For assaults on police, the NEAR Act neither requires jury-demandable prosecution nor expands the right to claim self-defense.

Coleman v. United States (decided October 11, 2018)

Players: Associate Judges Glickman and Fisher and Senior Judge Washington. Opinion by Judge Washington. Fletcher P. Thompson for Appellant. Trial Judge: Kimberly S. Knowles.

Facts: MPD officers arrested appellant for assault on a police officer (“APO”) following an encounter outside of his vehicle. At trial, the government presented evidence that when the officers approached, appellant became agitated, ignored requests to move out of the street, and flung his arms wildly, hitting two officers. Appellant continued to resist, ripping a third officer’s uniform when police took him to the ground.

The government elected to prosecute appellant for misdemeanor simple assault, a non-jury-demandable offense, rather than APO, which would have been jury-demandable under the Neighborhood Engagement Achieves Results (“NEAR”) Act. Appellant nevertheless argued that he was entitled to a jury trial. Appellant further argued that because the government had declined to prosecute APO, he should not be bound by the limits on self-defense that apply when the complainant is a police officer. The trial court rejected both arguments and found appellant guilty of simple assault.

Issue 1: Whether the NEAR Act requires the government to charge jury-demandable APO when the complainant in an assault is a police officer?

Holding 1: No. The NEAR Act created separate APO and resisting arrest offenses in response to widespread concern that APO was too broadly defined. Although the Act also increased the penalty for misdemeanor APO and resisting arrest to make both offenses jury-demandable, there is no evidence that the Council intended to remove the government’s ability to prosecute simple assault where the complainant is a police officer. Simple assault remains a lesser and included offense of APO.

Issue 2: Whether the NEAR Act expands the right to claim self-defense in simple assault cases where the complainant is a police officer?

Holding 2: No. The rule whereby one may not use force against a police officer in self-defense unless the officer has used excessive force exists to protect officers in the line of duty. Although the NEAR Act limits what may constitute APO, there is no evidence that the Council intended to overrule the restriction on self-defense claims. Broadening the right to use force against officers would endanger them and impede their work. WC.

Read the full opinion here.

Court Warns That Red Book’s “While Armed” Instruction Can Impermissibly Imply That Defendant Did, In Fact, Possess Charged Weapon

Nathaniel Cousart v. United States (decided August 4, 2016)

Players: Associate Judges Glickman and Fisher, Senior Judge Steadman. Opinion by Judge Steadman. Matthew J. Peed for Mr. Cousart. Trial Judge: Patricia A. Broderick.

Facts: Mr. Cousart was convicted of aggravated assault while armed (AAWA) for stabbing one Mr. Barrett with a knife, and with ADW for again taking out his knife and stepping threateningly toward a private security guard who came to Mr. Barrett’s aid. The security guard testified that he drew his gun in response, prompting Mr. Cousart to retreat and throw the knife down a sewer before he was apprehended. The trial court instructed the jury on AAWA using language taken virtually verbatim from Red Book Instruction 4.103, describing the elements of aggravated assault, followed immediately by Instruction 8.101(B), the “while armed” instruction. The latter began, “At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife. A dangerous weapon is any object likely to produce death or great bodily injury by the use made of it. In deciding whether the defendant was armed with or had readily available a dangerous weapon, you may consider all the circumstances surrounding its possession and use. . . .” In instructing the jury on ADW, the trial court read Red Book Instruction 4.101, Option A, which defines the attempted-battery theory of ADW. It did not include bracketed language from that instruction requiring the jury to determine whether Mr. Cousart “had the apparent ability to injure” the complainant at the time of the offense. The defense did not object to either instruction.

Issue 1: Was the trial court’s AAWA instruction an improper partial directed verdict that Mr. Cousart did, in fact, possess the knife as a dangerous weapon?

Holding 1: No. Considering the jury instructions as a whole, under the rigorous plain error standard of review, the Court of Appeals held that there was no reasonable probability that jurors would have understand the challenged sentence to mean they did not have to determine whether Mr. Cousart actually possessed the alleged knife (and whether the knife met the definition of “dangerous weapon”). Nevertheless, the Court urged trial judges to take care in using the Red Book’s “while armed” Instruction, which begins, “At the time of the offense, [name of defendant] was armed with, or had readily available,” followed by a bracketed list of weapons to which the enhancement applies. The Court warned that “when this instruction is simply tacked on to a prior instruction without a clear indication that it is a statement of what the jury must find and not an assertion that the defendant did in fact carry some particular item, it could be subject to misinterpretation.”

Issue 2: Did the trial court’s omission of the “apparent ability to injure” element from its ADW instruction require reversal?

Holding 2: No. The Court of Appeals assumed without deciding that an apparent ability to injure is a required element of attempted-battery assault (as it is for intent-to-frighten assault), but declined to reverse on plain error review. In light of the government’s evidence that Mr. Cousart advanced on the security guard while brandishing the knife in a frightening enough manner to prompt him to draw his gun, the Court concluded that there was no reasonable probability the jury would have reached a different verdict had it been instructed that it must find Mr. Cousart had the apparent ability to injury the security guard.

