D.C. Court of Appeals ENBANC Oral Argument - May 20, 2026

All rise. All persons having business for the honorable chief judge and associate judges now sitting on bank for the District of Columbia Court of Appeals. Go near and give your attention. God send this United States this honorable court. This honorable court is now in session. Please be seated and come to order.

Good morning and welcome to the District of Columbia Court of Appeals. It's always nice to see uh so many folks interested in the cases heard before the court and the case we're about to hear today. Um, joined uh today by our on-bank court. To my immediate left, uh, to my immediate right is Judge, uh, Corine Beckwith. To my immediate left, Judge Katherine Easterly, uh, Judge Roy Mccle, Judge Joshua Deal, uh, uh, Judge John Howard, and Judge VJ Shanker.

Uh, we are here for the on-bank case in the matter of Lucas Turner versus United States. Um, the appellant Lucas Turner was convicted of crimes following a trial where the jury was instructed that Mr. Turner could not claim self-defense if he provoked imminent danger of bodily harm on himself. In his original opening brief before this court, Mr. Turner argued, among other things, that the trial court erroneously instructed the jury on the law of self-defense. As part of that argument, Mr. Turner contended that Laney versus United States, a 1923 case from the District of Columbia, which arose during the infamous Red Summer of 1919.

On the last day of a three-day race riot, the defendant, Mr. Laney, was pursued by a mob of more than 100 white men. Although Mr. Laney had briefly escaped to safety of a nearby backyard. He returned to the street to go to work. This court held that by voluntarily returning to a place where he knew there was danger from the mob, Mr. Laney forfeited his right to claim self-defense regardless of the mob's unlawful conduct toward him. The Turner case now represents the question of Laney's application to the facts of Mr. Turner's appeal.

This court therefore sua sponte decided to consider Mr. Turner's appeal on bank, focusing our attention on four issues. Should this court overrule Laney? What should the law of the District of Columbia be as to the circumstances, if any, in which a defendant loses the right of self-defense through provocative acts? Did the evidence in this case support the giving of an appropriate instruction about the circumstances in which the right of self-defense can be lost because of the defendant's provocative acts? And finally, four, was any error in instructing the jury on um uh self-defense in this case harmless?

We've granted the parties 45 minutes per side. Um, and I'm wanted to ask whether council for Mr. Turner and Amicus Public Defender have agreed about their respective time allotments.

>> Yes, please.

>> Okay. And who will be going first?

>> All right. Are you ready to proceed?

>> I am.

>> Thank you. May it please the court. Jason Clark on behalf of Lucas Turner. Um, I would like to reserve seven minutes or I'm sorry, I would like to reserve four minutes for my time for rebuttal.

>> Okay. Uh, council, um, I'm wondering if the podium is as high as it will go so that you could get as close to the microphone as possible.

>> Is as high as it.

>> Okay. Well,

>> it's hard to tell from up here.

>> Um,

>> if you could just speak as loudly as possible. It's hard to hear with the acoustics. Thank you.

>> Thank you, honor. A person should not forfeit the right to self-defense absent proof they purposely provoke the violence that makes their defensive force necessary. Lucas Turner should not have been obligated to withdraw or hide from the place where he made his life on pain of losing the right to self-defense merely because his tormentor who had threatened him was also to be found on the same streets. The law should not privilege bullies to threaten death without facing the risk of lawful force in response. The rule that has emerged from Laney is an unjust rule subjugating law-abiding citizens to unlawful and aggressive acts without due regard to the rights and dignities of law-abiding citizens.

>> Council, um, we've had a number of cases in in this court in more recent times than Laney. We've had Andrews, we've had Sam's, we've had Row, and we've had Watson. And in each of those cases, um, our prior decisions have reconciled the Laney decision, um, in some instances not too dissimilar from the facts here. Why shouldn't we do the same here?

>> Your honor, uh the Supreme Court case law, the self-defense cases, is very clear that what was required at common law and what is required under the district's self-defense doctrine is purposeful provocation. I think that when the court was looking at those earlier cases, none of those cases were sitting on bank. They were not specifically there to decide that issue. And looking at it critically, you cannot conclude that the Supreme Court did not actually find and did not hold consistently that purposeful provocation was required.

>> But didn't we rely on some of our uh recent cases in this court on the notion uh um looking at necessity whether it was necessary in certain instances for the um person alleged to have provoked and therefore forfeited or lost the right to self-defense.

>> I think that this court has certainly done its best to reconcile the the law that has emerged after Laney with the binding precedent of the Supreme Court's opinions. Um, but now that this court is sitting on bank and taking a fresh look at it, I think that the honest answer

>> we should reverse them all is what you're saying.

>> I I I believe that is correct. at least as far as the standard of purposeful provocation. And I would just like to I know that the government makes a point that in the Supreme Court cases it doesn't seem that is absolutely necessary that purposeful provocation be a part of those opinions. But I do think that when you go back and you read them and you look at them critically, each of them h stands for uh the proposition that it must be purposeful provocation. If we're looking at them, each one of them had each one of the cases had the defendants had knowledge.

>> You're talking about the Thompson case from the 1890s and the Baird case from the early 1900s that preceded Laney. Is that what you're referring to when you say Supreme Court?

>> So, in the Supreme Court self-defense cases, and I think that there's um four in particular that bear uh keeping in mind here. Um, there's Gorko, Thompson, Beard, and the Supreme Court's Wallace, not the uh DC circuit Wallace that came in 1901. But if you look at those cases, the thread, the common thread going through all of them is the requirement of purpose where the court acknowledges that there was knowledge that each of those defendants went towards a a substantial risk and in doing so, they did not actually show purpose. and therefore the court reversed in all of those cases.

>> Council, your your um proposed standard does include purpose and you're talking about getting that from the Supreme Court cases, but it also includes some other language such as a requirement that the provocation occur in the same encounter. Do the Supreme Court cases support that same encounter language as well or where are you getting that from?

>> Um, the same encounter I would say that I probably adopted that from the model penal code that was in part of there and I do think that you can find the requirement for the same encounter in the Supreme Court's uh language and in those cases because each of those cases dealt with and they limited themselves to that specific moment. moment of necessity which I think implies also that it has to be the same encounter.

>> If we were going to adopt a same encounter requirement, would you think of the how many encounters do you think there were in this case?

>> That is a that is an difficult question because it certainly at trial we broke up the encounters into three distinct I guess episodes you could call them. Um, I would say that the requirement or breaking up the encounter, you have to look at only the last encounter and what was occurring there as far as when you're weighing something like necessity, but it doesn't necessarily go into what Lucas Turner apprehended or had in his mind as to what was going to happen as Mr. Jumpy ran up and um, you know, opened the door and started violently assaulting.

>> So I if I'm getting your drift, your suggestion is that the triggering conduct has to be the third incident here as you might break them up, but that the earlier incidents might be relative to relevant to people's assessment of intent or other uh circumstances. Is that where you're

>> Yes, I I think that

>> I can ask you how how would that work? I mean there's a common law principle of mutual combat. The idea was that, you know, back in the day, if uh uh A and B got into some kind of dispute and they decided they were going to have a duel, so they have this argument and they say, "Okay, let's, you know, person A says, "Let's have a duel." And person B says, "Sure, we'll meet tomorrow at dawn." Uh and then they go and it's the plan is to have a duel with pistols and they go and they uh have a duel. uh at at common law that was uh viewed as a form of homicide and neither one of them had a defense if they ended up killing even though you might view it viewed in isolation as though there was lawful self-defense for whoever drew second. Uh but that seems like the the conversation and agreement to have the duel is not part of the same transaction as the time or incident if you're as narrowly as you're slicing things. So is it your view that in that kind of a hypothetical obviously happily we don't duel nowadays but uh is it your view that uh you wouldn't forfeit your right of self-defense if person A would not forfeit a right of self-defense if person A says to person B and person B agrees we're going to go tomorrow we're going to meet and we're each going to shoot at each other uh and then you know person B shoots at person A person A then kills person B. Would you say person A has or has not lost uh the right of self-defense?

>> I think that in a lot of ways the the early common law treated the agreement to engage in a duel as you're saying as sort of its own separate animal. Um, it doesn't seem that it was necessarily related to purpose at all but I would say that the common law found that there was malice in that agreement to duel in the agreement um to engage in or take obviously substantial risk leading to to death. But I I see it as a slightly different animal from provocation itself.

>> Uh fair enough. But are you saying you think under the rule that you're describing there would be no forfeite of the right to self-defense? And if there is some principle that says you don't you act unlawfully in that setting. It's some extrinsic principle about uh mutual combat. Is that your answer or am I missing your drift?

>> My answer is I I guess it's hard in this case. Certainly, I wouldn't say that there was anything like an agreement here. Lucas Turner did not go to that intersection intending to engage in a duel with his cousin. Um, and that there was certainly not a agreement to mutual combat here. I think that that would have to be its own case and you'd have to maybe make a slight modification to the rule or not something else. It is not a perfect fit for this rule. Um, but I do not think that is this case.

>> So, I think it's helpful that you've um described this same encounter concept, which I'll admit I was struggling with, is going more towards necessity than the intent and acknowledging that intent could be drawn from the other things that you're describing as separate encounters. I wondered how much of all of this was really just semantics between the the purposefulness and and certain categories of things. Is there a scenario where the facts are dramatized enough in this case that behavior could be so extremely reckless to be able to infer a purposeful intent.

>> I it has to be I mean you have to have sufficient conduct that you can infer the intent or the the guise the the basically the false assumption the false pretenses that under which you are actually planning and I think that's the importance of saying that something or the conduct has to be reasonably calculated um in a manner that actually foresees that it could result in death or injury.

>> So, if I were to revise the facts and say that they both drew down on each other in the first instance um and perhaps that um Gamy, and apologies if I'm messing up his name, um came and drew a gun first in the first instance. Turner then drew a gun. The second instance, they both drew guns on each other. it. We've got a pattern that over these 12 minutes, every time they see each other, they draw guns and people separate them. If he pulls up, and this is assuming facts, not stating what the record itself actually is. If he pulls up and Gami's outside of the car in the third instance, he shows him his gun, says, "I already told you that's a bet to whether I need that I was going to need to smoke you as you said." And then he starts to pull off and you've got where they've tried to where Gianiy's tried to hit him with the car and everything. All of that's there. Could that be reckless enough that he knew he was inviting a potential gun battle and deadly force against himself to infer his intent?

>> I think that under that scenario, you could make an argument that with those facts, Mr. Turner was actually the aggressor in the situation. And so I think we have to keep it very separate between the forfeite doctrine doctrine and the idea of the initial aggressor. And there makes some sense in saying that once he displays that gun and once he has indicated um and given that indication to Mr. Jy that he does pose a risk of death or bodily injury and that Mr. Jumpy can reasonably apprehend that maybe there's a justification for Mr. Jumpy to react at that point. But I think there it's a question for the jury as to who is the initial aggressor. But it is not necessarily an issue of who of provocation or forfeiture.

>> So, council, if you're if you're separating first aggressor cases from provocation cases and your position is that mere words are not enough and mere presence is not enough. And we accept that purpose is often if you proved by circumstantial evidence. I mean, you can you can imagine cases where there's texts where the person says, "I'm going back to do X, Y, and Z. Let's carve those out for a moment." Can you give us some examples of evidence demonstrating purpose that would satisfy your proposed rule?

>> Off the top of my head, I admit is very difficult, but I think that the counter to that is that the current um standard lets the jury speculate as to what somebody's apprehension or how they have weighed the risks in front of them. I I know that it would be a difficult standard, but it is the standard. It is the binding law of this jurisdiction and it serves an important point is that and there's an evidentiary issue there as well. A person who is being accused of forfeiter is not the first aggressor and they have exercised um potentially lawful self-defense. And what the only thing that should actually take away that right of self-defense is their I think largely comes from the requirement of of common law for malice because only with the purpose at that point um in this still hypothetical situation can we find the malice necessary to actually convict of murder.

>> Council, say we agree with you and say we say you you have to have the purpose to uh incite violence um by the other person. I'm just going to stick to A and B just to you know A is the defendant and B is the the person who um responds and is is killed the deedent. So, say we agree that A has to have the purpose to incite B to violence um such that A then gets to use self-defense. Um, did I understand you to respond to Judge Howard's question that yes, we have to reverse because that's not the instruction that the jury got, but that you can't argue that in this case the evidence would be legally insufficient for a provocation instruction. I I got a little lost in where we were with what the evidence is in this case and what the hypothetical was that he was posing. So,

>> no, I I certainly didn't mean to say that because I would definitely say that there was no evidence of provocation in this case. Um, the alleged provocation of simply, I guess, stopping at the stop sign um stopping in the intersection was not provocation in any sense of the word.

>> Well, if we're focusing on purpose, you're saying you can't infer purpose from your client's conduct. Is that what you're arguing?

>> Yes.

>> Are you relying on other limitations on this doctrine of provocation?

>> I I think that the idea that you cannot infer purpose from this is clearly established in the Supreme Court's self-defense cases. I think it's in this court's early um recitation.

>> Just walk walk me through why you think we can't why no jury could infer purp on the facts before us

>> because there is nothing about the surrounding circumstances that indicated that Lucas Turner was inviting violence or trying to start a fight.

>> Can I ask you why why do you say that? I I thought there was grand jury testimony that was admitted as substitute of evidence that your client said after the comment uh by the deedent about I'm going to smoke you said it's a bet and then said uh when I come back I'm going to kill you and also at one point displayed a weapon. So when you say there's nothing in the evidence that supports an inference that he was intending to have a violent encounter with uh the deedent how do you why do you say that in light of that evidence?

