Fleming v. United States ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CF-1074
BERNARD J. FLEMING, APPELLANT,
V.
UNITED STATES, APPELLEE.
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 Decided January 30, 2020)
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.
2
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN, FISHER,
THOMPSON, BECKWITH, EASTERLY, and MCLEESE, Associate Judges.
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-
3
for cause of the death, i.e., unless it is true that in the absence of the defendant’s
action the death would not have occurred. We therefore reverse Mr. Fleming’s
conviction for second-degree murder while armed and remand for further
proceedings. Mr. Fleming raises a variety of other challenges to the causation
instruction in this case, and we address those challenges to the extent that they might
affect proceedings on remand.
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.
4
About half an hour later, Maurice heard banging on his front door and several
voices outside. He ignored the banging and did not open the door. After the banging
stopped, Maurice looked out and saw Mr. Fleming waiting with Joseph Peoples and
Rakeem McMillan. Maurice phoned his brother Michael and a friend named Eric
Cunningham and asked them to come to his apartment. While he waited for them,
Maurice looked outside from time to time and saw Mr. Fleming and Mr. Peoples
gesture for him to come out. After a while, Mr. Fleming and his companions
departed. 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.
5
Michael drew a gun and fired back at Mr. Peoples, but Michael then was killed
by a bullet that struck him in the back of the head. Mr. Hamlin also fired a gun in
response to the attack. Shell casings from two different weapons were found near
Michael’s body. Fleming, 148 A.3d at 1179.
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.
6
Because the bullet that struck Michael fragmented, it was not possible to tell
whether that bullet was fired by Mr. Fleming, Mr. Peoples, or Mr. Hamlin. 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
7
bodily injury could result from such conduct.” Finally, the jury was given a “gun
battle” causation instruction based on this court’s decision in Roy. Specifically, the
trial court instructed the jury that a defendant should be deemed to have caused
Michael’s death if (1) the defendant was armed and prepared to engage in a gun
battle; (2) the defendant in fact engaged in a gun battle; (3) the defendant’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 the
defendant’s conduct during the gun battle; and (5) the defendant did not act in self-
defense.
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.
8
2005) (failure to object before agency perhaps may be excused in rare circumstance
in which “it truly and clearly would have been futile to raise the claim in the agency
venue”). The United States cites no case holding that a litigant is required to present
to a division of the court the argument that a prior holding of the court should be
overruled, and we are aware of no such case. We therefore consider Mr. Fleming’s
contention that this court should overrule Roy. At oral argument, the United States
for the first time suggested that other of Mr. Fleming’s arguments were not properly
preserved in the trial court. We are not inclined to consider the United States’s
belated issue-preservation argument. See, e.g., In re T.L., 859 A.2d 1087, 1090 n.6
(D.C. 2004) (District of Columbia failed to properly preserve on appeal argument
that appellant failed to properly preserve argument in trial court).
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
9
in this case. Although our terminology has not always been entirely clear on this
point, we review de novo whether challenged jury instructions adequately state the
law. See, e.g., Brown v. United States, 139 A.3d 870, 875 (D.C. 2016) (“The
question whether the challenged instruction was proper is one of law. Accordingly,
our review is de novo, and we accord no deference to the ruling of the trial court.”)
(ellipsis omitted; quoting Wilson-Bey v. United States, 903 A.2d 818, 827 (D.C.
2006) (en banc)); cf., e.g., Whitt v. Am. Prop. Constr., P.C., 157 A.3d 196, 202 (D.C.
2017) (abuse of discretion may be found if trial court gives jury instructions that “as
a whole do[] not fairly and accurately state the applicable law”) (internal quotation
marks omitted); Pannu v. Jacobson, 909 A.2d 178, 198 (D.C. 2006) (“[I]t is
incumbent on the trial court to properly instruct the jury on the law. . . . [T]he trial
court must give the jury an accurate and fair statement of the law.”).
III.
The second-degree-murder statute, which was enacted by Congress in 1901,
makes it a crime to “kill[] another” “with malice aforethought.” D.C. Code § 22-
2103 (2012 Repl.); see An Act to Establish a Code of Law for the District of
Columbia, 31 Stat. 1321, ch. 19, § 800 (1901). Although second-degree murder is
“defined by statute, [that] statute[] embod[ies] the common law definition of
10
murder.” Comber v. United States, 584 A.2d 26, 38 n.9 (D.C. 1990) (en banc)
(citation omitted).
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
11
omitted); 2 Joel Prentiss Bishop, Commentaries on the Criminal Law § 636 (Boston,
Little, Brown & Co. 6th ed. 1877) (“[A]s a general proposition, he whose act causes,
in any way, directly or indirectly, the death of another, kills him, within the meaning
of the law of felonious homicide.”); 4 William Blackstone, Commentaries *196-97
(“The killing may be by poisoning, striking, starving, drowning, and a thousand
other forms of death, by which human nature may be overcome. . . . If a man
however does such an act, of which the probable consequence may be, and
eventually is, death[,] such killing may be murder, although no stroke be struck by
himself . . . .”). These considerations strongly support interpreting “kill” to mean
“cause death.” See, e.g., Carrell v. United States, 165 A.3d 314, 319 n.12 (D.C.
2017) (en banc) (“It is a settled principle of interpretation that, absent other
indication, Congress intends to incorporate the well-settled meaning of the common-
law terms it uses.”) (internal quotation marks omitted); Shipkey v. District of
Columbia Dep’t of Emp’t Servs., 955 A.2d 718, 726-27 (D.C. 2008) (“Dictionaries
provide a useful starting point to determine what statutory terms mean[.] [L]ikewise
when a popular or common word is used in a statute, but is not defined, the word
should be given its common meaning.”) (brackets, ellipses, and internal quotation
marks omitted).
