pass constitutional muster? The answer may hold a lesson for some who question the legitimacy of the present Supreme Court, I argue in my new Cato post. Despite hyperventilation over particular nominations, history shows the Court is resilient.

Filed under: judicial nominations, Supreme Court, WO writings

Free speech roundup, campaign and political speech edition

“New legislation aimed at curbing foreign influence in U.S. elections also appears to be aimed at curbing Americans’ influence in U.S. elections.” [Cato Daily Podcast with Caleb Brown and Scott Blackburn of the Institute for Free Speech on SHIELD Act]
“Everyone always talks about how much money there is in politics. This is the wrong framing. The right framing is… why is there so little money in politics?” [Scott Alexander]
Free speech advances other freedoms: “Frederick Douglass’s “Plea for Freedom of Speech in Boston”” [Law and Liberty, Kurt Lash introduction] The very idea of a gay rights organization once seemed unthinkable in America, and might have remained so “in the absence of a strong and particularly libertarian First Amendment.” [Dale Carpenter, SSRN and Volokh Conspiracy summary]
“That unlimited right to lobby the lawmakers who make decisions that affect your life, your family, and your fortune is one that Sen. Elizabeth Warren (D–Mass.) thinks American businesses should not have.” [Peter Suderman; Bradley Smith and Luke Wachob, NRO] A federal appeals court says an independent Missouri activist doesn’t have to register as a lobbyist to talk to lawmakers [Cato Daily Podcast with Caleb Brown and Zac Morgan of the Institute for Free Speech]
“Every Democrat in the Senate Supports a Constitutional Amendment That Would Radically Curtail Freedom of Speech” [Jacob Sullum] Same bunch “Still Fundraising Off Citizens United, Still Wrong About What It Means” [Elizabeth Nolan Brown]
“Essentially, L.A. has passed a law saying people with one interest in a decision by the council can support candidates, but the other side can’t.” [Christian Britschgi, Reason on city’s ban on contributions by developer but not anti-development interests]

Filed under: campaign regulation, First Amendment, free speech, lobbyists, Los Angeles

AB5: California’s much-predicted freelancer disaster

“California’s new employment law has boomeranged and is starting to crush freelancers” [Elaine Pofeldt, CNBC; Kerry Flynn, CNN Business] “As with many of my colleagues today, because I live in California, I was just told that I can no longer hold a paid position with SB Nation.” [Rebecca Lawson, Mavs Moneyball; Whitson Gordon thread on Twitter] “Separately, there’s some bit of irony in the fact that just a few months ago, Vox itself had a headline celebrating AB5 calling it a ‘victory for workers everywhere.’ Except, I guess, the freelancers who worked for Vox.” [Mike Masnick, Techdirt] “These were never good jobs,” claims the measure’s sponsor, Assemblywoman Lorena Gonzalez (D-San Diego), but lots of freelancers have made clear they disagree [Billy Binion] “Mainstream politicians and pundits love to cite ‘unintended consequences’ when their preferred policies cause harm in the exact ways libertarians said they would.” [Elizabeth Nolan Brown, earlier]

More: impacts on music, theater, and the performing arts make AB5 a creative-unfriendly law [Joshua Kosman and Carolyn Said, San Francisco Chronicle]

Filed under: California, music and musicians, newspapers, publishers, wage and hour suits

Medical roundup

Radiologist Saurabh Jha had me on his popular podcast a while back to discuss the history of malpractice law. Now he’s written a substantial piece (link to article, gated) on my book The Litigation Explosion (1991) for the Journal of the American College of Radiology which has in turn touched off a discussion on professional Twitter;
Certificate-of-need (CON) laws in 35 states allow incumbent firms to raise legal objections to entry by new competitors. Bad idea generally, and especially when the service involved is ambulances [John Stossel; Cato Daily Podcast with Caleb Brown and Larry Salzman of the Pacific Legal Foundation, which is suing to challenge Kentucky law]
Cato’s Robert A. Levy discusses some of the common law background of tort and contract, including medical misadventure [The Bob Harden Show, radio]
Trial lawyers trying yet again to lift California MICRA limits on medical malpractice recoveries [AP/KTLA via TortsProf] “Pennsylvania high court tosses seven-year medical malpractice limit” [Harris Meyer, Modern HealthCare via TortsProf]
Politicized social justice curriculum reaches med school [AnneMarie Schieber, Martin Center]
No repeal of Feres doctrine, but administrative claim fund could bypass: “Military medical malpractice victims could see payouts from Defense Department under new compromise” [Leo Shane III, Military Times]

Filed under: emergency services, John Stossel, MICRA, military, The Litigation Explosion

Merry Christmas, and highlights of Overlawyered past

Merry Christmas to all! Our posts will be slowing down, though not disappearing, over the next week or so. You can read some highlights from past Overlawyered coverage of the holiday here.

Filed under: Christmas and other holidays

Law enforcement for profit roundup

“A Louisiana DA will let you out of your community service obligation — if you donate to his nonprofit” [Radley Balko; Calcasieu Parish, La.]
New study of law enforcement fines and fees finds they bear more heavily on rural residents and have high costs of collection. Also makes a case for periodic forgiveness of mostly-uncollectible balances of old debt [Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen, and Noah Atchison, Brennan Center/Texas Public Policy Foundation/Right on Crime]
Oakland County, Mich. “Says Seizing Home Over $8.41 Tax Debt Was OK Because Counties Need Money” [Eric Boehm, Reason first and second posts] “The Unsung Scourge of Home Equity Theft” [Cato podcast with Christina Martin and Caleb Brown]
Georgia: “Doraville Homeowners Win Round One in Lawsuit Challenging City’s Overzealous Ticketing Scheme” [J. Justin Wilson, Institute for Justice]
Here’s a revisionist (though only partly so) account of the Luzerne County, Pa. cash-for-kids judicial scandal, to which we devoted multiple posts at the time [Roger DuPuis, Wilkes-Barre Times Leader]
“Forty-four states have policies of suspending driver’s licenses over unpaid fines, fees or court debts.” Time to rethink [Jenny Kim, WSJ/Koch]

Filed under: Detroit, law enforcement for profit, Louisiana, Luzerne County judicial scandal, petty fines and fees, taxes

They’re doing it wrong

Lawyers in suits and ties ransacked the Punjab Institute of Cardiology in Lahore, Pakistan, “beating up staff and smashing equipment…. The lawyers had been protesting over the alleged mistreatment of some of their colleagues by hospital staff last month. But the final trigger for the violence appears to have been a video posted on social media by a doctor on Tuesday night in which he poked fun at the lawyers.” Three patients died during the riot as medical staff could not care for them. [BBC]

Filed under: don't, hospitals

“Roundup suit lawyer accused of $200 million extortion plot”

“Law enforcement officials have arrested a Virginia lawyer involved in litigation over the health risks of Monsanto’s Roundup weed killer product, with prosecutors accusing him of trying to extort an unnamed company into a $200 million consulting fee with his legal firm.” The lawyer in question represented a former school groundskeeper who won a $289 million lawsuit against Monsanto last year, despite grave scientific doubts about whether glyphosate causes the harms alleged [Khristopher J. Brooks, CBS News, earlier on these cases] Related: U.S. Department of Justice release; Alex Berezow, American Council on Science and Health.

Filed under: don't, ethics, pesticides