CAAF will hear oral argument in the Air Force case of United States v. Killion, No.15-0425/AF (CAAFlog case page), on Wednesday, October 7, 2015. The court will review the appellant’s conviction of using provoking speech in violation of Article 117, with 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.
At a special court-martial the appellant pleaded guilty to drunk and disorderly conduct and unlawful entry in violation of Article 134, and not guilty to resisting apprehension in violation of Article 95 and wrongfully using provoking speech in violation of Article 117. A panel of members with enlisted representation convicted the appellant of the speech offense, acquitted him of resisting apprehension, and then sentenced him to confinement for 14 days, reduction to E-1, a reprimand, and a bad-conduct discharge.
The appellant’s court-martial 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). Reviewing the appellant’s convictions, the Air Force CCA considered and 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 appellant now revives all three arguments at CAAF, noting in his brief that his “speech should be considered Constitutionally protected.” App. Br. at 18. However the appellant’s primary argument is that the professional skills and training of the listener must be considered when determining whether certain speech is provoking under the circumstances. The appellant asserts that the military judge erred in failing to incorporate the listeners’ skills and training into the instructions given to the members, and that his conviction is legally insufficient when the listeners’ skills and training are considered.
Article 117 states:
Any person subject to this chapter who uses provoking or reproachful words or gestures towards any other person subject to this chapter shall be punished as a court-martial may direct.
10 U.S.C. § 917. The Court of Military Appeals described this as an almost ancient offense:
The roots of Article 117 of the Code go back 200 years. United States v. Peak, 44 C.M.R. 658, 661 (CGCMR 1971) . A prohibition against using provoking words appeared in the Articles of War of 1775, 1776, 1806, and 1874. Id. at 661. The rationale behind the prohibition was to serve as a check against “manifestations of a hostile temper as, by inducing retaliation.” W. Winthrop, Military Law and Precedents 590 (2d ed. 1920 Reprint). Thus, its design is to prevent retaliation by individuals who are the hearers of the words. United States v. Cooper, 34 C.M.R. 615 (ABR 1964).
United States v. Davis, 37 M.J. 152, 154 (C.M.A. 1993). The MCM identifies the elements of the offense as:
(1) That the accused wrongfully used words or gestures toward a certain person;
(2) That the words or gestures used were provoking or reproachful; and
(3) That the person toward whom the words or gestures were used was a person subject to the code.
Part IV, ¶ 42.b, Manual for Courts-Martial (2012 ed.). However, the MCM also provides the following explanation:
In general. As used in this article, “provoking” and “reproachful” describe those words or gestures which are used in the presence of the person to whom they are directed and which a reasonable person would expect to induce a breach of the peace under the circumstances. These words and gestures do not include reprimands, censures, reproofs and the like which may properly be administered in the interests of training, efficiency, or discipline in the armed forces.
Part IV, ¶ 42.c(1), Manual for Courts-Martial (2012 ed.) (emphasis added).
The appellant asserts that the reasonable person contemplated by the Manual for Courts-Martial requires consideration of unique background of the listener in a particular case:
Although this Court has not explicitly endorsed the concept that the professional skills and training of the listener are an aspect of the “reasonable person” standard in evaluating the legal sufficiency of an Article 117, UCMJ conviction, such a conclusion is entirely consistent with a traditional understanding of that standard. See RESTATEMENT THIRD, TORTS § 12 (“If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.”).
Here, Appellant’s words were spoken in the presence of professionals with specialized training in the context of a treatment environment. Under these unique circumstances, where Appellants entire audience consisted of medical personnel and law enforcement, no rational trier of fact could have found that his words were likely to provoke violence.
App. Br. at 13. The appellant also asserts that the military judge’s instructions to the members were inadequate because they not only failed to instruct the members to consider the unique backgrounds of the listeners, but they also instructed the member to consider the appellant’s speech from the perspective of an average person. The judge’s instruction included:
“Provoking and reproachful” describes only those words which are used in the presence of the person or persons to whom they are directed, and which by their very utterance have the tendency to cause that person to respond with acts of violence or turbulence. These words are sometimes referred to as fighting words. The test to apply is whether, under the facts and circumstances of this case, the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation. Proof that a retaliatory act actually occurred is not required.
App. Br. at 22 (emphasis added). The appellant’s brief notes that the trial counsel used this instruction to the prosecution’s advantage in closing argument by arguing that it is only the average person, and not the specific listeners of the appellant’s speech, that matters.
Finally, the appellant’s brief notes that the appellant was in restraints at the time he made the offensive speech, undercutting any reasonable likelihood that his speech would have provoked a violent reaction and rendering his conviction legally insufficient.
The Government’s response focuses on what the appellant actually said:
The evidence introduced at trial, when viewed in the light most favorable to the prosecution, easily provided the factfinder with sufficient evidence to conclude that Appellant used language that a reasonable person would find likely to induce a breach of the peace under the circumstances. While fighting against restraint by security forces and medical personnel, Appellant called one female nurse a “cunt” and used racial slurs anytime one of his Asian care providers approached Appellant including calling them “chinks” and “Asian douche bags.” Appellant continued this behavior for over an hour and it ended only because his medical providers determined that he had to be sedated.
Gov’t Br. at 2. As for the appellant’s assertion that the members should have been instructed to consider the background of the listeners, the Government’s brief asserts that “the instruction clearly asked the panel to consider the particular circumstances of the case, and they did so, finding Appellant guilty given those circumstances.” Gov’t Br. at 9. Ultimately, the Government’s brief functionally argues that the appellant got the instruction he wanted:
The instruction specifically stated that the panel was to apply the facts and circumstances of this case and thus, did not limit trial defense counsel’s theory of the case. Trial defense counsel highlighted the testimony of the security forces members and medical providers in his closing argument. (J.A. at 153- 60.) He used the testimony that the individuals gave regarding their training on the specific issue of dealing with “abusive patients” to argue that the government failed to meet its burden on the Charge. (Id.) Nevertheless, the panel found Appellant guilty in light of the correct test.
Gov’t Br. at 16.
I think it debatable whether the actual language of the instruction (reproduced in the appellant’s brief and above) focused the members on the specific facts and circumstances of the listeners in the appellant’s case or whether they focused the members on the hypothetical average person who could have heard the appellants speech. Wednesday’s oral argument will likely begin with a focus on that actual meaning of the instructions given at trial, before turning to whether the appellant’s conduct was so outrageous that any error is harmless.
• AFCCA opinion
• Blog post: CAAF to review whether an appellant’s speech was sufficiently provoking
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview