The Volokh Conspiracy
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Second Amendment Roundup: Judge Ho 2.0
If the government must “square corners” to protect illegal aliens and convicted criminals, Constitutional protections for Americans deserve consistent application.
In his concurring opinion in the Fifth Circuit's decision in US v. Rahimi, Judge James Ho came out swinging. As he explained, "Those who commit violence, including domestic violence, shouldn't just be disarmed—they should be detained, prosecuted, convicted, and incarcerated." But the federal gun ban against persons subject to a domestic violence protection order relies on lenient civil procedures, not strict criminal procedures, and thus facially violates the Second Amendment.
Ten days after the Supreme Court heard oral argument in Rahimi, Judge Ho concurred in a case on a different issue, but built on his Rahimi concurrence to show the inherent need to follow criminal procedures when a person's liberty is at stake. In US v. Kersee, the Fifth Circuit ruled on November 17 that revocation of a probationer's supervised release entitles the person to a qualified right to confrontation of witnesses. While the Confrontation Clause is inapplicable to a supervised release revocation hearing, due process entitles the subject to confront and cross-examine adverse witnesses.
Jeffrey Kersee's girlfriend accused him of breaking her window, leading to him being charged with criminal mischief, and later accused him of crimes that were charged as aggravated robbery and family assault. After she recanted regarding the first charge and either asked for dismissal of or failed to show up for the latter two, all of the charges were dropped. The probation officer then filed the written statements behind these charges; Kersee filed an affidavit denying them. At the revocation hearing, the prosecutor told the court that he did not bring in the girlfriend to testify because it was likely that she was "going to lie." The court revoked Kersee's probation without allowing live testimony.
The revocation of Kersee's probation was thus based on conflicting hearsay. The girlfriend's recantation affidavit would have exonerated him in part. The government offered no evidence that women "in abusive relationships will change their mind out of fear or economic reasons." The Fifth Circuit thus reversed the probation revocation and remanded the case to allow an adversary hearing.
Concurring, Judge Ho recalled his concurrence in Rahimi basically saying that violent criminals should have the book thrown at them: "Violent criminals should be prosecuted, convicted, disarmed, and incarcerated." He wrote:
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.
In Kersee, the court granted relief because it is sensitive to constitutional rights, not because it is insensitive to domestic violence. That reminded Judge Ho of Rahimi:
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. . . . 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.
According to Judge Ho, Kersee was granted relief for similar reasons as Rahimi. Both were suspected, but not convicted of, felonies. Rahimi's protective order was entered without counsel or a formal hearing. There was no meaningful presumption of innocence or robust burden of proof in either case. As seen in Kersee, sometimes domestic violence is alleged but then recanted. Reliable means must be used to determine how to resolve conflicting allegations in compliance with the Constitution and to inspire public confidence.
Judge Ho cites seven cases involving murder, armed career criminals, kidnaping and rape, and other violent crimes to support this statement: "The Supreme Court has repeatedly granted relief to dangerous criminals out of concern about the procedures used to determine their dangerousness. … In none of these cases did the Supreme Court decline to uphold constitutional safeguards just because the defendant was credibly accused of a dangerous crime."
So if we must hold our noses at the allegations against folks like Rahimi, the Court doesn't shy away from protecting the constitutional rights of persons who are far worse. And it would be a shame if that imperative is weakened just because the Second Amendment is at issue. As the Supreme Court has explained, the Second Amendment is not a second-class right.
Judge Ho ended his remarks: "If government must turn 'square corners' when it comes to the removal of illegal aliens, … surely it must do the same when it comes to the basic rights of our own citizens." That was a quote from Niz-Chavez v. Garland (2021), in which the Court held that an unlawful alien could not be removed because he received notice of his removal proceeding in two separate documents, rather than in one.
Judge Ho's concurrence in Kersee reads like a supplement to his concurrence in Rahimi. It should not go unnoticed. Indeed, Judge Ho's concurrence makes clear that the only plausible path for the Supreme Court to rule for the government in Rahimi is to emphasize that Rahimi agreed to the entry of an order finding him to be a threat of violence to an intimate partner, and he did so without objecting to the procedures available to him. Such a narrow ruling would leave for another day challenges by individuals who contested the question of their danger and the procedures used to determine the answer.
