Free Minds & Free Markets

Liberty Has a New Champion on the Federal Bench

Don Willett has championed economic freedom and accountability for cops.

Don Willett first rose to fame as a libertarian-leaning Texas Supreme Court justice who penned constitutional defenses of economic freedom. Since joining the U.S. Court of Appeals for the 5th Circuit in late 2017, Willett has been making a name for himself in another area of the law: criminal justice reform.

In August 2018, Willett took aim at the U.S. Supreme Court's controversial doctrine of qualified immunity, which shields police officers and other government officials from being sued when they violate citizens' constitutional rights. "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior," Willett wrote in a concurring opinion in Zadeh v. Robinson. "I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence."

Next, in October, Willett wrote a unanimous 5th Circuit ruling that voided three "special conditions" for supervised release imposed upon a criminal defendant at sentencing. The problem here was that the federal district court failed to "orally enumerate each condition," thus preventing the defendant from having a "meaningful opportunity to object" at his sentencing, and thereby running afoul of both due process and the Confrontation Clause of the Sixth Amendment. As Willett explained in United States v. Rivas-Estrada, that "requirement isn't formalistic. It's practical.…The point is to give fair notice."

Finally, also in October, Willett wrote another unanimous 5th Circuit opinion, this one allowing an innocent man to sue for damages for false imprisonment. Brandon Lee Moon spent 17 years behind bars for a crime he did not commit. He was finally set free in 2004 after being exonerated by DNA evidence. In 2006, he sued the city of El Paso, Texas, and several of its officials. But the U.S. District Court for the Western District of Texas ruled against him, arguing that his suit was time-barred because it exceeded the two-year statute of limitations set by Texas law.

"But when did the clock start running?" Willett asked in Moon v. City of El Paso. "When Moon was imprisoned in 1988 or when he was released in 2004?" The district court said 1988; Willett concluded otherwise. "Every day behind bars is irreplaceable, with the final day as wrongful as the first," he wrote. "False imprisonment is a continuing tort in Texas—the injury persists until the imprisonment ends—meaning Moon's claim accrued upon his release in December 2004."

It would appear that advocates of criminal justice reform have a new champion on the federal bench.

Photo Credit: saratm/Fiverr

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  • C. S. P. Schofield||

    I like the cut of this man's jib.

  • Kazinski||

    But, but Trump.

  • A Lady of Reason||

  • Ordinary Person||

    About damn the only, well maybe not only, reason, i.e. criminal justice, I throw votes to libertarians.

  • majil||

    Trump appointed him to the 5th , how about throwing that vote to Trumpster

  • SIV||

    Orange Man Bad.

  • Hank Phillips||

    Spoiler votes have the leverage to change laws.

  • Sometimes a Great Notion||

    Ruth's replacement!

  • OpenBordersLiberal-tarian||

    Stop being sexist. RBG's health is fine. She won't retire until Democrats have taken back the White House.

  • Earth Skeptic||

    Yup, a Healthy coma.

  • BestUsedCarSales||

    That would be an amazing appointment. Much better than Kavanaugh, from what I've seen of Willett. Another Gorsuch level appointee.

  • Otto Didact||

    Outstanding thought! If Mr Trump runs and wins next year, I expect he will have an opportunity to replace either Notorious RBG or Breyer if not both. In the case of Notorious RBG, I suspect the only way she will leave office is on a gurney , wearing a toe-tag. I do not wish anyone ill but unless the President has an opportunity to replace either Ginsburg or Breyer, the next DemonKKKRat President is going to have virtually carte blanche to implement a full-on conversion of the U.S. to a "People's Republic". That will pretty much GUARANTEE Civil/Revolutionary War 2.0.

  • Rev. Arthur L. Kirkland||

    Just not enough ignorant, backwater bigots to put Trump in position to sink another three-cushion bank shot at the Electoral College.

    Don't worry about civil unrest, though. Right-wingers are all-talk malcontents.

  • vek||

    Just keep telling yourself that Rev... I believe it was your beloved Mao that said "One man with a gun can control 1,000 men without guns." or something to that general effect. There are a lot more hardcore right wingers than 1,000 to one with shit libs...

