Last week, I wrote about a case in which the Fifth Circuit, in a unanimous decision, ruled that a suit could proceed against a Black Lives Matter activist for violence he didn’t commit or encourage. The police officer who brought the suit was hit in the head by a rock thrown during a BLM protest. However, he did not claim that the individual he sued, DeRay McKesson, threw the rock, called on anyone to throw rocks, or called on anyone to commit any act of violence — only that McKesson organized the protest at which civil disobedience, but not of the violent kind, was to contemplated.
For the reasons stated in my post, I think the Fifth Circuit’s decision is incorrect. Thus, I’m happy to report, via James Varney of the Washington Times, that one of the judges on the panel — Don Willett — now says his vote was in error. His belated dissenting opinion can be found here.
Willett is a former Justice of the Texas Supreme Court. He appeared on the list of potential Supreme Court nominees that Donald Trump issued when he was running for president. Instead of nominating Willett to the Supreme Court, President Trump nominated him to the Fifth Circuit. The Senate confirmed him by a vote of 50-47, along party lines.
It’s unusual, obviously, for a judge to change his vote after a case has been decided. As a lawyer, I had this happen in the Fourth Circuit. But in that case, the judge changed his vote in response to a pending petition for reconsideration we filed.
In this case, as I understand it, such a petition had already been rejected when Judge Willett changed his mind and wrote his opinion. By that time, months after the decision came down, Mckesson’s counsel was trying to get the Supreme Court to hear the case.
Even so, Judge Willett did the right thing. A judge’s goal should be to decide cases correctly, and better late than never.
Finality is also important. However, Willett’s change of heart doesn’t change the outcome of a closed case. Mckesson still loses, and he will still ask the Supreme Court to review the decision.
The persuasive force of what Willett wrote might make the Supreme Court more likely to hear the case. Willett’s dissent might also help persuade other courts of appeals, if confronted with the same issue, to be more protective of First Amendment rights than this Fifth Circuit panel chose to be.
All of that would be to the good.