>> Um, so I would say first of all that that was the testimony of Angelo Brady and the um the grand jury testimony that you're referring to was very clearly impeached by the actual video of the incident. And so while there is te while the in the grand jury you could potentially read that grand jury statement as saying that Turner had made a threat in the context he actually says both things in the grand jury and he ends up being impeached with both and at the trial he does not remember um any specific statements as he roundly says but the video that we have of the actual incident clearly shows that it's Turner who says um I know and so what he says is one person said, uh, one person made a threat. When I come back, I'm going to kill you. And the other person said, I know. And at the exact moment that Angelo Brady is in the intersection, we can see Mr. Turner passing just five feet in front of him and he says, "I know." And we know it's Mr. Turner. Um, not only because multiple witnesses at trial identified that voice as Mr. Turner, but you can clearly hear in watching the video that Mr. Turner is much much closer to the microphone and Mr. Jy is yelling from a much farther distance away. And so to say that and because um Mr. Brady essentially said both things, but it is clearly contradicted by the video evidence which does not lie and it is not disputed. It has to be that Lucas Turner said I know and the threat came from Mr. Gome.

>> So, if I get the director of that, it's although there is some evidence, you think that evidence couldn't be relied upon by a reasonable factfinder because it's controverted by indisputable video evidence?

>> I do. I think it would be clearly erroneous for this court to rely upon that. And uh to what extent do you think a reasonable factfinder will leave that aside for I and do you dispute uh do you think it's also true that the testimony that your client said it's a bet after the reference to smoking somebody uh is also uh contradicted by indisputable video evidence or do you think that's evidence that a reasonable factfinder could take into account?

>> No, I think that's reasonable evidence the factfinder though that statement um does not come from Mr. Brady. Mr. Brady only reports the two two statements. The it's a bet and the other statements are just statements that people um that that you can hear in the video itself. And I think that that's people arguing as about what they hear in the video.

>> And uh why do you think a reasonable factfinder if if someone says I'm going to smoke you uh and the other person says it's a bet? Do you think a reasonable factfinder could view that as uh agreement to the idea that yeah, you're going to try to smoke me and I'm going to try to smoke you? Uh or do you think that is not how that could a reasonable factf finder could interpret that statement?

>> I first of all, I would say that Lucas's or Mr. Turner's response in that moment is a very sarcastic Yeah. Yeah. Yeah. He's walking away. There's no anger in it. um he is not in I I it's not an agreement. It's simply him brushing off what is an assault and a threatening conduct. But more importantly, this is the earlier um this is the earlier the second uh episode as we call it and understood. But I to be clear, I thought you had indicated that at least as we're trying to assess what a reasonable factfinder could view as your client's purpose or intent, we can take into account the earlier incidents and are not limited to whatever happened in the in the third encounter. Is that correct? So, you're not suggesting it's not fair game to be considered because it's not in the same encounter where the deadly force ultimately was used. Or are you?

>> I am saying that it is not. Well, I certainly don't want to say that you can measure um, you know, necessity outside of that point. I do think that you have to measure the provocation that actually occurs. Um

>> why are we talking about necessity? Sorry. Yeah. Where does necessity come into this?

>> I don't I am trying to make the point that we should not be expanding the time frame in which we are looking at the intention of the conduct. And so there is a significant there is some period of time about five minutes between that altercation where we come back. And I think that if we're looking at provocation and we're trying to figure out if Lucas is actually provoking a fight in those final moments be in the intersection we have to look at what's actually happening in the intersection at that time. But even if we expand the frame and we're going to look back a little bit further, there is still the very fundamental issue that Lucas had no idea that his cousin was at that intersection. And so if we're going to say that him walking away and going away from his cousin is and saying that's a bet is somehow some further future agreement or part of the later provocation. You have to have some reason to believe that Lucas thinks his cousin is there at the intersection for him to go and have that fight with um or to have this this deadly altercation. And there just is no reason to believe that Lucas thinks anyone's going to be at that intersection. He is going back to the location where he was originally waiting for the Quan farmer to continue to wait for the Quan farmer. And as we pointed out um in our briefs,

>> I mean there was there was no testimony to that effect. That's your inference about what he was doing. Or was there testimony that that was his purpose?

>> There was testimony from Dcoan Farmer that uh that Mr. Turner was waiting for him to go to dinner. Uh Mr. Turner did not testify. Uh to the extent that we have an idea of what Mr. Turner intended to do it would be coming from Dcoin Farmer and as far as his understanding of what their plans were and what they were intending to do that day. Um, and Turner was reported as saying uh, you know, he called Mr. Farmer up and he asked him to hurry up because he wanted to get out of the area and there had been this altercation and then we we know the phone cuts off at that point. and not asking you this to to as indicative of Turner's particular knowledge or something you should have been aware of, but just to clarify the record, um both Turner and Gami were known to hang out in the area generally and outside of this occasion.

>> Yes. Um, Mr. Cooper testifies that, you know, he's been longtime friends with them for more than 15 years. each of them considers them each like family and that they would both routinely be there. Um, Turner did live on 27th Street which was just a couple of blocks over. There was a period of time where Joffy was living with the family on 27th Street as well um but not consistently through the years and so that is the record.

>> Is there evidence in the record that um um Mr. Giani was known to carry a gun?

>> Yes. Uh Raven Montiku was impeached with some of her testimony and her uh uh her prior testimony and her prior sworn statements as far as the CPO. And so she made statements in the grand jury that she had seen Mr. Jumpy with a gun uh previously. She also uh explained that she had recorded this video from his social media with him with a gun and in her CPO statements um she had asked that he be disarmed. Additionally, there was testimony from Mr. Cooper who had explained that after Mr. Jumpy had been shot in 2019, he had started routinely and as a habit carrying a gun every day.

>> The evidence about Mr. Turner's gun is when uh he's seen brandishing it, standing uh I guess on the outside of his SUV. And again, the only witness who reports that seeing Turner with a gun at the second episode is Brady. And it is absolutely clear from the testimony that Brady has mixed up two individuals. Now, you cannot I I'm would urge this court to possibly say that it's clearly erroneous, but unlike the video where we have the statement, and it's clearly Mr. Turner making the statement. I know um it is not we do not have a clear view of what is going on down at the final um altercation where you've or not with the second altercation where Mr. Turner is supposedly standing on the floorboards with a gun. But it is clear that Mr. Brady has mixed up Mr. Turner and Mr. Joffy in his testimony. We have the testimony from the two other witnesses that were on scene. Neither of them saw a gun. Um, and then we have the video which is much closer um that came from the apartment building on our street. And in that video um you can see at points uh Mr. Turner and Mr. Jumpy, you do not see a gun in either of their hands, but that is the video that just randomly stops unfortunately because it's on a um it's on a motion control device that is not reliably working. And so we have these 13 and 15 second gaps from here to here, but no one else reports seeing him with a gun. Uh, Mr. Brady is clearly mixed up as about about who is who. Um, and the other witnesses on scene don't report seeing a gun at that point.

>> You you I don't remember if you reserved your time for a rebuttal, but I assume you want some rebuttal time.

>> I did. I I think I reserved four minutes, your honor, but if there's no further questions, I'm happy to turn over Mr.

>> All right. Thank you.

>> Good morning. May I please the court Daniel Gonan on behalf of Public Defender Service. The undisputed common law rule is that one can forfeit self-defense only if one provokes violence on purpose. The Supreme Court embraced that principle in a series of cases in the 1890s. Uh it is overwhelmingly the rule in virtually all jurisdictions to this day. And our own legislature, the DC council, recently adopted that very rule. It is the rule that this court is bound to follow. The government

>> say our own legislature adopted it.

>> Yes.

>> Um, are you referring to the revised criminal code amendments that were adopted by the council but then not enacted by Congress?

>> That's right.

>> So therefore, not the current law.

>> It's not the current law, but it's what when the council was essentially asked, what do you think the law of uh forfeite of provocation should be? Their answer was the common law rule of purposeful provocation. And I don't think that's surprising because every other at least almost every other legislature has adopted that very standard or you know courts have adopted that standard uh where there isn't a specific statute in place. So, you know, for this court to adopt something contrary to what the council at least tried to adopt, uh, I think would be an unwarranted exercise of judicial power, essentially substituting the court's own judgment for the legislaturator's judgment on the definition of a criminal offense. That is if not at least if not exclusively the job of the legislature to define. The primary job of the legislature to define and the rule that the government has advocated that this rule of reckless provocation is by their own admission an uncommonly strict uh rule restricts personal autonomy in a way that no other jurisdiction does. And if that's going to happen, that's something the legislature should decide. Like the legislature,

>> sorry, say say we dis say we agree with you. Sorry. uh that um the Supreme Court case law, common law generally across the country, um the council's you know, legislative intent all support um a a rule that um one has to purposely um provoke violence um by a needs to purposely provoke voke violence by B uh to lose self-defense when B responds, right?

>> Um, and um say, you know, we're looking at this through the lens of pre-existing um constructs of first aggressor, right? So we already know um that if you know you're actually taking an action you know a violent action such that A is taking the violent action such that B has to act in self-defense A loses self-defense under a first aggressor rule. So then we're trying to figure out what more is this provocation rule doing? What more do we want it to do? Right? and we've already decided well the men's rhea element has to be purpose. Um, but then your rule which adopts the RCCA rule as articulated by the council imposes some conduct limitations and I'd love to talk about those and what you think the common law foundation for those are um and you know what the origin is what the justification is um and and sort of whether those limitations have the effect of maybe collapsing a provocation rule into a first aggressor rule.

>> Um, so I mean just start with I think I think your rule requires wrongful conduct. Um,

>> what what does that mean in your view?

>> It has to be something that is unlawful under the circumstances. a violation

>> like unlawful like what like um A defames B and says you know you're you're a pedophile you're a you know you um you know some awful other thing is that

>> satisfy the unlawful requirement but it wouldn't be provocative conduct because it's not uh it's not something that would be reasonably provocative to another person. Um, so there there's there's essentially uh we're endorsing the construct essentially that the DC circuit announced in Peterson which I know is not binding but um I mean the courts on bank anyway but and that standard is deeply rooted in the common law which required an act in addition to purpose and the act had to be uh affirmative unlawful or sometime some cases say wrongful. I mean, I see that language in the common law, but it's it's rarely um explained, right? It's it's bandied about. Um, but it's I I had a hard time kind of understanding what it meant. Um, and and and then if you couple the wrongful conduct with more than mere words. Yes.

>> Um, there seems to be at least some strand of common law that says no, no, words can do it. So I'm wondering if you can speak to me about that.

>> Sure. Okay. So um just first principles again the standard that we propose that is rooted in the common law is an affirmative unlawful or wrongful act reasonably calculated to provoke. I would say there's not really much dispute at least that I'm aware of in the common law authorities that that is the standard. Where there is dispute is whether mere words can ever be reasonably calculated to provoke someone. Some states say it can uh at least under some circumstances, but you know, really extreme vile language under some circumstances can be reasonably calculated to provoke someone. Other states say no. It's never uh no no reasonable person would ever be so angered by somebody else's mere words that they would respond with violence. So the law does not recognize that as provocation. uh this court or the law in the District of Columbia is squarely on the side that mere words can ever be provocation.

>> But is that fair to say well I mean sure yeah the red book has the the prohibition thing saying not mere words but that's that's in conjunction with you know mere presence negligence standard. So it's sort of the mere words as a limitation on that. If we adopt a purpose standard, um, would the mere word work in a practical, reasonable

>> way? Still works. Uh, the the idea is proportionality. A big part of this is proportionality. And that's true. That's why if I punch somebody in the face, really bad thing to do, they can respond with defensive force. But if they respond with something disproportionate, say by drawing a knife or a gun, that disproportionate response gives me the right to defend myself. And when we're talking about mere words, uh we're talking about a situation where violence is by definition, as a matter of law, disproportionate. So it's not the case that even if I purposely, if I want you to attack me and I go on with mere words, that your response is uh proportionate to my provocations. Why? I mean that that reflects poorly on the person who succumbs. Fair enough. And maybe that person would have criminal exposure for having succumbed to the extent the person did.

>> But I'm not sure why it should be the measure of the c homicide culpability of someone who has a purpose uh the prohibited purpose. And so again, you know, worst case scenario, I'm, you know, an evil mastermind or A is an evil mastermind and decides that A wants to murder B, would like to kill person B without any real reason and decides I'm going to embark on a plan where I'm going to over a period of time do everything I can short of being unlawful. Um, and it could be words saying the most hurtful things you can imagine about their family or anything you can imagine to the point where I cause that person to attack me, which is what I want, with deadly force. That's my hope and expectation and then I will execute them. That's my plan, right?

>> And it all works according to my plan. Uh, the person who responded in that way might well have acted criminally culpably. Uh, that's fair enough. And that's what the provocation on that side of the fence can be analyzed one way, but why is it uh I mean what support either it's two halves of it. What's important in the common law is therefore the idea that an evil plan like that just can't be treated as giving rise to homicide liability and more generally why why should that be the rule? Why why shouldn't uh if that's the evil plan and it works according to plan uh why shouldn't there be homicide liability?

>> Well, part of the problem is is calling it an evil plan. It's a little bit tricky because if your purpose is to um kill someone, but if and only if they first attack you with unjustified force, uh then your act your purpose is to commit a lawful act uh or an act that is lawful under the circumstances. And a lot of theorists have, including Kimberly Ferszon, who's decided by the government, they talk about how this is a problem when we're talking about uh provocation and why provocators should lose self-defense.

>> Yeah, I should say I'm not 100% sure that the word provocation is a good choice for the description of the triggering conduct because it does lead to the idea that it's the same concept that we know from uh in the common law of homicide about what mitigates malice. And I don't know that those tests would be or should have to be the same although the word same similar word is used. Um, but uh uh I I mean I understand that uh the what I was calling an evil plan maybe you don't think it's evil to do that. You think that's a fine plan or

>> I'm saying I'm not saying it's a fine plan. So everybody here agrees that if you have a purpose to provoke violence and you do something to provoke that violence uh you can't claim self-defense. And if what I do is short of illegality, but it uh so that the person who responds is wrongful. And I know they're going to respond wrongfully. I'm glad they're going to respond wrongfully because that's my plan.

