Circuit Judge Ho of the Fifth Circuit writes a letter to the Supreme Court explaining what they did in Rahimi and why the Fifth Circuit’s opinion should stand.
(1600 words)

When I read some arguments made by the state, I want to scream about how bad those arguments actually are. The more I read and understand, the more I would like to learn how to write and submit my own amicus curia briefs. The problem is that I would need a lawyer to submit them through.

Besides all of us poor regular people, there is another group of people that are not allowed to submit briefs to the superior courts. That is the judges themselves.

Judge Benitez doesn’t get to submit a brief to the Ninth Circuit rebutting what the state said in Duncan. He is limited to what he wrote in his final judgement. He has developed a robust history in Duncan, but he doesn’t get to point out what parts of that history are important.

Circuit Judge James C. Ho sits on the Fifth Circuit court of appeals. He is part of the group that decided a number of the Second Amendment cases that have been through the Fifth Circuit. That includes the Rahimi case.

On Friday, the 17th of November, the Fifth Circuit court issued their opinion in US v. Kersee, a case that has nothing to do with the Second Amendment. Kersee is a case involving domestic violence allegations.

Case History

Starting from the beginning, Mr. Kersee is a strong candidate for the J. Kb.’s pedophile rehabilitation program. He pled guilty to one count of unlawfully transporting a minor over state lines with intent to engage in sexual activity. He was sentenced to 10 years in prison and 5 years of supervised release.

He was released in 2021 after around 8 years and began his five years of supervised release.

This is when things tart to get interesting. In October 2022, his girlfriend accused him of breaking a window. The next day, she submitted a notarized letter saying she had falsely accused Kersee. The case was dismissed. Even so, his probation officer filed a non-compliance report with a recommendation of “no action”.

In February 2023, his probation petitioned to have his release revoked based on two new allegations from that same girlfriend plus the October dismissed allegation. The new charges were felony aggravated robbery and a misdemeanor family assault.

At trial, the new counts were again dismissed. The court says there were a total of four charges dismissed. I count only three listed.

At the revocation hearing, there were no witnesses presented. The only “evidence” were the police complaints. As the Fifth Circuit put it, All three criminal complaints included recollections of witnesses’ previous statements, however, and were thus hearsay within hearsay.United States V. Kersee, No. 23-20381, slip op. at 3 (5th Cir. Nov. 17, 2023). Mr. Kersee presented an affidavit from his girlfriend saying she lied to the police.

And the gist of the matter:

Additionally, Kersee objected to the government’s evidence, claiming that it implicated his due process right to confront and cross-examine adverse witnesses. Kersee contended that the reliability of the exhibits was undermined by the affidavit from Marsteller withdrawing her earlier accusations. Kersee argued, therefore, his interest in confrontation outweighed the government’s interest in preventing confrontation and cross examination.

So this is a Sixth Amendment challenge on due process grounds.

The Court’s Conclusion

For these reasons, we VACATE the district court’s order revoking Kersee’s supervised release and REMAND for a new hearing to be convened within 21 days of the date of this order.
id. at 7

The Good Stuff

For every gun control law, the infringers always have an excuse for violating the Constitution. They are inconsistent, they always choose the argument that sounds best in that particular instant. Ten minutes later, they can argue the opposite and see no moral conflict in doing so.

They also use personal attacks on every occasion. If you would rather not give up your rights, then you want to murder children. If you want due process for everyone, then you want “vulnerable people” to be killed. If you don’t submit to “the good of the many” then you want violent men to rape, torture and murder women.

It is always personal.

Violent criminals should be prosecuted, convicted, disarmed, and incarcerated. United States v. Rahimi, 61 F.4th 443, 463 (5th Cir. 2023) (Ho, J., concurring), cert. granted, 143 S. Ct. 2688 (2023).
id. at 8

This is a direct rebuttal of those nasty allegations of “you don’t care about those poor battered women!” The only reason it is there is that Judge Ho is anticipating those person attacks on himself and the court. He references Rahimi favorably here. Likely because he was on the original panel.

