The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10369
Plaintiff-Appellee, D.C. No.
5:20-cr-00432-
v. EJD-1
OLE HOUGEN,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted March 28, 2023
San Francisco, California
Filed August 1, 2023
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and Edward R. Korman, * District Judge.
Opinion by Judge Gould;
Dissent by Judge Ikuta
*
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
2 USA V. HOUGEN
SUMMARY **
Criminal Law
The panel affirmed Ole Hougen’s conviction after a jury
trial of attempting to commit racially motivated violence, in
violation of 18 U.S.C. § 249(a)(1).
The district court conducted the trial under General
Orders, issued in response to the COVID-19 pandemic,
providing that only persons having official court business
may enter the courthouse, and pursuant to a Clerk’s Notice
providing for public access through an audio conference
line. Hougen contended that in doing so the district court
violated his right to a public trial under United States v.
Allen, 34 F.4th 789 (9th Cir. 2022). The panel held that
Hougen forfeited this claim, that plain error review applies,
and that the balance of costs in this case counsels against
reversal.
Hougen also argued that § 249(a)(1), as applied to his
case, exceeds Congress’ authority under Section Two of the
Thirteenth Amendment, which gives Congress the “power to
pass all laws necessary and proper for abolishing all badges
and incidents of slavery in the United States.” Reviewing de
novo, the panel held that § 249(a)(1) is a constitutional
exercise of Congress’ enforcement authority under Section
Two. Applying the deferential test set forth in Jones v.
Alfred H. Mayer Co., 392 U.S. 409 (1968), the panel wrote
that the rationality of concluding that violence (or attempted
violence) perpetrated against victims on account of the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. HOUGEN 3
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. And while the
Ninth Circuit has not yet addressed this statute, this court
upheld a similar criminal prohibition on racially motivated
violence interfering with the use of public facilities as a valid
exercise of Congress’ Thirteenth Amendment power. The
panel rejected Hougen’s contention that § 249(a)(1) is
subject to heightened scrutiny apart from the Jones test.
The panel addressed other issues in a contemporaneously
filed memorandum disposition.
Judge Ikuta dissented. She wrote that 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.
COUNSEL
Tamara A. Crepet (argued) and Lara S. Vinnard, Assistant
Federal Public Defenders; Jodi Linker, Federal Public
Defender; Federal Public Defenders Office, Northern
District of California; San Jose, California; Severa Keith,
The Keith Law Office PC, San Francisco, California; for
Defendant-Appellant.
Sydney A.R. Foster (argued) and Tovah R. Calderon,
Attorneys; Kristen Clarke, Assistant Attorney General;
United States Department of Justice, Civil Rights Division,
4 USA V. HOUGEN
Appellate Section; Washington, D.C.; Matthew M.
Yelovich, Assistant United States Attorney; United States
Department of Justice, Office of the United States Attorney;
San Francisco, California; for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
This appeal arises from Appellant Ole Hougen’s
conviction after a jury trial of one count of attempting to
commit racially motivated violence, in violation of 18
U.S.C. § 249(a)(1). On appeal, Hougen contends that he is
entitled to a new trial because the district court held his trial
in violation of the public trial right, under United States v.
Allen, 34 F.4th 789 (9th Cir. 2022). Hougen also contends
that his prosecution was unconstitutional because 18 U.S.C.
§ 249(a)(1) exceeds Congress’ authority under Section Two
of the Thirteenth Amendment. 1 For the reasons set forth
herein, we affirm Hougen’s conviction.
I
A
On July 5, 2020, three eyewitnesses observed Hougen, a
white man, repeatedly and aggressively slashing a knife at
the throat and chest of a Black man (“S.B.”) at an
intersection in Santa Cruz, California. Two of these
1
Hougen raises other issues on appeal that we address in the
memorandum disposition filed contemporaneously with this opinion.
We conclude he is not entitled to relief on any of these issues.
USA V. HOUGEN 5
witnesses called 9-1-1, and Santa Cruz police officers
responded to the scene.
On the scene, law enforcement officers interviewed the
eyewitnesses, S.B., and Hougen. According to S.B., Hougen
had approached S.B. on the street and asked to buy
marijuana. When S.B. declined, Hougen followed S.B.,
harassing him with racist and homophobic slurs and then
charging at him with a knife. S.B. got away without
sustaining injury.
No eyewitness saw the beginning of the fight, but all
witnesses identified Hougen as the aggressor during the
fight. One eyewitness told officers that he heard Hougen
repeatedly yelling the N-word at S.B. while attacking him.
For his part, Hougen told officers that S.B. had a knife,
which officers confirmed. However, S.B. told officers that
it had fallen out of its sheath during the fight, and no
eyewitness reported seeing S.B. with a knife.
Officers arrested Hougen and took him to the Santa Cruz
Police Department. At the station, Hougen directed racial
slurs at Officer Joshua Garcia, who is Hispanic, while
Officer Garcia filled out Hougen’s arrest paperwork. Officer
Garcia then attempted to give Miranda warnings to Hougen,
but Hougen responded by denigrating Officer Garcia as a
“colored” person, a racist, and a liar before saying he did not
want to speak to Officer Garcia. Garcia was unable to
complete the Miranda warnings and stopped talking to
Hougen. Another officer, Kevin Bailey, then tried to give
Miranda warnings to Hougen. Hougen continued to respond
belligerently and then requested his lawyer, at which point
Officer Bailey stopped trying to talk to him.
6 USA V. HOUGEN
B
Around October 2020, the FBI took over Hougen’s case.
FBI agents transferred Hougen to federal custody. During
this trip, Hougen admitted to using the N-word in his fight
with S.B.
In November 2020, a federal grand jury indicted Hougen
on one count of attempting to commit racially motivated
violence under 18 U.S.C. § 249(a)(1).
C
Jury selection for Hougen’s trial began on April 2, 2021,
and his trial lasted until April 9, 2021. Hougen’s trial was
held in the Northern District of California. At that time, the
Northern District was operating under General Orders
concerning public access to the courthouse, which had been
issued in response to the COVID-19 pandemic. As relevant
here, General Order 73 provided that: “only persons having
official court business authorized by . . . a presiding judge of
this court[] may enter any Northern District of California
courthouse property.” N.D. Cal. General Order 73:
Continuing Temporary Restrictions on Courthouse Access
due to COVID-19 Public Health Emergency (as amended
May 21, 2020). This Order defined “persons having official
court business” to include “attorneys, parties, witnesses, or
other persons who are required or permitted to attend a
specific in-person court proceeding.” Id. General Order 73
also provided that “[m]embers of the press and public may
observe proceedings by telephone or videoconference.” Id.
General Order 72-6 provided that “[j]ury trials may proceed
in accordance with the logistical considerations necessitated
by the Court’s safety protocols.” N.D. Cal. General Order
72-6: IN RE: Coronavirus Disease Public Health Emergency
(Sep. 16, 2020). The only reference to public access in the
USA V. HOUGEN 7
record for Hougen’s case comes in a Clerk’s Notice entered
on the docket before trial. This Clerk’s Notice provided,
among other things, dial-in information to be used for public
access to the trial through an audio conference line (the
“AT&T Line”).
Neither Hougen nor anyone involved in his trial objected
to, or otherwise discussed on the record, the General Orders,
Clerk’s Notice, or public access to his trial at any time before
this appeal.
D
At trial, the prosecution argued to the jury that Hougen
had long harbored violent racial animus toward Black people
and assaulted S.B. because of that animus. The
prosecution’s evidence at trial consisted of: (1) testimony2
from four witnesses regarding three prior incidents where
Hougen had committed racially motivated acts of violence,
admitted under Federal Rule of Evidence 404(b) over
Hougen’s objection; (2) testimony by the three eyewitnesses
that saw the incident between Hougen and S.B.; (3)
testimony by Santa Cruz police officers regarding this
incident, along with recordings of Hougen’s statements
made to Officers Garcia and Bailey; and (4) testimony by
FBI Special Agent Elizabeth Green regarding her
involvement in the investigation and the statements Hougen
made while being transported to federal custody.
2
The jury also received a stipulation from the parties that Hougen had
been criminally convicted for each of these three occurrences. For each
occurrence, these convictions included, respectively: (1) exhibiting a
deadly weapon; (2) malicious harassment, misdemeanor harassment, and
fourth degree assault; and (3) violating civil rights by force or threat,
making criminal threats, resisting a peace officer, and battery.
8 USA V. HOUGEN
Hougen argued in response that S.B. was the aggressor,
that Hougen acted in self-defense and not on account of
S.B.’s race, and that law enforcement did not properly
investigate the incident. In support of this theory, Hougen
elicited testimony on cross-examination: (1) that none of the
eyewitnesses saw the beginning of the fight; (2) that one of
the eyewitnesses knew S.B. to be an aggressive person; and
(3) that one of the responding officers knew that S.B. always
carried a knife with him. Hougen called two Santa Cruz
police officers involved in the incident to highlight alleged
failures to investigate whether S.B. was the aggressor.
Hougen also sought to admit evidence that, nine months after
the incident with Hougen and in the weeks leading up to trial,
S.B. had assaulted a separate person and misled police about
the incident. The district court precluded this evidence under
Federal Rules of Evidence 404(b) and 403 but permitted the
victim to testify to S.B.’s reputation for aggression. The
district court gave a self-defense instruction to the jury at
Hougen’s request.
The jury convicted Hougen of one count of attempting to
commit racially motivated violence in violation of 18 U.S.C.
§ 249(a)(1) after the jury had deliberated for less than two
hours.
E
After trial, Hougen filed a motion for acquittal and for a
new trial and/or to dismiss the indictment for lack of subject
matter jurisdiction. He raised issues concerning: (1) the
sufficiency of the evidence; (2) the admission of Hougen’s
prior bad acts; (3) the admission of Hougen’s statements in
response to the Miranda warnings by Officers Garcia and
Bailey; (4) the exclusion of evidence concerning S.B.’s
alleged pre-trial assault; and (5) the asserted
USA V. HOUGEN 9
unconstitutionality of 18 § U.S.C. 249(a)(1) as applied to his
case. The district court denied his motion in all respects.
This timely appeal followed. We have jurisdiction under
28 U.S.C. § 1291, and we affirm Hougen’s conviction of
attempting to commit racially motivated violence in
violation of 18 U.S.C. § 249(a)(1).
II
Hougen first contends that the district court barred in-
person public access to his trial, limited public access to the
AT&T Line, and that this limitation violated his right to a
public trial under Allen. 34 F.4th 789. In Allen, we held that
a district court’s “decision to allow only audio access to the
trial . . . effected a total closure” that violated the defendant’s
Sixth Amendment right to a public trial. Id. Hougen relies
on the General Orders and Clerk’s Notice in place during his
trial as evidence that the courtroom was unconstitutionally
closed and notes that these same Orders were in place during
the trial at issue in Allen (which also took place in the
Northern District of California). However, in sharp contrast
to the defendant in Allen, Hougen did not raise this public
trial issue before the district court. This distinguishes
Hougen’s case from Allen and raises a threshold issue of
what standard of review applies to Hougen’s claim. We hold
that Hougen forfeited his public trial claim, that plain error
review applies, and that reversal is not warranted under these
circumstances.
A
We first address the standard of review. The government
argues that Hougen, at least, forfeited his public trial claim
and that plain error review applies. Hougen counters that we
ought to review his public trial claim de novo because he did
10 USA V. HOUGEN
not have the opportunity to raise this issue before the trial
court.
We agree with the government that Hougen forfeited this
claim. “[F]orfeiture is the failure to make the timely
assertion of a right and subjects an argument to plain error
review.” United States v. Lopez, 4 F.4th 706, 719 n.3 (9th
Cir. 2021) (citation and internal quotation marks omitted),
cert. denied, 143 S. Ct. 121 (2022). It is undisputed that
Hougen did not raise his public trial claim at any time before
or during his trial. All evidence on which he now relies to
support his claimed violation, including the General Orders
and the Clerk’s Notices, was available to Hougen at that
time. Although Hougen had ample opportunity to “timely
assert[]” his claim that the district court violated his public
trial right, id., he did not do so. That is forfeiture, and plain
error review therefore applies. Id.; United States v. Ramirez-
Ramirez, 45 F.4th 1103, 1108–09 (9th Cir. 2022) (applying
plain error review to forfeited public trial claim).
B
Because of Hougen’s forfeiture, we do not review this
issue de novo and Allen does not control this case. Instead,
we turn to the standard issues that control review for plain
error. Hougen contends that he is entitled to reversal even
under plain error review. For the reasons set forth below, we
conclude that relief is not warranted in his case.
1
Because the Supreme Court has made clear that relief
under plain error review “is to be ‘used sparingly, solely in
those circumstances in which a miscarriage of justice would
otherwise result,’” United States v. Johnson, 979 F.3d 632,
636–37 (9th Cir. 2020) (emphasis added) (quoting United
USA V. HOUGEN 11
States v. Young, 470 U.S. 1, 15 (1985)), Hougen’s path to
relief is narrow.
Under the familiar plain error review test, Hougen must
establish the following three prongs to be eligible for relief:
“(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Depue, 912 F.3d 1227, 1232 (9th
Cir. 2019) (en banc) (citation omitted). Those three prongs
impose a “heavy burden” on Hougen, but their satisfaction
is only a prerequisite to the possibility of relief. United
States v. Sager, 227 F.3d 1138, 1145 (9th Cir. 2000). That
is so because even if Hougen establishes all three necessary
prongs for plain error relief, that only establishes our
discretion to grant relief. Under the fourth prong of plain
error review, we have the “discretion to grant relief,” but
only if Hougen can demonstrate that the error “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Depue, 912 F.3d at 1232 (emphasis added)
(citation omitted).
The purpose of the fourth prong is “to ‘reduce wasteful
reversals by demanding strenuous exertion to get relief for
unpreserved error.’” Johnson, 979 F.3d at 636 (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004)). “[A]ny exercise of discretion” under this prong
“inherently requires ‘a case-specific and fact-intensive’
inquiry.” Rosales-Mireles v. United States, 138 S. Ct. 1897,
1909 (2018) (quoting Puckett v. United States, 556 U.S. 129,
142 (2009)). Even where there are clear, prejudicial errors
that satisfy the first three prongs, “countervailing factors
[may] satisfy [us] that the fairness, integrity, and public
reputation of the proceedings will be preserved absent
correction.” Id.
12 USA V. HOUGEN
2
In this case, we need not address in any detail whether
Hougen’s claim meets the first and third prongs of plain error
review, which are not contested by the government. Nor do
we need to address the parties’ dispute as to the second prong
of plain error review—whether the district court clearly
violated Allen. That is because, even if Hougen could
establish the second prong, Hougen has not demonstrated
that if we decline in our discretion to give relief for the
claimed public trial error, that will seriously impugn the
fairness, integrity, or public reputation of the court.
“[C]ountervailing factors” are present in this case that
demonstrate reversal is unnecessary to preserve the fairness,
integrity, and public reputation of the proceedings. Rosales-
Mireles, 138 S. Ct. at 1909. The most obvious, and
important, countervailing factor is that despite lacking the
contemporaneous visual access required under Allen, the
public had substantial means of monitoring Hougen’s trial.
The AT&T Line provided the public with contemporaneous
audio access to Hougen’s trial. Through this audio line, the
public could hear argument, listen to testimony, and evaluate
the district court rulings as they were made by the district
court. Second, the public could obtain full transcripts of the
proceedings after the fact on the public docket. Finally,
media coverage of the trial offered still another avenue of
public access. 3 Together, the AT&T Line, available
transcripts of proceedings, and the documented media access
served (albeit imperfectly) the central purposes of the public
3
See, e.g., Christina Carrega, Man sentenced to nearly 7 years for
attacking Black man with knife was repeat hate crime offender, CNN,
Dec. 3, 2021, https://www.cnn.com/2021/12/03/us/california-man-hate-
crime-sentence/index.html.
USA V. HOUGEN 13
trial right by giving assurance that the public could ascertain
whether Hougen was “fairly dealt with and not unjustly
condemned” and “keep[ing] his triers keenly alive to a sense
of their responsibility and to the importance of their
functions.” Waller v. Georgia, 467 U.S. 39, 46 (1984)
(cleaned up).
