the court mr metcalf was convicted under section two forty nine a one of the federal hate crimes act after a jury trial today i will focus on the constitutionality of section two hundred eighty one and the jury instruction issue i wish  minutes of my time for a bottle turning to the first issue under section two forty nine a one congress made it a federal crime to willfully cause bodily injury to another person because of his or her rights no effect on interstate commerce or use of a public benefit is required and criminalizing purely intrastate conduct congress relied on the enforcement provision of the thirteenth amendment mr metcalf asserts that section two forty nine and one is unconstitutional because it is an invalid s the supreme court has and explicitly overruled john's right it has not your honor known supplied to the thirteenth amendment where the other two cases did not right the other two cases involve the fourteenth and fifteenth  consistently and recognize that they have a similar purpose and goal and the enforcement provisions for the fourteenth and fifteenth amendment are virtually identical to the thirteenth amendment and in sydney and bernie when determining that congress had exceeded provision under the thirteenth amendment is virtually identical that same analysis applies let's assume for a second if the jones is still good law do you you lose if john is good law right i disagree your honor what you have to show that congress was irrational to conclude that hate crimes are a badge of slavery it is a difficult task but not an impossible one jones doesn't stand for the proposition that any kind of race based legislation gets a rubber stamp congress still has to make still needs to be established that congress made a rational determination that this legislation was necessary to eradicate the badges and incidences of slavery and of the big mysteries and that statute fails under the jones rational determination test as good as not is quite clearly not focused at eradicating the badges and incidences of slavery the slaves legislation is incredibly broad it is it could be used to prosecute someone who is african american for assaulting a white person because of his or her race and even under the rational extermination tests that has nothing to do with eradicating the  even under the jones rational sherman nation test not every act of discrimination or any legislation intended to deter or prevent discrimination is lawful and and and a proper use of congress has rational determination test the badges and incidences of slavery are aimed at wrongs or acts that were intended to prevent african americans from or former slaves from living as free men and women it was about those civil liberties that are enjoyed by free people in our society and those are generally things like the right to own property the right to travel the right to vote and the right to assemble and a lot of those yes print cortisol on us relates to that the right to contract the right to property but it doesn't then extend to every potential act of injustice and discrimination that does not fall within the thirteenth  in shelby county as required by shelby county excuse me there's obviously evidence that federal hate crimes still occur and that it's an issue but there's no evidence that states are failing to prosecute these federal hate crimes and there's also no evidence that race based violence is causing a concern for slavery to return or that there's this fear that slavery could potentially become an issue again in our country and that it's necessary to prohibit this kind of conduct to prevent slavery return obviously under the unfortunate religion's legislative can be preventive but that's not what this legislation it says i think the argument is shelby county also ties into the general federal intruding on an area typically reserved to the states and that's exactly what is happening here congress is attempting to exercise the federal police power without what we generally see some effect on interstate commerce or something of that nature to prosecute interstate conduct on the screen court been pretty clear that we're not supposed to presume that they've chosen to overrule one of the precedent so i think the fifth circuit has some strong logic in their that was different than the situation we have here rodriguez was a question of statutory interpretation it was about the art enforceability of arbitration agreements here what instead what we have here is broader principles of how a constitutional law and how intermediary courts and attorneys should go about interpreting the constitutionality of a statute it's not it's not necessary when the supreme court lays out our here's how we determine if congress is within the bounds of what they're able to do under the u s constitution but the u s supreme court to then go in and say here's all the cases where we've done a little bit differently they are now over ruled and said what it doesn't apply in the situation no question that an assault occurred was whether mr metcalf did this because mr standridge was african american a large part of the defense at trial was this character evidence for lack of racism the case is incredibly strong and a way that is generally not seen in jury in the jury instruction arena that when character evidence was introduced that the district court must give this instruction and facts court's frequently reversed even under plain error review for the failure to give character and instruction on character evidence and just one break point i want to make is that the case law doesn't distinguish between when character evidence was introduced for just the general idea that the defendant is a good cat and an honorable person this character evidence this character evidence instruction is required whenever a character evidence is introduced for whatever purpose and make a suicide in our brief indicates that it's necessary whether it's just general good character trait or goes to an element amendment to court appeals have already addressed the exact argument that the defendant raises today and have upheld the law as constitutional all the parties agree that the controlling case here is jones the mayor and that case does remain binding precedent on this court and i don't think the parties agree with that do they think the parties agree that jones remains the controlling case on the scope of the thirteenth amendment and i think she's making the argument that it's been abrogated by city of bernie and shelby county neither shelby county no no no warrants to the congress has been changed the concept of deference to congress has changed in the scope of the fourteenth amendment and in certain legislation passed under the enforcement provision of the fifteenth amendment neither one of those cases however affect jones neither one of those cases address jones even mention the thirteenth amendment or actually undercut the holding of jones at all first of all because the provisions at issue in the fourteenth and fifteenth amendments are entirely different from the of the thirteenth amendment second because the drafting histories of both of all three amendments are very different and also because turning to shelby in particular even in shelby the court made clear that the current need standard doesn't apply blanket lead to all legislation or even to all legislation under the fifteenth amendment it was very clear that because two specific conditions were present in the voting rights act which it called multiple times the fact that the voting rights act by leeds principle of equal sovereignty and also impinges on a quarter function of the states that that is why it merited this high in current need very early on in the civil rights cases themselves the supreme court stated of the province and scope of the thirteenth and fourteenth amendments are different the powers of congress under them are different what congress has power to do under one and may not have power to do under the other so the fact that we would treat congress's power as different under