CAAF decided the Air Force case of United States v. Killion, 75 M.J. 209, No.15-0425/AF (CAAFlog case page) (link to slip op.), on April 19, 2016. A divided court holds that the military judge failed to properly instruct the members on the offense of wrongfully using provoking speech because he directed the members to consider the speech from the perspective of a hypothetical average person rather than from the perspective of the actual audience. CAAF reverses the appellant’s conviction for violation of Article 117 and the decision of the Air Force CCA, and remands the case for further review.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Judge Diaz (of the 4th Circuit, sitting by designation). Judge Ohlson dissents, joined by Judge Stucky who also writes a separate dissenting opinion.

CAAF granted review of two issues in this case:

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.

Only the appellant’s speech offense is at issue in CAAF’s review, and it was based on the following facts:

After a night of excessive drinking, [A]ppellant became belligerent and disorderly, accosting strangers with profane outbursts and resisting his friend’s efforts to convince him to return home. Instead, [A]ppellant 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. [A]ppellant 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, [A]ppellant 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 douche bags” and “ch[*]nk.” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.

Slip op. at 3-4 (quoting CCA’s opinion). Further, despite the appellant’s violent actions and offensive language, the medical personnel attending to him “did not consider responding to Appellant violently.” Slip op. 4. Additionally, medical personnel testified that they were trained to handle unruly patients without reacting violently, and that such reactions were highly unusual.

A conviction for wrongfully using provoking speech in violation of Article 117 requires that the Government prove that the speech was provoking or reproachful, and the Manual for Courts-Martial explains that those terms mean “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.” Part IV, ¶ 42.c(1), Manual for Courts-Martial (2012 ed.). At trial the appellant’s defense counsel asked the military judge to instruct the members that they were to consider the provoking or reproachful nature of the appellant’s speech in the context of the specific facts and circumstances of the appellant’s case (including the training and experience of the medical personnel who heard the words). However, the military judge denied the defense request and instead instructed the members that

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.

Slip op. at 5-6 (emphasis in original).

Writing for the majority, Judge Ryan finds that this instruction was erroneous and that the defense request for a different instruction was sufficient to preserve the error and place the burden on the Government to prove the error harmless beyond a reasonable doubt. Then, considering the defense strategy and the Government’s closing argument, she finds that the error was not harmless.

Judge Ohlson’s dissent, however, reviews the instruction for plain error because he concludes that the appellant’s mere request for a different instruction (and failure to object to the instruction actually given) did not preserve the error. Applying the plain error standard – where the appellant has the burden to prove prejudice – he finds the instruction adequate and would affirm the conviction.

Judge Stucky joins Judge Ohlson’s dissent and would also affirm the conviction, but he also writes separately to suggest that the provoking or reproachful nature of speech should be evaluated not from the perspective of the person to whom the words were directed but rather by the situation in which the words were used.

Judge Ryan’s majority opinion makes four key holdings. First she finds that the error was not forfeited by the failure of the appellant’s defense counsel to make a clear objection:

While “requesting an instruction is ordinarily not sufficient to preserve a claim of error,” United States v. Maxwell, 45 M.J. 406, 426 (C.A.A.F. 1996), this is not an ordinary case. Defense counsel’s requested instruction, complete with citation to supporting legal authority, was specifically tailored to the circumstances presented in this case and gave the military judge the opportunity to correct any error in his panel instructions at trial. . . . On these facts, the issue of instructional error was not forfeited.

Slip op. at 8. Next, she finds that CAAF’s precedent supports the appellant’s claim that provoking speech must be measured by the audience that hears it:

Words are considered provoking when a reasonable person would expect them to induce a breach of the peace under the circumstances. As we have long held, the provocative nature of speech for the purposes of Article 117, UCMJ, depends upon the context in which the words are spoken and the audience to whom they are addressed.

The rationale behind the prohibition on using provoking words is to serve as a check against manifestations of a hostile temper as, by inducing retaliation. Thus, the reasonable reaction of the person to whom the words are addressed factors heavily into a determination of whether speech is provocative; the calculus is far more expansive than simply examining the volatility of the speaker’s demeanor and the offensive nature of the words.

Slip op. at 9 (marks and citations omitted). Then she finds that the military judge’s instruction was deficient because it misdirected the members to consider an average person rather than the actual audience in this case:

The problem with the military judge’s instruction is not that he failed to instruct the panel as Appellant’s counsel requested — an issue not before us. Rather, the military judge’s instruction is deficient because while it did, in fact, direct the panel to consider “the facts and circumstances of this case,” it effectively negated the focus on the actual circumstances of those who were the targets of Appellant’s speech by misdirecting the members’ focus to the reaction of a hypothetical “average person.” Based on the evidence presented at trial, the question for the members was not what an average person might do under the circumstances but whether a reasonable medical care provider with the training described was likely to retaliate against a fully restrained, obviously intoxicated patient.