12
Mr. Fleming points out that in several cases this court has used a different
formulation of the requirement that the defendant killed another: that the defendant
“inflicted injury on the decedent from which [the decedent] died.” Waller v. United
States, 389 A.2d 801, 807 (D.C. 1978). It is not entirely clear what that formulation
means. If the formulation is meant to foreclose homicide liability whenever the
action of someone other than the defendant more directly inflicts the fatal physical
injury on the decedent, then the formulation is contrary not only to the considerations
already noted but also to the holdings of several of our cases. See, e.g., Blaize v.
United States, 21 A.3d 78, 79-83 (D.C. 2011) (defendant guilty of voluntary
manslaughter where defendant shot towards victim, who fled into street and was
fatally struck by car driven by third party); Bonhart v. United States, 691 A.2d 160,
162-64 (D.C. 1997) (arsonist who set fire to building guilty of felony murder even
if occupant had initially escaped building but died after reentering to save dog);
McKinnon v. United States, 550 A.2d 915, 916-19 (D.C. 1988) (defendant guilty of
first-degree premeditated murder where defendant slashed victim’s throat, doctors
were able to treat victim’s wounds, victim was discharged from hospital, but victim
later died from hepatitis most likely caused either by blood transfusions or by drug
therapy). We therefore take this occasion to clarify that, for purposes of the District
of Columbia’s homicide statutes, “kill” means “cause death.”
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IV.
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.
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A.
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.
15
In Burrage, the United States argued that “but-for” causation should not be
required under the statute there at issue, which imposed heightened penalties where
death or serious bodily injury “results from” drug distribution. 571 U.S. at 214-19.
The Supreme Court was not persuaded by the United States’s arguments. Id. In the
present case, by contrast, the United States acquiesces in the conclusion that but-for
causation is required under the second-degree-murder statute. We agree with the
United States’s acquiescence in the application of Burrage’s but-for causation
requirement to second-degree murder. The Supreme Court gave seven main reasons
for requiring but-for causation: (1) but-for causation is part of the traditional
understanding of the concept of cause, id. at 210-13; (2) courts applying statutes with
causal language have generally required but-for causation, in the absence of “textual
or contextual indication to the contrary,” id. at 212; (3) ordinary language supports
imposing a but-for causation requirement, id. at 210-12; (4) state courts interpreting
criminal laws with causal language usually require but-for causation, id. at 213-14;
(5) the alternative approach to actual causation advocated by the United States in
Burrage -- that the conduct at issue be a “substantial” or “contributing” factor --
finds less support in the case law, id. at 215; (6) it is unclear how to apply the
“substantial” or “contributing” factor approach, id. at 217-18; and (7) the rule of
lenity precludes giving the statutory “text a meaning that is different from its
ordinary, accepted meaning, and that disfavors the defendant,” id. at 216. In our
16
view, similar reasons justify requiring but-for causation in the context of second-
degree murder.
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
17
of aiding and abetting are that (1) a crime was committed by someone, (2) the
accused assisted or participated in its commission, and (3) [the accused’s]
participation was with guilty knowledge.”) (brackets and internal quotation marks
omitted); Richardson v. United States, 116 A.3d 434, 442 (D.C. 2015) (“[A] co-
conspirator who does not directly commit a substantive offense may nevertheless be
held liable for that offense if it was committed by another co-conspirator in
furtherance of the conspiracy and was a reasonably foreseeable consequence of the
conspiratorial agreement.”) (brackets and internal quotation marks omitted). Thus,
a defendant whose actions are not a but-for cause of death can nevertheless be guilty
of homicide. For example, consider a defendant who takes actions -- such as
shooting at the decedent but missing -- intending to help the principal kill the
decedent. That defendant can be guilty of murder as an aider and abettor even if the
principal’s actions alone would have killed the decedent. See, e.g., Gillis v. United
States, 586 A.2d 726, 728 (D.C. 1991) (per curiam) (where defendant acted in
concert with other shooters, defendant could be found guilty as aider and abettor
even if defendant was not personally responsible for shooting given victim); see
generally 2 LaFave § 13.2(a), at 464 & n.55 (“The assistance given [by accomplice]
need not contribute to the criminal result in the sense that but for it the result would
not have ensued.”) (quoting State ex rel. Martin v. Tally, 15 So. 722, 738 (Ala. 1894)
(ellipsis omitted)); People v. Franzen, 148 Cal. Rptr. 3d 863, 880 (Ct. App. 2012)
18
(“But while the [aider and abettor] must in fact assist the primary actor to commit
the offense, there is no requirement that [the aider and abettor’s] conduct be a but-
for cause or even an essential factor in bringing it about.”) (brackets and internal
quotation marks omitted).
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
19
fired his gun. On those conclusions, the jury could have found that Mr. Fleming was
armed and prepared to engage in a gun battle, that he did engage in a gun battle, that
death was reasonably foreseeable, and that Mr. Fleming did not act in self-defense.
The jury could also have found that Mr. Fleming’s firing of his gun was a substantial
factor in Michael’s Jones’s death, particularly because the jury was given no
guidance about how significant a factor Mr. Fleming’s conduct would have to be in
order to qualify as substantial. Cf. Burrage, 571 U.S. at 218 (uncertainty about
meaning of term “substantial” “cannot be squared with the beyond-a-reasonable-
doubt standard applicable in criminal trials or with the need to express criminal laws
in terms ordinary persons can comprehend”). But the jury could not on those
conclusions reasonably find beyond a reasonable doubt that Mr. Fleming’s firing of
the gun was by itself a but-for cause of Michael Jones’s death.
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.
