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.
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.
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:
So this is a Sixth Amendment challenge on due process grounds.
The Court’s Conclusion
—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.
—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:
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.
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:
—Kersee, No. 23-20381, slip op. at 9
And then Judge Ho slams the point home.
—id. at 10
Judge Ho is one of the good ones.
H/T Mark Smith, Four Boxes Diner YouTube channel