>> Uh, I'm just not quite sure why that should undermine my culpability. It's relevant to their possible culpability for what they did. But why would it undermine my culpability that I was able to achieve my you know coldblooded plan to murder somebody uh through provocative or you know triggering uh techniques that were short of the law but were successful exactly as I hoped.

>> I mean so there are two I think there's two main sort of theoretical reasons for that. Number one is this is a very common feature of criminal law is that we have this uh subjective men's rail requirement and then we also require something that is um like objectively frightening or threatening. That's true in like a threats law. It's true in assault law and robbery law. So, if like I intend to frighten someone into giving me their wallet and they in fact are frightened by me and give me their wallet, but I did not do anything objectively frightening to them, the law says that's not a robbery. There's a case uh cited in um Mr. Clark's brief. Williams had cited for a different proposition, but but that was what that case was about and what that case held. And that's true in threats, right? It's not enough for me to intend to say something that is threatening to you and maybe I in fact succeed in you feeling threatened. If it's not threatening to an objectively reasonable person, it's not a threats crime and stand for assault. Um, so that is a common feature in our law and I think it applies here with even greater force because we're talking about a situation where it's one step removed from criminal intent. It's it's this odd thing where you're actually intending to commit an act that would be lawful under the circumstances, but we have a problem with you sort of creating that circumstance. But because this is a common feature in the law, I think it makes sense that it exists here. The other um

>> I'm sorry, go ahead. I'd like to hear the other half, too.

>> Oh, so then we also have this um concern about punishing people for thoughts alone. Um, and a lot of the cases talk about this. Evans talks about this which or sorry not Evans um Smith state which is the type of case

>> words alone or did you mean thoughts? I would be really really afraid if I got punished for my thoughts alone.

>> We definitely would don't want to punish people for thoughts alone. Uh so even if you have this idea that you know you're sitting there and you're really hoping that the person across the table from you is going to attack you because you really want to kill them but you don't want to go to jail so you want to have uh be able to claim self-defense. um, you know that that's not a a good thing to think that's not a moral thought um but it's certainly not a crime and what makes it a crime is when you

>> I mean nobody's suggesting that's a crime so the question is whether if you successfully implement

>> it so to make it something where we're going to impose criminal punishment it has to go beyond having something merely in your mind to acting and the action so an act is required and the action has to be something that is going to be not slivular trivial or slight provocation but provocative to a reasonable person.

>> Words can never be an action is what you're saying.

>> Words are an action. But listen, if you ask me as like a empirical matter, can you can a can a reasonable person be so angered by language that they would become violent? My answer is yes. Like I recognize that the law has traditionally given a different answer. Uh the law in this jurisdiction has said no. I think uh or I would certainly be welcome to the court saying mere words can be adequate provocation.

>> Yeah, I mean, that's this is kind of my question is as an empirical matter, you know, there's there's a case in the news in the last few days about I don't know if you've heard about Chud the Builder, but he's this guy who goes into very black neighborhoods and drops a lot of n-words and uh says words like chimping around. Uh he recently was attacked by somebody and he shot them uh and he's now being charged, I believe, with assault with intent to kill, maybe attempted murder. And to me, the idea that those words alone are not enough to sort of they're not reasonably calculated to provoke that response. That response is never proportional. Uh, seems wrong. Uh, that that seems I mean I I appreciate the point that well, look, I I think what you're saying is, well, our provocation doctrine for purposes of mitigation at least ought to be consistent. So, if we say mere words aren't enough to mitigate a murder down to a voluntary manslaughter, then mere words shouldn't be enough to uh forfeit self-defense, that I get as a matter of consistency. But I don't know why the better consistency is, yeah, mere words can sometimes uh be enough to forfeit self-defense when when you are trying to provoke violence upon yourself so that you can kill somebody uh and succeed. It just seems like as as an empirical matter, sometimes the words are enough. Um, so so why not resolve any inconsistency that way and say sometimes they are? I think if you're going to say sometimes they are, I think again if I don't have I'm agnostic on whether words should be deemed reasonably calculated to provoke. But if they're reasonably calculated to provoke, then they should be a mitigating circumstance. And if they're not reasonably calc if the law as it stands now says they can never nobody can ever be so angered by mere words that we're going to say that their uh attack on somebody else is even partially excused. Then we have this mismatch.

>> Well, can you tell me why you think they need to be consistent? Because I I'm not quite sure I see the need for consistency. So, let me just pose the question. Okay. So the question of whether words are enough to permit someone who responds to them by using deadly force uh and killing somebody to be guilty of only manslaughter rather than murder is, you know, a question about the wrongfulness of the person who succumbs to that those possibly provoking words uh uh in that way. And we could make a judgment about when whether words ever should be enough. And I agree you could have a reasonable debate about whether the law our current law is the better answer to that question. But I just it seems to me it's quite a different question. So I'm not quite sure I see the need for consistency other than the word provocation pops up in both places. But let me the other half of it is

>> if I have a plan to go someone in to attacking me and I succeed in that plan um and my whole plan is to intentionally kill them at the end of it all. Why does the answer to the question of whether words, if that's part of my implementation plan or the only part of my implementation plan, why those shouldn't be enough to make me guilty of homicide, I just those questions seem so disparate that I don't see why the answers to those would be the same. Uh

>> it's not a coincidence that the word provocation is in both doctrines. It's getting at and I don't agree that I'm

not saying that that's like answers the question entirely. I think you have to look to the the purposes behind uh you know, what provocation is doing and in the broader context of mitigating circumstances on the one hand and self-defense on the other. But there is this deeply rooted principle in self-defense law of proportionality. And when you have two wrongdoers in a fight, that doesn't mean that neither one of them gets to claim self-defense. If we view one person's act of wrongdoing as uh categorically less than another person's act of wrongdoing, then the less blameworthy person retains the right to self-defense. They may be liable for, you know, throwing the first punch, but they can still defend their life when attacked with a disproportionate response.

And how do your theories fit with um mutual combat? Uh, do you think that mutual combat is its own separate special doctrine or do you think but you think it would be if it weren't for that special doctrine, >> a verbal agreement to fight, you know, the next day based on whatever words might have been exchanged before that would fall outside the principle you're espousing. And it's just there's a special rule for mutual combat.

I mean, I don't think that's controversial. I don't think I've never seen a case that treats mutual combat as equivalent to provocation. I think they're always analyzed. And why why shouldn't there be consistency there? Why why is there a special rule for words of agreement of mutual combat but not for other words that are part of a successful plan to go someone into using deadly force so that you can execute them?

Well, with in mutual combat, you have essentially like a consensual assault and and both people are consensually assaulting each other and uh consent is not a defense to that kind of >> that seem and that seems more benign than the conduct that I was just hypothesizing. So, if there's if you lose your right of self-defense if A and B mutually agree to use force against each other, why wouldn't you lose it if A goats B through words into the same?

Okay. So, in a mutual combat situation, we're both agreeing there's going to be violence. Like, we're going, we're going to fight, we're going to kill each other, or one of us is going to kill the other. Um, that's a So, there's definitely going to be violence. In the provocation situation, one person has the total control to prevent the violence from happening. So, if I say vile words to you that are intended to provoke you, if you choose not to respond with violence, then there would be no >> mutual combat setting, you could just not agree to the mutual combat. So, I'm not quite sure the the asymmetry of control you're describing.

Well, if there's no agreement to mutual combat, then it wouldn't be mutual combat then.

Well, understood. My point is that if you're trying to say um there's some reason to have a different rule because uh uh there's less control in the goading situation, combat situation. It seems like there's full control in the mutual combat situation by both parties. You just don't agree.

Well, the difference is in the mutual combat situation, it's you show up and the violence begins. Um, in the provocation context, if all I do is speak to you and you choose to re respond reasonably and say, "I'm not going to respond to your vile words with violence. I'm going to walk away or I'm going to, you know, just ignore you." Um, then there is no violence. So, one person is escalating it from mere words to violence. That's what this court talked about in the Boston case, which we cited in our brief, which I think is particularly significant because that was a case about forfeiting adequate provocation as a mitigating circumstance. So, like forfeiting self-defense, uh that was a case where the government said, "You can't claim that this other person provoked you to violence because you actually are the one that provoked them." And what the court said is, "No, no, no, that's not right." uh Bostic used mere words and posturing and uh it was the other person McFaten that escalated it from mere words and posturing to violence. So McFaten was the provocator not Boston and the court cited the redbook instruction on forfeiting provocation of self-defense saying mere words are not that kind of case.

Is your answer sort of lie in a sort of relative moral culpability of the parties that in uh a mere words as provocation scenario, the law chooses to protect the non-violent actor who merely spoke over the one who instigated the violence. Whereas in a mutual combat scenario, you don't have that disparate moral culpability. They're both equally morally culpable and there's just a standalone rule that we don't want people to be allowed to agree to mutual combat. Is that part of >> exactly right? Um I do see I'm down to one minute. Um

Well, I I want to >> you're going to be up here for a little bit longer. Sorry.

Um, stemming from Judge D's question. it. Do you want to reconsider your answer about whether or not you are agnostic then about the mere words limitation on um provocation if if we're still using that label? Um, you know, recognizing that judge deal I think makes a good point that maybe maybe we should call it something else. Um, so that that's my first question.

Well, I'm as representing the public defender service, I think we have an institutional interest in mere words being enough to satisfy mitigating circumstances to produce a crime for murder to manslaughter. Um, so that's why I said I was agnostic. I mean, we would sort of walk, >> right? I mean, there's a world where we could say they're conceptually distinct. And so, you know, if you go with judge deals, >> if you guess, >> I mean, judge um, >> uh, sorry. And so my next question is um >> that judge >> that judge >> that good friend over there. >> Yes. >> It's been a long night. Um, my next question is what about the mere presence limitation? >> Yeah. >> Um >> okay. So there are >> because that's distinct from your words. >> There are dozens of cases that >> presumably you're not agnostic at all about that. >> I'm not agnostic about that. Okay. Okay. So there are there are many cases uh that we've cited just a sample of them that talk about the specific context where you have a purpose to provoke violence. You approach the person you want to provoke but you do nothing once you get there. That is not forfeiting self-defense. And I think that even more than the speech really encapsulates the the concern about punishing people for thoughts alone. Thoughts.

Would you distinguish like a stalking situation? I mean, where you're not engaging with the person at all, but you just keep showing up. >> That would would that be more than mere presence? >> Yes. So, is that seems like the only example that satisfies your encapsulation of the rule perhaps because it's wrongful conduct and it's more than mere words and more than mere presence. The only one that I can think of, not to cut off Judge Easterly, but stalking. Is that the only one that >> No, there's I mean there's hundreds of cases that have said people provoked provoked violence and couldn't claim self-defense by doing all sorts of things like you could there's a case um, you know, somebody like smash somebody's car windows or you take their drink and you pour it on the ground. There's all kinds of things you can do.

But how is but that doesn't collapse into first aggressor. >> I don't think that that what those >> because it's not directed at the individual. >> It's directed at property. Um, and there are, you know, I think there's, uh, potentially some gray areas on the border of like, well, maybe we're not prepared to say this crossed the line and made you a first aggressor, like sort of displaying a gun. Um, you know, some states would say that's not an act of aggression because you're not threatening to imminently use it. But some people might say, well, that's provocation because you're suggesting to the other person that maybe they should attack you and then you want to attack them back. So there's all kinds of situations where I mean this is again this has been the law for centuries and courts have been confronting these issues for centuries and there are cases where they found the propagation standard was satisfied by purposeful provocative acts that were reasonably calculated to provoke that maybe you could have some of those maybe you could say well that would have also satisfied a force aggressor standard but some of them certainly wouldn't. So, if A says to B uh over and over again, every time A meets B, you know, I'm going to kill you. Watch your back. At some point, I'm going to kill you. Right? Uh >> and uh it's with a plan to cause B to overreact to that, >> right? >> Because and then hopefully have a self-defense claim when B overreacts and so then can get away with murder. Um, and there comes a time when then, you know, finally A he shows up yet again, you know, after doing this for weeks, shows up, and so we have his words, wrongful words, cuz that's threats, so at least they're wrongful words, but it's only words and his presence. >> And B then, you know, pulls out a gun and A shoots B very happily, thinking, "My plan has now succeeded." Would you say that is uh covered or not covered by the rules? You would understand it. Would there be forfeiting or not forfeiting? forfeiting. >> You have forfeiting. >> Yes. >> Because what I mean what is there more than words and uh uh presence? >> Well, I think that would be covered by that would make you an initial aggressor because you're putting the other person is reasonably in fear that you are coming to kill them and you've you've told them that and that you've come to kill them. >> So you you you think sometimes if again uh the issue for you though is that that would fall outside your forfeiting rule because it's mere words >> wouldn't be provocation, >> right? It falls out falls outside your forfeiture rule. It's just that there's a separate doctrine. So the question would be whether that course of conduct was viewed as provocation that what warranted the deadly force and it would depend on whether uh B acted lawfully. If B overreacts then A gets away with murder and if B is acting lawfully then uh A loses the right of self-defense on a first aggressor theory. Is that how you'd analyze that? >> Yes. And why should the success of that plan turn on whether B did or didn't overreact? Why should homicide liability turn on whether B? >> It doesn't. It turned it's just it's covered by a different doctrine. >> No, but but if you're saying that that um A is guilty of homicide in that theory only on a first aggressor theory and whether he is a first aggressor or she is a first aggressor depends on whether be acted lawfully in using deadly force given the circumstances. Uh no just I yeah so I think that if you have put somebody in a position through your conduct including words that you are coming to kill them and they reasonably believe you are coming to kill them and so they they would be lawfully defending themselves from that reasonable belief and therefore you are the initial aggressor. It's not a disproportionate response. I think it it is this has come up a couple times. I just want to make uh emphasize I do think it's important to keep these doctrines distinct. Some courts sometimes lump provocation and aggression together, but they have have different purposes. Um, they have different rationale and they as a body of law cover the situations where we would want self-defense to not be available and and leave self-defense available where it should be.

