A Black Lives Matter leader who organized a protest in Baton Rouge, La., that turned violent and is facing liability for injuries a police officer suffered during the demonstration, found a new champion when Judge Don R. Willett had a “judicial change of heart” about the case.
Willett originally joined the unanimous opinion by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, saying that the officer’s negligence suit against DeRay Mckesson may proceed. That opinion was withdrawn, however, and a new one was issued. The result was the same, but this time the Donald Trump appointee dissented.
“Admittedly, judges aren’t naturals at backtracking or about-facing,” Willett wrote.
“In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late,’” Willett wrote.
While not unheard of for judges to change their minds after an opinion has issued, practitioners say it doesn’t happen all that often.
Such changes of heart usually occur in response to a petition for rehearing en banc—that is, a request that the full court take a look at the case, said Fifth Circuit lawyer Raffi Melkonian, a partner at Wright Close & Barger in Houston.
“It’s a lot rarer to see it happen sua sponte,” as it did here, Melkonian added.
“My sense is that it isn’t as common as it ought to be,” said Kilpatrick Townsend & Stockton attorney Jason Steed, who also frequently practices in the Fifth Circuit.
“I think it’s laudable when a judge realizes he’s misjudged something and acts to correct it,” Steed, who works in Dallas, said.
The majority, in an opinion written by Judge E. Grady Jolly and joined by Judge Jennifer Walker Elrod, said that the officer plausibly alleged Mckesson was liable for negligence because he intentionally allowed the demonstrators to block a public highway, blocking a highway is illegal in Louisiana, and it was reasonably foreseeable the police would intervene. It also said the First Amendment didn’t protect Mckesson.
Willett, however, isn’t sure Mckesson owed the officer a duty under Louisiana law to protect him from the criminal acts of others. As a matter of constitutional avoidance, he said he would ask the Louisiana Supreme Court whether “a protest’s foreseeable risk of violence impose[s] a duty upon the protest organizer, such that he can be held personally liable for the injuries inflicted by an unknown assailant.”
Even if the answer is yes, however, Willett said negligent speech is constitutionally protected.
Under U.S. Supreme Court precedent, raucous public protest is protected unless clearly intended to, and likely to, spark immediate violence, Willett said. Although the officer alleged Mckesson incited violence, there was no evidence he authorized, ratified, or directly threatened any violence, Willett said.
Supreme Court Review
While noting that judicial changes of heart don’t happen all that often, Case Western Reserve law professor Jonathan Adler said he doesn’t see any finality problems with them.
There “are procedures for reconsideration and the like baked into the rules and there are limited times to seek such things,” Adler said.
And Melkonian noted that the change didn’t affect the ultimate outcome of the case, as Willett was the only judge in dissent.
There’s already been a petition filed in the U.S. Supreme Court, asking the justices to review the lower court’s ruling.
Perhaps the only real impact might be that the notable dissent may make it more likely that the justices agree to take up the case, Melkonian said.
Grodner & Associates APLC represented Doe. Schonekas, Evans, McGoey & McEachin LLC represented Mckesson.
The case is Doe v. McKesson, 2019 BL 480433, 5th Cir., No. 17-30864, 12/16/19.
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