BERNARD J. FLEMING, APPELLANT, v. UNITED STATES, APPELLEE.
No. 14-CF-1074
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided January 30, 2020
Appeal from the Superior Court of the District of Columbia (CF1-1328-14) (Hon. Robert E. Morin, Trial Judge)
Argued En Banc January 11, 2018
Peter H. Meyers for appellant.
Nicholas P. Coleman, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, S. Vinet Bryant, and Kathryn L. Rakoczy, Assistant United States Attorneys, were on the brief, for appellee.
Daniel Gonen, with whom Samia Fam, Alice Wang, and Joshua Deahl were on the brief, for Public Defender Service, amicus curiae.
Mark S. Davies was on the brief for Deonte J. Bryant, amicus curiae.
Jessica Ring Amunson and Michael E. Stewart were on the brief for Terrance M. Bush, amicus curiae.
Opinion for the court by Associate Judge MCLEESE, joined by BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN, FISHER, and THOMPSON, Associate Judges.
Concurring opinion by Associate Judge FISHER, joined by Associate Judge THOMPSON, at page 38.
Opinion concurring in the judgment by Associate Judge EASTERLY, joined by Associate Judge BECKWITH, at page 42.
MCLEESE, Associate Judge: Appellant Bernard Fleming challenges his conviction for second-degree murder while armed, arguing that the jury was erroneously instructed about how to determine whether Mr. Fleming and his codefendant were responsible for causing the death at issue. In instructing the jury, the trial court in this case relied on this court‘s decision in Roy v. United States, 871 A.2d 498 (D.C. 2005), which addressed the issue of homicide causation in the context of a “gun battle,” id. at 505-09. A division of the court affirmed Mr. Fleming‘s conviction, Fleming v. United States, 148 A.3d 1175 (D.C. 2016), but the full court decided to reconsider Roy in light of the Supreme Court‘s subsequent decision in Burrage v. United States, 571 U.S. 204 (2014). Fleming v. United States, 164 A.3d 72 (D.C. 2017). In light of Burrage, we hold that the instructions given in Roy and in this case did not adequately convey to the jury the requirement that -- possibly barring unusual circumstances not present in this case -- a defendant cannot be held to have personally caused a death unless an action by the defendant is a but-
I.
The opinion for the division described the evidence at trial, Fleming, 148 A.3d at 1178-79, and we borrow freely from that description here. Michael Jones was shot and killed during a gunfight. The shooting was the culmination of events that began with a confrontation earlier the same evening between Mr. Fleming and Michael Jones‘s brother, Maurice Jones. Id. at 1178. (To avoid confusion we occasionally refer to Michael and Maurice Jones using their first names.)
On the evening at issue, Maurice left his apartment to walk to a nearby store. On the way there, Maurice encountered Mr. Fleming, who was with two other men. Mr. Fleming taunted Maurice and struck him on the chin. Being outnumbered, Maurice retreated to his apartment. Fleming, 148 A.3d at 1178.
Not long afterward, Michael and Mr. Cunningham arrived at Maurice‘s apartment, together with a friend of Michael‘s named James Hamlin. The four men then left on foot to look for Mr. Fleming. About a block away, Maurice spotted Mr. Peoples rapidly descending the exterior stairway of the Lincoln Tower apartment building. Maurice called to Mr. Peoples, but Mr. Peoples ignored Maurice and crossed the street to join Mr. McMillan. Moments later, according to Maurice, Mr. Peoples turned and began shooting at him and his three companions as they arrived at Lincoln Tower. Fleming, 148 A.3d at 1178-79.
Other shell casings recovered from the scene indicated that shots also were fired from a second-floor balcony of Lincoln Tower. Video-surveillance footage from inside Lincoln Tower shows Mr. Fleming on that balcony during the shooting. The surveillance footage also appears to show Mr. Fleming retrieving what could have been a weapon from inside the building and bringing it to the balcony just before the shooting started. Footage from just after the shooting apparently shows Mr. Fleming hurrying to the sixth floor and meeting with Mr. Peoples. Mr. Peoples appears to receive something from Mr. Fleming that Mr. Peoples then stashes in a stairwell. The police recovered firearms from that location. Relying on this evidence, the United States contended at trial that Mr. Fleming armed himself after seeing Maurice and company arrive at Lincoln Tower, shot at them from the balcony, and then, after Michael was down and the battle ended, handed his gun to Mr. Peoples, who hid it in the stairwell. Fleming, 148 A.3d at 1179.
