But the 5th U.S. Circuit Court of Appeals ruled Wednesday that the officer should be able to argue that Mckesson, a prominent Baltimore activist, didn't exercise reasonable care in leading protesters onto the highway, setting up a police confrontation in which the officer was injured by a thrown concrete block.
Mckesson, reached Thursday for comment, said, "I'm disappointed and troubled by the 5th Circuit's reversal of the district court decision. I am currently exploring my legal options and will respond formally soon."
Doe's lawyer, Donna Grodner, called the ruling "a stand-up victory for the Baton Rouge PD."
Circuit Judge E. Grady Jolly, writing for a unanimous three-judge panel, said, "Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain 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."
The court said it wasn't addressing whether Doe's arguments were valid.
"Our ruling at this point is not to say that a finding of liability will ultimately be appropriate," Jolly wrote. "We are simply required to decide whether Officer Doe's claim for relief is sufficiently plausible."
U.S. District Judge Brian Jackson had ruled that Black Lives Matter was a social movement and that Doe's lawsuit had no suitable target in that regard. The 5th Circuit agreed.
"The district court took judicial notice that (Black Lives Matter) is a 'hashtag' and therefore an 'expression' that lacks the capacity to be sued," the judges said.
A Baton Rouge police officer fatally shot Sterling during a struggle outside a convenience store in 2016 after being summoned to the store. The 37-year-old had been selling homemade CDs and officers later recovered a loaded revolver from his pocket. As a convicted felon, Sterling could not legally carry a gun.
Video of Sterling's death set off days of protests, including the July 9, 2016, protest on Airline Highway outside the Baton Rouge Police Department headquarters. Doe was among the officers at the scene to arrest protesters after they failed to clear the roadway.
According to the 5th Circuit, Doe was struck in the head and suffered the loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, "and other compensable losses."
Information from: The Advocate, http://theadvocate.com