Counterman Does Not Unequivocally Overrule Doe v. Mckesson: Protest-Leader Negligence Claims with Triable Facts Must Reach a Jury

Case: Ford v. Mckesson, No. 24-30494 (5th Cir. Mar. 19, 2026) (Jones, J.)
Lower court: Ford v. Mckesson, 739 F. Supp. 3d 344 (M.D. La. 2024) (summary judgment for Mckesson reversed)
Parties: John Ford (injured officer; plaintiff-appellant) v. DeRay Mckesson (defendant-appellee) (organizational defendants previously dismissed)

I. Introduction

Ford v. Mckesson is the Fifth Circuit’s latest—and pointedly procedural—reset in long-running litigation arising from a July 9, 2016 Baton Rouge protest. Officer John Ford alleges he was struck in the face by a rock or concrete thrown by a rioter while police confronted demonstrators who, he claims, were being led onto a public highway to block traffic. He sues DeRay Mckesson in negligence under Louisiana’s “duty-risk” framework, contending Mckesson’s leadership and decisions foreseeably precipitated third-party criminal conduct that injured him.

The key issues on this appeal were (1) whether the summary-judgment record contains genuine disputes of material fact on the elements of Louisiana negligence—particularly duty attachment (leadership), breach (unreasonable protest organization/leadership), and cause-in-fact—and (2) whether the First Amendment barred the negligence claim at this stage, especially in light of Counterman v. Colorado.

The panel majority (Jones, J.) framed the case against an unusual backdrop: multiple Fifth Circuit decisions, a Supreme Court vacatur and remand, certified questions answered by the Louisiana Supreme Court, and yet no jury trial eight years on. The opinion is explicitly corrective: it holds the district court improperly weighed evidence and improperly treated Counterman as displacing binding Fifth Circuit precedent in this very case.

II. Summary of the Opinion

Judge King dissented, arguing the record does not support a finding that Mckesson organized or led the protest in the manner alleged, that causation is too speculative, and that the majority’s approach risks chilling speech and enabling a “heckler’s veto.”

III. Analysis

A. Precedents Cited

1. The Fifth Circuit’s earlier decisions in this litigation

• Doe v. Mckesson, 945 F.3d 818 (5th Cir. 2019)
  This decision is the doctrinal foundation for the negligence theory: it recognized that Louisiana law could support a duty for a protest organizer/leader to exercise reasonable care in a manner that does not foreseeably precipitate violent confrontation, and it rejected an asserted First Amendment shield on the pleadings as framed. In the present opinion, the panel repeatedly treats the 2019 articulation—especially on duty, foreseeability, and First Amendment analysis—as the baseline that subsequent state-law clarification confirmed.
• Doe v. Mckesson, 947 F.3d 874 (5th Cir. 2020)
  Cited for procedural history (denial of rehearing en banc), underscoring that the earlier panel holdings remained the operative circuit position absent an en banc or Supreme Court change.
• Doe v. Mckesson, 2 F.4th 502 (5th Cir. 2021)
  This certification order matters because it shows the Fifth Circuit acknowledged Louisiana tort law uncertainty and sought authoritative state-law answers, setting up why the later First Amendment analysis would be reached only after state duty confirmation.
• Doe v. Mckesson, 71 F.4th 278 (5th Cir. 2023)
  This is the immediate “law of the circuit” anchor the panel uses to reverse the district court: it reaffirmed the negligence theory and again rejected the First Amendment defense after Louisiana answered certified questions. Critically here, the majority invokes Doe (2023) to apply the rule of orderliness: the district court could not treat Counterman as nullifying Doe absent an unequivocal Supreme Court directive.

2. Supreme Court intervention and state-law clarification

• Mckesson v. Doe, 592 U.S. 1, 141 S. Ct. 48 (2020)
  The Supreme Court did not decide the First Amendment question; it vacated because Louisiana duty law was “too uncertain a premise.” The present opinion uses this to emphasize that the litigation’s detour was about state tort duty, not a repudiation of the Fifth Circuit’s constitutional analysis on the merits.
• Doe v. McKesson, 339 So. 3d 524 (La. 2022)
  This is the pivotal state-law authority: it answered “yes” to whether Louisiana recognizes “a duty not to negligently precipitate the crime of a third party” and “no” to the bar of Louisiana’s Professional Rescuer’s Doctrine on the pleaded facts. In the present opinion, the majority treats Doe v. McKesson (La. 2022) as conclusively establishing duty as a matter of Louisiana law—leaving the factual question of whether Mckesson’s role triggers that duty for the jury.