Hougen stresses how critical visual access is to the
public trial right, as we set forth in Allen. We do not disagree
that visual access is vital to this right. Assuming such
contemporaneous visual access was not available here, the
above-mentioned alternate avenues of access are insufficient
for purposes of the public trial right.
But Hougen faces a higher burden on plain error review
than merely making out a constitutional error under Allen.
He must show how the lack of this access seriously affected
the fairness, integrity, or public reputation of the
proceedings. We do not believe it did. Hougen indeed offers
no evidence that anyone was denied access to the trial, that
anything material (let alone any misconduct) occurred at trial
that did not come through on the AT&T Line or transcripts,
nor that the proceedings, or our review thereof, were affected
at all by the lack of visual access. “There has been no
showing [] that the potential harms flowing from a
courtroom closure came to pass in this case.” Weaver v.
Massachusetts, 582 U.S. 286, 304 (2017). The harms of the
alleged district court error appear to be limited to the fact of
the error itself. But “[f]rom the defendant’s standpoint,” the
trial itself proceeded fairly. Id. at 1910.
Against this minimal showing of harm to the fairness of
Hougen’s trial, we must balance “the costs to the fairness,
integrity, and public reputation of judicial proceedings that
would alternatively result from noticing the error.” United
14 USA V. HOUGEN
States v. Williams, 974 F.3d 320, 345 (3d Cir. 2020). In this
case, the costs of reversal and remand for a new trial would
be substantial. First, the Supreme Court has stated that a
“high degree of caution” should be taken before reversing
for retrial on plain error review. Rosales-Mireles, 138 S. Ct.
at 1909. The rationale for this heightened caution is plain as
day in this case. 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. Reversal would not only undo all prior work
on the trial but require trial to be held anew. 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. Moreover, there is still some remaining threat of
COVID-19, though the pandemic has been steadily receding,
even if it is not now totally absent.
There is another cost to be balanced, that of public
perception. Here, reversal would seem more likely to
impugn the public’s perception of the judiciary than would
denial of relief. Reversal here would plainly reward Hougen
for withholding an objection and “depriv[ing the district
court] the chance to cure the [alleged] violation.” Weaver,
582 U.S. at 302. Only after a jury found Hougen guilty
beyond a reasonable doubt of attempting to commit racially
motivated violence did he elect to raise the issue. Reversal
under these circumstances would come close to rewarding
the type of sandbagging that plain error review seeks to
avoid, see Chess v. Dovey, 790 F.3d 961, 971 (2015), and in
any event strikes us as precisely the kind of “windfall for the
defendant” that the Supreme Court has cautioned is “not in
the public interest.” Waller, 467 U.S. at 50. Any risk of
USA V. HOUGEN 15
harm to the perception of fairness, integrity, and reputation
of the Court caused by limited public access during a
dangerous pandemic is not likely as grave as the damage to
fairness, integrity, and reputation that would be caused by
vacating an otherwise fair conviction. If anything, “[t]he
real threat . . . to the ‘fairness, integrity, and public reputation
of judicial proceedings’ would be” throwing out all the work
that went into trying and convicting Hougen on the basis of
an alleged error that was “never objected to at trial.” United
States v. Cotton, 535 U.S. 625, 634 (2002). Under plain
error review, we need not grant such a windfall and we do
not here.
3
Hougen counters that our holdings in United States v.
Ramirez-Ramirez and United States v. Becerra preclude an
individualized fourth prong analysis in cases implicating a
structural error, like this one. Neither case does so.
In Ramirez-Ramirez, the district court issued a written
finding of guilt in lieu of publicly announcing the finding in
open court. 45 F.4th 1103, 1110 (9th Cir. 2022). While the
defendant did not object, we held the district court had
clearly committed a public trial error and remanded for a
public hearing where the district court would re-issue its
findings. Id. In so doing, we held that the fourth prong of
plain error was “satisfied” by the demonstration of a public
trial right violation because such errors are “structural.” Id.
(citing Weaver, 582 U.S. at 296 and United States v.
Becerra, 939 F.3d 995, 1005–06 (9th Cir. 2019)). Becerra,
likewise, held that “[t]he same reasoning that justified
categorizing [an] error as structural”—in that case, issuing
jury instructions in writing as opposed to orally—“supports
th[e] conclusion” that prong four is “satisf[ied].” 939 F.3d
16 USA V. HOUGEN
at 1006 (granting relief under plain error review for violation
of requirement that jury be instructed orally).
Fatally for Hougen’s appeal of his conviction, however,
both Ramirez-Ramirez and Becerra affirmed that the
decision to notice an error under prong four is an exercise of
discretion. Ramirez-Ramirez, 45 F.4th at 1109 (“[W]e have
‘discretion to notice such error, but only if the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’” (emphasis added) (citation omitted));
Becerra, 939 F.3d at 1006 (“[W]e exercise our discretion to
notice the plain error committed by the district court in this
case.” (emphasis added)). That is in line with the binding
Supreme Court precedent set forth earlier in this opinion. It
would be in irreconcilable tension with this authority to read
Ramirez-Ramirez and Becerra to require the exercise of our
discretion to afford relief under plain error review every time
there has been a structural error, regardless of any and all
case-specific facts relevant to the fairness, integrity, and
reputation of the proceedings. We do not do so here.
Moreover, both cases presented case-specific concerns
weighing in favor of relief that are absent here. In both
Becerra and Ramirez-Ramirez, the errors walled off all
contemporaneous public access to the proceeding in
question. In Becerra, the district court issued its jury
instructions in writing, hiding “a key aspect of the trial [. . .]
from public observation.” 939 F.3d at 1005. Likewise, in
Ramirez-Ramirez, the district court issued its finding of fact
in writing, and the public again “lost the ability to
contemporaneously monitor proceedings.” Ramirez-
Ramirez, 45 F.4th at 1111. Here, by contrast, the public
undisputedly had some contemporaneous access to the
entirety of the proceedings through the AT&T Line. This at
least ensured that Hougen’s trial was conducted before the
USA V. HOUGEN 17
public ear, ensuring that the fairness, integrity, and public
reputation of the proceedings were not “fatally
compromised.” Becerra, 939 F.3d at 1005.
C
In sum, the balance of costs in this case counsels against
reversal. In the absence of evidence of any harm to the
fairness of Hougen’s trial flowing from the alleged public
trial error and in light of the costs that would be imposed by
reversal, we conclude that the drastic relief that Hougen
seeks is unwarranted. For these and all of the foregoing
reasons, we decline to reverse on this ground. 4
III
Next, Hougen argues that § 249(a)(1), as applied to his
case, exceeds Congress’ authority under the Thirteenth
Amendment. Hougen raised this issue in his post-trial
motion to dismiss for lack of subject matter jurisdiction,
which the district court denied. Reviewing de novo, United
States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012), we
affirm the district court.
A
Congress’ power under the Thirteenth Amendment is
broad. Section Two of the Thirteenth Amendment gives
Congress the “power to pass all laws necessary and proper
for abolishing all badges and incidents of slavery in the
United States.” Jones v. Alfred H. Mayer Co., 392 U.S. 409,
439 (1968) (citation omitted). Under Jones, this power is
subject only to a deferential test: “We must … ask whether
4
Because we decline to grant relief on plain error review, we need not
and do not reach the government’s alternative contention that Hougen
waived appellate review of this claim entirely.
18 USA V. HOUGEN
Congress could rationally have determined that the acts of
violence covered by [the law] impose a badge or incident of
servitude on their victims.” United States v. Allen, 341 F.3d
870, 884 (9th Cir. 2003) (citation omitted) (hereafter “Allen
II”).
Acting under this broad authority, Congress passed
§ 249(a)(1). As relevant here, § 249(a)(1) prohibits
“attempts to cause bodily injury to any person” “through the
use of . . . a dangerous weapon . . . because of the actual or
perceived race, color, religion, or national origin of any
person.” 18 U.S.C. § 249(a)(1). In enacting § 249(a)(1),
Congress concluded that “[s]lavery and involuntary
servitude were enforced . . . through widespread public and
private violence directed at persons because of their race,
color, or ancestry, or perceived race, color, or ancestry” and
that “eliminating racially motivated violence is an important
means of eliminating, to the extent possible, the badges,
incidents, and relics of slavery and involuntary servitude.”
