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.