Can I ask you to clarify something? Just take you back briefly to the wrongfulness question. You said that the you described the RCCA as you know stemming from the common law and returning to the common law and you also described your own statement of what the standard should be that way. But is it correct that your statement includes the wrongfulness aspect and the RCCA doesn't? And do you see that as a deviation? Um, and if so, can you explain why? Or is it just something you think is implicit in the RCCA's version? >> The RCCA chose to um carve out speech and presence in particular to say those things will never be provocative even if there's a a purpose of provoking violence. I think that's uh well, I can only really speculate. Um, they did uh explain, you know, that they they cited Laney in the in the uh committee report and said, you know, they said, "We're trying to improve the consistency and clarity of the law." And um but but there isn't like a really detailed explanation for how they landed on that particular standard, but it obviously was very important in the council's view to exclude speech and presence. Um, I think that's a situation where you can imagine uh having very serious concerns about first amendment rights and protesters and protesters who have been threatened with violence and um we don't want those people to be we don't want a chilling effect that somebody's going to say, "Oh, they did it on purpose. They purposely wanted violence so they could defend themselves." We don't want like misjudgments about people's purpose to cloud their ability to go out and do things. uh particularly things that are constitutionally protected like speech and protesting. Um, but why they didn't choose to just parrot the Peterson standard or the or the common law standard I really am not in a position to say.

Can I um >> uh you've said that you I think you've suggested at least that the limitations that you are referring to. So words are not enough, presence is not enough, reasonably calculated and um uh wrongfulness. Do you think those are deeply rooted in the common law? I think all all of them. Is that your position? >> Uh, okay. It's a little bit of a tricky answer. I would say everything but speech. Uh, because again, I acknowledge this split on whether speech it can be reasonably calculated.

And um, this is, I guess, back to something we haven't touched a lot about. I don't mean to get into the full debate of it about, uh, what our common law authorities are in this area. Is it your sense that uh we're free with respect to the limitations to do sitting on bonk what we think is best? Or do you think that uh some of the concerns you have about the function of this court in the definition of common law crimes means that we need to be determining what was firmly established at common law and we are bound by that even when sitting on bond. that with respect to these limitations, I'm just unsure what your jurist credential theory is about whether like if if something's not rooted in the common law, uh but it's in the RCCA, is that something we can go ahead and say, well, that sounds good to us, or what how free do you think we are to adopt such limitations on this principle as seem good to us as opposed to being bound by a common law constraints. >> Gotcha. So um I mean let's take speech for example because I think that's the most to to answer your question the most as I acknowledge the sort of most controversial aspect of this. Um so I mean I guess let's say the court said we think that reasonably calculated to provoke is deeply rooted in the common law. Um and therefore we're bound to we can't expand the meaning of the statute that Congress enacted. Congress would have understood that limitation. So we can't expand provocation to include acts that are not reasonably calculated to provoke. But on the specific issue of whether speech is something that's reasonably calculated to provoke the authorities, common law authorities were were split. So we can decide as a court whether we think speech is reasonably calculated to provoke although we have to do it taking into account you know whether we want to potentially overrule president in other contexts. Um, one other case I wanted to mention, Cooper says, uh, Cooper v. Department of Employment Services was a case that said speech can't be provocation uh, for purposes of forfeiting your right to compensation under the victims of violent crime act. So, I understand that's a different context, but still um, it is talking about provocation of violence as a uh, as an as a forfeiting concept.

But one wrinkle when you were saying what we can't do. >> Yeah. Sorry. uh you were focused in your view you were focused on our uh the inability of this court to expand a criminal offense beyond narrow >> I was about to ask I just wanted to I just wanted >> I acknowledge that yes can't narrow it either >> do other jurisdictions uh that you've referenced in your briefs uh where the common law uh requirement is purposefulness have they in included or excluded references to speech and mere presence >> so speech there's a split some courts have said uh just as there is for mitigating circumstances. Uh so definitely there is a split on speech uh for presence. I think every court that I know that has actually addressed the issue has said you have to have some acton presence. Uh, I think the best case the government cites is state v. Short, which is a Louisiana case from 1908. And I think that case is actually pretty telling because just the year before state v. Short was decided that case had come up on appeal to the Louisiana Supreme Court, the same case. And they reversed and they said the instructions didn't make it clear enough that it wasn't enough to go and confront somebody with the purpose to provoke that you had to actually do something once you got there to provoke him. And then when it came up uh again after the second trial, they said under the peculiar circumstances of this case where somebody um two people had fought separated for a couple of hours and then the defendant went to the bar uh where the his adversary worked and he wasn't there and somebody told him he was at this restaurant. He goes to the restaurant and he stands there in front of this other man and the man offers to shake his hand and says, "Let's not bite anymore." And the defendant says, "No, I don't agree to stop the fight." They said under those circumstances, his appearance there could only have signaled either renewal of hostilities or squashing the dispute. And where he expressly declined to squash the dispute, he was in a sense an aggressor or provocator and therefore he couldn't claim self-defense. But yeah. Yeah. So council, especially on mere presence, how much are we just playing in the fringes and how much workers is actually doing because every situation is going to have context, right? >> Yes. >> I mean, and and for sure there are examples that we could hypothetically think of of where mere presence is enough. I think the red summer is perhaps a great example of that. But where how much work is that limitation really doing in your view in in our current times? Uh I think it's doing I think it's important because of this concern about punishing people for their un unexecuted thoughts alone which is particularly important where we're talking about this context where I said before where we've got this sort of logical puzzle where the intent if the intent or the purpose is to kill only if somebody else attacks me with unjustified force. We're not even talking about a a traditionally criminal intent. We're talking about an intent that is one step removed from criminality. So you need to have some kind of action that is reasonably calculated to provoke.

I think the intent is a little bit different from that. I mean I I think in settings that you and and um Mr. Clark have argued uh shouldn't be covered by a proper self-defense concept. Um I I mean people uh in dangerous neighborhoods or in uncertain circumstances might well have an intent to use deadly force only if and only if there's a need to do so. That's a general intent probably all of us have. Yes.

Um so the intent is worse than that. the the it is a desire to create a situation where there is an opportunity to use deadly force. >> Totally agree. And that's why >> a little bit worse. >> I totally agree. Which is why nobody's disputing and and really nobody has ever disputed that uh you can't claim self-defense, but you have to actually do something to execute your the thoughts in your mind. And the issue is and the issue is just what you have to like how much is >> what you have to do to execute especially if you succeed what you have to execute >> as is typical in the law for threats robberies assault it has to be something that is objectively frightening or provocative >> a bookkeeping question I'm sure I I believe this is right that you have not advocated although you've advocated for the limitations we've been discussing you have not been advocating for a same incident same transaction limitation I if I'm remembering I didn't see that in your brief. Am I misrecating for? >> We didn't uh express a position on that specifically. I think it's already um established in this court's cases um which I didn't cite because we didn't take a position on it, but there's a and I'm I'm happy to submit a 28k letter, but there's a case called Rory and another case called Tibs that talks about disengagement and when you are when you have two people who are in a tense situation and maybe one of them seems like they're really trying to take it to a violent area, but then they they separate and there's a passage of time. Then you only look at who provoked the final encounter.

That incorporates this withdrawal concept which is in the RCCA. >> Yes, it's also in row. But what if there's no withdrawal, right? What if um you know A is you know sort of tracking B and B keeps eluding A. Um so it's you wouldn't call that a withdrawal situation. Certainly not by A. >> I would call that the same encounter I guess. Okay, >> I I think I do think withdrawal and disengagement to the extent those are two different things, those pretty much capture the universe of this same encounter principle. So, if there's been no withdrawal or no disengagement, then I think we would say, okay, it's the same encounter.

We've been talking a lot about um provocation, if that's what we're going to call it, in the context of use of deadly force. Um, do do you have any thoughts about how this plays out in a non-deadly force situation? >> I think it plays out >> exactly the same. >> The rules are the same. Um, but obviously something could be less provocative uh to and um reasonably trigger somebody to >> with non-deadly force. And you think that uh so you referred earlier to the principle that if I am the first aggressor in a non-deadly force setting, so I shove somebody and the person then pulls out a gun and attacks me with deadly force, I regain my right of self-defense as against deadly force. >> And I assume then you would think that a similar principle would apply. So, if I with a plan to get into an altercation of non-deadly force with someone go and shove them and they respond by attacking me just as I was hoping, um uh but then all of a sudden it spins out and they pull out a gun that I would have lost my right of self-defense with respect to non-deadly force and I might be culpable for an assault including maybe even, you know, uh I would have been culpable for the whole assault of encounter, but that I regain my right of self-defense if it escalates to deadly force. Do you think the same principles would apply as between the two levels of this doctrine as you're describing? >> Yes, I do. I don't think that's super controversial. I mean, a lot of the treatises and cases talk about that. Um,

>> there's something I want to say. >> What about a bare twist while you're thinking of that thought to stretch you further of you and I being near beard doppelgangers and we decide that there can only be one and we have a history now of where we fight every time we see each other. Yeah. >> This is an unrealistic hypothetical, but I know you were going to be at the hotel bar at um and H. >> Yeah. >> And that that's where you go. That's where you and your co-workers go. And I decide to go there knowing the the likelihood of what's going to happen. And then you pounce on me. Non-deadly force. All that. That's I still have self-defense and that's on you. Uh I think if anything that would be a mutual combat situation. I think you know mutual combat can be established by express agreement or an implied agreement. If we just have an understanding that whenever we see each other we're going to fight and neither one of us says I don't want to fight anymore then it would be a mutual combat situation. What I did want to say in response to Judge Mis's question is that proportionality principle also exists in mutual combat. So if two people agree to have a fist fight and one of them decides to pull out a gun or a knife, then the other person would regain their right to self-defense. In fact, under, you know, in the era of Blackstone, that was the universe of self-defense. Um, anything else would have been considered a justified homicide rather than self-defense.

Unless anybody else has any more com questions. We've taken you way over your time, but reserve your um time for rebuttal. >> I appreciate that. Thank you. >> Excuse me. Good morning. And may I please the court Dan Leonards for the United States. >> Morning. >> For over a hundred years, the law in this jurisdiction has not required purposeful provocation to forfeit the right to self-defense. the reckless provocation standard currently embodied in the red book instruction is consistent.

That wasn't the standard in La Laney, was it? >> The the wording is not the same, your honor. That's true. The red book uh >> but it wasn't the standard either. Laney seems to suggest something more in line with a negligence standard, whereas the red book instruction is uh language more in mind of a reckless standard. I I just was wondering, you know, if you're asking us not to overturn Laney or to do something like um affirm or reaffirm the redbook instruction. We read Laney's reason to believe language as akin to a recklessness standard. We we think his conduct in that case as described by the court was reckless, not merely negligent. We think that the cases applying that standard have generally looked at it as a recklessness standard including Andrews which talked about um you know knowing and unnecessarily uh engaging in the act and and so regardless we think the correct standard is as currently embodied by the red book a recklessness standard which is consistent with self-defense being a law of necessity general principles of criminal liability and the need to protect life, which is the most sacred thing the law can protect.

Actually, did I understand you correctly to indicate that your position is that Laney was correctly decided on its facts? >> Yes, Sean. The government's view is that Laney was correctly decided on its facts where um he had a safe means of escaping the backyard by going in a different direction. uh and instead he checked his firearm causing it to go off and then went back to where the crowd was that had just threatened him um effectively as the court knowing violence.

How do you square that theory with where we are now on duty retreat? Because if we're a middle road jurisdiction, you would think the jury in Laney ought to have been instructed if in a middle road jurisdiction, not that there's no right of self-defense, but that to the extent Mr. could be viewed as having an avenue of safe retreat that would be taken into account, but the jury would still have in front of an issue of self-defense. >> Well, this court has said more recently that you don't look at the um need to retreat until the violence has occurred. So, Laney was not a need to retreat case. It was can he >> just by a mob? You don't think that the duty to retreat would come into play? I mean, as a consideration under the circumstances that seems maybe a misreading of our case law >> in those >> the violence situation is is happening >> but he has he has safely escaped to the backyard there there is now a break in the violence >> mob is still out there >> it has turned its attention to the house across the street we think >> this transaction now >> I I think it's still the same transaction uh I think that under those circumstances, the government's view is that the person who goes back in front of the mob knowing that it's going to attack them is properly held responsible for the violence that results. Even if they didn't intend it, they certainly knew that violence.