34 U.S.C. § 30501(7).
B
We have no trouble concluding that § 249(a)(1), and
Hougen’s prosecution thereunder, passes the deferential
Jones test. 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. United States v.
Roof, 10 F.4th 314, 392 (4th Cir. 2021), cert. denied, 143 S.
Ct. 303 (2022) (“[C]oncluding there is a relationship
between slavery and racial violence is not merely rational,
but inescapable.” (cleaned up)); United States v. Diggins, 36
F.4th 302, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 383
USA V. HOUGEN 19
(2022); United States v. Metcalf, 881 F.3d 641, 645 (8th Cir.
2018); United States v. Cannon, 750 F.3d 492, 502 (5th Cir.
2014); United States v. Hatch, 722 F.3d 1193, 1205 (10th
Cir. 2013). 5 Neither Hougen nor the dissent offers any
persuasive reasoning for why these decisions got it wrong
under Jones. And while the Ninth Circuit has not yet
addressed this statute, we upheld a similar criminal
prohibition on racially motivated violence interfering with
the use of public facilities as a valid exercise of Congress’
Thirteenth Amendment power. Allen II, 341 F.3d at 884. In
so doing, we endorsed the Second Circuit’s reasoning that
“there exist[s] [an] indubitable connection[] . . . between
American slavery and private violence directed against
despised and enslaved groups[.]” United States v. Nelson,
277 F.3d 164, 190 (2d Cir. 2002) (agreed with by Allen II,
341 F.3d at 884). We draw upon this same unassailable
reasoning—which parallels that of Congress in enacting
§ 249(a)(1)—in confirming that Congress rationally
concluded that racial violence imposes a badge and incident
of slavery on its victims. See generally A. Leon
Higginbothamn, Jr., In the Matter of Color: Race and the
American Legal Process 254–55 (1978) (summarizing legal
protections for private violence, including murder, against
slaves in the colonial period); Michael J. Klarman, From Jim
Crow to Civil Rights 29–30 (2004) (reviewing widespread
violence by white Southerners against newly-freed Black
people in the aftermath of the Civil War). Hougen’s
prosecution arose out of an instance of attempted racial
violence squarely prohibited by § 249(a)(1). Under this
5
Even the dissent, which summarily dismisses these decisions, see
Dissent 42, agrees with the Hatch court’s indisputable conclusion that
“unrestrained master-on-slave violence [w]as one of slavery’s most
necessary features.” Dissent 33 (citing Hatch, 722 F.3d at 1206).
20 USA V. HOUGEN
authority, and under the various Circuit precedents cited
infra at 18–19, his challenge falls short under Jones.
C
Hougen contends that § 249(a)(1) is subject to
heightened scrutiny apart from the Jones test. He offers two
alternative tests that he says govern his claim. We reject his
argued position.
First, Hougen argues that the constitutionality of
§ 249(a)(1) is governed by the more stringent test(s)
purportedly announced by the Supreme Court in City of
Boerne v. Flores, 521 U.S. 507 (1997) and Shelby County v.
Holder, 570 U.S. 529 (2013). Those cases arose from laws
Congress passed under its Fourteenth Amendment authority.
Other defendants have relied on these cases to challenge
§ 249(a)(1), and their arguments have been consistently
rejected. Roof, 10 F.4th at 393–395; Diggins, 36 F.4th at
311–317; Metcalf, 881 F.3d at 645; Cannon, 750 F.3d at 505;
Hatch, 722 F.3d at 1204–05. We need go no further than
reiterate what has been said by the First Circuit: these
Fourteenth Amendment cases do not “mention either Jones
or the Thirteenth Amendment. Rather, the cases concern two
different amendments, each with its own unique history,
structure, and caselaw.” Diggins, 36 F.4th at 313. Hougen
“furnishes no reason to believe that [these cases’]
examination of the Fourteenth Amendment's Enforcement
Clause displaces Jones’s separate analysis of the Thirteenth
Amendment.” Id. at 313. The Supreme Court has clearly
said that Jones is the test under the Thirteenth Amendment.
Absent clear contrary precedent or guidance to the contrary,
we join our fellow circuits in rejecting Hougen’s argument.
Second, Hougen contends that the Supreme Court
announced a separate test for Congress’ authority to enact
USA V. HOUGEN 21
criminal statutes under the Thirteenth Amendment in United
States v. Kozminski, 487 U.S. 931 (1988). This argument,
again, misses the mark. In Kozminski, the Supreme Court
did not address the validity of Congress’ Thirteenth
Amendment power in enacting the statutes at issue. To the
extent it touched on this issue in dicta, it affirmed that Jones
governs that question. See 487 U.S. at 962 n.8 (citing Jones,
392 U.S. at 437–44).
Instead, the Court addressed whether application of two
broadly worded criminal statutes, whose language tracked
the substantive prohibitions of the Thirteenth Amendment,
comported with judicial doctrines of fair notice in the
criminal context. See id. And while § 249(a)(1) must
comply with these doctrines, the fair notice concerns present
in Kozminski are absent here. Section 249(a)(1)’s
prohibitory language is clear and tracks other statutes
prohibiting conduct based on race, including that which we
upheld in Allen II. And there can be no serious question or
surprise that Hougen’s attempted assault of S.B. fell under
§ 249(a)(1)’s clear prohibition on racially motivated
violence. Kozminski is inapposite to the issues present in this
case.
D
In sum, we hold that § 249(a)(1) is a constitutional
exercise of Congress’ enforcement authority under Section
Two of the Thirteenth Amendment. We affirm the district
court’s denial of Hougen’s motion to dismiss his prosecution
thereunder for lack of subject matter jurisdiction.
22 USA V. HOUGEN
IV
For the foregoing reasons, we conclude that Hougen has
not identified any error warranting relief from his conviction
at trial.
AFFIRMED.
IKUTA, Circuit Judge, dissenting:
Ole Hougen was convicted under 18 U.S.C. § 249(a)(1),
which criminalizes, among other things, willfully causing
bodily injury to a person on account of that person’s race,
color, religion, or national origin. 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. Therefore, I dissent.
I
Section 249(a)(1) attaches criminal liability to those
who,
whether or not acting under color of law,
willfully cause[] bodily injury to any person
or, through the use of fire, a firearm, a
dangerous weapon, or an explosive or
incendiary device, attempt[] to cause bodily
USA V. HOUGEN 23
injury to any person, because of the actual or
perceived race, color, religion, or national
origin of any person.
18 U.S.C. § 249(a)(1). 1
Congress passed § 249(a)(1) under § 2 of the Thirteenth
Amendment. See National Defense Authorization Act for
Fiscal Year 2010, Pub. L. No. 111–84, § 4702, 123 Stat.
2190, 2836 (2009).
The Thirteenth Amendment was the first of three
Reconstruction-era amendments ratified between 1865 and
1
Section § 249(a)(1) provides in full:
(a) In General.—
(1) Offenses involving actual or perceived race, color,
religion, or national origin.—Whoever, whether or not
acting under color of law, willfully causes bodily
injury to any person or, through the use of fire, a
firearm, a dangerous weapon, or an explosive or
incendiary device, 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; and
(B) shall be imprisoned for any term of years or
for life, fined in accordance with this title, or both,
if—
(i) death results from the offense; or
(ii) the offense includes kidnapping or an
attempt to kidnap, aggravated sexual abuse or
an attempt to commit aggravated sexual
abuse, or an attempt to kill.
18 U.S.C. § 249(a)(1).
24 USA V. HOUGEN
1870 in the wake of the Civil War (collectively, the
Reconstruction Amendments). It states:
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.
U.S. CONST. amend. XIII.
Thus, Section 1 announces the Amendment’s substantive
guarantee: “that slavery or involuntary servitude shall not
exist in any part of the United States.” The Civil Rights
Cases, 109 U.S. 3, 20 (1883). And Section 2 vests in
Congress the power to enforce that guarantee.
The Fourteenth and Fifteenth Amendments have similar
structures. Section 1 of each Amendment sets forth its
“substantive guarantees,” Tennessee v. Lane, 541 U.S. 509,
518 (2004), and each Amendment also has an enforcement
clause largely identical to Section 2 of the Thirteenth
Amendment, see U.S. CONST. amend. XIV, § 5 (“The
Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.”); U.S. CONST.
amend. XV, § 2 (“The Congress shall have power to enforce
this article by appropriate legislation.”).
