Fifth Circuit Judges Challenge Supreme Court Review of DeRay Mckesson Protest Liability Case

In a Thursday dissent, Fifth Circuit Judge Don Willett, joined by Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo Ramirez, urged the Supreme Court to grant review of a case involving activist DeRay Mckesson. They argue that after a decade of litigation, discovery, and a district court summary judgment, the core constitutional issue—whether a political speaker can be held liable under a negligent-protest theory without proof of intent—remains clear and unavoidable.

Citing the Supreme Court’s own description of the issue as "undeniably important," the judges maintain that liability requires proof of authorization, direction, ratification, or incitement, not merely foreseeability. They criticize the panel’s reasoning for substituting prominence, proximity, and foreseeability for intent, warning that such a rule would chill speech across all movements. The dissent underscores that while Officer John Ford suffered serious injuries, the Constitution demands a personal nexus between the speaker and the violent act.