Ten Years, Three Courts, One Message: You Can Be Sued for Someone Else's Rock

In July 2016, DeRay Mckesson stood in a street in Baton Rouge at a protest over the police killing of Alton Sterling. Someone in the crowd — never identified, never proven to have any connection to Mckesson — threw a rock-like object that struck an on-duty police officer. Mckesson didn't throw it. He didn't tell anyone to throw it. Ten years, two trips to the Supreme Court, and one Louisiana Supreme Court detour later, the Fifth Circuit has ruled a jury can decide he's liable for it anyway.

The theory doing the work here has a bureaucratic-sounding name — "negligent organizing" — and a very simple function: it says you can be held financially responsible for violence you didn't commit, didn't intend, and couldn't have controlled, simply because you helped call people into the street. That is not a theory of accountability. It is a liability trap built to make the next protest smaller than the last one, because everyone who might lead it now has to weigh their own bank account against showing up.

The law has actually said no to this once already. In 2023, the Supreme Court ruled in Counterman v. Colorado that negligence can never be the standard for punishing political speech — intent is required. Justice Sotomayor cited that precedent directly when the Court first declined to hear this case in 2021. A district court took the hint in 2024 and threw the suit out on summary judgment. The Fifth Circuit has now reversed that, for the second time, and sent it back to a jury anyway. The doctrine keeps losing on the law and winning on the calendar — dragged out long enough, through enough courts, that the punishment becomes the process itself, regardless of the eventual verdict.

This isn't an isolated Louisiana grudge match. It's a template. Since 2017, legislators in 45 states have introduced 386 bills to restrict the right to assemble — driver-immunity laws that shield people who hit protesters with cars, RICO-style racketeering charges for anyone who helps fund a demonstration that turns into a "riot," bills stripping nonprofit status from any group whose board member is convicted under vague federal disorder statutes. Sixty-one of those bills are already law. The Mckesson case supplies the judicial cover: if organizers can be sued for what a stranger does at their protest, legislators get a green light to write laws punishing anyone adjacent to one.

None of this is happening in a vacuum. It lands months after the White House formally designated Antifa a "domestic terrorist organization" with an executive order that hands federal agencies a mandate to "investigate, disrupt, and dismantle" anyone claiming that label — a category so undefined it can mean whoever the government wants it to mean that week. Civil liability on one track, terrorism designation on the other: two different tools converging on the same target, which is the simple fact of people organizing together in public. The Baton Rouge protest was about a police killing. A decade later, the case it produced is being used to make organizing against the next one riskier than it was before.

None of it works if people stop showing up. That's the actual bet being placed — not that the legal theory is sound, it isn't, but that enough plaintiffs, enough years, enough exposure will make the cost-benefit calculation change for the next Mckesson. The rational response isn't to concede that calculation. It's to organize in ways that make individual liability harder to pin down — decentralized leadership, legal defense funds set up before the march instead of after, mutual aid that assumes some of this ends in a subpoena. The people writing these laws are counting on isolation. Don't give it to them.

Sources

ACLU: Fifth Circuit Rules Against DeRay Mckesson
ACLU case page: Doe v. Mckesson (Ford v. Mckesson)
Justia: 2026 Fifth Circuit case law index (Ford v. Mckesson, Jul 30 2026)
ICNL US Protest Law Tracker
The Guardian: US intensifies crackdown on peaceful protest under Trump
White House: Designating Antifa as a Domestic Terrorist Organization