3. Summary-judgment standards and evidentiary treatment

• Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
  Used for the central proposition: judges may not weigh evidence or decide truth at summary judgment; they decide only whether a genuine issue exists.
• Dupree v. Younger, 598 U.S. 729, 143 S. Ct. 1382 (2023)
  Cited to link summary judgment and JMOL standards, reinforcing that only cases lacking a legally sufficient evidentiary basis can be removed from a jury.
• Willis v. Barry Graham Oil Serv., L.L.C., 122 F.4th 149 (5th Cir. 2024) and Smith v. Reg'l Transit Auth., 827 F.3d 412 (5th Cir. 2016)
  Used to restate de novo review and the obligation to view evidence/inferences in the nonmovant’s favor.
• Guzman v. Allstate Assurance Co., 18 F.4th 157 (5th Cir. 2021)
  The majority relies heavily on Guzman to reject the district court’s “self-serving” discounting of testimony: self-interested evidence can create a fact issue so long as it satisfies Rule 56(c)(4) requirements; credibility is for the jury.

4. Louisiana negligence causation/scope authorities

• Roberts v. Benoit, 605 So.2d 1032 (La. 1992)
  Supplies the “but for” framing for cause-in-fact endorsed in this litigation’s earlier stages and quoted again here.
• Faucheaux v. Terrebonne Consol. Gov't, 615 So. 2d 289 (La. 1993)
  Used to emphasize that cause-in-fact is satisfied if the defendant’s actions had “something to do with” the injury and to frame the “scope of duty” inquiry (“this plaintiff,” “this type of harm,” “arising in this manner”).
• Malta v. Herbert S. Hiller Corp., 333 So. 3d 384 (La. 2021)
  Cited for the proposition that “scope of the duty” is a legal question under Louisiana law.

5. Rule of orderliness and intervening-change doctrine

• Texas v. United States, 126 F.4th 392 (5th Cir. 2025)
  Restates the Fifth Circuit’s rule: only the Supreme Court or the en banc court may overrule circuit precedent.
• U.S. v. Alcantar, 733 F.3d 143 (5th Cir. 2013) and In re Texas Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324 (5th Cir. 2013)
  Establish the “unequivocal” requirement: an intervening Supreme Court decision must be clearly controlling, not merely suggestive, to justify disregarding prior circuit precedent.
• In re Bonvillian Marine Serv., Inc., 19 F.4th 787 (5th Cir. 2021)
  Supplies the discipline applied to the district court: it cannot treat Fifth Circuit precedent as implicitly overruled by Supreme Court dicta or “hints.”

6. First Amendment authorities invoked in rejecting the Counterman-based defense

• Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106 (2023)
  The district court treated Counterman as changing the landscape. The Fifth Circuit disagreed: Counterman addressed mens rea for criminal “true threats,” and its incitement discussion did not “unequivocally” alter the governing First Amendment analysis previously applied in Doe v. Mckesson.
• Cantwell v. Connecticut, 310 U.S. 296 (1940) and Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006)
  Used to support the proposition that blocking public streets can constitute “disorder” or an immediate threat to public order, undercutting the claim that Counterman forecloses civil accountability where conduct is aimed at imminent disorder.

B. Legal Reasoning

1. The court’s core move: restore the jury’s function at summary judgment

The opinion is animated by a procedural premise: after years of threshold litigation, the only remaining question at this stage is whether the record contains disputes a reasonable jury could resolve in Ford’s favor under Louisiana negligence elements. The majority identifies the district court’s central error as treating contested evidence as inherently unreliable (e.g., “self-serving”) and resolving credibility and weight—tasks Anderson forbids at summary judgment.

2. Duty: fixed by Louisiana law; fact question is whether Mckesson’s role triggers it

The majority treats duty in two layers:

• Legal existence of duty: Doe v. McKesson, 339 So. 3d 524, holds Louisiana recognizes “a duty not to negligently precipitate the crime of a third party,” and the Professional Rescuer’s Doctrine does not bar recovery on the pleaded facts.
• Attachment of duty on these facts: the duty is tied to whether Mckesson “negligently led the protest.” The majority lists multiple evidentiary sources that could support a finding of leadership (planning involvement, social media amplification, eyewitness observations of directing the crowd onto the highway, video context, and later litigation filings referencing “leadership”).

Notably, the court also signals a willingness to admit evidence of prior protest involvement under Fed. R. Evid. 404(b) for non-character purposes (knowledge, intent, plan, absence of mistake), foreshadowing trial disputes about foreseeability and state of mind.

3. Breach: foreseeability + illegal roadway obstruction as an unreasonable risk amplifier

The breach theory is anchored in foreseeability: leading demonstrators to block a highway makes police confrontation and escalation “patently foreseeable.” The opinion emphasizes Louisiana’s and the Fifth Circuit’s prior articulation that intentional lawlessness—here, directing demonstrators to “block traffic” in violation of La. Stat. Ann. § 14:97—is relevant to whether conduct was reasonable under the circumstances.