Under the enforcement clauses of the Reconstruction
Amendments, “Congress may enact . . . prophylactic
legislation that proscribes facially constitutional conduct, in
order to prevent and deter unconstitutional conduct,”
USA V. HOUGEN 25
meaning the conduct prohibited by the clause containing
each Reconstruction Amendment’s substantive guarantee.
Nev. Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 727–28
(2003); see also City of Boerne v. Flores, 521 U.S. 507, 536
(1997). Congress’s power to enact prophylactic legislation,
though broad, “is not . . . unlimited.” Lane, 541 U.S. at 520.
“While Congress must have a wide berth in devising
appropriate remedial and preventative measures for
unconstitutional actions, those measures may not work a
‘substantive change in the governing law.’” Id. (quoting
City of Boerne, 521 U.S. at 519). “The Court has never
deviated from” the principle “that prophylactic legislation
designed to enforce the Reconstruction Amendments,” Nw.
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 225
(2009), “must be an appropriate remedy for identified
constitutional violations, not ‘an attempt to substantively
redefine . . . [the] legal obligations’” imposed by the
Amendments, Hibbs, 538 U.S. at 728 (quoting Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 88 (2000)). Accordingly,
“substantive redefinition of the [constitutional] right at
issue” is not “appropriate prophylactic legislation.” Id.; see
also City of Boerne, 521 U.S. at 519 (“Congress does not
enforce a constitutional right by changing what the right
is.”).
For purposes of assessing prophylactic legislation passed
pursuant to Section 5 of the Fourteenth Amendment, the
Supreme Court has adopted a type of means-end test. See
Hibbs, 538 U.S. at 728. For Congress’s action to fall within
its Section 5 authority, “[t]here must be a congruence and
proportionality between the injury to be prevented or
remedied and the means adopted to that end.” City of
26 USA V. HOUGEN
Boerne, 521 U.S. at 520. 2 Because Section 5 of the
Fourteenth Amendment is worded almost identically to
Section 2 of the Thirteenth Amendment, scholars and jurists
have argued that the congruence-and-proportionality test is
salient to determining the constitutionality of prophylactic
Thirteenth Amendment legislation. See Jennifer Mason
McAward, The Scope of Congress’s Thirteenth Amendment
Enforcement Power after City of Boerne v. Flores, 88 Wash.
U. L. Rev. 77, 142 (2010); United States v. Cannon, 750 F.3d
492, 511–12 (5th Cir.) (Elrod, J., concurring), cert. denied,
574 U.S. 1029 (2014). But the Supreme Court has not, as
yet, applied the test in the Thirteenth Amendment context.
Rather, it has long held that “the province and scope of the
Thirteenth and Fourteenth Amendments are different,” and
that “[w]hat Congress has power to do under one, it may not
have power to do under the other.” The Civil Rights Cases,
109 U.S. at 23.
II
Because we cannot rely on Fourteenth Amendment
jurisprudence to determine the scope of Congress’s
legislative authority under the Thirteenth Amendment’s
enforcement clause, we must instead discern the test for that
clause from the Thirteenth Amendment’s text and history, as
interpreted by the Supreme Court.
2
The Supreme Court has not expressly adopted the congruence-and-
proportionality test for prophylactic legislation passed under the
Fifteenth Amendment, see Nw. Austin, 557 U.S. at 204, although the
Court has stated that Congress has “parallel power to enforce the
provisions” of the Fourteenth and Fifteenth Amendments, City of
Boerne, 521 U.S. at 518; see also Allen v. Milligan, 143 S. Ct. 1487,
1539 n.19 (2023) (Thomas, J., dissenting).
USA V. HOUGEN 27
A
Section 2 of the Thirteenth Amendment authorizes
“appropriate legislation” to enforce Section 1. U.S. CONST.
amend. XIII, § 2. Thus, it is necessary to start by examining
Section 1’s substantive guarantee.
Section 1 states that “[n]either 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.”
U.S. CONST. amend. XIII, § 1. The clause “abolished
slavery, and established universal freedom” in the United
States. The Civil Rights Cases, 109 U.S. at 20; see also id.
at 24 (“The Thirteenth Amendment has respect, not to
distinctions of race, or class, or color, but to slavery.”).
The language in Section 1 was well understood at the
time of the Thirteenth Amendment’s enactment. The clause
“reproduced the historic[] words” of the Northwest
Ordinance of 1787. 3 Bailey v. Alabama, 219 U.S. 219, 240
(1911). “The framers of the [Thirteenth] Amendment
intentionally used this text precisely because it was well
known and had a narrow historical meaning. As used in the
Ordinance, the terms ‘slavery and involuntary servitude’
referred to a specific and legally codified ‘private
economical relation’ between a ‘master’ and a ‘servant.’”
Kurt Lash, Roe and the Original Meaning of the Thirteenth
Amendment, 21 Geo. J.L. & Pub. Pol’y, 131, 132 (2023).
Section 1’s eradication of slavery eliminated “a state of
affairs which had existed in certain states of the Union since
3
Article VI of the Northwest Ordinance states that “[t]here shall be
neither slavery nor involuntary servitude in the said territory, otherwise
than in the punishment of crimes whereof the party shall have been duly
convicted[.]”
28 USA V. HOUGEN
the foundation of the government.” Robertson v. Baldwin,
165 U.S. 275, 282 (1897); see also Butler v. Perry, 240 U.S.
328, 332 (1916) (stating that the Thirteenth Amendment
“was adopted with reference to conditions existing since the
foundation of our government”).
“[T]he words ‘involuntary servitude’ were . . . intended
to cover” other conditions “which might have been a revival
of the institution of slavery under a different and less
offensive name,” Robertson, 165 U.S. at 282, such as “those
forms of compulsory labor akin to African slavery which, in
practical operation, would tend to produce like undesirable
results,” Butler, 240 U.S. at 332. “It was very well
understood” that involuntary servitude referred to “any state
of bondage” in “which the personal service of one man is
disposed of or coerced for another’s benefit.” Bailey, 219
U.S. at 241 (citation omitted). In United States v. Kozminski,
the most recent Supreme Court decision interpreting the
Thirteenth Amendment, the Court confirmed that
“‘involuntary servitude’ necessarily means a condition of
servitude in which the victim is forced to work for the
defendant by the use or threat of physical restraint or
physical injury, or by the use or threat of coercion through
law or the legal process.” 487 U.S. 931, 952 (1988). One
form of involuntary servitude that is forbidden by the
Thirteenth Amendment is peonage, which “may be defined
as a status or condition of compulsory service, based upon
the indebtedness of the peon to master.” Clyatt v. United
States, 197 U.S. 207, 215 (1905); see also Taylor v. Georgia,
315 U.S. 25, 29 (1942) (holding that “coerced labor is
peonage” and that it “is of course clear that peonage is a form
of involuntary servitude within the meaning of the
Thirteenth Amendment”).
USA V. HOUGEN 29
Therefore, 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. See Nw. Austin, 557
U.S. at 204.
B
Having explained Section 1’s substantive guarantee, we
must next ascertain the limits on how Congress can enforce
that guarantee. Section 2 of the Thirteenth Amendment
states that “Congress shall have power to enforce this article
by appropriate legislation.” U.S. CONST. amend. XIII, § 2.
Addressing the scope of Congress’s enforcement power
under Section 2 for the first time in the Civil Rights Cases,
the Supreme Court stated that “the power vested in Congress
to enforce the article by appropriate legislation, clothes
Congress with power to pass all laws necessary and proper
for abolishing all badges and incidents of slavery in the
United States.” 109 U.S. at 20. Nearly a century later, the
Court clarified the scope of Congress’s prophylactic
legislative authority under Section 2, holding that “Congress
has the power under the Thirteenth Amendment rationally to
determine what are the badges and incidents of slavery, and
the authority to translate that determination into effective
legislation.” Jones v. Alfred H. Mayer Co., 392 U.S. 409,
440 (1968). This power is broad, and “the varieties of
private conduct that it may make criminally punishable or
civilly remediable extend far beyond the actual imposition
of slavery or involuntary servitude.” Griffin v.