II.
The United States presented three distinct theories of Mr. Fleming‘s liability at trial. First, if Mr. Fleming fired the fatal bullet, then he could be found guilty as a principal. Second, if Mr. Peoples fired the fatal bullet, then Mr. Fleming could be found guilty as an aider and abettor. But the evidence left open a third scenario: that Mr. Hamlin inadvertently shot Michael. The United States conceded at trial that Mr. Fleming could not be considered as having aided and abetted Mr. Hamlin, and we therefore have no occasion to address that issue. Rather, to address the possibility that Mr. Hamlin shot Michael, the United States relied on a causation theory. The second-degree-murder instruction required that the jury find that the defendant “caused the death of Michael Jones” and that, “at the time he did so,” the defendant “intended to kill or seriously injure” or “acted in conscious disregard of an extreme risk of death or serious bodily injury.” The jury was further instructed that “[a] person causes the death of another person if his conduct is a substantial factor in bringing about the death and if it was reasonably foreseeable that death or serious
Mr. Fleming, supported by several amici, raises a number of objections to the causation instructions in this case. In opposing the petition for rehearing en banc and in its brief to the en banc court, the United States contends that Mr. Fleming did not properly preserve one of those objections in briefing before the division: the argument that the court should overrule Roy. We are not persuaded by the United States‘s contention. A division of the court cannot overrule a prior decision of the court. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). It is difficult to see why a litigant should be required to present an argument to a division of the court that the division of the court would be required to reject. Cf. District of Columbia Hous. Auth. v. District of Columbia Office of Human Rights, 881 A.2d 600, 613 n.18 (D.C.
In this opinion, we address issues of law that we decide de novo: how to interpret the second-degree-murder statute and whether the instructions to the jury in this case adequately communicated the applicable legal principles. See, e.g., Briscoe v. United States, 181 A.3d 651, 655 (D.C. 2018) (“Our review of questions of statutory interpretation is de novo.“); Buskey v. United States, 148 A.3d 1193, 1205 (D.C. 2016) (court reviews de novo whether instruction correctly stated elements of theory of liability). The United States appears to suggest that we should review only for abuse of discretion when assessing the adequacy of the instructions
III.
The second-degree-murder statute, which was enacted by Congress in 1901, makes it a crime to “kill[] another” “with malice aforethought.”
In stating the elements of murder, this court has frequently expressed the requirement that the defendant have “kill[ed] another” as a requirement that the defendant have “caused the death of” another. See, e.g., Williams v. United States, 52 A.3d 25, 31 (D.C. 2012) (elements of second-degree murder include that defendant “caused the death of the victim“); Robinson v. United States, 946 A.2d 334, 339 (D.C. 2008) (same as to first-degree felony murder); Williams v. United States, 858 A.2d 984, 1001 (D.C. 2004) (same as to first-degree premeditated murder). That approach is consistent with standard common-language and legal definitions of the word “kill.” See, e.g., Webster‘s Third New International Dictionary 1242 (2002) (first definition of “kill” is “to deprive of life : put to death : cause the death of“); Black‘s Law Dictionary 1002 (10th ed. 2014) (defining “kill” as “[t]o end life; to cause physical death“). That approach is also consistent with descriptions of the law of homicide from many commentators, reaching far into the past. See, e.g., Model Penal Code §§ 210.1 & .2 (murder requires proof that defendant “cause[d] the death of another“) (Am. Law Inst. 1985); 2 Wayne R. LaFave, Substantive Criminal Law § 14.1(f), at 582 (2d ed. 2018) (murder requires proof that defendant was “legal[] cause” of death) (internal quotation marks
We next consider what it means to cause death for purposes of the second-degree-murder statute. The concept of causation arises in many areas of law. H.L.A. Hart & Tony Honoré, Causation in the Law 84 (2d ed. 1985) (“Causal questions . . . appear in every branch of the law and there is a variety of ways, even in a single branch, in which legal rules make causal connection an element in responsibility.“). Our cases have used varying terminology in discussing causation requirements in various settings, and we do not in this case attempt to formulate a general theory of causation cutting across all areas of the law. Rather, we limit our holding to the context of the statute we have before us, although some of our reasoning may have implications that run beyond that statute.