It just seems like that I mean, this seems to be why we we couldn't possibly endorse a recklessness standard. The government seems to be making the argument for us. I mean, because why would we turn the safety of citizens over to the rule of the mob and let the mob control the streets and have people, you know, have to cower in backyards and in their homes um without, you know, losing their right to self-defense if they are attacked by the mob. I was I was listening to the news this morning and I heard a report about the recent attack um on House of Worship and I was thinking about how um there's been a spate, you know, there there just constant reports of of gun violence and it made me think of this hypothetical. I'm I'm a licensed gun carrier in my hypothetical. I'm taking my child to school. I drop my child off. As I'm leaving, I see someone who is armed going towards the school and it looks like they are going to go into the school with a weapon. Um, and I'm very concerned that they're going to go perpetrate violence and I engage that person. Um, perhaps not wisely. It's maybe not a good plan, but I'm trying to get the attention of the security guard and I start berating this person and saying, you know, hey, you gunman, you know, you think you're so tough um with a gun. Um and I start insulting them loudly. Um and then they turn and face me and start walking towards me and look like they're about to pull a gun on me and I pull out my gun and I shoot them in self-defense. You could say my conduct was reckless. Um, but have I lost my right to self-defense because I engaged with a gunman who was about to walk into a school to perpetrate a school shooting? Is that really where the government is going with this? >> The the standard that we are supporting has a necessity requirement. And so if you are engaging, >> I don't know what that means. The government says necessity countless times and it's brief. Um but necessity is sort of a broad principle that we then um distill into factors right where we say well because self-defense is the law of necessity also you know we take into account reasonleness and human nature um we have certain requirements about when self-defense can be exercised but we don't apply necessity as like a standard standalone factor. I think we've made that pretty clear. No, >> it >> the necessity requirement in self-defense in >> what that I guess my question to you is what necessity requirement >> in the self-defense instruction is akin to the unjustly requirement in recklessness that juries apply all the time. To act recklessly, a person has to consciously um and unjustifiably disregard a risk. And so juries on the facts are going to >> in my hypothetical, I unjustifiably disregarded a risk, right? I confronted an armed person who was about to go into a school to shoot up a bunch of kids. >> And I did so in a good Samaritan way, not in an attempt to get that person to shoot at me. I was hoping that I could, you know, have a different purpose that they would be stopped, >> but why isn't that why wasn't that reckless? And why shouldn't I lose my right to self-defense in my hypothetical? >> Because it was justifiable conduct to protect the students in the school from an armed gunman. >> But it was reckless. >> It it it was there was a substantial risk of violence, but it wasn't unnecessary or unjustifiable. Recklessness doesn't simply turn on ignoring, you know, ignoring the substantial risk of violence. It also has to be unjustifiable or unnecessary under the circumstances. So your rule your rule has conscious disregard of a substantial risk as an element as well as knowingly and unnecessarily placing them the person in position. And your response to Judge Easterly's question is that a jury could reasonably find that it was not unnecessarily the judge Easterly was not unnecessarily placing herself in that position but was perhaps necessarily placing herself in that position. Is that >> Yeah. No, that's the government. Well, we have some of the prior um common law um from the earlier Supreme Court cases that preceded Laney. So, I think it was Thompson, for example, where um a person knew that the person down the road uh was likely to attack him or didn't like him. Um but that road um was reasonably necessary or or most reasonable route to where he wanted to go. And so I think I wonder if the government's brief over construses necessity in a more uh outside of the legal context because I think in the legal context we're looking at what is reasonably necessary and it shouldn't be reasonably necessary to require the the noncriminal actor to take extraordinary steps outside of their own uh daily life. like Laney, for example, shouldn't have been reasonably necessary for him to avoid going to work, his employment, and crouch and hide from an angry mob. And and so I wonder uh having in your briefs sort of conceded that the Laney rule causes law-abiding citizens to give up some of their autonomy. if that requirement in your articulation of the rule is somewhat in tension with some of the things that I think were reasonably conceded in the government's brief. >> I I hope these two things aren't intention. I I think the government has been consistent. We do understand reckless provocation is protective of human life at the cost of personal autonomy as compared to a purposeful provocation standard. There's no dispute about that. There will be more violence under a purposeful provocation standard than there is under a recklessness standard. That's true both as a matter of empirical study.

A lot of larger jurisdiction I I know that your brief sites to other uh sites to the notion that in DC we have a particular concern about violence and protecting um public servants as well as ordinary citizens. But other jurisdictions that are larger and also have uh concerns about crime have adopted the purposefulness standard over any recklessness standard. >> It's true your honor. We we don't dispute that the vast majority of jurisdictions and the common law had a purpose to provoke standard. the district is a uniquely urban jurisdiction with a you know the country's leaders live and work here and we think that and this court has >> citizens in W 8 like Mr. Turner and people in the neighborhood who also have a concern about uh violence and public safety live here too. >> Correct. the innocent bystanders who are victims of gun violence and who are potential victims of unnecessarily provoked confrontations and and this court has not hesitated in the selfdefense context and others to adopt a different rule than other jurisdictions have adopted.

I guess what troubles me council is your your rule takes no account uh of the wrongdoer versus the righteous that uh the law protects the wrongdoer in your scenario but not the righteous. So, you know, the example is, you know, I've got a neighbor who lives five houses down from me who says, "You ever cross my path, I'm going to kill you, I'm going to kill your kids." Um, I could go the long way around. Like, I could, you know, go a couple blocks out of my way and and go up. Um, or I could go and instead of letting that neighbor get the drop on me, I could try to confront them. Uh, let's say the cops have been of no help. They say, you know, we don't believe you. This is a upstanding citizen. But in fact, this has happened. Why like why put the onus on sort of the innocent person going about their day to conform themselves uh to avoid the dangerous menace up the road instead of saying the law doesn't care that much about protecting the dangerous menace up the road. They have they have really brought the trouble upon themselves by sort of promising violence upon mere sight of somebody. Why why isn't that the better view? I I think because the the law views life as the most precious thing it can protect and in requiring you to go slightly out of your way to avoid your neighbor. It is highly valuing life, not only the wrongdoer's, but yours, your children's, and the innocent people that might get caught in the crossfire when you have a violent >> Does your Does your rule also apply to non uh lethal self-defense? Let's say I'm I'm a Vikings fan and uh Philly is not too far away and I want to go to an Eagles game dressed up in Vikings gear and I know there's a decent chance somebody will try to pick a fight with me. Do you think I have forfeited my right to punch back if I get attacked? >> I I don't think you forfeited under those circumstances. I I think you have a you can necessarily go to a Vikings game to which you have tickets, but I do think it applies beyond homicide. I'm positing that I'm I am reckless under you your view. I I'm aware I've been to the link before. I'm aware of a substantial risk of violence. Uh and I'm going anyway to support my team despite knowing that maybe maybe though I'll be in for an attack after the game. Uh so I've satisfied your recklessness standard. So So why haven't I forfeited self-defense under your view? >> Because you also have to unknowingly or unnecessarily place yourself in >> I don't need to go to a Vikings game. I could stay home. I think a jury could find that it is necessary when you have tickets. It's not unjust, >> but a jury could find the opposite, too. And so, I do struggle with the idea that it's a an adequate limit uh to some of the concerns that the word unnecessarily without further guidance is in there. I mean, I don't I think a juror could easily react to Judge Deal's hypothetical, but I think he didn't need to go to the game. If the test is necessity, then Judge Deal's, you know, hypothetical is on the wrong side of your line. Uh so so if you don't mean so you're not understanding the word necessary there to mean uh there was no other possible choice. You are using it you're thinking the jury might understand it in a much weaker form of in in a formulation that the chief judge buck ree has used like reasonably necessary. Um, is that where where you're headed or >> I I think of it as akin to unjustifiably in in the the jury instructions that you have a recklessness requirement that it's it sounds in self-defense because it's unnecessarily >> so I don't have to move. For example, judge deals hypothetical if my neighbor says move out of this neighborhood. I'm going to kill you or your family. You would say, well, I mean, I don't have to live in this neighborhood, but I have a reasonable right to remain here. And that would be an undue response that that it'd be unduly burdensome to expect me to have to move to avoid that confrontation. Would you agree with that? >> Yes, we we we think that that >> and how about if I you know I I you have if I ride a motorcycle and my neighbor doesn't like that it's loud and says ride your motorcycle again, I'm going to kill you. Would you say you know you got to not ride your motorcycle in the neighborhood? Where on the necessity line do you think uh uh that should be put or do you think that's just up to a jury without any guidance about what's necessary and what's not? >> Well well I have two answers. One is you should call the police. Your neighbor has threatened you and that's the the standard of a purposeful provocation. You know >> again assume I have and that hasn't been successful. Then what am I supposed to do? >> So it may depend on why you're riding your motorcycle. If you're doing it to annoy your neighbor that is unnecessary. If you're doing it to go to work and that is your transportation to work, you don't have a car, then the jury may well say it was necessary under those circumstances. >> If I have a bike, the I mean, all that would be submitted to the jury and the jury would be making some kind of an unguided judgment about well, you know, how important is it to use your motorcycle instead of your bike? And that's what the issue would turn on. >> I mean, I I think it's it's again, it's akin to the recklessness unjustifiable standard, which is again typically a jury question. Can I ask you about the issue of the topic of necessity because the United States puts a lot of of emphasis on the idea that the law of self-defense and in particular the law of deadly force is a doctrine of necessity and there's a lot of case law that uses and common law authority that uses that phrase. Um but um I I think that it your opponents argue that again necessity is an ambiguous term as we've just been discussing about how strictly absolutely necessary a thing has to be. So just want to make sure whether you agree or disagree with one principle of law that I think is well settled the common law and I think there's support for here which is in I if A uh runs up to B without justification and shoves B and B responds by first shoving back and then A shoves again. I mean A is the aggressor and A is guilty of assault up to that point. But then B unpredictably pulls out a gun and you know points it at uh uh A and there's a struggle and in the course of that A ends up using deadly force to avoid himself or herself being killed. Do you agree that there is a right of self-defense that with respect to the use of deadly force even though A was the first aggressor with respect to non-deadly force? Do you agree with that proposition? We >> I do although it may be limited. So I you there are there are common law authorities for example the I think it's Reed case from Texas that talks about a scenario in which a person provokes um what they intend to be non-deadly force and then they find themselves having to defend against deadly force and commit a murder. A and the court, at least in Texas, saw because you committed the improper and immoral act of being, you know, provoking non-deadly force, it mitigates murder to manslaughter. So there is self-defense, but it's an imperfect self-defense.

So So your your view is uh that in fact you don't agree with that principle as an absolute principle of self-defense. It might be mitigating in some way. I I think I I think maybe I was unclear in the it's I think well accepted in the first aggressor context which your honor described. It is less well settled in the provocation context.

How is I mean, why isn't being a the first aggressor a very strong form of provocation? I mean, if it if I have an absolute right of self-defense, if I run up to somebody and push them, I think I've been pretty reckless with the idea that uh they might respond in a violent way that could be up to uh you know, deadly force, especially, let's say it's someone I know uh has previously had a gun. Um, and if I have an absolute right of self-defense against deadly force, that just seems incompatible with the idea that uh if I am reckless with my unjustifiable, unnecessary conduct is, you know, creates a known and substantial risk of uh uh the use of deadly force. I I would think that those principles don't can't coincide together. I all I can tell you your honor is that historically this idea of escalation in the provocation context has not been treated identically to escalation in the first aggressor context.

But from a culpability standpoint, right, I mean again in the first aggressor instance, A is causing B to use violence in self-defense, right? A uses violence, B responds with violence in self-defense. Um so to say then that um excessive force principles still apply when B responds with too

Much force and self-defense. That works over in the first aggressor context, but not in the provocator context where A hasn't used force. Right? This is separate from the first aggressor, right? And it's B that's initiating force. And to say that we don't apply that limit of excessive force in that instance, that makes zero sense to me.

From an ability standpoint, I I I don't think that's right. Only from a sort of the rules of self-defense are aligned with how people act. And so it is commonly understood that one does not act react to a shove by pulling out a gun and shooting someone and and so one accepts that the person using responsive forces acted unjustifiably. However, in the provocation context, it is not as predictable that when you are provoking someone to violence and and only intended to be a fist fight, how that person's going to respond. And so I I think it is not totally inconsistent to treat provocation uh in terms of escalation differently than first aggressor.

Purposefulness. I'm sorry, we have a lot of questions, Mr. Lers. Doesn't the purposefulness standard though um help bring a little more clarity than the a lot of the questions prompted by the panel today to you about the reckless standard? Um, and the necessity requirement that you read into that recklessness standard seems to me ripe for a lot of confusion and uneven application. You know, in a city like the District of Columbia, which you describe as an all urban jurisdiction, folks in some parts of the city may never have to worry about is it necessary for me to put myself in the path of this future. Whereas folks in other parts of the city that may be more crime-ridden will always have to worry about that, and then the jury is faced with questions um evaluating uneven circumstances, whereas a purposeful standard um I think seems to require a little more concrete showing and a little more concrete um standard for the jury to evaluate evidence regardless of the part of the city that someone might live in.

I I think that this court's cases talking about the provocation doctrine for the last 50 years bely the idea that it is prone to erroneous outcomes. I I think in each of those cases, the court may disagree with Laney, but in the cases since Laney, where the court has invoked the provocation standard a as a reason to deny self-defense, the outcome in those cases on their facts, I think uh aligned with a common sense application of who is responsible for the violence that.

What about Sams? I mean, let's assume uh because the instruction would have told the jury to convict Sam's anyway. But let's assume that I believe it was Sam's codefendant whose name escapes me, but let's assume the testimony was correct that they've got a beef with the guy and his intent in going up to the guy was to squash the beef and say, uh, you know, while he understood that guy might intend violence for him, he wanted to end it. And so he goes up and says, "Look, let's let's put this behind us." Uh, you think that person should be guilty if they then defend themselves and in response to the olive branch, the person attacks them?

I I think under the facts of Sam's, which were that he left and went to get his friends and said, "Let's go get this guy."

Right. I say, let's assume we don't believe that. Let's assume that the defense, you know, the instruction would have told the jury to convict him regardless. Right? The if you believe what all Sams did was I want to go back and uh end this fight between us that we've got. I don't want this to continue. It's the those facts. I think what we said in Sam's is yes, you're still guilty. Even if that's your intent, even if you did it in the most diplomatic way possible, uh if you had reason to think that person was going to react with violence, uh you forfeited your right to self-defense. I think I mean do you disagree that Sams says that?

Sams does say that it's the government's view that by acting recklessly to provoke this violent confrontation that led Mr. Sams seriously injured or dead. I don't remember which that could have been avoided. He could have tried to breach the peace by sending someone else. You know, I think Sams was pre-ext. He could have called the police and said this guy is threatening me. You know, ple I need an escort or we need, you know, some help to resolve this dispute. I think that Sam's is properly held culpable. But but if the court disagrees.