20
The trial court in this case understandably instructed the jury based on the
substantial-factor approach this court approved in Roy, 871 A.2d at 506-09. In light
of the Supreme Court’s subsequent decision in Burrage, however, we conclude that
the causation instructions in Roy and in this case did not “fairly and accurately state
the applicable law.” Whitt, 157 A.3d at 202 (internal quotation marks omitted). The
United States has not argued that this error was harmless, and we are doubtful that
such an argument could have succeeded had it been made. We therefore vacate Mr.
Fleming’s conviction for second-degree murder while armed and remand for further
proceedings. (We note that we do not address whether the evidence was sufficient
to support Mr. Fleming’s conviction for second-degree murder, because Mr.
Fleming has never raised that issue.)
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
21
(D.C. 1998) (“Since a remand is necessary, we deem it appropriate to address certain
issues that are likely to arise on remand.”).
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).
22
This court has previously held that “a criminal defendant proximately causes,
and thus can be held criminally accountable for, all harms that are reasonably
foreseeable consequences of his or her actions.” Blaize, 21 A.3d at 81 (internal
quotation marks omitted). It appears to be undisputed in this case that the jury could
permissibly have found beyond a reasonable doubt that Michael Jones’s death was
reasonably foreseeable to Mr. Fleming. Although the United States in this case
initially appeared to argue that reasonable foreseeability by itself sufficed to
establish proximate cause in the current context, the United States acknowledged at
oral argument that concepts of temporal attenuation are also relevant. For example,
the United States took the position that a person who started a deadly feud between
two groups might not properly be held criminally responsible for reasonably
foreseeable killings that took place years or even a day after the person’s initial
conduct. We have no occasion to further address issues of temporal attenuation in
this case, however, because no one has suggested that the requirement of proximate
cause was defeated in this case due to the passage of time between Mr. Fleming’s
actions and the killing of Michael Jones.
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
23
the chain of events leading to the result includes the subsequent voluntary action of
another. Put more concretely in the context of the present case, they argue that, for
example, Mr. Hamlin’s decision to fire his gun would be an intervening cause that
would relieve Mr. Fleming of criminal responsibility for causing Michael Jones’s
death. We disagree.
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
24
with the requisite mens rea, and that act sets events in motion that lead to a victim’s
death, the defendant will be criminally liable for the death unless an unforeseeable
event supersedes the defendant’s act and becomes the sole cause of death, thus
breaking the chain of proximate causation.”); Robinson v. State, 782 S.E.2d 657,
660-62 (Ga. 2016) (“Proximate causation imposes liability for the reasonably
foreseeable results of criminal conduct if there is no sufficient, independent, and
unforeseen intervening cause.”; store owner’s shooting of defendant’s accomplice
in robbery was reasonably foreseeable) (ellipsis and internal quotation marks
omitted); Commonwealth v. Devine, 26 A.3d 1139, 1150 (Pa. Super. Ct. 2011)
(where defendant initiated gun battle on crowded street and victim was caught in
cross-fire, finder of fact “could reasonably infer a causal nexus” between defendant’s
conduct and decedent’s death); People v. Lowery, 687 N.E.2d 973, 976 (Ill. 1997)
(“[W]hen a felon’s attempt to commit a forcible felony sets in motion a chain of
events which were or should have been within [the felon’s] contemplation when the
motion was initiated, [the felon] should be held responsible for any death which by
direct and almost inevitable sequence results from the initial criminal act.”); People
v. Roberts, 826 P.2d 274, 286, 297-303 (Cal. 1992) (defendant, one of several
inmates who stabbed inmate Gardner, could be found to have proximately caused
death of prison guard, who was fatally stabbed by Gardner as Gardner pursued one
of his attackers). Commentators agree. See, e.g., 1 LaFave § 6.4(f)(3), at 655 (action
25
of third party in response to defendant’s conduct will “break the chain of legal cause”
“only if [third-party’s response] is abnormal (and, if abnormal, also unforeseeable)”;
Model Penal Code & Commentaries § 2.03(1)-(3) (Am. Law Inst. 1985) (for
offenses requiring proof of knowledge, intent, or recklessness, defendant’s conduct
is cause of result if, inter alia, conduct was but-for cause of result and result was
“within the risk of which the actor is aware”); id. cmt. 3, at 262-64 (Model Penal
Code “does not accept the view that volitional human intervention should be treated
differently from other intervening causes”; “For example, if one of the participants
in a robbery shoots at a policeman with intent to kill and provokes a return of fire by
the officer that kills a bystander or an accomplice, the robber who initiated the
gunfire could be charged with purposeful murder . . . . Since [the robber’s] conduct
was a but-for cause of death and the actual result (the death of the bystander or
accomplice) involved the same kind of injury as that designed or contemplated (the
death of the policeman), a jury could convict [the robber] if the death of the
bystander or accomplice was not deemed too remote or accidental to have a [just]
bearing on the gravity of his offense.”). Finally, although tort law is informative
rather than dispositive in the criminal context, Paroline, 572 U.S. at 444-45, widely
accepted principles of tort law are to the same effect. See, e.g., Restatement (Third)
of Torts § 34, Reporters’ Note, cmt. d (Am. Law Inst. 2010) (“A strong majority of
26
courts employ a foreseeability test for independent intervening acts that consist of
culpable conduct by another.”).
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
27
felony-murder doctrine. Campbell v. State, 444 A.2d 1034, 1041-42 (Md. 1982)
(declining to extend felony-murder doctrine beyond “traditional common law
limitation” holding defendants liable only for their own acts and those of their
accomplices); State v. Canola, 374 A.2d 20, 29 (N.J. 1977) (“Most modern
progressive thought in criminal jurisprudence favors restriction rather than
expansion of the felony murder rule.”); Commonwealth ex rel. Smith v. Myers, 261
A.2d 550, 555 (Pa. 1970) (given felony-murder doctrine’s “weak . . . foundation, . . .
it behooves us not to extend it further”); State v. O’Kelly, 84 P.3d 88, 97 (N.M. Ct.