In addressing the causation issue in this case, we have the benefit of the Supreme Court‘s decision in Burrage v. United States, 571 U.S. 204 (2014). The Public Defender Service (PDS) as amicus curiae argues that Burrage, which involved the federal Controlled Substances Act, directly binds us in the interpretation of the congressionally enacted second-degree-murder statute. We need not resolve that argument, however, because we find Burrage persuasive with respect to the issues that we decide in this case.
Burrage provides a useful general framework for our analysis:
The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause. When a crime requires not merely conduct but also a specified result of conduct, a defendant generally may not be convicted unless his conduct is both (1) the actual cause, and (2) the legal cause (often called the proximate cause) of the result.
571 U.S. at 210 (citation and internal quotation marks omitted). Within that framework, we turn first to the first requirement: actual causation. As the Supreme Court explained in Burrage, actual causation “[i]n the usual course . . . requires proof that the harm would not have occurred in the absence of -- that is, but for -- the defendant‘s conduct.” 571 U.S. at 211 (internal quotation marks omitted). In the context of second-degree murder (and leaving aside for now potential complexities arising from concepts of aiding and abetting and coconspirator liability), the actual-cause requirement means that the United States must prove that, if one subtracted the defendant‘s actions from the chain of events, the decedent would not have been killed.
We pause briefly to flag three points. First, in theory one could argue that a defendant‘s conduct can never be a but-for cause of a decedent‘s death, because the decedent, being mortal, would always eventually have died even in the absence of the defendant‘s conduct. It is well understood, however, that a defendant‘s conduct that hastens the decedent‘s death is a but-for cause of death. See, e.g., 1 LaFave § 6.4(b), at 636 (“[O]ne who hastens the victim‘s death is a cause of his death.“). Second, there may be exceptions to the general requirement of but-for causation, for example in the “rare” situation in which “multiple sufficient causes independently, but concurrently, produce a result.” Burrage, 571 U.S. at 214-15. The Supreme Court describes such a rare situation in Burrage: two people independently shoot and stab the victim at the same time, with each act being sufficient to cause death in the absence of the other. Id. at 215. As in Burrage, however, we need not address such possible exceptions, because the United States has not argued that the present case falls within such an exception. Third, more complicated issues can arise from the interaction between the requirement of but-for causation and concepts of vicarious liability, such as aiding and abetting and coconspirator liability. See generally Dickens v. United States, 163 A.3d 804, 810 (D.C. 2017) (“The elements
The jury in this case was not explicitly instructed that it was required to find but-for causation. Rather, as previously noted, the jury was instructed, based on our decision in Roy, that the jury could find Mr. Fleming to have caused Michael Jones‘s death if (1) Mr. Fleming was armed and prepared to engage in a gun battle; (2) Mr. Fleming did engage in a gun battle; (3) Mr. Fleming‘s conduct “was a substantial factor in the death of Michael Jones;” (4) it was reasonably foreseeable that death or serious bodily injury could occur as a result of Mr. Fleming‘s conduct during the gun battle; and (5) Mr. Fleming did not act in self-defense. The United States argues that this instruction in substance required the jury to find but-for causation. We disagree. For example, assume that the jury found that Mr. Fleming participated in the gun battle solely by shooting his gun once, after the first shots had been fired but just before Michael Jones was shot and killed. Assume also that the jury believed that it was quite possible that Mr. Hamlin inadvertently shot Michael Jones and that once the first shots were fired Mr. Hamlin very likely would have fired back and Michael Jones very likely would have been killed, even if Mr. Fleming had never
In sum, the requirement that Mr. Fleming‘s conduct have been a substantial factor in Michael Jones‘s death is not remotely equivalent to a requirement of but-for causation. To the contrary, the United States argued in favor of a substantial-factor test in Burrage precisely because that test is in important respects less stringent than a requirement of but-for causation. 571 U.S. at 213-18.
B.