Can I just pause on this idea of necessity? Because one one concept I don't really got explored in the briefs is if I know somebody's out to get me, uh I'd rather see them coming. Uh which means if this person's going to attack me, I would like it to happen uh while I am prepared for it, while I am facing them. And so one good reason why you might want to go and try to squash a beef and say, "Look, this is done, right? We're we're done with this." Is because if this person's intent on attacking you, that attack might come via ambush. So why wouldn't that be viewed as a form of necessity? You know, you want you do not want people out there hunting you. Uh and so if and sometimes that outreach works. Uh people squash beefs all the time. Uh, look, let's let's put this behind us. Why isn't that a form of necessity?

I I because there are many other ways that you could attempt to squash that beef without going there in person not knowing how the person's going to.

I guess. I mean, it just seems awfully harsh that people, you know, I I I tell my kids to stand up to bullies, right? Um, and maybe you think that's bad parenting advice, uh, or bad life advice, but it hardly seems like they should be convicted murderers if the bully when confronted acts with deadly force and they manage to get the drop in them and defend themselves. I mean, it seems like I don't know. It seems like the law probably ought to say, "Well, that bully's life is forfeit. They're the one who uh promised violence. They're the one who acted with violence. Why on earth is the law going to protect them over the person who was trying to end things and stand up for themselves?" It's just and I I take it your answer is partially well you know life is really important but it seems anathema to sort of basic uh you know commitments to human autonomy and protecting uh the righteous versus the wrongdoer instead of protecting the mob and the bully instead of the righteous.

I understand your your concern, your honor. The government's view is that the recklessness standard, which is admittedly more protective of life and less protective of autonomy that has prevailed in this jurisdiction for nearly a century, is correct, it's consistent with fundamental legal principles and the court should keep it. If the court disagrees and thinks a purposeful provocation standard uh is what it should adopt, it should not adopt either Turner or PDS's deeply flawed and unsupported proposals. Turner for example takes his uh.

About conduct so that if say we adopt their because both of them are proposing amends of purpose.

But you're saying if we do that don't adopt their proposals about carving out conduct.

That's right. Okay. That's the government's view that so Turner is based in the model penal code. Um, it only applies to deadly confrontations, which we don't think is an appropriate limitation conceptually. And it adds that his um acting in a manner reasonably calculated to result in death or bodily injury, which also is not in the model penal code or from any jurisdictions uh statute that I can see.

Doesn't that reasonably calculated language perhaps go somewhere in the neighborhood of the necessity language that the government uh would favor in a recklessness standard?

I don't I it seems to add an unnecessary requirement.

An unnecessary necessity requirement.

Exactly your honor beyond the the actions of with the purpose of causing death or serious bodily injury. So the requisite men's rhea they provoke the use of force against themselves in the same encounter. So it shouldn't matter what they do to provoke that so long as they have the men's rhea and their actions actually provoke the force we think that that is sufficient and it's in line with the vast majority of jurisdictions that have adopted a provocation standard uh by code. So if you look at the the various statutes cited in PDS's brief, the vast majority of them say something along the lines of with intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person. And so it doesn't have this additional requirement that the provocative conduct which you intend to provoke um be reasonably calculated to do so. The the.

Can I ask beyond statutes? I think Mr. If I understood him correctly, I think Mr. Gandan said that in his view the reasonably calculated requirement was deeply rooted in the common law. Um, we didn't get into exactly what the basis was for that thought, but you've been focusing on statutes. Do you have a view about whether that the reasonably calculated requirement or really any of these requirements would be leaving aside how often they appear in modern statutes how deeply rooted or not they were in the common law?

I I I have trouble answering that question, your honor. The court a lot of courts will use that language reasonably calculated too, but of but they don't explain what it means and it often means the same at least as I read it the same as having the intent or purpose to provoke that a lot of these things seem to dovetail with one another similar to your question Judge Easterly about what does it mean to be wrongful conduct or unlawful conduct. A lot of the cases say that but don't really explicate it. And none so far that I read and I read a lot of old cases and it makes your head hurt. None of them said this was with the perfect purpose to provoke and reasonably calculated to provoke but was lawful. Therefore, the defendant is, you know, should have been able to claim self-defense. At least so far as I know. Um, the public defender services proposal is flawed for that reason. It also improperly carves out speech and innocent presence. I speech is really the big one. Looking through the the model penal code, the rules adopted by other jurisdictions, none of them have this speech carve out. The common law, I think, overwhelmingly said that if you act with an intent to provoke and use words to do so, that that is sufficient. The the public defender service site.

There it's a little more nuanced, right? I mean, I'm just picking one case Doris um that says at at that time in 1908 the weight of authority indicates that nearly offensive words springing naturally from the accused while engaged in a quarrel are insufficient to deprive such person of the right to self-defense right of self-defense unless accompanied by circumstances clearly showing an intent on his part to provoke some kind of an array. Um, you know, maybe they're trying to say, you know, sort of expletives tossed off um don't count, but you know, if you're really, you know, needling someone to fight you, that could be sufficient.

I So I read.

I don't know if you've seen.

I read Doris as supporting our positions are enough that if they're accompanied by circumstances showing an intent. So if you have the intent and the words, that's sufficient. And and the Doris case, your honor, I'm familiar with because the public defender service cited the RCL for the proposition that jurisdictions are split on this. Well, again, as with all treatises, you have to look at the initial the sources underlying that claim that there were four cases in that footnote. Two are from Texas which clearly it's law from the 19th century to now says that words alone may provoke a difficulty if they're clearly designed to do so. One is Doris which we think supports the idea that words alone are enough. And the fourth is a Missouri Supreme Court case that I found hard to follow. So, you know, their source maybe identifies one case at common law saying that words were not enough, whereas the overwhelming weight of authority says that it is enough. And conceptually, it makes sense. I mean, that's most often how one is going to provoke, especially in the non-homicide context. The rule of provocation is going to apply for example to domestic violence context where you know the husband provokes the wife into some sort of assaultive act so that he can slap her and and that's often going to be words because they know each other and they know how to provoke the other person into violence.

Can I ask you your your comment about es kind of escalation topics lead me to want to make sure I understand your answer to the following question which is uh assume that a purpose standard was required um and assume that these principles apply both to non-deadly force and deadly force and imagine the situation where person A has the plan of provoking somebody to non-deadly force and goes and starts in that plan by triggering conduct of some kind and he succeeds and the person may probably unlawfully attacks that person and person A then responds with some force. Um and then person B escalates by by uh bringing out uh deadly force and person B responds and ends up killing person A. Uh is it your and so I'm assuming that's sort of uh not a first aggressor so it's not I know you said that uh with respect to the escalation outside of this particular complication uh there's it works differently for the first aggressor kind of cases and for the provocation kind of cases. So, I think your answers to various questions suggest that maybe your answer is that in that setting, person A has forfeited the right to defend against deadly force, but I'm not sure that's right. So, I'm asking you uh leave aside first aggressor, but in a hypothetical where it's provocation or triggering causation or whatever you want to call it. Um, original plan was non-deadly force and the ultimate deedent responds with deadly force. Has the has person A because of that original plan forfeited any right of self-defense as against the unexpected undesired use of deadly force.

I think there's support for the idea that they have um forfeited the right of perfect self-defense uh but may have uh a claim to imperfect self-defense.

And that your position is in line with that support. In your view, the the right answer to that question is perhaps they're not guilty of murder, but they uh would be guilty of manslaughter.

Yeah, Sean. And I I think I mean Sam's had language along those lines which talked about um uh provocation serving to uh provocation meaning the person is in the wrong such that they might not be guilty of murder. I I don't remember the exact language. I think the Gunther case from Maryland supports this view as well. But it, you know, the I think it's the Reed case from Texas is the Texas law I think is the most clear on this uh mitigating murder to manslaughter as opposed to uh regaining the right to perfect self-defense. You know, and that issue of course is not an issue on these facts, nor is it something the court has to answer. We do think the court should set forth a clear provocation standard. Um.

Just just to slow down for a second though, I just want to make sure I parse that. So, if you're being in concrete terms, uh, you know, let's say that, uh, you know, I want to get into a fight with or A wants to get into a fight with B and the whole plan is, you know, pushing and shoving kind of match and completely unexpectedly to A, B pulls out a gun and starts trying to kill A. And A from that point on acts in lawful self-defense, gets the gun away, is trying to avoid it, and ends up using deadly force. You would say A is guilty of manslaughter because there was like kind of a plan to provoke somebody by having a a shoving match.

Correct. They they've acted with a guilty mental state to try to provoke this person into violence. The person responded unpredictably as one does when provoked. You know, I think again in the aggression context, typically a shoving match doesn't result in a shooting. A fist fight doesn't result in murder. Provocation is I think less predictable whether your words of using the n-word in a all black neighborhood is going to result in people beating or shooting.

What's your basis for saying provocation is less predictable? I mean, I just.

I just don't know what the basis is for that.

This law of self-defense in general talks about how a reasonable person might act and I think that is based on common human experience. We see fist fights on playgrounds amongst kids that don't result in death. We see, you know.

You're you're making a comparative of the provocation context is less predictable than the first aggressor context. I'm just I don't know what your basic.

I'm invoking sort of common sense and our own lived experience of when you again say use racial epithets to other people they're going to predict, you know, react less predictably. I would posit. I just I just don't know that it's true that if I punch someone that I can predict that you know that they should respond proportionately and if they don't they're at fault.

If I taunt someone that they're, you know, recklessly that they're if if that's where we are. Um, even purposefully if I taunt someone that they're going to react, you know, with deadly for I I just I don't know what the basis is for that. Can Can I just get back? We were talking about the various carveouts for conduct and you were saying don't impose a a carve out for mere words. Um, what about mere presence?

We think that a mere presence uh carve out is also inappropriate. Um, it is not consistent with the 100 years of quesaw in this jurisdiction which has held that presence alone is enough and that's separate from the the mental state it there is a basis as we cited in short from Louisiana and other cases that presence alone and I think conceptually it makes sense to say that if you are acting with.

You look at our cases sorry I just saying that it's consistent with our case law. Maybe had this thought. I mean, how many of our cases are actually near presence cases? Aren't a lot of our cases actual there there's conduct there? They're either first aggressor cases. I think there's some overlap. Um, or or there's language, there's words, there's there's something else. But mere presence, I I can't think of a case. Can you think of a case? I think Howard uh the farmers market case is.

What about Laney? Lane beyond.

Laney post Laneany I think Howard uh is a mere presence case in which there's a confrontation at the farmers market to the two defendants leave arm themselves and go to the house of the person people had the confrontation I I don't know that there were words or anything else spoken and that people living at the house saw them coming.

And what do we do then? I mean, that so that's mere presence armed and and are possible mere presence armed for self-defense. Um, it seems like the Supreme Court cases from the late 19th century say that's okay and that's not pro provocation.

I don't think that's what they say. I I think they what they say is you cannot infer a purpose to provoke from the mere act of arming oneself in self-defense.

Can can I ask can I ask about Laney because this I mean this kind of drives the point home strongest for me. Let's say um that Laney did purposefully by setting himself in front of a lynch mob um sort of his his intent was one of them might shoot at him or attack him so he could strike them down. And let's say Lane's thought process was this uh this is a lynch mob on the streets of DC. They are going to kill and maim every black man they find unless somebody puts a stop to that. So, I'm gonna be that somebody and I'm gonna walk out there and if they take if that's what they're going to do, if they're going to attack black men, uh I'm going to face them and if they attack me, uh I'm going to shoot one dead and I'm going to put an end to this lynch mob. Um, so, let's take those facts. It again strikes me as somewhat perverse to say the law is interested in protecting that lynch mob uh and in making Mr. Laney a murderer for what is ultimately an act that you think you know if my mere presence is so upsetting to somebody that they're going to visit deadly force upon me even if I know that that's their bad that's not my bad uh that's somebody who the law doesn't need to be protecting uh and I don't I just, you know, this might be but in in that example you think Laney would have forfeited under under if he purpose his purpose was to instigate the lynch mob as a black man might suspect his presence might uh when a lynch mob is marching up the street especially given their previous encounter uh then he had no right of self-defense I is that right that is your position.

Yes, if if he's doing it to protect other people then defense of a third party comes into play.

And I want to be imminent so.

I I would agree with that but I I think you know that's you're not protecting the lynch mob are protecting life both the lynch mob and the person who's intending to provoke because by by you are the law is trying to get that encounter not to occur to begin with with unknown consequences. It doesn't you don't know who's going to die in that encounter or what innocent civilians might get shot especially in today's day of high-powered firearms. And so the the purposeful provocation standard even through mere presence isn't just protective of the two individuals, it's also protective of all of the innocent citizens around them. And I think the more realistic scenario with in DC is your crew on crew violence where they know each other and they have a longgoing feud and they know that they're going to shoot at each other. And one crew goes into the other crew's neighborhood with the intent of, hey, they see us, they're going to shoot at us, and we're going to shoot back and kill them. And that's a a mere presence which we think is properly um rendered culpable under the provocation standard so that they can't claim self-defense to prevent them from doing that you know unnecessarily provocative thing.

But the DC the DC council is aware of these circumstances and they don't have the same policy outlook um that you do about protecting life. They've voted to um to go along with a a different standard.

So I I have two responses to that Yonor. The first is Congress has plenary authority over the district and Congress rejected this. So So I I think there's not a lot you can take from the ultimate outcome other than it's not the law. Second.

But what but when you're talking about it, it it really sounds like you're being the legislature. You know, we're trying to protect life. This is what's important here. I don't know that you're getting that from Congress. I I don't think you're getting it from the council either who enacted this provision as part of a huge comprehensive reform without any discussion of it. It's not to say that they they thought about it at all.

Well, they accept they voted on it and adopted it.