4. Cause-in-fact: “but for” and “something to do with it” framing kept jury-friendly

Applying Roberts v. Benoit and Faucheaux, the majority holds a jury could find that “but for” leading protestors onto the highway and provoking confrontation, the injury probably would not have occurred, and that it is enough if defendant’s actions had “something to do with” the injury. The court also relies on earlier appellate statements (and the Louisiana Supreme Court’s acceptance of that framing) to reinforce that causation remains a classic jury question on this record.

5. Scope of duty: legal question answered by the nature of the duty

The court treats “scope of duty” as legal under Malta v. Herbert S. Hiller Corp., and it answers it by aligning: (a) the duty’s purpose (protecting against injuries from negligently organized/led protests) with (b) the harm (a police officer injured during escalation tied to the protest’s unlawful movement and disorder).

6. First Amendment: the district court was bound; Counterman is not a clear override

The First Amendment analysis is primarily institutional: Doe v. Mckesson remains binding in-circuit law for this case and others unless an en banc court or the Supreme Court unequivocally changes it. The panel concludes Counterman does not do so, because it addressed mens rea in criminal “true threat” prosecutions and did not clearly rewrite the standards governing negligence liability in the protest-leader context as previously analyzed.

C. Impact

• Reinforcement of appellate supremacy over district-court novelty readings: The clearest precedential thrust is that district courts in the Fifth Circuit may not treat Supreme Court decisions as silently displacing circuit precedent without an “unequivocal” directive. This opinion operationalizes the rule of orderliness in a high-salience First Amendment setting.
• Summary judgment discipline in politically charged tort claims: The opinion underscores that “self-serving” testimony and circumstantial evidence are not grounds for judicial factfinding at Rule 56, especially where the narrative turns on leadership, planning, and crowd dynamics.
• Louisiana protest-related negligence is now trial-ready when leadership is triable: Post-Doe v. McKesson, Louisiana law recognizes the “negligently precipitate third-party crime” duty; Ford shows that when leadership evidence is disputed, defendants may be unable to end the case at summary judgment.
• First Amendment litigation posture: By holding Counterman non-dispositive, the panel preserves (for now) the Fifth Circuit’s prior approach to reconciling protest activity and tort accountability. The dissent’s speech-chilling concerns signal that future en banc or Supreme Court review remains plausible, but the operative rule inside the circuit is unchanged.

IV. Complex Concepts Simplified

• Summary judgment (Rule 56): A case ends before trial only if no reasonable jury could find for the nonmoving party on a material fact. Judges cannot decide who is more believable; they decide whether a real factual dispute exists.
• Louisiana “duty-risk” negligence: Louisiana breaks negligence into components (duty, breach, cause-in-fact, scope of duty, damages). Even if harm is real, liability depends on whether the law imposed a duty and whether that duty was breached in a way that legally covers the type of harm that occurred.
• “Duty not to negligently precipitate the crime of a third party”: This does not make a person automatically liable for someone else’s crime. It recognizes liability where one’s negligent conduct foreseeably sets the stage for third-party criminal acts—here, allegedly by leading unlawful, confrontation-provoking protest conduct.
• Cause-in-fact (“but for”): Would the injury probably have happened without the defendant’s conduct? Louisiana also recognizes a more practical formulation: did the defendant’s conduct have “something to do with” the injury?
• Scope of duty: Even if a defendant was negligent, courts ask whether the duty’s purpose covers this plaintiff and this kind of harm occurring this way—often a policy-laden legal boundary.
• Rule of orderliness: Lower Fifth Circuit panels—and district courts—must follow existing Fifth Circuit precedent unless the en banc court or Supreme Court clearly overrules it. A new Supreme Court case must be clearly controlling, not merely suggestive.
• Counterman and “true threats” vs. “incitement”: Counterman primarily concerns criminal punishment for threatening speech and a required mental state. This panel held that discussion does not clearly rewrite the standards controlling this negligence/protest-leadership dispute.

V. Conclusion

Ford v. Mckesson is less a reinvention of protest liability doctrine than a forceful insistence on procedural boundaries: (1) when leadership, breach, and causation are genuinely disputed on admissible evidence, the case belongs to a jury, and (2) district courts may not use non-unequivocal Supreme Court developments—here, Counterman v. Colorado—to depart from binding Fifth Circuit precedent, particularly the circuit’s prior First Amendment holding in Doe v. Mckesson.

The decision’s immediate significance is practical: it revives a high-profile negligence claim and clarifies that, in the Fifth Circuit, Counterman does not automatically recalibrate civil protest-related liability analysis. The broader significance is institutional: it reasserts the division of labor between judge and jury and between district courts and controlling appellate precedent, even amid intense constitutional and political stakes.