Although we have already determined that Mr. Fleming‘s conviction for second-degree murder while armed must be vacated, Mr. Fleming and the amici raise a number of additional challenges to the causation instructions given in this case. We address several of those challenges because they could arise on remand. See generally, e.g., District of Columbia v. Dep‘t of Emp‘t Servs., 713 A.2d 933, 936 (D.C. 1998)
1.
Mr. Fleming and the amici also rely heavily on the second required component of the causation inquiry: proximate cause. Proximate cause “defies easy summary.” Paroline v. United States, 572 U.S. 434, 444 (2014). Speaking generally, “to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result.” Id. Proximate cause
generally refers to the basic requirement that there must be some direct relation between the injury asserted and the injurious conduct alleged. The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity.
Id. at 444-45 (citations, ellipsis, and internal quotation marks omitted).
Mr. Fleming and the amici instead argue that if Mr. Hamlin fired the fatal bullet, Mr. Fleming could not be the proximate cause of death. Specifically, they argue that one cannot properly be treated as having proximately caused a result if
The substantial weight of authority supports the conclusion that persons can be held criminally responsible for causing a result that would not have occurred but for the reasonably foreseeable acts of another. We have already mentioned our prior decisions in Blaize, 21 A.3d at 79-83, Bonhart, 691 A.2d at 162-64, and McKinnon, 550 A.2d at 916-19. Ante at 12. In each of those cases, we held a defendant criminally responsible for causing a death even though the death would not have occurred but for the reasonably foreseeable intervening acts of another. Many other courts have reached the same conclusion in various circumstances, including gun battles similar to that in the present case. See, e.g., United States v. Pineda-Doval, 614 F.3d 1019, 1029 (9th Cir. 2010) (“Generally a police officer‘s conduct in pursuing a fleeing perpetrator, even if it was negligently performed and resulted in the death of the officer or a third party, is not deemed conduct so unusual, abnormal or extraordinary as to constitute [a] superseding cause.“) (internal quotation marks omitted); State v. Wilson, 421 P.3d 742, 750 (Kan. 2018) (“[W]hen a defendant acts
In sum, substantial authority supports the conclusion that, for purposes of determining criminal responsibility, the intervening actions of a third party do not by themselves defeat proximate cause if those intervening actions were reasonably foreseeable to the defendant. We adopt that conclusion in this case. To illustrate the point concretely, we hold that a defendant can be viewed as having personally caused death if (1) the defendant, acting with an intent to kill, shoots at another person or takes other actions such as bringing an armed group in search of another person or brandishing a gun at another person, (2) the defendant‘s acts foreseeably cause the intended target or another person to fire shots in response; and (3) the latter shots fatally wound a victim.
We are not persuaded by the contrary arguments of Mr. Fleming and the amici. First, Mr. Fleming and the amici argue that in fact the weight of judicial authority rejects the idea that a defendant can be viewed as proximately causing a death where someone other than the defendant or an accomplice directly inflicted the fatal wound. We do not agree. Most of the cases relied upon by Mr. Fleming and the amici are felony-murder cases reflecting concerns about the scope of the
Second, PDS relies on two Supreme Court cases involving civil liability for economic injury, Bank of Am. v. City of Miami, 137 S. Ct. 1296 (2017), and Hemi Gp., LLC v. City of New York, 559 U.S. 1 (2010). We do not view those cases as pertinent in the present context. In Bank of America, the Court emphasized that the issue of proximate cause arose in connection with a statute providing for economic
Third, Mr. Fleming and the amici rely heavily on Hart and Honoré‘s Causation in the Law and a law-review article, Sanford H. Kadish, Complicity, Cause & Blame: A Study in the Interpretation of Doctrine, 73 Calif. L. Rev. 323 (1985), to support the argument that voluntary acts of third parties necessarily defeat proximate cause. In our view, that reliance is misplaced for numerous reasons, including that: (1) the theory propounded in those two works does not appear to have significant support in the case law, and does not appear to have ever previously been mentioned by this court or the Supreme Court; (2) the concept of voluntariness reflected in Causation in the Law is unusual, in that it treats acts as involuntary, and
Fourth, PDS argues that, whatever the state of current law, this court is bound to interpret the second-degree-murder statute by applying the common law of causation as it existed in 1901, when Congress enacted the statute. This court,
Fifth, Mr. Fleming argues that homicide liability in cases such as this should be limited to the deaths of innocent victims, not of culpable participants. We disagree, essentially for the reasons stated by the division. Fleming, 148 A.3d at
Finally, PDS invokes the rule of lenity. The rule of lenity, however, “is a secondary canon of construction, and is to be invoked only where the statutory language, structure, purpose, and history leave the intent of the legislature in genuine doubt. For the reasons we have explained, the rule of lenity does not tip the balance in this case.” J.P. v. District of Columbia, 189 A.3d 212, 222 (D.C. 2018) (citation and internal quotation marks omitted).