They adopted all of the revised crumb code. But I also point out again this the standard.

Don't don't we assume that legislators approve of what they're voting on? I I mean that just seems.

Congress disapproved of it and so they.

But we know why Congress disapproved of it, right? There was a public debate about why Congress rejected the RCCA and had nothing to do with the provocation doctrine.

Then equally we don't know why the Cong why DCCA adopted it with no discussion whatsoever. But but ultimately it is out of step with basically what has been codified by every other jurisdiction. The model penal. I mean, it if if this court is concerned that the recklessness standard is an outlier among jurisdictions, the proposal by PDS is equally if not more an outlier in so far as it requires the conduct to be unlawful and carves out speech and again even those other.

Talking about the near presence though.

Did you mean to say I'm sorry Mr. that the purposeful standard is if adopted would be in some form in DC would be out of step with other jurisdiction.

Not the men's ray, your honor, not purposeful, but the carveouts for unlawful conduct, speech and presence don't exist in the I I I tried to look at every code section that PDSI in its brief. I didn't look at every case interpreting it, but at least the law as enacted, I did not see any carveouts for speech or presence or unlawful conduct. The model penal code doesn't have them. You know, most often they say something along the lines of um the Alabama criminal code um which is with intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such person. The reckless stand recklessness standard either the one in the jury's instruction or one with any uh tweaks that might be proposed otherwise in your view need to in uh exclude the same carveouts.

No your honor we we don't think those carveouts are appropriate. We we think that if a person acts with the intention of provoking a violent response um and then does something whether it's words going into the person's vicinity or taking an act that they're appropriately help uh liable for the in series you cannot claim self-defense.

Council, your brief mentioned briefly um a gross reckless recklessness standard. I think you were posing it as a potential alternative if the court didn't agree with your recklessness position. Can you expand a little bit on what the difference is but practically between gross recklessness standard and a recklessness standard on the one hand and a purpose standard on the other hand?

I so we posited gross recklessness because that is the mental state required to prove seconddegree murder and so at least in the homicide context it would be consistent I think to say if you provoke violence provoke a a violent response with gross recklessness that you have the same mental state it maps onto the mental state for seconddegree murder. I think the difference between recklessness and gross recligence is the nature of the risk. Um, if I recall correctly, um, and we did posit that as a potential alternative that we think would be sort of conceptually consistent. A another alternative that at least one state has adopted is a knowledge requirement. Montana says purposefully or knowingly. And that also.

Is that by statute?

That's by statute. Yes, your honor. And that knowingly also makes sense because you may well know that your act is going to provoke a violent response. Uh, and we think that criminal law would properly hold you liable for knowingly provoking that even though you didn't actually want it to happen. It wasn't your intent. You didn't want the person to shoot at you, but you knew they were going to. Um, and then the violent response that ensues we think is culpable and that you the blame is laid at probably laid at the feet of the person you acted knowing.

Can I just ask Oh, I'm sorry. Uh about the outcome of this case and you know this is completely hypothetical. Um, but say the court were to uh say there is a purpose requirement um and and we're not going to talk about conduct limitations. Somehow we duck that issue. Um.

Do you think um it's hard to see that the instruction as given would be harmless? I mean, the government pretty much hung its hat on the instruction is given, but there's a sufficiency claim here. Can you give me your best argument as to why you think the evidence um supported an instruction on provocation if there's a purpose standard?

Yes, your honor. And and if I could just say one sentence about harmlessness.

Absolutely.

Uh the defendant was not convicted of murder. He was. And so there is a harmlessness argument which is that the jury didn't reject his self-defense claim outright and find provocation. That it simply found imperfect self-defense, which is sort of the most likely outcome on these facts rather than some sort of um provocation sufficient to mitigate manslaughter uh murder to manslaughter. It's more likely that they found imperfect self-defense, which means that uh the forfeite of self-defense didn't come into play. But in terms of why the evidence would be sufficient, you you had three confrontations.

And specifically to give a provocation.

To give a a purposeful provocation. Yeah. Instruction, you had a series of three escalating incidents after the during the first of which Jamy the victim said, "You better smoke me." And Turner said, "It's a bet." He then walked back to his car where presumably his firearm was located. There was testimony about the size of the bullets being too big to fit in a pistol that would fit in Jany's pocket. I mean, it was effectively a Draco, a a small assault rifle uh bullet. Uh Turner goes to his car where his gun is, drives back as he clutch down.

You omitted one thing that uh there was at least some evidence of and some discussion of in your opponent's argu during your opponent's argument, which was the testimony about a statement about uh when I come back, I'm going to kill you. Do you have a position about whether, as your opponent argued, that's just uh inconsistent with incontrovertible evidence and therefore shouldn't be considered by this court in answering the question?

I I I don't think that that's right. I I think the court should consider the threat that Brady testified to. Brady and the other um civilian witness both testified consistently that the angry guy who was walking away did things, and that was Turner. He was angry throughout this and was walking away to get his car and and Brady testified that the man walking away was yelling at the other guy saying when I come back I'm going to kill you.

And the response to that is I know. But when you watch the videotape, the person who says I know is Mr. Turner. So, it makes it seem like the person who said, "When you come back, I'm gonna kill you," was actually the deedent.

Given the testimony, I I don't think it's impossible that the person who said, "When I come back, I'm going to kill you was Turner." And and thus, I think the court in terms of sufficiency.

He's just talking to himself. He says the whole thing.

I I I mean, I I am not going to sit here and parse the video. I I I think it's on these on these facts given the evidence that came in, you know, plausible that Turner said.

"Do you disagree that you can hear I know on the videotape or."

I haven't listened to the video, your honor. I'm sorry.

Okay. That that there's a lot of record evidence.

There's a there's a lot going on in this case and I didn't know that sufficiency would be a big part of the argument. Um, but then so Turner goes to his bar where he gets his gun. There's a second confrontation.

Sorry, just to pin you on that. Is there testimony? Is there actual evidence that the gun is in the car or that's the inference that the gun is in the car?

The inference is that the gun is in the car given the size of the bullets, meaning what the size of the gun would be, which there was testimony about um and the fact that you know this when um you better smoke me and when I come back I'm going to kill you suggests he didn't have a gun at the time. So Turner goes to his car, there's a second confrontation in which he wields the gun. Um, and then there's this third confrontation in which instead of driving through the intersection, Turner stops at JF's car, has another verbal confrontation with him and then doesn't leave, but stops his.

Gun displayed at the third incident.

I'm sorry.

Is the gun displayed.

At the second when they both walk away.

When they both drive off. Yeah. Right.

They drive off. But it it's circumstantial evidence of his intent during the third.

I'm just thinking about this sort of withdrawal. Like they keep coming together, yelling at each other, and walking away.

Um I I think all of these circumstances are relevant to the juries inferring what Turner's intent was. I mean, that's what we argue in cases all the time. It's what jurors do all the time is they look at all of the circumstances to figure out what was this person thinking because there's generally no direct evidence. And so we think that these previous incidents of, you know, threatening conduct where Turner has a firearm during the second one are evidence of his intent to provoke from which a rational jury could find a purpose to provoke. Especially when during the third incident, even if Turner didn't know Gy was going to be there, he didn't stop uh or he didn't continue on. He stopped next to Jy's car and then when he drove off again didn't uh didn't drive off but stopped in the middle of the intersection to have this.

And again just to pinpoint you there when he um drives off at what point does Mr. Jamy get out of his car to chase after the car. So, there's uh there was testimony that when Turner parked next to Jamby's car, JY came around behind Turner's SUV and Turner drove off into the intersection and then Jamie ran at him.

But Turner stopped.

It sounds an awful lot like Mr. Turner's trying to get away from Mr. Jy.

If if Turner wanted to get away, he could have just driven straight or made the turn and kept driving. He there was no circumstance under which he had to stop. But again, this is about sufficiency of the evidence and what a reasonable jury could infer from the evidence. And then there's.

Well, we're just talking about whether provocation instruction could even go to a jury.

Correct.

Yeah.

And and I think you have to view the evidence in the light most favorable to the government under those circumstances. I I don't think the defense disputes that that you have to look at all these factors in a light most favorable to could the jury have found provocation. So in light most favorable to the government. Um, Turner was appears to have been ready with a firearm. Giani is shot almost immediately upon opening the door. And then afterwards, Turner doesn't act like someone who just accidentally killed his cousin who was like his brother. He he doesn't say, "Oh my god, I didn't mean to do that." He doesn't tell He's on the phone with his friend. He doesn't even mention that he just murdered his cousin with whom he was intending to move in when they go off to dinner. And then on jail calls he denies that it was self-defense uh repeatedly. So we think under those circumstances a a jury could rationally find the purpose to provoke um such that it it would have been it would be proper to give that instruction.

So council while you're talking about inferences I want to pull you back to the 10,000 foot level again. Um I I wanted to hear your answer because I asked your your opposing colleagues this uh before. I was having trouble particularly with the idea of gross recklessness and purposefulness of understanding that where the difference was more than semantics. Would it be your position that if there was gross recklessness in a scenario whether this one or others that would necessarily um lead to the possibility of an inference of purposefulness or allow a jury to infer purposefulness from I I I'd have to think about I don't know if every circumstance under which grossly reckless behavior allows it inference of purpose. I think the answer is probably not. I think there are probably lots of circumstances um at least posed by the hypotheticals in in which um it would be improper for a jury to infer purpose notwithstanding the its ability to find gross recklessness. But that's not something I've thought about. Is there anything else on sufficiency that you would want to say that you feel like you didn't have the opportunity to prepare?

I I don't think so, your honor. I mean, the this idea about what the video said and who's saying what, I don't understand to have been raised in his opening brief. When I we read it sitting there, I didn't see anything about a claim that it was in fact Turner who said, uh, when I come back, I'm going to kill you. But again, you you this is an evidentiary determination for the jury, not you know, a relitigation of the circumstances below for this court.

I mean, it would be sort of funny to go to somebody in so if if the cir if the sequence of events is uh Mr. Gi says more or less, you better kill me or I'm going to kill you first. Uh and the response is that's a deal. Um, I'll kill you first. I mean, in what sense could that be evidence that he had a purpose to go Mr. Jiani into deadly violence? Mr. Jumpy has already stated his intention to engage in deadly violence. It sounds I mean, it sounds most naturally to me, and I I understand it might be a jury question, but it sounds like take your shot. Uh, but I'm going to win if that's what you want to do. Not that's what I want to do. It sounds like you you are the one who is proposing a violent confrontation. Um, okay. If that's how you want it to go, I'm telling you, I'm going to get the drop on you. Uh, it doesn't sound like he's trying to go to you can't go somebody into something that they were already intent on doing, right?

I mean, I think that the question is whether when Turner stopped at the intersection on the third time, he had a purpose to provoke Jamie to violence. And knowing that um that JY has already proposed violence and that Turner is now armed, I think the jury could infer that his purpose in doing that and not leaving the scene, not, you know, continuing straight, not turning, but stopping, you know, stopping at Champy's car and then stopping again.

Did the government impe I'm I'm just curious if it was in if there was sort of an attack on the testimony that what Mr. Turner said in that moment is why don't you just go home? Um, did the government try to cast doubt on that? I mean, that that doesn't sound like a purpose to go.

Sounds like a purpose to defay. Uh, but maybe you said, "Oh, that's just one witness and they they're being self-interested or something." I don't know.

I I I don't know that I don't know the circumstances of whether the government attacked that that statement.

I don't either.

Um, thank you, M. Um, Mr. Lers.

Thank you.

Appreciate your argument. Um, rebuttal, Mr. Clark. So I think just a few things uh based upon the actual questions that you just had here. It is clear well the instructions as they were read to the jury permitted the jury to believe that Mr. Turner simply could not be anywhere in his neighborhood. And at trial, the parties thought that the issue was more about whether or not um Mr. Turner had some idea that Mr. Jumpy would be waiting for him at that intersection if he went there. Um knowing that, you know, his presence would therefore be able to create trouble. Uh but the instruction permitted the jury to actually find it in a completely different way. And they concluded that Mr. um Turner could not claim self-defense because he was in that neighborhood because he was in an area where Jumpy would possibly know to look for him.

Why do you say that the jury concluded that? I I myself don't really know why the jury reached the verdict it did. So, do you think it's somehow clear that the jury relied on the provocation concept rather than other concepts that might have got them to his verdict to their verdict or.

I I mean the basis is I wouldn't I talked to the jury but um I know that the court can't really give that evidentary weight but it certainly is a possible interpretation of the instructions and what it really highlights is is that as long as that is something that a jury could do um That shows why this instruction is so problematic and so biased because.

I mean, that wasn't the universe of the evidence. It wasn't I mean the government's theory was not based purely on the fact that Mr. Turner returned to the area. It was also that he pulled up next to Mr. Grey's car then peeled away and then stopped.

There. That is the more specific um argument that the the government made. That the government's um closing argument and their rebuttal and closing argument is largely determined upon Mr. Turner making poor choices about remaining in the neighborhood about going down the street and they do argue that he has some reason to believe that maybe Mr. Jy is still in the area and that alone should not be enough to result in somebody forfeiting um self.

One thing Mr. Ler says, which I think is quite interesting. I haven't given it enough thought, is really the best way to understand the jury verdict. Um, were they acquitted of murder and convicted of voluntary manslaughter is probably not that they relied on this sort of lanyard concept in reaching that verdict, but instead on a excessive force. You know, that maybe uh maybe you were in maybe Mr. Turner was in reasonable fear of serious bodily harm, but he acted uh with deadly force when he didn't need to. Uh what's what's seems like a pretty good argument. Why do you think that's not the best interpretation of the jury's verdict? Or one pretty plausible one?

