A federal judge in Louisiana has ruled that the Black Lives Matter movement against police violence and its hashtag #BlackLivesMatter are not "prosecutable" entities. And that one of the leaders of the movement also can not be held accountable for the injury of a police officer during a demonstration in Baton Rouge, the capital of Louisiana, because he did not order or incite violent action by a participant.
On July 9, 2016, during a peaceful demonstration protesting the death of a black person by a white police officer, a small group among the demonstrators depredated shop windows and one of them threw a stone at the policemen. The stone hit the face of a police officer, who sued the movement, the hashtag and leader DeRay Mckesson, under the name of John Doe (the American name that protects anonymity in the courts).
"An action against a social movement demonstrates that the petitioner does not understand the concept of capacity to be prosecuted or that he has moved the action in bad faith," he wrote in his decision (http://www.abajournal.com/files/BlackLivesMatter. pdf) Federal Judge Brian Jackson. "You can not prosecute the Black Lives Matter movement, you can not prosecute the civil rights movement, the LGBT rights movement or the [right wing] Tea Party movement," he said.
In his complaint, the plaintiff alleges that Mckesson led the protests and the violence that accompanied them. And that he was seen giving orders during the day and night of protests. He further claims that Mckesson did nothing to calm the crowd during the demonstrations. Instead, it incited violence.
But the petition does not say how the leader of the movement incited violence or prove any of the allegations. For the judge, all the allegations are conclusive in their nature and therefore do not contain sufficient factual matter, accepted as truth, to support the charges and the claim for damages.
"A person may be held accountable for the consequences of his violent behavior, but not for the consequences of nonviolent protest activities. Only losses immediately caused by illicit conduct can be recovered, "wrote Judge Brian Jackson.
In this particular case, the Constitution does not help the plaintiff: "Indemnities can not be charged to an individual solely because of his association with another person [really responsible for the violence]. Civil liability can not be imposed merely because an individual belongs to a group, of which some members committed acts of violence, "Jackson said.
To establish accountability derived solely from association, it is necessary to establish that the group itself had illicit purposes and that an individual had the specific intention of accomplishing those illegal goals.
To impose a liability on an individual for damages to others with whom he is associated, the plaintiff must demonstrate that: (1) the individual "authorized, conducted or ratified the specific harmful activity; (2) his speech to the public would "likely incite unlawful action" and accountability "followed within a reasonable period"; or (3) his speech to the public had such a character that it could serve as "proof that he gave other specific instructions to perform violent acts or threats."
"Determining whether an action contains a reasonable claim for compensation is a specific context task that requires the judge to rely on his or her judicial experience and common sense. Plausibility exists when the plaintiff presents factual content that allows the court to reasonably infer that the defendant is responsible for the alleged misconduct, "the judge wrote.
João Ozorio de Melo is a correspondent for the Legal Consultant magazine in the United States. Revista Consultor Jurídico, October 4, 2017, 8:36 p.m.