2.
One of the elements the government must prove beyond a reasonable doubt to establish the charge of second-degree murder is that [insert name of the defendant] caused the death of [insert name of the decedent].
To prove that the defendant caused the decedent‘s death, the government must prove two things beyond a reasonable doubt:
First, the government must prove that the decedent‘s death occurred as a result of an action by the defendant. In other words, the government must prove that in the absence of an action by the defendant the decedent‘s death would not have occurred.
Second, the government must prove that there is a close connection between the defendant‘s action and the
decedent‘s death. You may find that a close connection exists if, at the time of the defendant‘s action, the defendant knew or reasonably should have known that the action might result in the death of or serious bodily injury to the decedent [or another person]. On the other hand, you may not find that a close connection exists if the series of events leading from the defendant‘s action to the decedent‘s death is highly unusual, abnormal, or extraordinary [or too lengthy]. [There is evidence in this case that the defendant did not personally inflict the decedent‘s fatal injury and that the decedent‘s fatal injury instead was inflicted by a third party. Under such circumstances, the defendant can be found to have caused the decedent‘s death only if, applying the instruction you were just given, the decedent‘s death occurred as a result of the defendant‘s action and there is a close connection between the defendant‘s action and the decedent‘s death.]
[A defendant who does not personally cause death may in some circumstances nevertheless be held criminally responsible for the death. [Specifically, a defendant who aided and abetted a person in the commission of second-degree murder can in some circumstances be found guilty of second-degree murder even if the defendant‘s individual actions were not a cause of the decedent‘s death. Later in these instructions I will tell you about the requirements of aiding-and-abetting liability.] [Specifically, a defendant who conspired with another person can in some circumstances be found guilty of second-degree murder even if the defendant‘s individual actions were not a cause of the decedent‘s death. Later in these instructions I will tell you about the requirements of coconspirator liability.]]
In light of the foregoing, it is not necessary to address most of the remaining objections to the particular gun-battle instruction in this case. We do briefly address one topic raised by PDS: the issue of concurrence. We have said that, “[i]f either the actus reus—the unlawful conduct—or the mens rea—the criminal intent—is missing at the time of the alleged offense, there can be no conviction. Reducing it to its simplest terms, a crime consists in the concurrence of prohibited conduct and a culpable mental state.” Rose v. United States, 535 A.2d 849, 852 (D.C. 1987) (internal quotation marks omitted). We have recently suggested that the concept of
3.
We respond briefly to the separate concurrence of Judges Beckwith and Easterly.
1. The concurrence argues that the court should not address one of the issues the court decides: “how proximate cause operates when there is a third-party intervenor.” Infra at 45. We disagree. That issue was fully briefed by the parties and PDS and was discussed extensively at oral argument. Although the concurrence
2. The concurrence states that the opinion for the court acknowledges that the meaning of the second-degree murder statute was frozen in 1901. Infra at 52-53.
3. According to the concurrence, if there was any lack of clarity on the issue under the common law in 1901, then we are required by the rule of lenity to resolve the issue of proximate cause in favor of Mr. Fleming. Infra at 56-57. That contention substantially overstates the proper function of the rule of lenity. See, e.g., Mattis v. United States, 995 A.2d 223, 226 n.7 (D.C. 2010) (rule of lenity “can tip the balance in favor of criminal defendants only where, exclusive of the rule, a penal statute‘s language, structure, purpose and legislative history leave its meaning
For the foregoing reasons, we vacate Mr. Fleming‘s conviction for second-degree murder while armed and remand the case for further proceedings. Mr. Fleming does not challenge his other convictions, which we therefore affirm.
So ordered.