Breckenridge, 403 U.S. 88, 105 (1971). But Congress’s
authority is nevertheless constrained by the requirement that
30 USA V. HOUGEN
“prophylactic legislation” passed by Congress not effect a
“substantive redefinition” of the rights granted by the
Thirteenth Amendment. Hibbs, 538 U.S. at 728; see also
Allen v. Cooper, 140 S. Ct. 994, 1004 (2020) (“Congress
cannot use its ‘power to enforce’ the [Thirteenth]
Amendment to alter what that Amendment bars.” (citation
and quotation marks omitted)).
In the context of Thirteenth Amendment jurisprudence,
the phrase “badges and incidents of slavery” has a specific
meaning set by history and Supreme Court interpretation.
An incident of slavery, as that term was used in antebellum
commentary, “was any legal right or restriction that
necessarily accompanied the institution of slavery,”
particularly “the aspects of property law that applied to the
ownership and transfer of slaves” and “the civil disabilities
imposed on slaves by virtue of their status as property.”
Jennifer Mason McAward, Defining the Badges and
Incidents of Slavery, 14 U. Pa. J. Const. L. 561, 575 (2012);
see also id. at 570–71 & 571 n.38 (stating that, in 1867, an
“incident” was defined as “[a] thing depending upon,
appertaining to, or following another, called the principal”
(citing BOUVIER’S LAW DICTIONARY (7th ed. 1867)). Judicial
decisions from the antebellum period reflect this
understanding of an “incident” of slavery as something
necessarily tied to a master’s property rights in the slave. See
Prigg v. Pennsylvania, 41 U.S. 539, 613 (1842) (stating that
because the Constitution’s Fugitive Slave Clause “contains
a positive and unqualified recognition of the right of the
owner in the slave . . . . then all the incidents to that right
attach also”); see also In re Archy, 9 Cal. 147, 162 (1858)
(“[W]here slavery exists, the right of property of the master
in the slave must follow[] as a necessary incident.”). Thus,
“incident” “has [a] clear, finite, historically determined
USA V. HOUGEN 31
meaning” that refers to the legal aspects of the system of
slavery. McAward, Defining the Badges and Incidents of
Slavery at 575. Such legal aspects, comprising “the
inseparable incidents of the institution” of slavery, included
“[c]ompulsory service of the slave for the benefit of the
master, restraint of his movements except by the master’s
will, disability to hold property, to make contracts, to have a
standing in court, to be a witness against a white person, and
such like burdens and incapacities.” The Civil Rights Cases,
109 U.S. at 22.
Whereas the term “incident” of slavery has a narrow
historical meaning, the meaning of the term “badge” of
slavery is broader. “In its most general sense, the term
‘badge of slavery’ . . . refers to indicators, physical or
otherwise, of African Americans’ slave or subordinate
status.” McAward, Defining the Badges and Incidents of
Slavery at 575; see also United States v. Hatch, 722 F.3d
1193, 1198 (10th Cir. 2013) (stating that “‘badge,’ in
antebellum legal discourse, was sometimes used as
shorthand for ‘evidence permitting an inference from
external appearances to legal status’” as a slave (citation
omitted)), cert. denied, 134 S. Ct. 1538 (2014). For
example, one such physical badge was the requirement, “[i]n
slave times[,] in the slave states,” that a freed slave “carry
with him a copy of a judicial decree or other evidence of his
right to freedom or be subject to arrest.” Hodges v. United
States, 203 U.S. 1, 19 (1906), overruled by Jones, 392 U.S.
at 441 n.78. Following the end of the Civil War and the
abolition of slavery, “[s]kin color was no longer a badge of
slavery,” and the term instead came “to reference ways in
which southern governments and white citizens endeavored
to reimpose upon freed slaves the incidents of slavery or,
more generally, to restrict their rights in such a way as to
32 USA V. HOUGEN
mark them as a subordinate brand of citizens.” McAward,
Defining the Badges and Incidents of Slavery at 577–78.
Building on this understanding, the Supreme Court has
defined the badges and incidents of slavery as the denial of
“those fundamental rights which appertain to the essence of
citizenship, and the enjoyment or deprivation of which
constitutes the essential distinction between freedom and
slavery.” The Civil Rights Cases, 109 U.S. at 22; see also
Griffin, 403 U.S. at 105. Such a denial of fundamental civil
rights imposes on its victims a “form of stigma so severe”
that it is akin to marking them as a legally inferior group (i.e.,
a badge of slavery), and thus violates the Thirteenth
Amendment. City of Memphis v. Greene, 451 U.S. 100, 128
(1981). The Court has most often characterized these
“fundamental rights[,] which are the essence of civil
freedom,” in terms of economic and legal parity with white
people—specifically, ensuring that black people have “the
same right to make and enforce contracts, to sue, be parties,
give evidence, and to inherit, purchase, lease, sell, and
convey property, as is enjoyed by white citizens.” The Civil
Rights Cases, 109 U.S. at 22; see also Alma Soc’y Inc. v.
Mellon, 601 F.2d 1225, 1238 (2d Cir. 1979) (stating that
“[t]he Supreme Court has never considered that the ‘badges
or incidents’ went beyond” a lack of these fundamental
rights). Therefore, the Court has held that “racial
discrimination [that] herds men into ghettos and makes their
ability to buy property turn on the color of their skin” is a
badge or incident of slavery, as is denying black people “the
freedom to buy whatever a white man can buy [and] the right
to live wherever a white man can live.” Jones, 392 U.S. at
442–43. The Court has similarly concluded that “racial
discrimination that interferes with the making and
enforcement of contracts for private educational services” is
USA V. HOUGEN 33
a badge or incident of slavery. Runyon v. McCrary, 427 U.S.
160, 179 (1976).
For the same reasons, the use of violence to deprive a
person of the fundamental rights of citizenship is a badge or
incident of slavery. Historically, “unrestrained master-on-
slave violence [w]as one of slavery’s most necessary
features.” Hatch, 722 F.3d at 1206; see also United States
v. Nelson, 277 F.3d 164, 189–90 (2d Cir. 2002) (“[I]n several
States[,] ‘legislators expressly deprived slaves who were
violently abused by whites of the protections of the common
law of crimes by passing exculpatory acts that granted . . .
slave masters . . . legal rights to beat, whip, and kill
bondsmen.’” (citation omitted)). Thus, the Supreme Court
has held that conspiratorial, racially discriminatory private
actions using “force, violence and intimidation” to deprive
individuals of basic rights is a badge or incident of slavery
that Congress can legislate against to enforce the Thirteenth
Amendment’s substantive guarantee. Griffin, 403 U.S. at
90. But such force, violence, or intimidation must have been
committed for the purpose of preventing the victims:
from seeking the equal protection of the laws
and from enjoying the equal rights, privileges
and immunities of citizens under the laws of
the United States and [state law], including
but not limited to their rights to freedom of
speech, movement, association and
assembly; their right to petition their
government for redress of their grievances;
their rights to be secure in their persons and
their homes; and their rights not to be
34 USA V. HOUGEN
enslaved nor deprived of life and liberty other
than by due process of law.
Id.; see also id. at 105.
Accordingly, not every act of private discrimination or
violence—however ugly it might be—is a badge or incident
of slavery. “Mere discriminations on account of race or
color were not regarded as badges of slavery.” The Civil
Rights Cases, 109 U.S. at 25. 4 Actions with only “symbolic
significance” are not badges or incidents of slavery either.
Greene, 451 U.S. at 128. Therefore, the Court has held that
neither a private actor’s refusal of “admission to an inn, a
public conveyance, or a place of public amusement, on equal
terms with all other citizens,” The Civil Rights Cases, 109
U.S. at 24, nor a city’s decision to close swimming pools
rather than attempt to operate them on a desegregated basis,
see Palmer v. Thompson, 403 U.S. 217, 226 (1971), nor the
closing of a city street that would “have a disparate effect on
an identifiable ethnic or racial group,” Greene, 451 U.S. at
128, are badges or incidents of slavery. Similarly, the Court
has never held that an assault or battery—when committed
without an intent to deprive a person of fundamental rights
of citizenship—was a badge or incident of slavery, even if
there is evidence that the perpetrator was motivated by
animus against a person’s protected characteristic.