Slip op. at 10-11. Finally, she finds that the error is not harmless because the trial counsel misstated the law in argument and the instruction bolstered that misstatement while also undercutting the defense theory of the case:

Central to his defense, Appellant’s counsel sought to argue that the elements of the offense were not met due to the “circumstances” of the speech, to include both the profession and training of the listeners and the fact that Appellant was restrained. In contrast, trial counsel effectively told the members that none of those circumstances mattered; it was how the average person would react that was at issue. In instructing the panel to employ an “average person” standard, the military judge’s instruction directly bolstered the trial counsel’s erroneous statement of the law, which de-emphasized any consideration of the circumstances.

Slip op. at 11 (citation omitted).

The functional consequence of the majority’s decision will be that it will be harder for the Government to win a conviction for violation of Article 117 in cases where the accused’s actions do not actually provoke a retaliatory act. In such cases, the Government must now overcome the lack of retaliation by the actual hearer rather than merely highlighting the objectively offensive nature of the speech to an average person. Put differently, Judge Ryan’s opinion notes that the question for the members in this case was “whether a reasonable medical care provider with the training described was likely to retaliate against a fully restrained, obviously intoxicated patient.” Slip op. at 11. The multiple medical providers in this case, however, did not retaliate. It’s hard to see how any accused could be convicted under such circumstances unless the Government can prove that the providers had herculean thick skin.

Yet Judge Stucky’s separate dissenting opinion notes the incongruity of a finding that a reasonable person would retaliate to mere words:

In my judgment, we should not be reviewing convictions for using provoking words by looking at the expected reaction of a reasonable person under all the facts and circumstances. A reasonable person is one “who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’ interests.” Black’s Law Dictionary 1457 (10th ed. 2014). A reasonable person normally does not react to provoking words. After all, most of us learned as children that “sticks and stones may break my bones but words will never hurt me.”

Stucky, J., diss. op. at 2-3. This observation leads Judge Stucky to conclude that “the focus of this Court’s review should be on the tendency of such language to cause a disturbance and affect the esprit of the military unit and the military as a whole.” Stucky, J., diss. op. at 3 (emphasis in original).

Case Links:
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
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

11 Responses to “Opinion Analysis: Provoking speech is measured by its possible effect on the actual audience, not on a hypothetical average person, in United States v. Killion, No. 15-0425/AF”

  1. stewie says:

    Don’t remotely agree with the reasoning here by the majority. So, I say something:
     
    Person A doesn’t even find it offensive and doesn’t react
    Person B finds it highly offensive but doesn’t react
    Person C finds it highly offensive and does react
    I better hope I don’t run into Person C then, but instead A or B. 

  2. I dig says:

    Makes sense to me. The identity of the audience is a big part of the context/circumstances that are always important in these cases.
    Reminds me of the issues that regularly come up in sexual harassment command investigations: Oftentimes it’s undisputed that guy/gall said or did a crude thing. You say man that sounds pretty bad. However the next question has to be okay well what was the shop like? The context matters and can often be quite illuminating. You might find yourself concluding no this wasn’t sexual harassment, it was Tuesday.

  3. Cloudesley Shovell says:

    I think CAAF got this one wrong.  This is a criminal statute, and the focus should be on the intent of the actor, not the reaction of the audience.  One’s otherwise objectively reasonable speech should not become criminal merely because of an entirely unreasonable reaction from a person or persons who hears the speech.  Likewise, one’s objectively provoking speech should not be free from criminal sanction merely because the audience (as in this case) hears such speech all the time.
    Regards,
    CS

  4. stewie says:

    Saying, the context matters, is different than my read of the ruling here. Everyone agrees context matters.

  5. Smee says:

    Then you are not reading the ruling correctly. It does not turn on the fact these particular actors did not react.

  6. Zeke Kennen says:

    According to the majority decision, at the time of the allegedly provoking speech:
     

    Appellant was physically restrained with handcuffs and by two security force officers at the emergency room. The medical staff placed a spit guard on him, and Appellant was further restrained physically by the medical staff and security forces with passive restraints attaching both arms and legs to the bed. The Air Force medical staff consisted of a doctor, nurse, and technician. 
     

    Slip op. at 4.
     
    Taking a case to trial on the theory that a doctor, a nurse, or a medical technician would have been provoked to commit an act of violence against one of their patients who is experiencing alcohol-induced psychosis, has been restrained by both hands and both feet, and who is spit-guarded, is quite a stretch.  If such circumstances somehow fail to inspire reasonable doubt in the fact-finder at trial, fail to inspire reasonable doubt in the convening authority at the time of action, and fail to inspire reasonable doubt at the CCA on review under Art. 66(c), then CAAF judges are going to be mightily tempted to bend over backward to find a way to set that factually insufficient conviction aside because of their personal sense of justice.  
     
