Case: 17-30864 Document: 00515238710 Page: 1 Date Filed: 12/16/2019
`
`United States Court of Appeals
`Fifth Circuit
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`No. 17-30864
`
`
`OFFICER JOHN DOE, Police Officer,
`
` Plaintiff - Appellant
`
`v.
`
`DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES MATTER
`NETWORK, INCORPORATED,
`
` Defendants - Appellees
`
`
`FILED
`December 16, 2019
`
`Lyle W. Cayce
`Clerk
`
`
`Before JOLLY, ELROD, and WILLETT, Circuit Judges.
`E. GRADY JOLLY, Circuit Judge:
`We WITHDRAW the court’s prior opinion of August 8, 2019, and
`substitute the following opinion.
`During 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.
`
`
`
`
`Appeal from the United States District Court
`for the Middle District of Louisiana
`
`
`
`
`
`

`

` Case: 17-30864 Document: 00515238710 Page: 2 Date Filed: 12/16/2019
`
`No. 17-30864
`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.
`I.
`On July 9, 2016, a protest illegally blocked a public highway in front of
`
`the Baton Rouge Police Department headquarters.1 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.
`
`In the 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
`
`
`1 This case comes to us on a motion to dismiss, so we treat all well-pleaded facts as
`
`true.
`
`2
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`No. 17-30864
`began making arrests of those blocking the highway and participating in the
`violence.
`At some 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.”
`Following 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.
`Officer 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.
`II.
`The 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
`
`3
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`No. 17-30864
`movement and a “hashtag” as defendants, the district court dismissed his case
`with prejudice. Officer Doe timely appealed.
`III.
`When 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 680).2
`
`2 Federal Rule of Civil Procedure Rule 9(a)(2) states that, if a party wishes to raise an
`issue regarding lack of capacity to be sued, “a party must do so by a specific denial.” Rule
`12(b) does not specifically authorize a motion to dismiss based on a lack of capacity.
`Nonetheless, we have permitted Rule 12(b) motions arguing lack of capacity. See, e.g., Darby
`v. Pasadena Police Dep’t, 939 F.2d 311 (5th Cir. 1992). Where the issue appears on the face
`of the complaint, other courts have done the same and treated it as a Rule 12(b)(6) motion.
`See, e.g., Klebanow v. N.Y. Produce Exch., 344 F.2d 294, 296 n.1 (2d Cir. 1965) (“Although the
`defense of lack of capacity is not expressly mentioned in [R]ule 12(b), the practice has grown
`up of examining it by a 12(b)(6) motion when the defect appears upon the face of the
`complaint.”); Coates v. Brazoria Cty. Tex., 894 F. Supp. 2d 966, 968 (S.D. Tex. 2012) (“Whether
`a party has the capacity to sue or be sued is a legal question that may be decided at the Rule
`12 stage.”); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
`Procedure § 1294 (3d ed. 2018) (“An effective denial of capacity . . . creates an issue of fact.
`Such a denial may be made in the responsive pleading or, if the lack of capacity . . . appears
`on the face of the pleadings or is discernible there from, the issue can be raised by a motion
`to dismiss for failure to state a claim for relief.” (footnotes omitted)). Thus, we review the
`district court’s dismissal for lack of capacity de novo and apply the Rule 12(b)(6) standard.
`4
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`No. 17-30864
`A 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).
`
`IV.
`We 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.3 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.4 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
`
`
`3 We are addressing here Officer Doe’s claims against Black Lives Matter Network,
`Inc., the potential unincorporated association, not against #BlackLivesMatter, the hashtag.
`
` In his Proposed Amended Complaint, Officer Doe did allege that Black Lives Matter
`is a “chapter-based national unincorporated association that is organized under the laws of
`the State of California, though it allegedly is also a partnership that is a citizen of California
`and Delaware.” Doe, 272 F. Supp. 3d at 851 (internal quotations omitted). But since an
`association, or a partnership for that matter, is considered a citizen of every state in which
`its constituent members/partners are citizens, Officer Doe still failed to allege Black Lives
`Matter’s citizenship by omitting the citizenship of its constituent members.
`5
`
` 4
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`No. 17-30864
`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).
`
`Yet we 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).
`Here, 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 case.5
`
`
`
`5 All three judges on this panel agree with this conclusion.
`6
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`No. 17-30864
`V.
`A.
`We next 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.
`
`1.
`Louisiana 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.
`2.
`We now 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,
`7
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`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).
`Officer 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.
`
`
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`No. 17-30864
`3.
`Finally, 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.
`Louisiana 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 consideration of
`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
`
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`No. 17-30864
`precedent; and the direction in which society and its institutions
`are evolving.
`
`Posecai, 752 So. 2d at 766.
`We 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.
`
`By 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
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`No. 17-30864
`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.6
`Officer 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.
`The 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,
`
`
`6 The dissenting opinion attempts to distinguish Brown by pointing out that “we are
`dealing with the criminal acts of an adult, not a child.” But the dissenting opinion does not
`explain why the child/adult distinction should matter. The potential for future violent actions
`by adults can be just as foreseeable as the potential for future violent actions by children.
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`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 one’s
`actions.
`We 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.
`
`B.
`Having 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 complaint.
`
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`The 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.
`We 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
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`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.
`A close 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.
`This 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
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`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.
`Yet the 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 recovered.”).
`For the 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
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`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