This single reference will trigger law clerks at the Supreme Court to bring this opinion to the attention of the Justices.

Judge Ho goes on:

But we don’t presume that citizens are dangerous criminals. We presume they’re innocent. And to overcome that presumption, we require more than just notice and a hearing. We afford the accused with the assistance of counsel and a meaningful opportunity to present evidence and confront adverse witnesses. We impose a robust burden of proof on the government. And when in doubt, we err on the side of liberty.

That is the point in the Rahimi case. If Mr. Rahimi is the nasty piece of work he seems to be, then he should be incarcerated. When he lost his Second Amendment protected rights, he had not been found guilty of any crime.

In these United States, we are presumed innocent until proven guilty, in a court of law, beyond all reasonable doubt, Mr. Rahimi had not (yet) had his day in court.

I agree and therefore concur. I write separately to observe that the court grants relief, not because it is insensitive to domestic violence or the safety of Kersee’s girlfriend, but because it is sensitive to the constitutional rights of the accused. Cf. Counterman v. Colorado, 600 U.S. 66 (2023).
Counterman v. Colorado was a Supreme Court case decided earlier this year. Counterman was using Facebook to communicate with a female singer/performer. She did not respond to him. She blocked him. When she blocked him, he just made a new Facebook account and continued. She perceived his messages a threatening. She got the authorities involved. The authorities found him guilt. He appealed to the Supreme Court, which vacated his conviction.

The Supreme Court reasoned that Counterman didn’t intend his communications to be threatening. Because an objective definition of true-threat can be used to chill speech, the Court found that more was needed. The state must prove that the speaker consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another. This is the current mens rea as set out by the Supreme Court

Judge Ho explains the Fifth Circuit’s thinking in the Rahimi case:

So in Rahimi, we followed the Court’s directives and conceptualized Bruen, not as a substantive right of dangerous criminals to run armed and free, but as a procedural protection for those subject to disarmament on suspicion of criminal activity. We applied the history and tradition test articulated in Bruen, and found that the only historical analogues relevant to Rahimi involved the use of the criminal justice system—not civil protective orders—to disarm dangerous criminals. See Rahimi, 61 F.4th at 458 (noting laws that “only disarmed an offender after criminal proceedings and conviction”); id. at 463–64 (Ho, J., concurring) (noting that society has traditionally disarmed dangerous people through the criminal justice system). We concluded that, to survive Bruen, the use of civil protective orders to disarm citizens must presumably, and at a minimum, approximate the protections afforded to those accused of a crime. See, e.g., Addington v. Texas, 441 U.S. 418, 425 (1979) (requiring heightened standard of proof in civil commitment proceedings, because “[i]n cases involving individual rights, whether criminal or civil, the standard of proof at a minimum reflects the value society places on individual liberty”) (cleaned up).
Kersee, No. 23-20381, slip op. at 9

And then Judge Ho slams the point home.

And that’s what was missing in Rahimi. Rahimi “was suspected of other criminal conduct,” but he “was not a convicted felon.” 61 F.4th at 452. Yes, he was subject to a civil protective order (which was entered prior to those other suspected crimes), and yes, he received notice and an opportunity for a hearing. Id. at 448–49. But the order was entered “without counsel or other safeguards”—in fact, it didn’t even include a “formal hearing” or judicial “record.” Id. at 459. Nor did it apply a meaningful presumption of innocence or robust burden of proof. See, e.g., Roper v. Jolliffe, 493 S.W.3d 624, 638 (Tex. App. 2015) (noting that the “traditional standard of proof by a preponderance of the evidence applies” in “[civil] protective order cases”). So yes, he agreed to the order—but without any of the protections we typically provide to the accused to ensure that they can meaningfully protect their rights.
id. at 10

Judge Ho is one of the good ones.

H/T Mark Smith, Four Boxes Diner YouTube channel


District of Columbia v. Heller, 467 U.S. 837 (2008)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
United States V. Kersee, No. 23-20381 (5th Cir. Nov. 17, 2023)
mens rea, LII / Legal Information Institute, (last visited Nov. 20, 2023)
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