Fifth Circuit Case Parallels Rahimi Reasoning on Constitutional Rights

On November 17, 2023, a three-judge panel for the United States Court of Appeals for the Fifth Circuit, in the case of USA v Kersee, unanimously held the district court order revoking his supervised release was not Constitutional. The reason was the district court did not afford him his constitutionally guaranteed right to confront and cross-examine witnesses. The charges in the case came from alleged domestic violence.

There are parallels with the Rahimi case. Both cases involve domestic violence charges. In both cases, the accused have not been convicted of domestic violence. In the Rahimi case, there are additional charges in the process of being tried, but Rahimi has not yet been convicted. Kersee is a convicted felon who is out on supervised release.

In the Rahimi case, Rahimi was not afforded the right to confront witnesses because the statute in question, §922(g)(8), categorically strips people of the exercise of their Second Amendment rights without the right to confront witnesses or the right to counsel.

The law only requires a judge to issue a restraining order as requested by an individual who claims it is desired to prevent domestic violence. The law was enacted when the inferior courts were acting under the false assumption the Second Amendment did not apply to individuals. From the amicus brief by The Cato Institute and the Goldwater Institute:

Notably, there is no requirement that respondents be advised before hand that issuance of the order will render it unlawful for them to possess firearms; no requirement that they be provided with counsel; no requirement that the issuing court make any specific factual findings; and no provision for a heightened standard of proof, as this Court has held is constitutionally mandated “when the individual interests at stake in a state proceeding are both ‘particularly important’and ‘more substantial than mere loss of money.’”

Judge Ho was one of the judges on the three-judge panel. Judge Ho also wrote a concurrence for the Rahimi case when it was tried en banc by the Fifth Circuit.  He took the opportunity in the Kersee case to remind the court of how similar the Kersee case was to the Rahimi case. From the concurrence by Judge Ho, page 8:

The district court found Jeffrey Kersee guilty of assaulting his girlfriend, among other offenses, and sentenced him accordingly. Ante, at 2–4. But it did so without affording him the “right to confront and cross examine adverse witnesses.” Id.at 1. So the majority vacates his sentence—despite meaningful evidence that he is a dangerous criminal. Id.at 4–7.

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).

In that respect, the decision today reminds me of our decision in Rahimi. We initially upheld Rahimi’s conviction, 2022 WL 2070392, but we later reversed ourselves in light of N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111(2022). Bruen involves the Second Amendment, not criminal procedure. But Bruen admonishes us not to treat the Second Amendment as “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”Id.at 2156 (quotations omitted). And the Court has construed other provisions, like the First Amendment, to require procedural safeguards to protect substantive rights, like freedom of speech.1

Judge Ho shows the clear outlines of the elements of the Rahimi case. Rahimi’s Constitutional rights were violated without due process. The Biden administration contends that Rahimi does not deserve Constitutional rights to due process because he is a violent person. But Rahimi was never convicted of a violent crime before his rights were violated. If Rahimi is convicted of violent acts, which seem likely, he will lose the right to exercise his Second Amendment rights, irrespective of §922(g)(8).

The old media has attempted to make the Rahimi case about domestic violence. It has little to do with domestic violence and everything to do with fundamental constitutional rights.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.