Metropolitan News-Enterprise


Wednesday, August 2, 2023


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Ninth Circuit Upholds Constitutionality of Hate Statute

Circuit Judge Sandra S. Ikuta Dissents, Says Congress Did Not Act Validly Pursuant to Thirteenth Amendment


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed, in a 2-1 decision, the conviction of a man for attempting to commit racially motivated violence, with Circuit Judge Sandra S. Ikuta dissenting, maintaining that the statute under which the defendant was prosecuted is unconstitutional.

  Circuit Judge Ronald M. Gould wrote the majority opinion and was joined by Superior Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation.

Gould declared the statute to stem from a valid exercise of Congress’s power under Section 2 of the Thirteenth Amendment, enacted in 1865 to abolish slavery.

The Thirteenth Amendment provides:

“Section 1.  Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

“Section 2.  Congress shall have power to enforce this article by appropriate legislation.”

Language of Statute

The statute in issue is 18 U.S.C. §249(a)(1). It provides that “[w]hoever…attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person [¶] (A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both.”

Defendant Ole Hougen was charged under the statute based on charging at an African American man while repeatedly shouting a racial epithet and uttering homophobic slurs.

Gould wrote:

“The rationality of concluding that violence (or attempted violence) perpetrated against victims on account of the victims’ race is a badge or incident of slavery is well established. Every other circuit that has addressed this issue has upheld § 249(a)(1)’s constitutionality.”

He remarked that “[n]either Hougen nor the dissent offers any persuasive reasoning for why these decisions got it wrong.”

Ikuta’s Dissent

Ikuta said in her dissent:

“Because Congress could not rationally determine that assault or battery motivated by a victim’s race, color, religion, or national origin is a badge or incident of slavery, or that § 249(a)(1) is an appropriate remedy for a violation of the Thirteenth Amendment’s eradication of slavery and involuntary servitude, § 249(a)(1) was not a valid exercise of Congress’s authority under the Thirteenth Amendment. Thus, Hougen was convicted under an unconstitutional statute, and his conviction must be overturned”

She explained:

“…Section 1 of the Thirteenth Amendment provides a substantive guarantee that slavery (a private economic relation between a master and a servant), as well as any other state of bondage where one person is forced to labor for another, are eradicated. Any legislation enacted by Congress must be at least rationally related to remedying a violation of this constitutional right.”

The jurist went on to say:

“Although Congress could rationally determine that conduct intended to deprive individuals of the rights of citizenship, whether through legislation or private action, is a badge or incident of slavery, the Thirteenth Amendment does not authorize legislation that prohibits private discriminatory conduct that was not committed with such an intent, even if the conduct was motivated by animus.”

Rendering an assault or battery a federal offense when motivated by racial animus, or rationally related to the objection of Section 1 of the Thirteenth Amendment—eradication of slavery, Ikuta asserted.

Public-Trial Denial

Hougen also contested his conviction on the ground that the courthouse in which he was tried was closed to all but those who had business there, owing to the COVID-19 pandemic, this depriving him, he asserted, of a public trial, insisting he is entitled to a new one. Gould responded that “the public had substantial means of monitoring Hougen’s trial” through an audio feed, also noting that transcripts could be obtained, and press coverage was supplied. He added:

 “In this case, the costs of reversal and remand for a new trial would be substantial,” noting:

“Retrial would require the parties, witnesses, and district court to duplicate all the work they put in to hold this trial in the first place. And this was no small feat: Hougen’s trial lasted a week, involving numerous witnesses on both sides….Starting the trial over with memories of the underlying incident fading would pose a degree of risk for the prosecution, which has the burden of proof and needs to show guilt beyond a reasonable doubt.”

The case is United States v. Hougen, 21-10369.


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