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
CAAF decided the Air Force case of United States v. Killion, __ M.J. __, 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.