9th Circuit says victim in civil rights case has no right to challenge dismissal of felony
A federal judge sentenced a former sheriff's deputy to four months in prison after reducing his felony assault charge to a misdemeanor over the objection of the victim.
A federal appellate panel said Thursday that a woman assaulted by a Los Angeles County sheriff’s deputy has no legal avenue to challenge a judge’s decision to reduce his felony to a misdemeanor.
Hours after U.S. District Judge Stephen V. Wilson sentenced Trevor Kirk on Monday to four months in prison, his victim Jacy Houseton’s lawyer asked the 9th Circuit U.S. Court of Appeals to vacate the dismissal of his felony and order the judge to consider Houseton’s rights under the Crime Victims’ Rights Act.
The appellate court acted swiftly by giving the U.S. Department of Justice about 25 hours to respond, then ruled on Thursday that Houseton “has not shown, and the record before us does not reflect, that the district court denied her any right enumerated in the CVRA.”
The three judge-panel said Houseton filed a victim impact statement and “acknowledges that the district court read the statement,” and she spoke to Judge Wilson in court on May 19.
Nothing else is required under federal law, the judges said.
“[T]he CVRA mandamus procedure does not permit victims to challenge—and does not empower a court of appeals to address—matters other than a district court’s denial of the rights enumerated in that statute,” according to the three-page, published order from Judges Kim McLane Wardlaw, Gabriel P. Sanchez and Anthony D. Johnstone. Wardlaw is a 1998 Bill Clinton appointee and Sanchez and Johnstone are 2022 and 2023 Joe Biden appointees.
Legal Affairs and Trials with Meghann Cuniff was the first to report the post-verdict plea agreement in Trevor Kirk’s case, and the coverage influenced mainstream outlets such as the Los Angeles Times and Daily Mail.
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The appellate case began Monday after Judge Wilson, a 1985 Ronald Reagan appointee, sentenced Kirk to four months in prison and ordered him to surrender to the Bureau of Prisons by Aug. 28.
A jury on Feb. 6 convicted Kirk of deprivation of rights under the color of law for a confrontation with Houseton on June 24, 2023, outside a Winco grocery store in Lancaster, about 70 miles east of Los Angeles. Jurors agreed he used a dangerous weapon and/or caused bodily injury, which elevated his conviction to a felony.
The three assistant U.S. attorneys who prosecuted Kirk in trial successfully defeated Kirk’s post-trial motion for acquittal, but their new boss in April struck a rare “post-trial agreement” that said the Justice Department would move to strike the jury’s felony finding.
Four prosecutors assigned to the case did not sign the agreement, and three joined dozens of others who’ve resigned their jobs completely since Bill Essayli took over in April as President Donald Trump’s interim U.S. attorney. The prosecutor who took over the case is Robert Kennan, a 24-year assistant U.S. attorney who is based in Santa Ana and was recently assigned to the Justice Department’s Civil Rights Division in Washington D.C.
Kennan filed a brief and supplement defending the request to reduce the jury’s felony verdict, then argued in a May 19 hearing in which Judge Wilson doubted his legal authority to vacate a jury verdict.
Wilson’s May 27 order did not strike the felony verdict, but it essentially mooted it by striking the felony allegation in Kirk’s indictment. He cited the fact that previous prosecutors offered Kirk a misdemeanor plea deal before trial, but he didn’t mention that the offer prohibited Kirk from working in law enforcement while the new agreement does not.
The judge, however, warned of a likely prison sentence because “straight probation does not sufficiently reflect Defendant’s breach of duty and the manner in which he breached that duty.”
Two days after Wilson’s order, Kennan supplemented his May 13 sentencing brief that asked for Kirk to be sentenced to three months of home detention and 200 hours of community service, in addition to one year of probation. He cited Wilson’s statement that probation wasn’t sufficient and said the Justice Department “is unreasonable in light of the nature and circumstances of the offense and defendant’s personal history and characteristics.”
“[I]mprisonment is unnecessary here to adequately reflect the seriousness of defendant’s offense (when properly assessed), to promote respect for the law, and to provide just punishment for the offense, to afford adequate deterrence, or to protect the public from further crimes of the defendant,” Keenan wrote
Keenan said “the circumstances of the case” include the fact that Kirk was responding to a report of potential armed robbers and had been advised that two suspects were fighting loss-prevention employees. Keenan also cited Houseton’s “own wrongful conduct” including the “use of her right hand/arm to swat at defendant’s hands as he approached and attempted to restrain her, coupled with her simultaneously screaming at him, ‘No, you can’t touch me!’”
The prosecutor’s filing included 18 pages of images from store surveillance video, a bystander’s video and video from the camera Kirk was wearing when he assaulted Houseton. Keenan used the photos to illustrate what he described as Houseton’s “assaultive conduct,” including when she’s inside the store and “closes within inches of the employee and spits directly into his face, and he wipes her spit away.”
After Kirk forced Houseton to the ground, ”she begins to move up off the ground and continues resistance and disputes accuracy of his report that she’s ‘fighting’ with him,” Keenan wrote.
Keenan said Kirk struggled with Houseton “for approximately 28 seconds” before he deployed his pepper spray.