App. 2003) (noting “overwhelming trend towards limiting New Mexico’s felony
murder rule”). This court has not previously considered how the principles of
causation we discuss in this opinion would apply in the context of a felony-murder
prosecution, and we express no view on that topic, as to which courts are divided.
As to the issue we do decide, the weight of authority discussed supra at pp. 23-26
supports the approach we follow in this decision.
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
28
damages, where permitting recovery based solely on foreseeability would “risk
massive and complex damages litigation.” 137 S. Ct. at 1306 (internal quotation
marks omitted). We see no basis for importing into homicide law the Court’s
conclusion that “[t]he general tendency in these cases, in regard to damages at least,
is not to go beyond the first step.” Id. (internal quotation marks omitted); see also
id. at 1305 (“Proximate-cause analysis is controlled by the nature of the statutory
cause of action.”) (internal quotation marks omitted). The plurality opinion in Hemi
is comparably limited in its scope. 559 U.S. at 10 (“[T]he general tendency of the
law, in regard to damages at least, is not to go beyond the first step.”) (internal
quotation marks omitted).
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
29
thus not defeating proximate cause, if the acts reflect “lack of control, lack of
knowledge, [or] pressure exerted by others,” Hart & Honoré, Causation in the Law,
at 142, or, in an alternative formulation, are not “free, deliberate, and informed,” id.
at 326; (3) Causation in the Law treats intervening acts as defeating proximate cause
only if, in addition to being free, deliberate, and informed, the acts are “intend[ed]
to exploit the situation created by the first” actor, id.; (4) given the foregoing
limitations, it is not at all clear that the analysis in Causation in the Law would
preclude a finding of proximate cause in cases such as the present one, given that a
decision by Mr. Hamlin to return fire could be viewed as reflecting “pressure exerted
by others” and would not seem to reflect an intent to “exploit the situation” created
by shots previously fired by Mr. Peoples or Mr. Fleming; and (5) Professor Kadish
explicitly stated that he was not attempting to accurately describe current doctrine,
Kadish, 73 Calif. L. Rev. at 325 (Professor Kadish did “not attempt to depict the
state of the law in any particular jurisdiction at any particular time” and “felt free to
conclude that certain propositions ‘must’ represent the law, even where few, if any,
cases have had occasion so to hold.”).
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,
30
however, has repeatedly rejected the view that the common law of the District of
Columbia was “frozen” in 1901. E.g., Comber, 584 A.2d at 35 n.5; United States v.
Jackson, 528 A.2d 1211, 1216, 1219 (D.C. 1987); United States v. Tucker, 407 A.2d
1067, 1069 (D.C. 1979); United States v. Bradford, 344 A.2d 208, 216 (D.C. 1975);
Linkins v. Protestant Episcopal Cathedral Found., 187 F.2d 357, 360-61 (D.C. Cir.
1950). In this case, we decide issues of causation as to which there appears to have
been no controlling authority in this jurisdiction in 1901, and in doing so we rely on
a line of cases from this jurisdiction that reaches back over thirty years. Supra at 12,
23. Deciding such issues is well within this court’s authority. To the extent that Mr.
Fleming and the amici suggest that the issues we decide would be better left to the
legislature, we do not agree. See, e.g., Rong Yao Zhou v. Jennifer Mall Rest., Inc.,
534 A.2d 1268, 1273 (D.C. 1987) (noting “the role of courts in giving content to the
common law”). Thus, for the reasons we have stated we hold 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.
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
31
1179-81. Contrary to Mr. Fleming’s contention, imposing homicide liability in cases
involving the deaths of culpable participants is not an “unforeseeable” expansion of
the criminal law denying defendants the fair notice essential to Due Process. Bouie
v. City of Columbia, 378 U.S. 347, 352 (1964). Rather, this court in Roy explicitly
noted that other courts had applied the gun-battle theory to cases involving culpable
participants. 871 A.2d at 507 n.10. We therefore see no Due Process problem. See
Davis v. Moore, 772 A.2d 204, 218 (D.C. 2001) (en banc) (rejecting due-process
notice claim where court’s ruling had been “forecasted explicitly” and courts in
another jurisdiction had already adopted ruling).
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.
32
Mr. Fleming and the amici raise several additional specific objections to the
causation instructions given in this case. Before briefly addressing those objections,
we pause to make explicit what so far has only been implicit. The causation
principles we have discussed in this case are generally applicable in second-degree-
murder cases, not special principles applicable in some distinctive way to gun
battles. We therefore think that it may suffice for trial courts to instruct juries on
homicide causation in more general terms, rather than by using an instruction
tailored specifically to gun battles. The following is a model instruction on homicide
causation for use in second-degree murder cases:
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
33
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.]]
34
This model instruction is not designed to address the issue of causation under
the felony-murder statute. See supra at 27 (leaving open whether causation operates
differently under felony-murder statute). The instruction also does not address
situations in which the decedent was dying anyway and the claim is that the decedent
hastened death. Id. at 16. Although the instruction includes bracketed language to
flag the issue of temporal attenuation, the instruction does not attempt to provide any
concrete guidance about that issue, because the issue was not raised in this case. Id.
at 22. The instruction does not address the unusual situation in which the theory is
that the defendant caused death by an omission rather than an action. Finally, the
instruction does not attempt to address the issue of “multiple sufficient causes.” Id.
at 16.
