James C. Ho.
Photo illustration by Slate. Photo by Tom Williams/CQ Roll Call.
Welcome to the Trump Bench, a new series where Slate analyzes a Trump judge’s latest work. At an unusually rapid clip, Trump has so far successfully appointed two Supreme Court justices, 43 appeals court judges, and 110 district court judges during his presidency. Trump judges tend to be different than appointees by past presidents of both parties. Many are quite young, some are openly partisan, others are patently unqualified. The judges will likely be Trump’s most enduring impact on our nation, which is why we are choosing to spotlight their work.
The first installment is about James Ho, a reactionary who joined the federal appellate bench in 2018.
The Judge: James Ho of the 5th U.S. Circuit Court of Appeals. Ho was confirmed to a lifetime appointment on the 5th Circuit on Dec. 14, 2017. He previously worked at the Department of Justice, where he authored a memo that defended the legality of torture. Ho then clerked for Supreme Court Justice Clarence Thomas and worked as chief counsel to Republican Sen. John Cornyn of Texas. He also served as Texas solicitor general and later volunteered with First Liberty, a law firm that purports to defend religious freedom, often by promoting anti-LGBTQ discrimination.
Age: 46
The Decision: In an opinion released on Monday, Ho declared that the way “to stop mass shootings” is to shield police officers from lawsuits when they mess up and shoot an innocent person to death.
“If we want to stop mass shootings,” Ho wrote, “we should stop punishing police officers who put their lives on the line to prevent them.”
Ho issued his polemic in a case called Winzer v. Kaufman County. Police officers in rural Texas were in pursuit of a black man who was armed and dangerous. They appear to have mistaken the suspect for another black man, Gabriel Winzer, who was wearing different clothes than the suspect. Gabriel, 25, was more than 100 yards away from the officers and had a toy cap gun. Within six seconds of spotting him, three officers fired 17 shots, four of which hit him.
In his dying moments, Gabriel staggered into his nearby backyard. His father, Henry, attempted to save him when the officers barged into the yard and tried to handcuff both men. When Gabriel resisted, they used a stun gun on him. He promptly died. Henry resisted arrest and bit one officer. He was charged with aggravated assault with a deadly weapon (his teeth) against an officer, convicted by an all-white jury, and sentenced to five years in prison.
Henry sued on behalf of himself and his son, arguing that the police violated their Fourth Amendment right against excessive force. But the Supreme Court has created a doctrine known as qualified immunity to protect law enforcement against such civil suits. To get their case before a jury, plaintiffs must demonstrate that an officer deprived them of a constitutional right and that this right has been “clearly established” by prior precedent. Courts have granted qualified immunity to an officer who handcuffed a sobbing 7-year-old in school; to an officer who let his police dog maul a homeless man for no reason; and to an officer who killed an innocent man in his own home.
In February, a three-judge panel for the 5th Circuit Court granted qualified immunity to Officer Matthew Hinds. The majority held that Hinds had violated the Fourth Amendment, but that Gabriel’s “right to be free from excessive force” was not “clearly established here.” At the same time, the majority found that the lower court had improperly rejected Henry’s testimony, “ignored facts in the record,” and drew conclusions that are “contradicted by the video evidence.” So the majority instructed the lower court to reassess the facts and determine whether the county could be held liable for the actions of its officers.
This decision freed the police of any direct legal consequences and instead preserved the possibility that the county might have to defend the officers’ actions before a jury. But Ho went further, writing that the full court should reverse the panel decision and grant qualified immunity across the board. (A majority of his colleagues declined this invitation.) He also suggested that Winzer actually was the shooter—a claim supported by no evidence other than the fact that he happened to be a gun owner.
“It is unknown how many lives were saved by these deputies,” Ho wrote. “I have deep concerns about the message this decision, and others like it, sends to the men and women who swear an oath to protect our lives and communities. For make no mistake, that message is this: See something, do nothing.” In other words, the only way to stop mass shootings is to shield law enforcement from accountability when they commit lawless killings.
Ho has expressed this sentiment before. In an August opinion, he bemoaned the “social costs” of civil lawsuits against the police. “Those social costs,” he wrote, “are particularly stark today given widespread news of low officer morale and shortages in officer recruitment.” He argued that courts should “balance” the rights of police brutality victims against the impact of liability on officer morale.
To state the obvious, Ho’s claim about mass shootings is simply wrong. The shooter in Dayton, Ohio, killed nine people and wounded 27 in just 32 seconds. The police responded almost immediately but could not halt the carnage quickly enough. That’s because the shooter had an AR-15 style assault rifle and a 100-round drum magazine, both of which he purchased legally. One way to stop mass shootings is to bar civilians from buying these weapons of war. But, of course, Ho would strike down such a restriction on gun access.
The fundamental flaw in Ho’s reasoning, however, is the notion that police cannot do their jobs unless they are freed from all legal repercussions. This theory is a repudiation of the Constitution and civil rights law, which curb the power of law enforcement to preserve individual liberty. Ho seems to reject the Fourth Amendment’s limitations on lethal force; he might as well have scrawled “Blue Lives Matter” across his opinion.
The Precedent: Ho’s views are far outside of the legal mainstream. His own colleague on the 5th Circuit, Judge Don Willett—another conservative Trump appointee—has sharply criticized the scope of qualified immunity, complaining that it “smacks of unqualified impunity.” Moreover, Ho’s insistence upon weighing the “social costs” of lawsuits against law enforcement has no basis in precedent. It is drawn out of thin air. Few judges are as eager as Ho to read a pro-police bias into civil rights law.
The Record: Ho is quickly building a reputation for making arguments that seem designed to troll progressives. Soon after joining the court, in April 2018, he argued in an opinion that campaign finance restrictions are unconstitutional because rich people must buy elections to safeguard themselves against regulations. In a concurrence three months later, Ho decried abortion as a “moral tragedy” and implied that it deserves no constitutional protections—all while baselessly maligning a district court judge as an anti-Catholic bigot. In July 2018, Ho asserted that a law barring licensed firearms dealers from selling handguns to out-of-state residents was unconstitutional. And in a March 2019 ruling, Ho intentionally misgendered a transgender plaintiff, quoting a Supreme Court decision out of context to argue that sex “is an immutable characteristic determined solely by … birth.”
There is one major issue on which he might diverge from the president: birthright citizenship. Ho has acknowledged that the 14th Amendment guarantees American citizenship to those born on U.S. soil. Trump, by contrast, denies this fact and has sought a way around it.
The Vote: Ho was confirmed by a vote of 53–43. Every Republican senator who was present voted for Ho. Democratic senators condemned his nomination, focusing on his role in the “torture memos.” They also questioned his work defending Texas’ same-sex marriage ban. Every Democratic senator who was present voted against him, except for Sens. Joe Donnelly, Heidi Heitkamp, and Claire McCaskill. All three lost their seats the next election.
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