Judge Wilson on Monday rejected Keenan’s argument by ordering Kirk serve four months in federal custody. He also ordered he a year of supervised release once he’s out.
Houseton’s lawyer Caree Harper said in her 9th Circuit petition that the post-trial agreement alleged Houseton’s swatting gesture for the first time.
“These new purported actions of JH were not proven in the criminal trial or testified to in the civil litigation,” according to the June 2 petition. “The government was allowed to create fake facts and accuse the victim of lying during the hearing while she was forced to sit and bear it without opportunity to rebut this new fictional ‘evidence’.”
The Justice Department “set out new facts and false facts surrounding the crime including blaming victim J.H., which were different from the facts that were presented at the trial,“ Harper wrote.
She mentioned the resignations: “Three attorneys resigned from the U.S. Attorney’s Office over this case and all trial counsel removed themselves as “attorneys of record” the day the new administration gave the Defendant the post-verdict misdemeanor plea deal.”
The petition said the appellate court needed to intervene “to prevent a travesty of justice wherein the lower Court literally handed over its power to the new administration’s U.S. Attorney’s Office.”
Keenan “testified for the Defendant and explained that Deputy Kirk was not reaching for JH’s cell phone to stop her from filming - he was merely grabbing the hand that was closest to him,” Harper wrote. (This article has been corrected to state it was Keenan who said this, not Judge Wilson.)
“Mr. Keenan threw every piece of feces onto the courtroom wall and after literally calling the victim a liar, figuratively calling the judge incompetent, and intentionally impugning the character of the noble trial counsel/ former prosecutors, he ended up where he started: ‘we are the Government and we say so’ was the only rationale offered for the Rule 48(a) motion to be granted,” Harper continued.
Wardlaw, Sanchez and Johnstone said Judge Wilson’s court “may also address the petition if it so desires” when they set the 24-hour briefing schedule, but the judge did not file anything.
On Tuesday, Keenan alerted the judges to a May 20 email in which Houseton fired Harper, and he asked them to inquire if Harper still is representing Houseton and if Houseton “still wishes to pursue this petition.” Alternatively, Kennan asked for a two-day deadline extension.
Harper replied that the email Keenan cited “looks like a fake email to me.”
“I must question what type of unethical pressure Mr. Keenan (and his “victim assistance team” has put on Ms. Houseton for him to now question whether she wants her abuser in jail and wants to continue to pursue the Writ when she clearly stated her wishes on the record: for KIRK to be sentenced on the felony conviction,” Harper wrote. “As for a continuance, Mr. Keenan has an entire U.S. Attorney’s office at his disposal.”
The judges denied Kennan’s request 50 minutes later, at 5:10 p.m., 10 minutes past the deadline.
Keenan filed his 42-page brief five hours later. It called Houseton’s request “belated” and said it's moot “given that the district court sentenced defendant on June 2, 2025, and nothing else remains of the proceedings before the district court.” (He filed another version the next day after the original was rejcted because it had the wrong typeface.)
Kennan noted that neither Houseton nor Harper attended Kirk’s sentencing on Monday, “depriving the court and parties any chance of addressing her concerns.”
Houseton’s rights under the federal victims’ rights law were recognized, he wrote, and her “claims of error are groundless and unpreserved.”
“Separation-of-powers gives the Government broad prosecutorial discretion to reduce the severity of convictions and sentences, and the CVRA provides expressly that nothing in it empowers victims to interfere with prosecutorial discretion,” Keenan wrote.
Harper replied that Keenan knew of her appellate petition because she sent it to him 24 minutes before Kirk’s sentencing. She said her filing “was not a polished as she would have liked” and she “was not in Court for the Defendant's sentencing as she was in the process of filing the Petition in this case.”
“The Government suggests the district court did what was required. However, the record does not indicated that where the district court decided the legal issues J.H. raised,” Harper wrote.
Harper asked the court to strike Keenan’s brief because he filed it five hours after the 5 p.m. deadline.
Keenan replied that his delay “was reasonable given the circumstances of the case.”
“The reason for the Government’s extension motion was simple: neither the Court nor the parties should be required to respond to a victim’s mandamus petition when there is a good faith basis to question whether the attorney continues to represent the victim,” Keenan wrote. “And at this time, it remains unclear to the government whether Ms. Harper represents J.H. or had J.H.’s permission to file the mandamus petition.”
He also noted that Harper filed an unredacted version of the email that he had only filed with redactions, which suggests she “received the actual email at some point.”
“What’s more, Ms. Harper’s declaration does not state that she has spoken to J.H. about this petition or confirmed that J.H. did not terminate her representation,” Keenan wrote.
Judges Wardlaw, Sanchez and Johnstone denied the motion to strike in the same ruling in which they denied Harper’s petition.
Court documents:
May 1 post-trial plea agreement
May 13 response to Judge Wilson’s order
May 29 supplement to sentencing memo
June 2 victim’s 9th Circuit brief
June 3 Keenan requests extension
June 3 Harper opposes extention
June 3 panel rejects extension
June 4 Harper moves to strike Keenan’s brief
June 4 opposition to motion to strike
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