all three amendment is not only rational in theory but has a heavy basis in the case law re within this quit that  under section two forty nine an african american person could be charged with a hate crime directed against a white person i do agree with that characterization yes and the reason i even if jones is good law is it rational for the supreme court in multiple courts of appeals have are have always reconciled the tension between the historical focus of the thirteenth amendment on eradicating african american slavery due to our unique history with institution and be a gala tarion language of both the equal protection clause and section one of the thirteenth amendment which eradicate slavery generally and does not draw a new sort of racial distinction and and so this is why our civil rights laws but no discussing the case law and how courts have reconciled this apparent tension but you would basically writing to equal protection problems if you didn't permit it to go both ways and again your honor even if that application of the law might be at the outer limits of the thirteenth amendment section two power that is not this case and that is not that you know that's not before the  time turn to the jury instruction issue of let's not go there ok how is attacking someone in a bar akin to a badge of slavery violence that is a badge or incident of slavery not only with such race based violence used as a necessary feature of propagating slavery at the time but then it was repeatedly used and even today continues to be used as a means of returning mostly african americans to a defacto slainte status or to impinge peoples rights and freedoms as citizens is a reasonable threat of that now yes absolutely returning african americans to slavery in our country impinging on the social and political rights that the thirteenth amendment guarantees to all people ye and so it is you know it is for that reason that but it returns also to why it if the court is inclined to think that shelby county might have some basis in the analysis here even under that  would you like me to turn to that structure your instruction i'm happy to say on the constitutional issue so for the jury instructions your honor first of all the court did not commit any error for two reasons the first is that the court was not required to give the requested instruction at issue it was within the court's discretion to give but it was not required to give it under this case and this court case law and secondly because the  instruction was adequately given in other words in other forms in all of the other instructions of the court if the instructions as a whole fairly and adequately submitted the issues to the jury which is of course standard for determining if there was  here the instructions permitted the jury to understand what the testimony was in the case to consider all the circumstantial evidence it understood that circumstantial evidence goes to motive and so the jury was failure to give the instruction must mislead the jury or affect the verdict here the government presented overwhelming evidence that mr metcalf acted because of him and that the government was able to dispel all of the question doesn't jones specify that congress has authority to pass legislation that is affective yes i believe the exact words in jones are rationally determine what are the badges and incidents of slavery and translate that determination into effect of legislation so how could federal legislation be affective if there is no evidence that the states aren't prosecuting these crimes well congress did find evidence that the states  could use federal assistance in prosecuting these crimes and that is not only in the legislative history but actually in the findings in the statute itself to make any sort of finding that the states were failing to prosecute these kinds of crimes well some states don't have a hate crimes act so they would be failing to prosecute because they don't have a means of prosecuting but they all probably have assault charges don't  return to the point that a simple assault is not a hate crime a simple assault is obviously a terrible thing that should be criminalized but it does not carry with that the unique community a by lation to the community violation to the the standards that we hold dear ever since the civil war and the reconstruction amendments a hate crime  crime is something that is extra intolerable in our society due to our unique history and so for any state to prosecute think assaults generally have been intolerable long before the civil war yes but when you have an assault plot or a eight act of violence that communicates to someone that they are less than that they are second class citizen that they deserve to be in a subordinate status that's even worse  and the findings do bear that out in fact the findings do say that congress anticipated state and local governments to maintain primary responsibility but that it found that hate crimes were enough of a problem that  it warranted federal assistance have there been a state prosecution in this case you know the state the local state prosecutor actually requested that the federal government handle the prosecution so also in terms of any of the federal concerns and not only are they certainly not present in this case where the state actually requested the federal government to come in and did not run a parallel case in a new way but that is also one of the condition that the attorney general is required to certify in order for the federal government to bring a prosecution under the statute and what is so the statute is very aware of the federalism concerned limited to it recognizes those it limits the amount that the federal government can do here and what it does permit the government to do it all in the interest of eradicating the bad use in incidents of slavery i'd like to begin by focusing on the argument that the idea that the fourteenth and fifteenth amendments should be interpreted differently because the substance of it is different than the thirteenth amendment of course the fourteenth and fifteenth amendment are different from the thirteenth amendment and that the rights are different and then what congress when courts are interpreting the scope of congress's power to legislate or what they can do it will be different because the rights are different what matters here and the relevant question is should there be a difference between the how courts interpret the enforcement provisions and there should not and the the principles that determine what congress can do within whatever that right may be should apply similarly along among all three amendments because the enforcement provisions are identical and were passed similar time with a similar purpose and even though the fourt fifteenth amendments specifically deal quite clearly with infringement on state sovereignty and the idea of what states can do we still have that here this is a situation where congress is attempting to answer an arena that is typically i also think the relevant question go into this concern of what do you hate crimes meaning doesn't mean that slavery is in danger of returning is this necessary to erratic here bad incidents of slavery the question isn't doing hate crimes are they all do they and infringe on someone you know are they intended to make someone feel inferior because of there are rates yes but that's not the question that is before this court today that's not what the question is and what congress can do with the power under the thirteenth amendment it has always been even in jones about eradicating the badges and students of slavery is not about trying to eliminate or criminalize any kind of hateful or discriminatory conduct in this case a court case law on maybe which relied on jones to determine what those badges and incidences of slavery are slavery just to clarify i think initially there was a state prosecution against mr metcalf but that there was no counsel indicated there was no kind of concurrent prosecution it was dismissed and i would note that the two