I I I don't think it's plausible and maybe I'm biased on this. Um I I think that if we look at it um objectively, it cannot be the case that somebody in Mr. Turner's position being assaulted in the way that he was at that intersection, um having a man who almost double his size, almost double his weight, extremely um just dwarfs him in every manner, has now ripped open the door and is inside on top of Mr. Turner assaulting him and Mr. Cooper tells us that you know he sees the struggle and that Mr. Jumpy is assaulting him at that point and it cannot be that he does not have a reasonable apprehension of at least at minimum significant bodily harm at that point. Um and so I just don't think that it is possible that the use of force, the amount of force is the primary issue here.

So, do you mean you uh you think that it was would be error for the jury to have been instructed on excessive force then because this is a matter of law this was reasonable force?

I mean, I don't know about air that they would usually be instructed in that way but I do think that as a matter of law it was not excessive force.

Did the government argue um in rebuttal excessive force? I don't remember that argument. They had one.

They argued provocation.

They argued provocation. That was.

And then they said the other way it works is in looking at the actual self-defense instruction and argued.

He wasn't scared.

Their argument was that Mr. Turner basically shouldn't have been afraid of his cousin. That because they were brotherly because they were so close that Mr. Turner essentially shouldn't have feared him because he was family. And I think that that this court is well aware that there's plenty of cases where you have every reason to fe fear a family member and that just because they're family doesn't mean that they don't mean you some sort of significant bodily harm. That was the basis of their argument as to why he couldn't reasonably apprehend fear at that point. Uh was just because they knew each other, right? I think because they knew each other, he did reasonably apprehend his fear. Maybe I missed it in your briefing, but the government brought up here and brought up in its briefing that um the at least two prison phone calls where Mr. Turner disclaimed self-defense. He he hid himself. Um if I missed it, I apologize, but what what was your response to that and how we should consider it in any way?

So I think maybe because of Laney, but for the last hundred years there is a I I a strong belief.

In the community that there is no such thing as self-defense in the District of Columbia. Um, and I think that every defense attorney in town who's been doing this for a while has heard their clients explain to them that there's no such thing as self-defense in the District of Columbia. Um, Mr. Turner does not say that he did not act in self-defense. What he says was self-defense? No, this isn't that kind of a town. You don't get a you don't get that in DC. And I'm paraphrasing here. Um, and he is not making a statement about his mental state at the time. He doesn't say like, "Oh, well, I wasn't afraid." Um, the other thing is the context.

>> I thought he said he shot himself.

>> Yes, he does. He does say, um, additionally, well, the man, the man shot himself. Um, the context of this call is that this is not immediately after the incident. This is 19 days later. He has just been arrested and he is on the phone with his mother. I mean, this is another family member. And I would give you that Mr. Turner has has an ego that he wants to come off as some sort of away. And he is talking to his mother explaining how he and his cousin got into it and his cousin ended up dead. And so it is not, it is not a confession that it was not self-defense. It, it is merely a man talking to his mother who does not believe that he's going to be able to claim self-defense in the District of Columbia. Um, and if there's nothing further, would my brief ask the court to reverse?

>> Thank you.

>> Thank you.

>> I think we did ask you, I'm sorry. You, you said reverse instead of remand, and I think we discussed that.

>> That would be my, I, I do believe that, um, without provocation instruction, the evidence here never would have, um, sufficed. The jud, the jury could not have actually convicted him. So I would ask this court to reverse.

>> And that's on all counts, including the felony and possession count in your view?

>> I would, I admittedly the felony and possession count is a little bit of a different animal. Um, I've made those arguments in my brief, and if you have any additional questions, I'd answer them.

>> Right. Thank you.

>> Thank you.

>> Right. Mr. Conan. Thank you. I have uh four brief points and then just a final uh broader point, but it'll also be quick. And and I can confirm what Mr. Clark said about the common conception that there's no self-defense as a matter of law in DC. That is, a lot of people believe that.

>> Um, okay, so Mr. Loners, I believe agreed that the reasonably calculated construct is deeply rooted in the common law. Um, but I think he said it's unclear what that means, but it is clear that it is an objective standard. We cited cases on our reply brief that talk about that. Um, it's essentially equivalent to would be provocative to a reasonable person under the circumstances. Uh, the second point, and I know,

>> why wouldn't we want that that, um, carves out, I'm getting my carveouts and my addins mixed up,

>> but, um, that exclude excludes provocation of like the eggshell complainant, right? You know, I know Judge Deal gets really, really irritated when I, you know, sip my water loudly, and I just continue to do it next to him. Um, until I provoke him into punching me. Um, you know, why, why would that be okay? Why would that be non-culpable if he has this sort of unreasonable sensitivity that I exploit?

>> I think for the same reasons it's, it wouldn't be culpable in the context of threats or assaults or robbery statutes that, um, there's some sort of objective standard that comes in. It's not just all about you take the, you take people as you find them. That if it's not provocative to a reasonable person, it doesn't matter that you have an unusually, uh, fearful or an unusually brave person, or you know, an unusually, uh, calm or an unusually violent person. If you have an unusually violent person, you should be able to defend yourself when they react unreasonably to slight or trivial provocation. And that is the common law standard. Um,

>> it's how they react. It's not what the sensitivity is. I guess.

>> Whether their reaction is, you know, reasonleness, proportionality, these are very important concepts in self-defense and in criminal law more broadly. Um, so it's not a surprise to find it in this context. And again, as I said, it is, I think, undisputedly something that is deeply rooted in the common law. Um, second point, I know we covered this a lot, but just to reiterate, our position is that the common law is split on whether words could be provocation in both mitigation context and forfeite contexts. Our position is that this jurisdiction has taken a side in that split. And at least in a case where, um, that doesn't involve, uh, provocation by words, this is the case of the provocative u, but not really anything about provocative words, that there's no cause to revisit that issue or revisit that, you know, decision to to say mere words are never reasonably provocative. Um, the third point is I do want to say that the common law was definitely clear on the notion that presence alone could never be reasonably provocative.

>> Can I ask you about that? I, I definitely find cases that say that, but are there cases that say that presence alone is not enough? There's an ambiguity what alone means because if you mean presence,

>> alone, are you excluding a culpable mental state or what are you including?

>> Cases that will say presence alone is not enough even if it is accompanied by, you know, an evil plan to go.

>> Absolutely. Many, many cases say that and I think State v. Short, which are the government sites, is one of those cases. Remember that's the case I talked about earlier where they reversed saying you didn't really make it clear enough to the jury that you have to have more than a purpose to provoke. You have to have some provocative act. And then on the retrial it came up again and the court said, well, under the peculiar circumstances of this case where you expressly were offered a peaceful resolution and you affirmatively said, I don't want a peaceful resolution. Your presence under those circumstances was reasonably provocative, uh, in that unusual scenario. And I mean, uh, you think the idea that st, it is deeply rooted in the common law cases that make clear that they're not speaking generally about presence alone is not enough, but they're saying presence alone, even where accompanied by a plan to go, because I, I can't say I, I was able to find that as deeply rooted the common law, but

>> they're, they're cited those cases are cited in our, uh, I think both our briefs. I certainly saw some cases that say that. I guess it's a question of what deeply,

>> rooted. I guess there's no cases that say the contrary. Um, now I, I do want to say, you know, Mr. Ler's talked about there are some modern statutes and they don't have a speech or presence carve out, but I think it's pretty clear if you look at, uh, the modern case law that courts interpret the word provoke to be some kind of, right? Those statutes say you have to intentionally provoke someone. So the, the provoke, it's not like you have to intentionally want to be attacked and defend yourself. You have to provoke, and courts have interpreted pro provocation to have this, uh, affirmative unlawful act requirement. For example, State v. Riley is an Oregon Supreme Court case that we cited in our brief. They have a modern statute that codifies provocation, and they have in Riley, they said words are never going to be reasonably provocative conduct. Uh, Texas also has a, a codified self-defense statute, and they, in a case called Alzando, that we cite in our brief, they affirm say the statute did not displace the existing common law of what constitutes provocation. Um, uh, Mr. Lenirez did mention Montana. They do have intentional, that's the only state statute that has this knowingly standard. I just wanted to flag that their statute, um, if you knowingly provoke violence, it triggers a duty to retreat in deadly force cases. It does not forfeit self-defense by itself. Um, and the final sort of broader point I wanted to make is that the court has very two powerful forces on either side of it. There's the common law in which these principles that we're advocating for were deeply rooted brackets around the speech issue. Um, and it has the DC Council's view in the Revised Criminal Code Act of 2022. And for this court to depart from deeply rooted common law principles and adopt a standard that is different from the standard that the legislature itself adopted would be unprecedented. And the court would be essentially substituting its own judgment for the views of the elected representatives of people of the District of Columbia. And Congress did disapprove that law. But I have been through, uh, the congressional record and all of the public statements, and I can confirm that not a single person ever took any issue with any aspect of that law other than the three things, uh, change to the, uh, certain penalties, increased second look, and, uh, increase in jury trial rights. Those were the only issues anybody took with the, uh, with that bill in any public statement. And to the extent we don't know what Congress's, uh, intent was, well, we do because when Congress passed the 1901 DC code, it incorporated of an existing common law. So, uh, I would urge this court to follow the lead of Judge Schwel in his opinion in Little, which is where the court refused to change the common law.

>> But wouldn't the then existing common law have been Laney?

>> No, because Laney postates the the, uh, adoption, Congress's enactment of the DC code. So Laney was, depending on how you read it, a departure from settled common law principles. Uh, you know, I actually don't read it that way. I read it as as misapplication of settled common law principles. Um, but certainly it was not something Congress had in mind when they passed the code in 1901 because Laney came out in 1923. Um, so, you know, Judge Schwel said, even assuming in Little, Judge Schweld wrote, even assuming this court has some power to broaden the scope of criminal laws beyond what Congress enacted, it should do so with restraint, lest we intrude upon the prerogatives of the legislative branch and the liberty liberties of the citizen, sharing the Supreme Court's instinctive distaste against men and women languishing in prison. Unless the lawmaker has clearly said they should, we conclude that the legislature and not the court should decide whether the common law rule, which is by no means a capricious obstacle to a prosecution, should be retained or revised. That was a case where the, the legislature was silent on this issue. The legislature has not been silent. The council unanimously passed the standard that we are asking for. The mayor agreed, even though she vetoed the bill, she proposed her own version of the bill that had that standard. So the elected representatives of the people of the District of Columbia have spoken, and this court should not be in a position to, uh, adopt a standard contrary to that one.

>> Uh, we don't buy that argument about the the law that the council attempted to enact. Yes. But is not the law right now.

>> It's definitely not the law. Um, if we don't buy that argument, then what other basis do we have for overruling or setting aside Laney? Uh, the common law, Supreme Court precedent, the weight of modern authority, but I'm, I'm not suggesting the court has to do what the council did as a matter of legal obligation. What I'm suggesting is a matter of judicial restraint. It would be extraordinary and I think unprecedented for any court, probably anywhere in the country, to say as a matter of judicial lawmaking, we are going to adopt a standard that is directly contrary to the standard that our own, you know, state legislature adopted, uh, just a few years ago, uh, and that didn't become law for sort of unrelated political reasons. That I think would be unprecedented and be an improper use of whatever, you know, judicial power.

>> The country ever wrapped in that same scenario?

>> I'm sorry.

>> Could any other court in the country ever end up in that same scenario? I mean, I, I get the appeal of what you're saying, but we've got a Home Rule Act and we've got our own role. Yeah.

>> In the charter and whatnot, and Congress has its role. So, I get the persuasive authority of it, but this seems to lean a little hard. And it seems like I could equally, for taking a devil's advocate position, say, "Oh, well, we basically be invalidating a a rule from the Home Rule Act to go your way there when it didn't become law."

>> Well, again, we're not asking the court to change the law. We're asking the court to follow the common law rule, which happens to be pretty close to, if not exactly the same as what the council enacted. So that's why I said they're these two powerful forces, and they both point in the same direction.

>> Do they with respect to your suggestion that the concept of unlawful conduct be, uh, a limitation?

>> I think that comes from the common law. I acknowledge it's not expressly mentioned in the RCCA. So if I mean, if the court wants to get rid of that aspect of it because the, um,

>> where the two forces point in different directions, which do you think is a strong should be a strong influence on our thinking?

>> The, the common law because that, the in our view.

>> And you think the requirement of unlawful conduct is deeply rooted in the common law as well.

>> Yes. And if you were going to say what the common law's deeply rooted concept of that means, what would you best point us to some explanation in the common law of what that what that means?

>> Well, that's, I mean, there are, there are many cases, right? I think I think it's in some sense it's a numbers game, right? Because if you don't have, there's not like one person who like defines the common law, but if you look at all the treatises, if you look at all the the cases, which is what the court did in, um, Little, right? There wasn't a specific DC or Supreme Court case that said, here's what accessory after the fact is. So they look at treatises and they looked at cases and said, this is the common law. Um, so when there is a clear common law rule that's, uh, you know, espoused in in many cases and many, many treatises and nobody's really saying, actually, that's not the rule or, um, you know, that is the common law rule that is presump.

>> To clarify my question, I was, do you think we can find in the common law a good explanation of what that means other than the word itself? Is there some place you would say, yes, here's where, you know, here's a treatise or a common law decision that will tell you what that means?

>> What, the word unlawful means?

>> Yes, in that setting, like what, what, uh, how to understand that term.

>> I mean, I think it probably means a violation of law. I don't know if it means a violation of criminal law, but.

>> And you're telling me what you infer it means. I was just, my exact question was, do you think there's a place of law or a treatise that explains what?

>> I don't think there's a specific. So I, I would acknowledge that the court can decide what it thinks unlawful means, if, if I'm right about that.

>> Thank you. Um, but unless the court has any further questions, um, I agree that the case should be reversed.

>> Right. Thank you. Um, the court wishes to thank, um, counsel and Amici for your excellent briefs and arguments in this matter today, and we will take the case under advisement. Um, thank you. This honorable court is adjourned, sir.