FISHER and THOMPSON, Associate Judges, concurring: We join the opinion of the court but add this brief concurring statement to emphasize key principles on which the court relies. We also attempt to make a few points about issues that will arise in future cases like this. There inevitably will be such cases because gun battles occur on the streets of the District of Columbia with depressing frequency, often with lethal results.
The facts surrounding a “gun battle” may apply to the elements of second-degree murder in at least three ways. First, they may prove that the defendant acted with a “depraved heart.” See Comber v. United States, 584 A.2d 26, 39 (D.C. 1990)
In this case the focus has been on causation, and the Supreme Court‘s decision in Burrage v. United States, 571 U.S. 204 (2014), undoubtedly “provides a useful general framework,” ante at 14, for discussing that issue. That framework fits awkwardly around the facts of this case, however, because Burrage does not address how the concept of but-for causation interacts with principles of vicarious liability. Our court thus acknowledges that “more complicated issues can arise from the interaction between the requirement of but-for causation and concepts of vicarious liability, such as aiding and abetting and coconspirator liability.” Ante at 16. This court will face those “more complicated issues” in future cases because, in our view, the urban gun battle theory is based upon concepts of vicarious liability.
We are not accustomed to saying that a gunman was aiding and abetting an opponent who was trying to kill him, and this may be the reason the government did not argue that Mr. Fleming could be considered to have aided and abetted Mr.
We do not suggest that the articulation of these principles by the Maryland courts is necessarily correct, but these opinions from our neighboring jurisdiction illustrate that this court will need to devote more effort to explaining the interaction of but-for causation and vicarious liability in the context of a gun battle (and to crafting an instruction which describes that interaction for the jury).
EASTERLY, Associate Judge, with whom BECKWITH, Associate Judge, joins, concurring in the judgment: Sitting en banc, this court is called upon to interpret a statute,
We agree that a question of statutory interpretation is preserved for our de novo review. Ante at 7–9. We write separately to endorse and fortify the following pillars of the majority opinion‘s analysis:
- The 1901 Congress incorporated well-settled common law causation requirements into our second-degree murder statute. See ante at 9–10 (citing Comber v. United States, 584 A.2d 26, 38 n.9 (D.C. 1990) (en banc) (acknowledging the second-degree murder statute enacted by Congress “embodied the substance of murder as it was known to the common law” (quotation marks omitted))); see also Carrell v. United States, 165 A.3d 314, 319 n.12 (D.C. 2017) (en banc) (explaining that “[o]rdinarily, this court looks to the legislature to set forth the basic actus reus elements it wishes to criminalize” but where the legislature “codifies common law crimes,” we assume it “intends to incorporate the well-settled meaning of the common-law terms it uses” (internal quotations and citations omitted)).
- To “kill” means to “cause death.” Ante at 10–12;
- “The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause.” Ante at 14 (quoting Burrage v. United States, 571 U.S. 204, 210 (2014)).
Actual cause requires a showing beyond a reasonable doubt that “the harm would not have occurred in the absence of—that is, but for—the defendant‘s conduct.” Ante at 14 (quoting Burrage, 571 U.S. at 211). - Legal cause is an additional limiting principle requiring a showing beyond a reasonable doubt that the defendant‘s action was not only a but-for cause but had “a sufficient connection to the result,” ante at 21 (quoting Paroline v. United States, 572 U.S. 434, 444 (2014)), often (but not exclusively) analyzed in terms of timing and reasonable foreseeability, ante at 21–22.
- And, the common law principle of concurrence must be satisfied—namely, “a defendant‘s acts that lead to a later death c[an] provide the basis for a conviction for second-degree murder only if [the government proves that], at the time the defendant took those acts, the defendant had the mental state required for second-degree murder.” Ante at 34–35; see also Morissette v. United States, 342 U.S. 246, 251 (1952) (Crime is “a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand.“).
