Sentenza

SUPREME COURT OF THE UNITED STATES DERAY MCKESSON v. JOHN DOE

1 Cite as:  592 U. S. ____ (2020) Per Curiam SUPREME COURT OF THE UNITED STATES DERAY MCKESSON v. JOHN DOE ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No.19–1108.    Decided November 2, 2020 PER CURIAM.    Petitioner    DeRay    Mckesson    organized  a  demonstrationin Baton Rouge, Louisiana, to protest a shooting by a local police officer.  The protesters, allegedly at Mckesson's direc-tion, occupied the highway in front of the police headquar-ters.  As officers began making arrests to clear the highway,an unknown individual threw a "piece of concrete or a sim-ilar rock-like object," striking respondent Officer Doe in theface.  945 F. 3d 818, 823 (CA5 2019).  Officer Doe suffered devastating  injuries  in  the  line  of  duty,  including  loss  of  teeth and brain trauma. Though  the  culprit  remains  unidentified,  Officer  Doesought  to  recover  damages  from  Mckesson  on  the  theorythat  he  negligently  staged  the  protest  in  a  manner  that  caused the assault.  The District Court dismissed the negli-gence  claim  as  barred  by  the  First  Amendment.    272  F. Supp. 3d 841, 847–848 (MD La. 2017). A divided panel of the Court of Appeals for the Fifth Cir-cuit reversed.  As the Fifth Circuit recognized at the outset,Louisiana law generally imposes no "'duty to protect others from the criminal activities of third persons.'"  945 F. 3d, at 827  (quoting  Posecai  v.  Wal-Mart  Stores,  Inc.,  1999–1222,  p. 5 (La. 11/30/99), 752 So. 2d 762, 766).  But the panel ma-jority  held  that  a  jury  could  plausibly  find  that  Mckesson  breached his "duty not to negligently precipitate the crimeof a third party" because "a violent confrontation with a po-lice officer was a foreseeable effect of negligently directinga protest" onto the highway.  945 F. 3d, at 827.  The dissent 
2                                         MCKESSON                                         v. DOE Per Curiam would  have  demanded  something  more—a  "special  rela-tionship" between Mckesson and Officer Doe—before recog-nizing such a duty under Louisiana law.  Id.,  at  836–838,  and n. 11 (Willett, J., concurring in part and dissenting inpart).  The dissent likewise doubted that an intentional as-sault is the "particular risk" for which Officer Doe could re-cover for a breach of "Louisiana's prohibitions on highway-blocking," which "have as their focus the protection of other motorists."  Id.,  at  844,  n.  56  (internal  quotation  marks  omitted).The  panel  majority  also  rejected  Mckesson's  argument that NAACP  v.  Claiborne  Hardware  Co.,  458  U.  S.  886  (1982), forbids liability for speech-related activity that neg-ligently  causes  a  violent  act  unless  the  defendant  specifi-cally intended that the violent act would result.  Accordingto the Fifth Circuit, the First Amendment imposes no bar-rier  to  tort  liability  so  long  as  the  rock-throwing  incident  was  "one  of  the  'consequences'  of  'tortious  activity,'  whichitself was 'authorized, directed, or ratified' by Mckesson in violation  of  his  duty  of  care."    945  F.  3d,  at  829  (quoting  Claiborne Hardware, 458 U. S., at 927).  Because Mckesson allegedly directed an unlawful obstruction of a highway, see La.  Rev.  Stat.  Ann.  §14:97  (West  2018),  the  Fifth  Circuitheld that the First Amendment did not shield him from li-ability for the downstream consequences.  945 F. 3d, at 829. Again, the dissent disagreed, deeming the "novel 'negligent protest'  theory  of  liability"  to  be  "incompatible  with  theFirst Amendment and foreclosed—squarely—by" Claiborne Hardware.  945 F. 3d, at 842 (opinion of Willett, J.). The  Fifth  Circuit  subsequently  deadlocked  8  to  8  on  Mckesson's petition for rehearing en banc.  947 F. 3d 874, 875 (2020) (per curiam).  Members of the Court of Appealswrote separately to express further disagreement with boththe panel decision's interpretation of state law, id., at 879 (Higginson, J., dissenting from denial of rehearing en banc),and its application of Claiborne Hardware, 947 F. 3d, at 878 