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
35
concurrence contains exceptions and presents complications. Dawkins v. United
States, 189 A.3d 223, 231 & n.11 (D.C. 2018). At least in general, though,
considerations of concurrence would suggest that a defendant’s acts that lead to a
later death could provide the basis for a conviction for second-degree murder only
if, at the time the defendant took those acts, the defendant had the mental state
required for second-degree murder: intent to kill, intent to inflict serious bodily
injury, or conscious disregard of the risk of death or serious bodily injury. Walker
v. United States, 167 A.3d 1191, 1201 (D.C. 2017).
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
36
states that the United States has never identified any action by Mr. Fleming that was
a but-for cause of Michael Jones’s death, infra at 45-46, that is incorrect. In its brief
in this court, the United States does identify an act by Mr. Fleming that the United
States contends could well have been a but-for cause of Michael Jones’s death: the
firing of shots that either directly killed Michael Jones or caused Mr. Hamlin to fire
back and inadvertently kill Michael Jones. More generally, we are vacating Mr.
Fleming’s conviction and remanding for further proceedings, which presumably
means a retrial at which the issues the court decides are likely to recur. It is our
typical practice to decide such issues. See, e.g., Ill. Farmers Ins. Co. v. Hagenberg,
167 A.3d 1218, 1232 (D.C. 2017) (deciding “[s]everal issues likely to arise on
remand”). In support of the contrary contention, the concurrence relies almost
entirely on cases that are inapposite, because they do not involve a court deciding
issues that were fully briefed and can be expected to arise in proceedings on remand.
Infra at 46-48. We also note that the author of the en banc concurrence previously
perceived no obstacle in this case to opining at length on issues of proximate cause
and the intervening acts of third parties. Fleming, 148 A.3d at 1187-92 (Easterly, J.,
concurring in part and concurring in the judgment), vacated, 162 A.3d at 72.
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.
37
That is not an accurate description of either the opinion for the court or the scope of
the court’s common-law authority. The opinion for the court acknowledges that the
District of Columbia’s second-degree murder statute codified the common-law
definition of that offense, but the opinion for the court explicitly rejects the view that
the court’s authority to interpret the second-degree murder statute was frozen in
1901. Supra at 30. It also is not accurate to describe the opinion of the court as
“def[ying] basic principles of separation of powers,” by “grafting” new and
expanded principles of causation onto the second-degree murder statute. Infra at 55.
Rather, as we have explained, supra at 30-31, we are deciding an issue of causation
as to which there appears to have been no controlling authority in this jurisdiction in
1901. In doing so, moreover, we rely on cases from this jurisdiction reaching back
over thirty years. Supra at 12, 23.
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
38
genuinely in doubt”); Alvarez v. United States, 576 A.2d 713, 714-15 (D.C. 1990)
(rule of lenity does not “require courts to give criminal statutes their narrowest
possible interpretation”); cf., e.g., Shaw v. United States, 137 S. Ct. 462, 469 (2016)
(rule of lenity “applies if at the end of the process of construing what Congress has
expressed, there is a grievous ambiguity or uncertainty in the statute”) (citation and
internal quotation marks omitted).
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.
39
We highlight the following important holdings of the court: “for purposes of
the District of Columbia’s homicide statutes, ‘kill’ means ‘cause death,’” ante at 12;
“a defendant whose actions are not a but-for cause of death can nevertheless be guilty
of homicide,” ante at 17; “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,” ante at 26; and “the intervening actions of a third party do
not by themselves defeat proximate cause if those intervening actions were
reasonably foreseeable to the defendant.” Ante at 30. We conclude from these and
other portions of the opinion that the gun battle theory survives, meaning that it is
not necessary (or perhaps not always necessary) to trace a fatal shot to the gun fired
by a particular defendant.
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)
40
(en banc) (discussing depraved heart malice). They also complicate the analysis of
causation. See Roy v. United States, 871 A.2d 498 (D.C. 2005). Third, they may
demonstrate a form of vicarious liability not necessarily encompassed by or
congruent with aiding and abetting or co-conspirator liability.
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.
41
Hamlin. But aiding and abetting is not the only form of collective criminal conduct.
The Court of Appeals of Maryland confronted an analogous case in Alston v.
Maryland, 662 A.2d 247 (Md. 1995), where the fatal shot which killed an innocent
bystander was fired by one of Alston’s opponents. The court rejected Alston’s
argument “that his conduct cannot be the actual cause of Ms. Edmonds’s death.” Id.
at 251. That view of the case was too narrow, the court said. “The relevant frame
of reference . . . [was] Alston’s participation in the gun battle.” Id. at 252. “There
would have been no mutual combat, and no murder of an innocent person, but for
the willingness of both groups to turn an urban setting into a battleground.” Id.; see
also Alston v. Maryland, 643 A.2d 468, 474 (Md. Ct. Spec. App. 1994) (“the lethal
conduct in this case was the shoot-out itself”).
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).
42
This court also will need to focus in future cases on what it means to initiate
a gun battle. Firing the first shot will suffice, of course, but we also would hold that
one may initiate a gun battle without firing the first shot (by, for example, pointing
a gun menacingly at an opponent). We understand the court’s opinion to imply that
(or at least leave open the possibility that), if Hamlin inadvertently shot Jones in a
foreseeable response to an attack initiated by Fleming and Peoples with the requisite
mens rea, then Fleming could be found guilty of second-degree murder under the
but-for and proximate causation principles enunciated in the opinion, and/or as a co-
conspirator/aider and abettor of Peoples.
