Last week CAAF granted review in the following case:
No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER APPELLANT’S CONVICTION FOR PROVOKING SPEECH IS LEGALLY INSUFFICIENT BECAUSE “UNDER THE CIRCUMSTANCES” HIS WORDS WERE NOT REASONABLY LIKELY TO PROVOKE VIOLENCE.
II. WHETHER THE MILITARY JUDGE’S INSTRUCTIONS REGARDING PROVOKING SPEECH WERE DEFICIENT UNDER THE FACTS AND CIRCUMSTANCES OF APPELLANT’S CASE.
Briefs will be filed under Rule 25.
The CCA’s opinion is available here and reveals that the appellant’s conviction for using provoking speech in violation of Article 134 was based on the following events:
After a night of excessive drinking, the appellant became belligerent and disorderly, accosting strangers with profane outbursts and resisting his friend’s efforts to convince him to return home. Instead, the appellant jumped a fence and entered the apartment of a noncommissioned officer (NCO) he did not know, frightening the residents and neighbors who called security forces. The appellant was apprehended and evaluated on scene by emergency medical technicians who decided to transport him to the base emergency room.
Once there, while undergoing treatment for his altered mental state and injuries to his wrist and knee, the appellant lashed out at the medical providers both physically and verbally. Struggling against restraint by two security forces members and the medical staff, he verbally accosted several medical providers, calling one female nurse a “c[**]t” and medical technicians “Asian douchebags” and “ch[*]nk.” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.
United States v. Killion, No 32193, slip op. at 2 (A.F. Ct. Crim. App. Jan. 28, 2015) (marks in original). The CCA rejected both of the issues granted by CAAF, and also rejected an as-applied constitutional challenge (raised on appeal for the first time) based on the appellant’s assertion that his speech was not fighting words. The asserted instructional error addresses a tailored instruction offered by the defense that would have had the members review the appellant’s speech subjectively: considering “the occupation, education, and training of the listener” to determine whether the listener would be provoked by the speech. Id., slip op. at 4.