No. 17-30864 FILED January 28, 2020 Lyle W. Cayce OFFICER JOHN DOE, Police Officer, Clerk

Plaintiff – Appellant v. DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES MATTER NETWORK, INCORPORATED,

Defendants - Appellees

Appeal from the United States District Court for the Middle District of Louisiana

ON REQUEST FOR A POLL Opinion 945 F.3d 818 (5th Cir. Dec. 16, 2019)

Before JOLLY, ELROD, and WILLETT, Circuit Judges. PER CURIAM: The court having been polled at the request of one of its members, and a majority of the judges who are in regular service and not disqualified not having voted in favor (Fed. R. Ap. P. 35 and 5th Cir. R. 35), rehearing en banc is DENIED. In the en banc poll, eight judges in favor of rehearing (Judge Stewart, Judge Dennis, Judge Southwick, Judge Graves, Judge Higginson, Judge Costa, Judge Willett, and Judge Duncan), and eight judges voted against No. 17-30864 rehearing (Chief Judge Owen, Judge Jones, Judge Smith, Judge Elrod, Judge Haynes, Judge Ho, Judge Engelhardt, and Judge Oldham). Judge Ho concurred with the Court’s denial of rehearing en banc, his Concurrence is attached. Judge Dennis, joined by Judge Graves, and Judge Higginson, joined by Judge Dennis, dissent from the Court’s denial of rehearing en banc, their Dissents are attached.

ENTERED FOR THE COURT:

/s/ E. Grady Jolly United States Circuit Judge

2 No. 17-30864 JAMES C. HO, Circuit Judge, concurring in denial of rehearing en banc:

I agree with my colleagues who voted to grant rehearing en banc that this lawsuit by a police officer against DeRay Mckesson, a leader of the Black Lives Matter movement, should not proceed. I nevertheless voted to deny rehearing en banc. I write to briefly explain why, in the hope that this explanation might help finally bring this suit to an end. I. Police officers and firefighters dedicate their lives to protecting others, often putting themselves in harm’s way. These are difficult and dangerous jobs, and citizens owe a debt of gratitude to those who are willing and able to perform them. What’s more, police officers and firefighters assume the risk that they may be injured in the line of duty. So they are not allowed to recover damages from those responsible for their injuries, under a common law rule known as the professional rescuer doctrine. “The professional rescuer doctrine, the fireman’s rule, is a common law rule that either bars recovery by a professional rescuer injured in responding to an emergency or requires the rescuer to prove a higher degree of culpability in order to recover.” Gallup v. Exxon Corp., 70 F. App’x 737, 738 (5th Cir. 2003) (collecting Louisiana cases). “The Professional Rescuer’s Doctrine is a jurisprudential rule that essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, ‘assumes the risk’ of such an injury and is not entitled to damages”— particularly when the “risks arise from the very emergency that the professional rescuer was hired to remedy.” Gann v. Matthews, 873So. 2d701, 705–6 (La. Ct. App. 2004). This doctrine would seem to require immediate dismissal of this suit. After all, there is no dispute that the officer was seriously injured in the line of duty—specifically, while policing a Black Lives Matter protest that unlawfully 3 No. 17-30864 obstructed a public highway