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, D.C. Code § 22-2103 (2012 Repl.), which creates a gradation of the crime
of murder. The relevant text provides “[w]hoever with malice aforethought . . . kills
another[] is guilty of murder in the second degree.” More than a century after this
statute was enacted by Congress, a division of this court in Roy v. United States, 871
A.2d 498, 506, 507 (D.C. 2005), conceived of an “urban gun battle theory of
liability” to expansively interpret its reach. Pursuant to this theory, Roy held that
individuals identified by the court as “street combatants”—that is, people carrying
guns—could be convicted as principals of second-degree murder based on a showing
43
that their conduct was a “substantial factor in bringing about the death” at issue. Id.
at 506 n.8; see also id. at 508. The jury in Bernard Fleming’s case was instructed to
rely on Roy’s urban gun battle theory to determine whether Mr. Fleming was guilty
of second-degree murder in connection with the death of Michael Jones. Today the
en banc court unanimously concludes this was reversible error. 1
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)).
1
But see infra note 2.
44
• 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 D.C. Code § 22-
2103, the en banc court overrules Roy.2
2
The concurring opinion of our colleagues Judge Fisher and Judge Thompson
seeks to reaffirm Roy and, in that regard, is really a dissent. Taking out of context a
statement made by the majority in a discussion of aiding and abetting liability, ante
at 17, the opinion states that “a defendant whose actions are not a but-for cause of
death can nevertheless be guilty of homicide,” see ante at 39 (Fisher and Thompson,
JJ., concurring). It asserts that “collective criminal conduct” and “vicarious liability
not necessarily encompassed by or congruent with aiding and abetting or co-
conspirator liability” can provide the foundation for a murder conviction in the
District. Id. at 39–40. And it announces that Roy’s “gun battle theory survives.” Id.
at 39. This broader conception of murder liability is endorsed only by its authors
and cannot be squared with the majority opinion’s holding.
45
The majority opinion goes further, however, and pronounces that the crime of
second-degree murder extends to a hypothetical circumstance where a defendant has
taken an earlier action in the causal chain of a death, notwithstanding that a third
party voluntarily and independently takes a later action that is both a but-for and a
more immediate cause of death.3 Ante at 23–31. For multiple reasons, we disagree
with this analysis.
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
3
Our colleagues apparently do not entirely preclude consideration of the
intervening acts of third parties, but note instead that “the intervening actions of a
third party do not by themselves defeat proximate cause if they were reasonably
foreseeable” to a defendant whose action was a but-for cause of death. See ante at
26 (emphasis added); see also id. at 22 (acknowledging that temporal attenuation is
also a legitimate concern in assessing proximate cause).
46
that was a but-for cause of Mr. Jones’s death. 4 Presumably, it would have if it could
have. Instead, the government sought to rely on Roy’s less causally demanding
urban gun battle theory.
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,
4
All the government established was that Mr. Fleming inferably possessed
and fired a gun at a time when other individuals were shooting—but (1) one of the
guns the government tried to connect to Mr. Fleming was fully loaded and could not
have fired casings of the size recovered at the scene in any event; (2) the other gun
theoretically could have done so but was missing its slide, barrel, and magazine, and
thus, at least at the time of recovery, was inoperable; and (3) although both guns
were swabbed for DNA and fingerprints, the results were inconclusive.
Even accepting that the government proved beyond a reasonable doubt that
Mr. Fleming possessed and fired a gun, much remains unclear and it may well be
that the scenario described in the majority opinion that would preclude a
determination of but-for cause, ante at 18–19, is exactly what happened. By contrast,
in all the cases our colleagues cite where this court has held that that the intervening
act of a third person did not cut off a defendant’s criminal responsibility, the
government had proved beyond a reasonable doubt an action by the defendant that
was a but-for cause of the decedent’s death. See Blaize v. United States, 21 A.3d 78,
80 (D.C. 2011) (decedent hit by car of third-party driver after defendant shot at
decedent causing him to run into oncoming traffic); Bonhart v. United States, 691
A.2d 160, 162 (D.C. 1997) (defendant set decedent’s building on fire causing
decedent to enter the burning building in an attempt to save his dog); McKinnon v.
United States, 550 A.2d 915, 916 (D.C. 1988) (defendant slashed decedent’s throat
causing him to go to seek medical treatment and incur an infection).
47
see ante at 18, to argue that it in fact proved but-for cause at trial.5 As this court has
previously explained, “an issue is ripe for adjudication only when the parties’ rights
may be immediately affected by it,” Allen v. United States, 603 A.2d 1219, 1229
n.20 (1992) (en banc) (citing Smith v. Smith, 310 A.2d 229 (D.C. 1973)). But “where
the ultimate question depends on contingencies which may not come about[,] that
question is not ripe for judicial resolution,” and it is “beyond [the] power” of a court
to issue an opinion resolving that question. Smith, 310 A.2d at 231; see also
Udebiuwa v. District of Columbia Bd. of Med., 818 A.2d 160, 165 (D.C. 2003)
(Schwelb, J. concurring) (citing Allen for the proposition that “[e]ven when we sit
en banc, we generally decline to issue guidelines which are not required to decide
the case before us”). 6
5
We are nonetheless compelled to remand because Mr. Fleming never argued
that the government’s evidence was legally insufficient to establish but-for cause
beyond a reasonable doubt, and even after amicus argued that the evidence was
insufficient, he did not adopt that argument.
6
The majority opinion notes that the concurrence to the panel opinion in
Fleming “perceived no obstacle” to discussing proximate cause. Ante at 36. There
is a distinction with a difference between the panel concurrence and the majority
opinion for the en banc court. The concurrence called for Roy to be overruled based
on its comprehensive explication of the many flaws in the urban gun battle
theory. See Fleming v. United States, 148 A.3d 1175, 1187-89 (D.C. 2016)
(Easterly, J., concurring in the judgment), vacated, 164 A.3d 72 (D.C. 2017)
(explaining that causation has two parts, but-for and proximate cause; that “only
if . . . but for cause is established do we ask whether the defendant’s actions are
the . . . proximate cause of the harm”; that “the causation analysis in Roy is flawed
both as to actual cause, which it failed to consider, and as to proximate cause, which
48
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
it defined incorrectly”; that Roy incorrectly understood proximate cause as extending
criminal liability instead of limiting it; and lastly that “[i]mplicit in Roy’s theory of
proximate causation for urban gun battles, however, is an assumption that another
person’s act of firing a fatal shot can be a ‘foreseeable’ event that does not break the
causal chain between the defendant’s actions . . . and a resulting death”). Having
granted en banc review, the full court is not obligated to employ a similar
comprehensive approach to resolve Mr. Fleming’s case, particularly when it
incorporates analysis that is wrong. See infra.