3 Cite as:  592 U. S. ____ (2020) Per Curiam (Dennis, J., dissenting from denial of rehearing en banc). The question presented for our review is whether the the-ory of personal liability adopted by the Fifth Circuit violatesthe First Amendment.  When violence occurs during activ-ity protected by the First Amendment, that provision man-dates "precision of regulation" with respect to "the groundsthat may give rise to damages liability" as well as "the per-sons  who  may  be  held  accountable  for  those  damages."  Claiborne Hardware, 458 U. S., at 916–917 (internal quota-tion  marks  omitted).   Mckesson  contends  that  his  role  in  leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personallyliable for the violent act of an individual whose only associ-ation with him was attendance at the protest.We think that the Fifth Circuit's interpretation of statelaw is too uncertain a premise on which to address the ques-tion presented.  The constitutional issue, though undenia-bly important, is implicated only if Louisiana law permits recovery under these circumstances in the first place.  The dispute  thus  could  be  "greatly  simplifie[d]"  by  guidance  from the Louisiana Supreme Court on the meaning of Lou-isiana law. Bellotti v. Baird, 428 U. S. 132, 151 (1976). Fortunately, the Rules of the Louisiana Supreme Court,like the rules of 47 other States, provide an opportunity to obtain such guidance.  In the absence of "clear controllingprecedents  in  the  decisions  of  the"  Louisiana  SupremeCourt, those Rules specify that the federal courts of appealsmay certify dispositive questions of Louisiana law on their own accord or on motion of a party.  La. Sup. Ct. Rule 12, §§1–2  (2019).    Certification  is  by  no  means  "obligatory"  merely  because  state  law  is  unsettled;  the  choice  instead  rests "in the sound discretion of the federal court."  Lehman Brothers  v.  Schein,  416  U.  S.  386,  391  (1974).    Federal  courts have only rarely resorted to state certification proce-dures, which can prolong the dispute and increase the ex-penses  incurred  by  the  parties.    See  id.,  at  394–395  
4                                         MCKESSON                                         v. DOE Per Curiam (Rehnquist, J., concurring).  Our system of "cooperative ju-dicial  federalism"  presumes  federal  and  state  courts  alikeare  competent  to  apply  federal  and  state  law.  Id.,  at  391  (opinion  of  the  Court);  cf.  Tafflin  v.  Levitt,  493  U.  S.  455,  465 (1990).In exceptional instances, however, certification is advisa-ble  before  addressing  a  constitutional  issue.    See  Bellotti, 428 U. S., at 151; Clay v. Sun Ins. Office Ltd., 363 U. S. 207, 212 (1960).  Two aspects of this case, taken together, per-suade us that the Court of Appeals should have certified to the  Louisiana  Supreme  Court  the  questions  (1)  whether  Mckesson could have breached a duty of care in organizing and leading the protest and (2) whether Officer Doe has al-leged  a  particular  risk  within  the  scope  of  protection  af-forded by the duty, provided one exists.  See 945 F. 3d, at 839 (opinion of Willett, J.).First, the dispute presents novel issues of state law pecu-liarly  calling  for  the  exercise  of  judgment  by  the  state  courts.  See Lehman Brothers, 416 U. S., at 391.  To imposea duty under Louisiana law, courts must consider "variousmoral, social, and economic factors," among them "the fair-ness  of  imposing  liability,"  "the  historical  development  ofprecedent," and "the direction in which society and its insti-tutions are evolving." Posecai, 752 So. 2d, at 766.  "Specu-lation  by  a  federal  court  about"  how  a  state  court  would  weigh, for instance, the moral value of protest against the economic consequences of withholding liability "is particu-larly gratuitous when the state courts stand willing to ad-dress questions of state law on certification."  Arizonans for Official English v. Arizona, 520 U. S. 43, 79 (1997) (internal quotation marks and alteration omitted). Second,  certification  would  ensure  that  any  conflict  in  this case between state law and the First Amendment is not purely hypothetical.  The novelty of the claim at issue hereonly underscores that "[w]arnings against premature adju-
5 Cite as:  592 U. S. ____ (2020) Per Curiam dication of constitutional questions bear heightened atten-tion  when  a  federal  court  is  asked  to  invalidate  a  State's  law." Ibid. The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit.  But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an  area  of  tort  law—one  laden  with  value  judgments  and  fraught  with  implications  for  First  Amendment  rights—without  first  seeking  guidance  on  potentially  controlling  Louisiana law from the Louisiana Supreme Court.  We ex-press no opinion on the propriety of the Fifth Circuit certi-fying or resolving on its own any other issues of state law that the parties may raise on remand. We therefore grant the petition for writ of certiorari, va-cate the judgment of the United States Court of Appeals forthe Fifth Circuit, and remand the case to that court for fur-ther proceedings consistent with this opinion. It is so ordered. JUSTICE BARRETT took  no  part  in  the  consideration  ordecision of this case. JUSTICE THOMAS dissents.