4
Jones noted that “the present validity of the position taken by the [Civil
Rights Cases] majority” that private discrimination was not a badge or
incident of slavery was “rendered largely academic by Title II of the
Civil Rights Act of 1964,” enacted under the Fourteenth Amendment.
392 U.S. at 441 n.78 (citing Heart of Atlanta Motel v. United States, 379
U.S. 241 (1964) and Katzenbach v. McClung, 379 U.S. 294 (1964)).
Nevertheless, Jones did not overrule the Civil Rights Cases on this point,
and it remains good law.
USA V. HOUGEN 35
C
Summarizing the relevant principles, Section 2 of the
Thirteenth Amendment authorizes Congress to develop
appropriate remedies to vindicate the substantive
constitutional guarantee of Section 1, which is to eradicate
slavery and involuntary servitude. In order to do so,
Congress has the authority to identify the badges and
incidents of slavery and to enact appropriate legislation to
abolish them. See Jones, 392 U.S. at 440. Although
Congress enjoys broad prophylactic legislative authority in
this area, its power “is not . . . unlimited,” Lane, 541 U.S. at
520, because the determination of “what are the badges and
incidents of slavery,” Jones, 392 U.S. at 440, must be
rationally related to the constitutional right at issue—the
right to “universal civil freedom,” Bailey, 219 U.S. at 241,
via the eradication of slavery and involuntary servitude.
Supreme Court precedent has made clear that Congress’s
“authority to translate that determination into effective
legislation,” Jones, 392 U.S. at 440, does not “empower
Congress to address all modern forms of injustice, or even
all modern manifestations of racial bias,” McAward,
Defining the Badges and Incidents of Slavery at 569–70.
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. Legislation
criminalizing such conduct goes “beyond redressing actual
constitutional violations” of the Thirteenth Amendment,
Allen, 140 S. Ct. at 1004, and so is not appropriate
prophylactic legislation, Hibbs, 538 U.S. at 728.
36 USA V. HOUGEN
III
Under these principles, in order to determine if
§ 249(a)(1) is an appropriate remedy to vindicate the
Thirteenth Amendment’s substantive guarantee, we must
assess whether Congress could rationally determine that the
conduct criminalized by the statute is a badge or incident of
slavery. The conduct criminalized by § 249(a)(1) is willfully
causing bodily injury to a person because of that person’s
protected characteristic (race, color, religion, or national
origin). Therefore, the question is whether Congress could
rationally determine that an assault or battery (which is a
state-law criminal offense regardless of the victim’s race,
color, religion, or national origin) is a badge or incident of
slavery, solely because the perpetrator committed the crime
on account of the victim’s protected characteristic.
Under the Supreme Court’s caselaw, this type of conduct
is not a badge or incident of slavery. Assault or battery that
is carried out due to animus against persons with a protected
characteristic is akin to mere private discrimination, which
the Court has long made clear is not a badge or incident of
slavery. See The Civil Rights Cases, 109 U.S. at 25. Such a
crime is unlike violence intended to deprive persons of their
fundamental rights as citizens, which the Supreme Court
held was a badge or incident of slavery in Griffin. See 403
U.S. at 105. The distinction between the legislation at issue
in Griffin and in this case is clear. In Griffin, two white
defendants mistakenly believed that the driver of a car was a
civil rights worker, and conspired to block the passage of the
car upon the public highways and attack the plaintiffs with
deadly weapons for the purpose of preventing the plaintiffs
and other black people, “through such force, violence and
intimidation, from seeking the equal protection of the laws
and from enjoying the equal rights, privileges and
USA V. HOUGEN 37
immunities of citizens under the laws of the United States
and the State of Mississippi.” Id. at 90. The defendants were
charged under 42 U.S.C. § 1985(3), which criminalizes a
conspiracy, “on the highway or on the premises of another,”
that is committed “for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws.” Id. at 92 (citation and quotation
marks omitted). The Supreme Court upheld the statute,
“conclud[ing] that Congress was wholly within its powers
under § 2 of the Thirteenth Amendment in creating a
statutory cause of action for Negro citizens who have been
the victims of conspiratorial, racially discriminatory private
action aimed at depriving them of the basic rights that the
law secures to all free men,” including but not limited to “the
right of interstate travel.” Id. at 105.
By contrast, § 249(a)(1) lacks the key element of
§ 1985(3), in that it does not require the government to show
that the purpose of the assault or battery was to deprive the
victim of the fundamental civil rights of citizenship. Rather,
it requires the government to show only that the defendant
perpetrated the assault or battery because of the victim’s
protected characteristic. This type of criminal enactment
falls short in two ways.
First, it is not rationally related to the substantive
guarantee of Section 1, which is the eradication of slavery
and involuntary servitude. There is no constitutional right to
be free from private acts of violence, even if they are
committed due to a discriminatory motive. Congress could
not rationally determine that private violence, which is
motivated by neither a master-servant relationship between
the perpetrator and victim nor a desire to deprive the victim
of the fundamental rights of a free citizen, is a badge or
38 USA V. HOUGEN
incident of slavery. To the contrary, the Supreme Court has
made clear that Congress does not possess a “general federal
police power,” United States v. Lopez, 514 U.S. 549, 564
(1995), and that “the suppression of violent crime and
vindication of its victims” is a quintessential example of
“[state] police power, which the Founders denied the
National Government,” United States v. Morrison, 529 U.S.
598, 618 (2000). Section 249(a)(1) therefore represents an
improper federal exercise of state police power, both by
converting ordinary state-law battery and assault into a
federal crime, and by imposing an enhanced penalty for such
assaults if committed with a “discriminatory motive, or
reason, for acting.” 5 Wisconsin v. Mitchell, 508 U.S. 476,
487 (1993). The Supreme Court has warned Congress
against adopting remedial measures, such as § 249(a)(1),
5
Title 18, Chapter 7 of the U.S. Code lists the federal assault crimes.
Unlike § 249(a)(1)’s general prohibition on private, animus-motivated
assault (and battery), each federal assault statute contains a nexus to the
federal government or to interstate commerce. See 18 U.S.C. §§ 111
(assaulting a federal officer or employee), 112 (assaulting a foreign
official or official guest), 113 and 114 (assaulting or maiming within the
special maritime and territorial jurisdiction of the United States), 115
(assaulting a member of the immediate family of a United States official,
a United States judge, or a federal law enforcement officer), 116 (female
genital mutilation, if the defendant or victim traveled in interstate or
foreign commerce), 117 (domestic assault within the special maritime
and territorial jurisdiction of the United States), 118 (interference with a
federal law enforcement agent, engaged, within the United States or the
special maritime and territorial jurisdiction of the United States, in the
performance of protective functions for a federal officer or employee),
and 119 (knowingly making public restricted personal information about
a federal officer or employee with the intent to threaten, intimidate, or
incite the commission of a crime of violence against that person or a
member of that person’s immediate family).
USA V. HOUGEN 39
that work a “substantive redefinition of the [constitutional]
right at issue.” Hibbs, 538 U.S. at 728.
Second, § 249(a)(1) is overbroad, as demonstrated most
clearly by the fact that convictions could be (and have been)
entered and upheld under the statute, even where the
violence at issue was perpetrated against persons belonging
to demographic groups that have never experienced or been
at risk of slavery in this country. See Cannon, 750 F.3d at
512 (Elrod, J., concurring) (“[T]he plain language of
§ 249(a)(1) . . . . reaches even racial violence against white
persons when those acts are based on race.”). For example,
in United States v. Maybee, the Eighth Circuit upheld a
§ 249(a)(1) conviction for a racially motivated attack against
Mexicans. 687 F.3d 1026, 1030–32 (8th Cir. 2012). And in
United States v. Earnest, the defendant was convicted under
§ 249(a)(1) for shooting at Jews inside of a synagogue. 536
F. Supp. 3d 688, 718 (S.D. Cal. 2021). Although Congress
could rationally determine that private conduct subjecting a
victim to peonage, see Taylor, 315 U.S. at 29, or “serious
[human] trafficking,” United States v. Dann, 652 F.3d 1160,
1170 (9th Cir. 2011) (citing 18 U.S.C. § 1589), is a badge or
incident of slavery, there is no rational basis for determining
that a state-law assault committed because the victim was a
Jew, a Catholic, a Muslim, a Korean, an Argentinian, a
Mexican, or a white person (to name just a few of the many
demographic groups that were never enslaved in this
country) vindicates the Thirteenth Amendment’s ban on
slavery and involuntary servitude.
