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.

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

8 Responses to “Argument Preview: United States v. Killion, No.15-0425/AF”

  1. stewie says:

    What’s the point of using a reasonable person standard if you then advocate going away from it and looking at the recipient of the alleged fighting words? Do you also look at them when they are extra prone to find words “fighting words?”  I certainly wouldn’t want that if I were representing an accused in that situation.

  2. (Former) ArmyTC says:

    I’m with Stewie on this one. I think if we find that due to training and experience a certain population is “less prone” to the effect of fighting words, we have to conversely find that certain populations would be “more prone” to fighting words. In the latter case, I am specifically referring to keyboard warriors who are offended by everything under the sun, and to those who need to pick a fight on the internet on a daily basis. On another note, I don’t know that using racial and sexist slurs when referring to the treatment staff at a hospital is ever smart. I’m not sure if this fear is nothing more than paranoia or if it’s rational, but I’d be concerned that suddenly the small gauge needle became a large gauge needle…or maybe they’re a little less careful on the blood draw…or maybe they REALLY need a urine sample so you REALLY need a catheter inserted. I would certainly hope medical personnel are more professional than that, but you never know what sexist and racist slurs will get you…

  3. Tami a/k/a Princess Leia says:

    I think you do have to consider the “audience” that the language is directed toward.  Law enforcement and medical personnel are trained to develop thick skin and not react to anything said.  Medical personnel are still required to treat those who need medical attention.  Disciplinary action would be taken against MPs and medical personnel if they responded to slurs with violence, so why shouldn’t that merit some extra consideration that makes this a simple drunk & disorderly?

  4. Aaron Johnson says:

    The argument that hospital staff is trained to ignore abusive speech makes a legitimate sentencing argument, but Stewie’s dead on.  The law requires the fact finder to hear the words through the ears of a reasonable person. The reasonable person standard means center of mass – statistically some hearers will be more affected, some will be less.
    Would there be a viable defense to a battery charge if the I punched a Soldier trained in combatives in the gut, and the punch had no serious effect on him?  If I shoot Chuck Norris, but the bullets shatter off of his chest, am I no longer culpable of any UCMJ crime, only subject to the fist of bearded justice?

  5. RY says:

    Seems to me the instructions are flawed.  The MCM provision is nothing more than an objective standard, whether a reasonable person would find the words provoking under the circumstances, NOT whether they would be provoking to a reasonable person.  There’s a difference.  Under an objective standard, what is reasonably provoking differs under the specific circumstances of the case.  What is provoking to an average person, by comparison, does not seem to differ based on the circumstance.
    As to Stewie’s point, I don’t know that it would matter much whether the person was extra sensitive to fighting words under an objective standard but I think it would matter if the accused knew the other person was extra sensitive because that makes it all the more reasonable for the words to be provoking.  To be clear, knowledge is not an element of the offense, but it is relevant to the objective assessment of what is provoking under the circumstance.  IMHO, the instruction uses an average person which is a quite different from the objective standard. Whether this error is harmless is another question.  Given TC made heavy use of the instruction, and the error is in defining the elements, I don’t think it is harmless BRD. 

  6. stewie says:

    I think I would just prefer sticking to being as objective as possible…once you start going too subjective and start considering for ill or for good (vis-a-vis the accused) the audience’s proclivity towards responding to fighting words, it gets way messy and can innure to the accused’s detriment as easily as to his benefit.
    I’m also not compelled by the argument that MPs and Medical Personnel could face disciplinary action if they actually responded. Any Soldier could face disciplinary action if they actually responded. There’s no rule/law I’m aware of that singles out MPs or medical personnel in this circumstance.  I get you need to consider the circumstances, but to me that would be more about the fact that the accused in this case was in restraints and thus no threat to anyone, or, possibly, his highly intoxicated state.

  7. DCGoneGalt says:

    I almost imagine this conversation:
         –  “Hey, we have D&D locked down.  While we’re at it, do you want to drag this out for a few years through the appellate courts by seeing what would happen with an unnecessary provoking speech charge for the same conduct?”
         –  “Sure, why not.  Add it.  So creative!  We need to get you charging Art 120 offenses.”
         –  “Thanks.  Can we also make this an Art 134 general article offense for the same speech in order to also add in a defense preemption motion as well?”
         –  “That’s a great idea!   But there’s no more room on the first page of the charge sheet and the printer is down and we don’t have time to fix it and get a continuation page before preferral.  Scrap the 134.  For now.  If this case starts to go too smoothly we can just give an Art 15 for the Art 134 offense and see how it all plays out.”
         –  “Roger.  WILCO.”

  8. Jack Burton says:

    This like strenuously objecting. 
    I agree with DCGG.  Monumental waste of effort to get 14 days and BCD for a drunk and disorderly case. 
    Did no one think that it was an unreasonable multiplication of charges for findings?  Its the same conduct for both D&D and prevoking speach AND he pleaded guilty to one.  Why go forward simply to get a miniscule sentence?  The juice was definitely not worth the squeeze on this one.