  • MoreFreedom||

    Trump has appointed more libertarian leaning justices than other Republicans. For that I applaud him, even though I voted for Johnson.

  • Enemy of the State||


  • Weigel's Cock Ring||

    When she dies, most of these bitches here at Reason will be crying as hard as Rachel Maddow and Don Lemon.

  • majil||

    Exact reason I voted for The Trumpster ! One more appointment on the Supreme Court by The Trumpster will make sissy boy Johnny Roberts irrelevant .

  • OpenBordersLiberal-tarian||

    Robert Mueller will remove Drumpf from office before any more Supreme Court vacancies emerge.

  • Sevo||

    "One more appointment on the Supreme Court by The Trumpster will make sissy boy Johnny Roberts irrelevant."

    They'll have to carry her out, but prolly not long.

  • Rev. Arthur L. Kirkland||

    It appears many half-educated, stale-thinking goobers are going to be surprised and outraged when Democrats enlarge the Supreme Court, eliminating any advantage arranged by Senate Republicans for the causes of backwardness, bigotry, and superstition.

    I am saving a bottle of Mad Elf to savor as Senate Republicans sputter about 'the traditions of this chamber' and watch the ghost of Antonin Scalia fade from relevance, muttering about 'all of this damned progress, reason, tolerance, science, education, and modernity.'

  • BestUsedCarSales||

    Is your expectations that the Democrats enlarge it, and then the Republicans never hold office again. I'm genuinely curious what you see the long game to be in that arms race?

  • Rev. Arthur L. Kirkland||

    If each party arranges a majority when it can, that seems likely to disadvantage the Democrats for two reasons:

    (1) The Democrats will obtain an initial advantage (majority that otherwise would not have existed)

    (2) The Democrats seem very likely to enjoy an enduring advantage throughout the foreseeable future (improving electorate favors Democrats)

    Bonus: If Republicans are right and the end times are near, why not ride out with a Supreme Court that favors reason, progress, education, inclusivity, and science?

  • BestUsedCarSales||

    So, yes. Your belief is that we will move to one party rule.

  • Morbo||

    Look, long-term thinking isn't Rev's strong suit. Or any kind of thinking, for that matter.

  • Rev. Arthur L. Kirkland||

    I do not foresee one-party rule.

    I expect the Republican Party to improve or be replaced.

  • BestUsedCarSales||

    And in either case, what is the long end result of loading the bench. You're advocating it, so given that two parties of some sort are likely to exist, what is the long term result of making that a standard action?

  • Rev. Arthur L. Kirkland||

    Hard to predict, much as the consequences of the Bush-Gore decision, the treatment of Merrick Garland, the impeachment of Bill Clinton, the diminution of filibusters, a series of Electoral College decisions providing the presidency to the less popular candidate, the enlargement of the Arizona Supreme Court, the implementation of ranked choice voting, the expansion of religion-based privilege, any changes in gerrymandering and voter suppression rules, and other developments are difficult to predict.

  • Quo Usque Tandem||

    Still Merrick Garland and the Clinton Impeachment. Years of butt hurt.

  • vek||

    Yeaaaah... It'll be one party Democrat rule... Until a shit ton of Democrating politicians get strung up.

    I really don't think the lefties understand just how weak their position is. If they EVER push things too far, they're done. Their entire premise is based on everybody just obeying their bullshit... Because reasons. But if people stop caring about obeying government decrees just because they're government decrees, they do not have the muscle to hold power. That ability lies entirely with the right wing in the US, and frankly in most countries.

    There's a reason almost all military coups are right wing... It's because police, military, and people in the general population that aren't pansies tend to not be commies.

  • Vulgar Madman||

    Remember how after 2012 no republican would ever win again?

  • DenverJ||

    That's right, idiot, destroy yet another institution for short term gain, like your team did with the filibuster, and the presumption of innocence for supreme court nominees. No way it will ever come back to bite your short sighted ass.

  • MoreFreedom||

    Frankly, I think Obama/Clapper/Brennan spied upon and found some dirt on Roberts and blackmailed him into compliance with the state.