49
before the court with that clear concreteness provided when a question emerges
precisely framed and necessary for decision from a clash of adversary argument
exploring every aspect of a multifaceted situation embracing conflicting and
demanding interests.”).
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
7
This is in stark contrast to tort law, where individuals may be held
vicariously liable for the actions of others. But the aims of tort law (to establish who
should bear the burden of loss) and criminal law (to punish) are clearly different.
See Campbell v. State, 444 A.2d 1034, 1041 (Md. 1982). For this reason, courts
50
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
have declined to import into criminal law the broader conception of proximate cause
from tort law. See id. (explaining that “the tort liability concept of proximate cause”
only has “shallow relevance” to the analysis of causation in criminal cases and “is
generally too broad and comprehensive to be appropriate in a criminal proceeding”);
Commonwealth v. Root, 170 A.2d 310, 314 (Pa. 1961) (explaining that “the tort
liability concept of proximate cause has no proper place in prosecutions for criminal
homicide and more direct causal connection is required for conviction”); see also
United States v. Schmidt, 626 F.2d 616, 618 n.3 (8th Cir. 1980) (citing Root and
other cases) (expressing difficulty with an instruction that “could be construed as
importing wholesale into the criminal law the far-extended tort law concept of
proximate causation” and stating that “we believe that some proof of some more
direct causal connection between act and result should be required in criminal cases
than would be sufficient to uphold liability in tort”); ante at 25 (acknowledging that
tort law is not “dispositive” in the criminal context).
That said, even in the context of tort law, until well into the twentieth century,
decades after Congress enacted the District’s second-degree murder statute, it was
unclear in this jurisdiction that the independent, voluntary actions of a third-party
intervenor would not cut off proximate cause. See, e.g., Ross v. Hartman, 139 F.2d
14 (D.C. Cir. 1943) (explaining that in a 1916 decision in a personal injury action
“this court held that the defendant’s act in leaving [his] car unlocked was not a
‘proximate’ or legal cause of the plaintiff's injury [of getting run over] because the
wrongful act of a third person [who stole the car] intervened,” but that the court
could not “reconcile that decision with facts which have become clearer and
principles which have become better established than they were” and thus
concluding that the 1916 decision “should be overruled”).
51
taken an action in the causal chain of a homicide “nevertheless” may be held
criminally responsible for the actions of those with whom they are complicit.
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)
52
proximate cause theory of felony murder8 do not support its conclusion; rather they
corroborate the settled understanding of the limited reach of common law causation
principles. 9 To this, the majority opinion has no response.
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
8
See ante at 24 (citing Robinson v. State, 782 S.E.2d 657, 660–62 (Ga. 2016);
People v. Lowery, 687 N.E.2d 973, 976 (Ill. 1997)). The majority opinion does not
acknowledge that these are proximate-cause-theory-of-felony-murder cases.
9
The majority opinion’s reliance on Commonwealth v. Devine, 26 A.3d 1139,
1150 (Pa. Super. Ct. 2011), is inapt because the court upheld a murder conviction
for death of a bystander based on an interpretation of Pennsylvania’s causation
statute. Ante at 24. Devine sheds no light on the proper understanding of common
law causation principles. Similarly, the cases the majority opinion cites where the
third-party intervenor’s action was not autonomous or involved less than
autonomous choices—which includes all cited opinions from this court, see supra
note 4—do not support its conclusion.
53
that common law crime in D.C. Code § 22-2103, the common law is “frozen” at the
year of the statute’s enactment in 1901, as our colleagues acknowledge in their
discussion of but-for cause. Ante at 9–10 (explaining that the District’s murder
statute codified “the common law definition of murder”); id. at 11 (quoting Carrell,
165 A.3d at 319 n.12 (“It is a settled principle of interpretation that, absent other
indication, Congress intends to incorporate the well-settled meaning of the common-
law terms it uses.”) (quoting Sekhar v. United States, 570 U.S. 729, 732 (2013)
(quoting Neder v. United States, 527 U.S. 1, 23 (1999)))); id. at 15 (concluding that
a showing of but-for cause is required first and foremost because it is “part of the
traditional understanding of cause”); see also Bishop v. United States, 107 F.2d 297,
301 (D.C. Cir. 1939) (“Although distinction is made in the severity of punishment
for the degrees of murder, the statute embodies the substance of murder as it was
known to the common law”) (citing Hill v. United States, 22 App. D.C. 395, 402
(D.C. Cir. 1939)); Hill, 22 App. D.C. at 402 (“The definition of [first degree] murder
as given in section 798 of the Code is the common-law definition of that crime, as
we find it in the 4th book of Blackstone’s Commentaries, page 195, transcribed from
the 3d Institute of Coke, page 47. It is not, therefore, a new or statutory definition
of murder, but simply the common-law definition of that crime.”). 10 None of the
10
Thus, this court has reaffirmed on numerous occasions that when
interpreting common law crimes codified by the D.C. Code, “the common law” in
54
cases cited by our colleagues in the majority, see ante at 30, interprets a statute
codifying a common law offense in such a way as to expand beyond its settled
common law understanding the scope of the conduct deemed punishable as that
crime, much less endorses such judicial activism. 11
the historical sense—not a common law—“definition is controlling.” Perkins v.