Because § 249(a)(1) bears no rational relationship to any
determination that the conduct it criminalizes is a badge or
incident of slavery, the law fails to implement the
“substantive guarantee” of the Thirteenth Amendment.
Lane, 541 U.S. at 518. Thus, Congress exceeded its
40 USA V. HOUGEN
prophylactic legislative authority in enacting § 249(a)(1),
and it must be struck down.
IV
In holding to the contrary, the majority relies on
congressional findings, out-of-circuit cases, and precedent
analyzing a different statute, 18 U.S.C. § 245(b)(2). Maj.
Op. at 18–19. The majority’s reliance is misplaced.
Congress’s findings related to § 249(a)(1), codified at 34
U.S.C. § 30501, do not provide a basis on which Congress
could find that the conduct criminalized by § 249(a)(1) is
rationally related to eradicating slavery or involuntary
servitude as a badge or incident of slavery. Maj. Op. at 18.
First, Congress stated that because “[s]lavery and
involuntary servitude were enforced . . . through widespread
public and private violence directed at persons because of
their race, color, or ancestry[,] . . . eliminating racially
motivated violence is an important means of eliminating, to
the extent possible, the badges, incidents, and relics of
slavery and involuntary servitude.” 34 U.S.C.
§ 30501(a)(7). 6 As explained above, slavery was
6
34 U.S.C. § 30501(a)(7) provides:
For generations, the institutions of slavery and
involuntary servitude were defined by the race, color,
and ancestry of those held in bondage. Slavery and
involuntary servitude were enforced, both prior to and
after the adoption of the 13th amendment to the
Constitution of the United States, through widespread
public and private violence directed at persons because
of their race, color, or ancestry, or perceived race,
color, or ancestry. Accordingly, eliminating racially
motivated violence is an important means of
eliminating, to the extent possible, the badges,
USA V. HOUGEN 41
historically enforced through legally sanctioned violence by
masters against slaves or—once the former slaves were
freed—through violence that was intended to prevent them
from exercising their fundamental rights as citizens. See
supra pp.10–15. Congress, however, fails to explain how it
rationally determined that “eliminating racially motivated
violence” writ large, without an element requiring the
government to prove a connection between such violence
and the deprivation of civil rights, is addressed to either
eradicating slavery or its badges and incidents.
Congress’s findings as to religious and national origin
groups are also inadequate to support the majority’s holding.
See 34 U.S.C. § 30501(a)(8). 7 Congress found that, because
at the time the Reconstruction Amendments “were adopted,
and continuing to date, members of certain religious and
national origin groups were and are perceived to be distinct
‘races,’” eliminating the badges and incidents of slavery
renders it “necessary to prohibit assaults on the basis of real
incidents, and relics of slavery and involuntary
servitude.
7
34 U.S.C. § 30501(a)(8) provides:
Both at the time when the 13th, 14th, and 15th
amendments to the Constitution of the United States
were adopted, and continuing to date, members of
certain religious and national origin groups were and
are perceived to be distinct “races[.]” Thus, in order
to eliminate, to the extent possible, the badges,
incidents, and relics of slavery, it is necessary to
prohibit assaults on the basis of real or perceived
religions or national origins, at least to the extent such
religions or national origins were regarded as races at
the time of the adoption of the 13th, 14th, and 15th
amendments to the Constitution of the United States.
42 USA V. HOUGEN
or perceived religions or national origins.” Id. Again,
Congress does not explain why the identification of certain
individuals as members of groups with the same religion or
national origin gives rise to a rational inference that private
violence against such individuals relates to eradicating
slavery or involuntary servitude, or constitutes a badge or
incident of slavery. Such a broad enactment may be
authorized by the Fourteenth Amendment (subject to
principles of congruence and proportionality, see City of
Boerne, 521 U.S. at 520), but it bears no rational relation to
vindicating the substantive guarantee of the Thirteenth
Amendment.
Next, the majority relies on the fact that the other circuits
to have addressed this issue have upheld § 249(a)(1) as a
valid exercise of Congress’s Thirteenth Amendment power.
Maj. Op. at 18–19. However, these decisions, like the
majority opinion, involve limited reasoning, excessive
deference to Congress under Jones, or both. See United
States v. Diggins, 36 F.4th 302, 311 (1st Cir.), cert. denied,
143 S. Ct. 383 (2022); United States v. Roof, 10 F.4th 314,
392 (4th Cir. 2021) (per curiam), cert. denied, 143 S. Ct. 303
(2022); United States v. Metcalf, 881 F.3d 641, 645 (8th
Cir.), cert. denied, 139 S. Ct. 412 (2018); Cannon, 750 F.3d
at 502–03; Hatch, 722 F.3d at 1205–06.
Finally, the majority relies, Maj. Op. at 19, on our
decision in United States v. Allen, in which we upheld a
similarly worded statute against a Thirteenth Amendment
challenge. See 341 F.3d 870, 884 (9th Cir. 2003). That
statute, 18 U.S.C. § 245(b)(2)(B), imposes criminal liability
on an individual who:
whether or not acting under color of law, by
force or threat of force willfully injures,
USA V. HOUGEN 43
intimidates or interferes with, or attempts to
injure, intimidate or interfere with . . . any
person because of his race, color, religion or
national origin because he is or has been . . .
participating in or enjoying any benefit,
service, privilege, program, facility or
activity provided or administered by any
State or subdivision thereof.
Allen held that “Congress could rationally have determined
that the acts of violence covered by § 245(b)(2)(B) impose a
badge or incident of servitude on their victims,” but provided
little analysis to support this conclusion. 341 F.3d at 884
(citation omitted).
Allen’s affirmance of § 245(b)(2)(B) does not support
the majority’s conclusion that § 249(a)(1) is constitutional.
Section 245(b)(2)(B) prohibits private violence that deprives
an individual of a fundamental right of citizenship,
“participating in or enjoying any benefit, service, privilege,
program, facility or activity provided or administered by any
State or subdivision thereof.” 18 U.S.C. § 245(b)(2)(B).
This formulation of the offense brings § 245(b)(2)(B) in line
with precedent: the Supreme Court has indicated that similar
violence aimed at preventing the free exercise of one’s civil
rights constitutes a badge or incident of slavery and that
Congress can validly legislate against such violence. See
Griffin, 403 U.S. at 105. But § 249(a)(1) is missing this
crucial component. Thus, § 245(b)(2)(B) is distinguishable,
and Allen does not control the outcome of this case.
V
Because Congress could not have rationally determined
that the conduct proscribed in § 249(a)(1) is a badge or
44 USA V. HOUGEN
incident of slavery, or that the remedy for private
discriminatory violence is related to ensuring that slavery or
involuntary servitude ceases to exist in the United States,
Congress was not authorized under the Thirteenth
Amendment to enact that statute. By drafting § 249(a)(1) to
apply to violence motivated by an overbroad range of
protected characteristics, Congress redefined the Thirteenth
Amendment’s substantive guarantee—to eradicate slavery
and involuntary servitude—as a guarantee of protection
against any private violence by a person with discriminatory
animus. Such substantive redefinition of a constitutional
right, unsupported by the Thirteenth Amendment’s text and
history or Supreme Court caselaw, is not “appropriate
prophylactic legislation.” Hibbs, 538 U.S. at 728. Thus, to
the extent § 249(a)(1)’s constitutionality is based on the
Thirteenth Amendment, the statute is invalid. 8 Therefore,
Hougen’s “conviction under this statute must be reversed as
the statute is unconstitutional.” Cox v. Louisiana, 379 U.S.
536, 552 (1965). Because the majority nevertheless affirms
Hougen’s conviction under § 249(a)(1), I dissent.
8
Neither party argues that § 249(a)(1) was authorized by the Fourteenth
Amendment, the Commerce Clause, or any other constitutional
provision. Any such argument is therefore forfeited. See Greenwood v.
FAA, 28 F.3d 971, 977 (9th Cir. 1994).