  • Earth Skeptic||

    "In August 2018, Willett took aim at the U.S. Supreme Court's controversial doctrine of qualified immunity, which shields police officers and other government officials from being sued when they violate citizens' constitutional rights."

    Of course most self-serving asshats within the law enforcement and legal club have constructed this privileged seggregation of society. And even their worship of our holy legal system is perverted. Why exclude evidence if obtained illegally? As a scientist, I have to say evidence (data) is evidence, and all evidence leads to better decisions. Prosecute the cops and lawyers who broke the law in obtaining or using evidence instead of pretending their system (and those misguided officials) are sacrosanct.

  • sparkstable||

    I hate saying it because anything that gives the "system" more leverage against citizens is worrisome but...

    I have long questioned the "fruit of the poisoned tree" idea. If someone commits a crime justice dictates punishment/restitution or forgiveness. Given than most want punishment then it is critical to prove guilt as best as we can. The means by which true evidence is collected does not alter the reality that said evidence is a byproduct of an actual crime. It should always be admissible. If a racist cop illegally searches the home of a black suspect to find evidence of a violent crime and finds said evidence, does the circumstance of the search invalidate the reality that the suspect is still guilty? No... but it does mean a second crime was committed. A suspect can become a victim while not absolving him of his guilt.

  • a ab abc abcd abcde abcdef ahf||

    What you only vaguely hint at is that crime of trespassing to conduct an illegal search. I agree with what you said, with the proviso that the very fact of obtaining evidence illegally taints it. What you ignore is that the illegal search should be punished for the crime it is -- burglary for illegal searches, kidnapping for illegal detention, extortion for threats to obtain confession or evidence.

    Until cops are punished for illegal activity, "fruit of the poisoned tree" is the best we have.

  • Earth Skeptic||

    But that's precisely the point. The "legal" system we have now creates a double-negative-inverted looking glass logic that simply defies reality. At the least, this confounds "justice" and convinces most people that the system is retarded. At the worst, it avoids challenging the exalted cops and others who broke the law to get excluded evidence, but get punished by letting other guilty parties go free.

  • sparkstable||

    I totally agree that the second crime committed (illegal searches etc) should be prosecuted to the fullest. However, that trial should hold zero sway over the credibility of the evidence, save a finding of manufactured evidence. In that case the "evidence" very clearly should be discarded.

    So, for example: A minority does in fact commit a crime. A racist cop violates the suspects rights in the process of finding actual evidence. That evidence should be allowed in the criminal trial of the suspect. Meanwhile, the cop should face charges for violating someone's rights. Thus, the suspect is both a potential criminal (if it is proven) AND a victim at the same time. Those dont have to be mutually exclusive.

    As it stands, we forgo justice to the first victim in the name of "justice" to the accused. But that isn't justice at all... absolving someone from liability of a crime, leaving the victim out to dry, is not an equitable restoration to the suspect having had his privacy violated.

  • a ab abc abcd abcde abcdef ahf||

    The illegality of the search very much goes to show the quality of the evidence. Anyone who would burgle a house or beat someone up to get a confession for evidence has shown his criminal nature; why should he stop at burglary or assault?

    If I were on a jury and knew the evidence had been obtained illegally, I'd damn sure question its validity.

  • a ab abc abcd abcde abcdef ahf||

    I'd like to think some Supreme Court case could get rid of qualified immunity. I'd also like to think some case could get rid of rational basis and intermediate scrutiny; every constitutional matter should be strict scrutiny. Both were invented out of whole cloth as ways around the plain language of the constitution.

    I'd also like the court to go back to the original meaning of the 14th amendment. Fuck Slaughterhouse!

    I don't see any way the court could overturn any of them without losing face over stare decisis.

  • sparkstable||

    The biggest failure of the court was to ignore the 9th and 10th Amendments. They construe these pretzel logic ideologies to reach a desired conclusion that binds their hands in the future, creates awkward loopholes or requirements, etc. And it ended up twisting how citizens see their rights. Abortion is a great example. I'm against it but could at least understand their thinking in the idea of a right to privacy has they cited the 9th rather than try to draw out some weird privacy right from another right that really wasnt about privacy.