Of Note:

• The Court of Appeals also held that there was sufficient evidence of attempted-battery ADW based on Mr. Cousart’s pulling out his knife before stepping toward the security guard. It noted, however, that it was a “close” sufficiency call. FT

Read full opinion here.

Brief Fist Fight on a Crowded Bus Was a Simple Assault, Not an Aggravated Assault or an Assault with Significant Bodily Injury

In re D.P. (decided August 13, 2015)

Players: Judges Fisher and Easterly, and Senior Judge Farrell. Opinion by Judge Easterly. Aaron Marr Page and Randy Evan McDonald for D.P. Trial Judge: Florence Pan.

Facts: Sixteen-year-old D.P. and her two friends started a fight with M.G. on a Metrobus on the way home from school. Blows were exchanged, and at the very end of the fight, which lasted only fourteen seconds, M.G. hit her head on a pole and briefly lost consciousness for “maybe a minute, maybe less.” M.G. was examined by emergency medical technicians who determined that she did not need to go to the hospital. No medical evidence was presented about M.G.’s injuries, and M.G. testified that she had “minor headaches” for “two/three days” after the incident. In the ensuing delinquency case, D.P. was adjudicated “involved” in an aggravated assault and an assault with significant bodily injury.

Issue 1: Was the evidence sufficient to find D.P. guilty of aggravated assault?

Holding 1: The evidence was insufficient to find D.P. guilty of aggravated assault because the evidence did not support a reasonable inference that D.P. had the requisite mental state, that is, she did not “manifest extreme indifference to human life.” The Court reiterates that the mental state required is “substantively indistinguishable” from the minimum state of mind required for second-degree murder, and held that the evidence was insufficient to prove that D.P. possessed that “gross recklessness/depraved heart malice.” In so holding, the Court noted that D.P. and her friends had no weapons, the assault was very brief and occurred in a crowded public place where bystanders could intervene, and the circumstances suggested that their intent was more to intimidate M.G. than to injure her. Accordingly, D.P.’s actions did not manifest extreme indifference to human life.

D.P. had also argued on appeal that M.G.’s injuries did not constitute “serious bodily injury” required for an aggravated assault conviction, but the Court declined to rule on that argument in light of its holding that the mens rea was not satisfied. The Court said that it is still an “open question” as to whether the brief loss of consciousness suffered by M.G., which required no medical treatment, would be enough to meet the definition of “serious bodily injury.”

Issue 2: Was the evidence sufficient to find D.P. guilty of assault with significant bodily injury?

Holding 2: The evidence was insufficient to find D.P. guilty of assault with significant bodily injury because M.G.’s injuries did not “require hospitalization or immediate medical attention.” The Court held that M.G.’s injuries were analogous to those suffered by the complainant in Quintanilla v. U.S., 62 A.3d 1261 (D.C. 2013), and that the Court was bound by the holding in that case. In both Quintanilla and D.P.’s case, the complainant had been examined by emergency personnel, and experienced soreness/pain for some days after the incident, but did not seek or require any further medical treatment. As such, M.G.’s injuries did not constitute “significant bodily injury” and the Court held the evidence insufficient to find D.P. guilty of assault with significant bodily injury. SN

Read full opinion here.

Attempted-Battery Assault Is Not a “Crime of Violence” for Federal Immigration Purposes, No Right to a Jury Trial

Esperanza Contreras v. United States (decided August 6, 2015)

Players: Chief Judge Washington, Judge McLeese, Senior Judge Belson. Opinion by Judge McLeese. Gregory W. Gardner for Ms. Contreras. Motions Judge: Fern Flanagan Saddler. Trial judge: Michael Ryan.

Facts: Ms. Contreras became angry with her teenaged daughter and slapped her in the face, causing the girl’s nose to bleed. She was charged with simple assault, and moved for a jury trial on grounds that a conviction would subject her to possible deportation. The motion was denied and her bench trial resulted in a conviction.

Issue: Was the charged assault a deportable “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(e)(i) (2012), entitling Ms. Contreras to a jury trial?

Holding: No. Federal law requires that a deportable “crime of domestic violence” be, among other things, a “crime of violence” within the meaning of 18 U.S.C. § 16(a). Focusing on the attempted-battery type of simple assault for which Ms. Contreras argued she was convicted, the court held that such an assault is not a “crime of violence” under the federal definition because it does not require the same degree of violence. “Violence,” in the context of D.C.’s simple assault statute, refers to any “attempt to do unlawfully to another any bodily injury however small,” while the federal “crime of violence” definition requires “force capable of causing physical injury or pain to another person.” (emphasis added).

Of Note:

• The court deemed it irrelevant that the facts of the charged crime did meet the federal “crime of violence” definition because courts look to the elements of a criminal statute, not the facts of each case, to decide whether it involves a “crime of violence” under federal law.

• The court rejected Ms. Contreras’s sufficiency claim, ruling that the trial judge had an adequate evidentiary basis, in the form of harsh comments Ms. Contreras made during the incident to the effect that her daughter ought not to have been born, to conclude that she slapped the girl out of “hurt pride” rather than for disciplinary purposes. The judge thus did not err in rejecting Ms. Contreras’s parental-discipline defense. FT

Read full opinion here.