    The Court’s real, yet unstated, reason for reversing this conviction has nothing to do with the fact that the judge said “average person” rather than “reasonable person” in the closing instructions.  The Court reversed and dismissed this allegation without authorizing a rehearing because any reasonable finder of fact, at trial or on appeal at the CCA, would have had a reasonable doubt as to whether a reasonable (or average, or merely not-psychotic) person in those medical providers’ shoes would have been provoked to commit violence against an ill and 4-point restrained patient who is spouting off hateful speech through his spit-guard.  
     
    That’s why CAAF didn’t authorize a rehearing here even though it supposedly reversed in this case because of instructional error.  The Court didn’t say it reversed on the grounds of legal insufficiency of the evidence, but it dismissed the charge, just as it would have done if it had reversed because of insufficient evidence.  The Court could have authorized a rehearing if the reason for its action truly was instructional error.  

  7. Concerned Defender says:

    It’s often said, (not my saying mind you) that it’s “only sexual harassment if the woman doesn’t find the male suitor attractive.”  And that’s the sad reality of the modern world.  The listener controls whether it’s a crime.  In a real world example, if an attractive suitor pursues a suitee, the suitee is flattered and receptive.  If the suitor is unappealing, it’s harassment and can result in lawsuits, termination, legal actions, administrative actions, restraining orders, etc.  

  8. Zachary D Spilman says:

    The Court didn’t say it reversed on the grounds of legal insufficiency of the evidence, but it dismissed the charge, just as it would have done if it had reversed because of insufficient evidence.  The Court could have authorized a rehearing if the reason for its action truly was instructional error.

    That’s an easy way to view this case, Zeke Kennen, but I think it takes a dim view of the court.

    Except where the evidence is insufficient, the decision to authorize a rehearing or not is within the court’s discretion and need not be the product of a particular class of error. See Article 67(d). See also United States v. Atchak, __ M.J. __, No. 16-0054/AF (C.A.A.F. Apr. 12, 2016) (CAAFlog case page) (considering the same discretionary power of a CCA). 

    Considering the procedural posture of the case (the appellant pleaded guilty to two offenses and was acquitted of a fourth) and the adjudged sentence (very light, relatively speaking), I think CAAF’s exercise of its discretion to dismiss the provoking speech charge rather than authorize a rehearing is more likely the product of a desire for judicial economy than a effort to grant equitable relief. 

    But maybe the Air Force JAG will seek certiorari in both this case and Atchak.

  9. Cloudesley Shovell says:

    Good points by others above regarding the law, but this case is yet another object lesson on the realities of practice for you government folks–especially the SJA on this case.  You had an accused pleading guilty to two offenses, drunk and disorderly and unlawful entry, and you go to trial before members on two other charges.  Why?  The two offenses to which the accused pleaded guilty sufficiently cover his misconduct.  You can introduce the facts underlying the other offenses on sentencing.  You most likely would have gotten a stiffer sentence before a judge anyway.
    Furthermore, after trial, being aware of the light sentence, you could have dismissed the provoking speech charge to avoid appellate issues.  You could have entered a post-trial agreement to exchange the BCD for an immediate admin separation.  You could have avoided 2 1/2 years (!) of time on appellate leave, all that admin expense, and all that appellate effort.  But no, all this buffoonery for a nothingburger charge, all terminated by an adverse decision at CAAF.  And you’re still not done.  Now AFCCA has to reconsider the sentence.  Hope it was worth it.

  10. Concerned Defender says:

    Cloudesley Shovell says:
    April 21, 2016 at 11:39 AM  
     

    Good points by others above regarding the law, but this case is yet another object lesson on the realities of practice for you government folks–especially the SJA on this case.  You had an accused pleading guilty to two offenses, drunk and disorderly and unlawful entry, and you go to trial before members on two other charges.  Why?  The two offenses to which the accused pleaded guilty sufficiently cover his misconduct.  You can introduce the facts underlying the other offenses on sentencing.  You most likely would have gotten a stiffer sentence before a judge anyway.Furthermore, after trial, being aware of the light sentence, you could have dismissed the provoking speech charge to avoid appellate issues.  You could have entered a post-trial agreement to exchange the BCD for an immediate admin separation.  You could have avoided 2 1/2 years (!) of time on appellate leave, all that admin expense, and all that appellate effort.  But no, all this buffoonery for a nothingburger charge, all terminated by an adverse decision at CAAF.  And you’re still not done.  Now AFCCA has to reconsider the sentence.  Hope it was worth it.

     
    Words of wisdom here

  11. joonka says:

    How did this become a Court Martial again?  what a waste of resources!