    Penumbra and implied ideas and all that crap could have been avoided with a struct reading and understanding of the 9th. And had we done that in the beginnin rather than the practice of "finding" a way to read a law or statute or what have you we would be in much more sound realms of jurisprudence today. It would be hard for us to argue over "I have a right because the 9th saya so" instead of "there's no mention of privacy in there!"

  • a ab abc abcd abcde abcdef ahf||

    The biggest flaw in the Constitution is that there is no way for people or even states to void unconstitutional laws. People ought to be able to sue for that grounds alone, but there'd have to be some mechanism to avoid having 300M people all sue, one after another, for the same defect, and it can't be by barring repetitive suits or those in favor of the law would file false flag lawsuits.

    States ought to be able to repeal federal laws by some less-than-majority vote of legislatures and without giving governors an opportunity to veto such resolutions. I'd go even farther and say that if, at any time, a majority of members of any chamber in Congress sign a petition for repeal, that law is voided in its entirety.

  • vek||

    There are all kinds of creative ways one can come up with for tweaking our system. Things like repealing bad laws, to simply how to structure voting. I think it would be awesome for states to experiment with some of this stuff within their borders, like the ranked choice voting that has happened in a few spots... The problem is any improvements basically remove power from those in charge... Hence they don't make such improvements.

  • Hank Phillips||

    What a great article! And good news to boot. So... what's the catch?

  • Rev. Arthur L. Kirkland||

    I expect Judge Willett to be a reliably authoritarian right-wing voice with respect to statist womb management, bigoted immigration policies, governmental gay-bashing, misogny, and other Republican causes. He's a relatively standard-issue conservative with a slight, and selective, libertarian bent.

  • Vulgar Madman||

    You're the awesomist parody account evar!

  • tinwhistler||

    Perhaps he could rule that income and property taxes are unconstitutional seizures of private property, because they are taken by force. Only sales taxes, duties, and fees are given freely by citizens.

  • Echospinner||

    Sounds like you are one of them libertarians.

    A rare species.

  • CatoTheChipper||

    Don Willet's family is reported to attend Lake Hills Church, a non-denominational, evangelical Christian megachurch in Austin. They are careful to avoid public advocacy regarding political issues, but it seems likely that progressive senators know what those church members believe and will make inquiries similar to those made to Catholic nominees.

    I'm sure OBL and other libertarians approve of such senatorial inquisition into religious faith.

  • Rev. Arthur L. Kirkland||

    You figure inquiries regarding gay-bashing are out of bounds, or that bigotry is improved or excused when cloaked in superstition?

  • Eddy||

    Were you born retarded, did you achieve retardedness, or did you have retardedness thrust upon you?

  • vek||

    Is it okay to dislike people if it is a logically and scientifically arrived at conclusion? Because that's why I have issues with most of the groups I dislike. Logic and science aren't on you shit for brains progressives side most of the time... For instance, I oppose women in front line combat duty in the military, because barely 1/1000 can be up to snuff with a barely average male in all the physical requirements... And all the extra accommodations to have a couple chicks that are actually qualified floating around are more of a pain in the ass than they're worth.

    So does that pass muster, since it's not based on superstition, but that scientific fact that men are physically stronger, faster, have more endurance, etc than women?

  • Crazy mick||

    The rare true libertarian instead of "gimme lower taxes cops are always right and don't cut any govt spending that benefit me".

  • Rev. Arthur L. Kirkland||

    True libertarians do not favor government micromanagement of ladyparts clinics, government gay-bashing, statist womb management, authoritarian immigration policies, and the like.

    Faux libertarians, however, salivate over all of those elements of the Republican platform, however, and dream of implementing more aspirations of statist conservatives.

  • Rev. Arthur L. Kirkland||

    True libertarians do not favor government micromanagement of ladyparts clinics, government gay-bashing, statist womb management, authoritarian immigration policies, and the like.

    Faux libertarians, however, salivate over all of those elements of the Republican platform, however, and dream of implementing more aspirations of statist conservatives.

  • newshutz||

    true libertarians also do not favor government funding of ladyparts clinics, thought crime, statist indoctrination centers, authoritarian health policies, and the like.


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