FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

OLE HOUGEN, 

Defendant-Appellant.

No. 21-10369 

D.C. No. 

5:20-cr-00432-

EJD-1 

OPINION

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 inperson 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. RamirezRamirez, 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 meetsthe 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. RosalesMireles, 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-hatecrime-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.” RamirezRamirez, 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-andproportionality 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-onslave 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).