By reaffirming and applying these principles in the interpretation of
Preliminarily, this case is not a proper vehicle to definitively resolve how proximate cause operates when there is a third-party intervenor in a murder case. It is enough for us to say that Roy both incorrectly dispensed with the requirement of actual cause and misinterpreted the concept of proximate cause to create and extend criminal responsibility in situations where but-for cause was unproven. We should not go further and opine on whether the action of a third party more immediately causing a death does, or does not, cut off a defendant‘s criminal responsibility in a case where the government has never identified any action taken by Mr. Fleming
There is thus good reason to believe that but-for cause is unprovable in Mr. Fleming‘s case, especially in light of the government‘s failed attempt on appeal,
Alternatively, assuming the government can identify and prove beyond a reasonable doubt that Mr. Fleming took some action within the causal chain leading to Mr. Jones‘s death, there is good reason to believe that this action was significantly removed from Mr. Jones‘s death and Mr. Fleming‘s criminal responsibility was arguably attenuated to such a degree that a conviction for the most serious crime of murder is unjustified. If the en banc court had to confront the government‘s to-be-determined, actual theory of but-for cause and then assess whether it survived the vetting of proximate cause, a majority of judges might not be so categorical about the irrelevance of the actions of third-party intervenors. The recognition that the particular facts of a case matter is precisely why advisory opinions are generally condemned. See Stearns v. Wood, 236 U.S. 75, 78 (1915) (“The province of courts is to decide real controversies, not to discuss abstract propositions.“); see also United States v. Fruehauf, 365 U.S. 146, 157 (1961) (condemning the “advance expressions of legal judgment upon issues which remain unfocused because they are not pressed
In short, in a case where the threshold legal showing (but-for cause) has yet to be made—and may never be—issuing an opinion in which we resolve a debate regarding a secondary legal question (proximate cause) is procedurally and substantively unfounded. Further, even if it were proper for the en banc court to address this issue, the majority opinion‘s third-party intervenor analysis defies well-settled common law principles of causation.
Mr. Fleming and his amici are correct that, if Mr. Hamlin fired the fatal bullet, Mr. Fleming could not be the proximate cause of death. This conclusion is compelled by longstanding fundamental principles of our criminal justice system that we do not punish individuals for the independent, voluntary actions of others.7
See generally Fleming v. United States, 148 A.3d 1175, 1185–90 (D.C. 2016) (Easterly, J., concurring in the judgment), vacated, 164 A.3d 72 (D.C. 2017). This common law prohibition against criminally punishing individuals for the independent, voluntary actions of others comes into clear relief when one looks at the limited exceptions to the rule, and the efforts to expand those exceptions. For example, as the majority opinion explains, ante at 17–18, individuals who have not
Felony murder jurisprudence is another example. The majority opinion seeks to put these cases to one side and declares that, without them, the “weight of authority” supports its approach. Ante at 27–28. These cases are relevant and important precisely because they are felony murder cases: If under well-settled principles of causation a defendant could be convicted of murder for the voluntary actions of a noncomplicit third-party intervenor, prosecutors across the country would never have asked courts to apply a felony murder analysis to this scenario, and a split never would have emerged between the “proximate cause” theory of felony murder (extending a defendant‘s criminal responsibility to the actions of noncomplicit third-party intervenors) and the agency theory of felony murder (limiting criminal culpability “to lethal acts committed by the felons themselves or their accomplices“). Campbell v. State, 444 A.2d 1034, 1040 (Md. 1982); see also id. at 1040–41 (explaining that the “present trend has been for courts to employ the agency theory“); Waller v. United States, 389 A.2d 801, 807 (D.C. 1978) (rejecting proximate cause theory of felony murder in D.C. and endorsing agency theory instead). Thus, the cases the majority opinion cites endorsing the (minority view)
Instead, our colleagues effectively accept that settled common law causation principles may not support their third-party intervenor analysis when they argue that the District‘s common law is not “frozen” in time. Ante at 30. Of course, it is generally true that the common law is meant to evolve. See, e.g., Linkins v. Protestant Episcopal Cathedral Found., 187 F.2d 357 (D.C. Cir. 1950) (rejecting the argument in a probate case that, “absent a statute on a particular legal question, the common law as it existed in 1801—not as it has grown and developed to the present time—governs“); ante at 30 (relying on Linkins). But when we are trying to discern what Congress sought to punish as second-degree murder when it codified
When it codified the common law crime of murder, Congress did not delegate to this court the authority to reshape and expand this crime to our liking. By grafting onto
As it happens, in 2016 the legislature established and funded an independent agency, the D.C. Criminal Code Reform Commission (CCRC), to reexamine the District‘s antiquated criminal code and make recommendations for “reform.”14