United States, 446 A.2d 19, 23 (D.C. 1982) (emphasis added) (examining the
common law history of the malicious disfigurement statute); see also Contreras v.
United States, 121 A.3d 1271, 1274 (D.C. 2015) (observing that “[b]ecause the
statute does not specify the elements of assault, the common law definition of the
offense controls” (quotation marks omitted)); United States v. Bradford, 344 A.2d
208, 213 (D.C. 1975) (same for manslaughter statute).
11
To the contrary, in both Bradford, 344 A.2d 208, and Comber, 584 A.2d
26, this court adhered to the historical, pre-D.C. Code, common law understanding
of the crime of manslaughter, in particular the understanding that voluntary and
involuntary manslaughter are separate offenses. Bradford, 344 A.2d at 213, 216
(determining that the common law understanding of manslaughter is “controlling,”
and that the distinct crimes of voluntary and involuntary manslaughter “have been
recognized at common law since Blackstone’s time”); accord Comber, 584 A.2d at
37. And although we observed in a footnote in Comber that a D.C. Code provision
that incorporates “Maryland common law in effect as of 1801” (now-D.C. Code
§ 45-301), 584 A.2d at 35 n.5, did not “freeze the common law as it existed in 1801”
and was no “bar to the exercise of our inherent power to alter or amend the common
law,” id. (internal quotation marks omitted), we neither held that there were no other
limits on this power nor endorsed the exercise of such power to alter the meaning of
a statute codifying the common law crime of manslaughter so as to expand criminal
liability thereunder.
Linkins, 187 F.2d 357, and United States v. Tucker, 407 A.2d 1067, 1069
(D.C. 1979), are simply inapposite. As noted above, Linkins is a probate case, not a
criminal case. In Tucker, this court rejected the common law rule for computing
age—that “a person is deemed to have reached a given age on the day preceding the
anniversary of his birth”—and did not purport to expand the scope of conduct
punishable as a common law crime. 407 A.2d at 1069.
55
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 D.C. Code § 22-2103 its view that a defendant should be held criminally
responsible for a death actually and more immediately caused by the voluntary
action of an independent third-party intervenor, the majority opinion defies basic
principles of separation of powers. As the Supreme Court has explained, “[t]he
definition of the elements of a criminal offense is entrusted to the legislature,”
Liparota v. United States, 471 U.S. 419, 424 (1985), and “[t]he spirit of the doctrine
which denies to the federal judiciary power to create crimes forthrightly admonishes
Only United States v. Jackson, 528 A.2d 1211, 1220 (D.C. 1987), in which
this court abrogated the common law rule limiting homicide prosecutions to cases
where the victim died within a year and a day of the infliction of injury, comes
anywhere close to providing the sort of quasi-legislative authority the majority seeks.
But Jackson is both (1) distinguishable: as we explained, the year-and-a-day rule
was archaic, rarely enforced, obsolete in light of advances in forensic pathology, and
almost universally criticized, 528 A.2d at 1216—none of which can be said for the
common-sense principle that defendants are not criminally responsible for the
independent, autonomous actions of third parties; and (2) anomalous: we have
exercised this power in no subsequent case and instead have cast doubt upon
Jackson, questioning whether our power to make new common law “permits us to
expand, by judicial decree, the scope of a statutory criminal offense.” Little v. United
States, 709 A.2d 708, 714 (D.C. 1998) (citing Jackson, 528 A.2d at 1216) (only
“[a]ssuming, without deciding” that we had such power, noting that any such
authority would have to be “exercised with restraint, lest we intrude upon the
prerogatives of the legislative branch and the liberties of the citizen,” and declining
to use this power to expand accessory-after-the-fact liability).
56
that we should not enlarge the reach of enacted crimes by constituting them from
anything less than the incriminating components contemplated by the words used in
the statute,” Morissette, 342 U.S. at 263 (footnote omitted). This court sitting en
banc has previously resisted the urge to engage “in legislative activity,” recognizing
that “[t]his is not the court’s function.” Gorham v. United States, 339 A.2d 401,
406–07 (D.C. 1975) (en banc) (recognizing that “an appellate court may not
supersede the expressed legislative will—always barring, of course,
unconstitutionality”—and observing that the impropriety of “usurping the function
of the legislative branch” in this manner is “well nigh indisputable,” id. at 407 n.23).
It should again resist that urge in this case.
Lastly, even accepting for the sake of argument that, at the time Congress
enacted the District’s murder statute, common law conceptions of proximate cause
and third party intervenors in criminal law were unsettled or unclear, see ante at 30
(stating that the majority opinion “decide[s] issues of causation as to which there
appears to have been no controlling authority in this jurisdiction in 1901”); see also
id. at 37 (again acknowledging the lack of “controlling authority in this jurisdiction
57
in 1901”), the rule of lenity applies.12 Our colleagues acknowledge that the rule of
lenity applies in their but-for-cause analysis. Ante at 15 (concluding that a showing
of but-for cause is required because “the rule of lenity precludes giving the statutory
text a meaning that is different from its ordinary, accepted meaning, and that
disfavors the defendant”); see also id. at 31 (observing that the rule of lenity applies
“where the statutory language, structure, purpose, and history leave the intent of the
legislature genuinely in doubt”). But in their proximate cause analysis, they assert
that our concurrence “substantially overstates the proper function of the rule.” Ante
at 37. We rely on the meaning of the rule as articulated by this court, see Carrell,
165 A.3d at 322 n.22 (under the rule of lenity, this court “adopt[s] the less harsh
interpretation of an otherwise ambiguous [criminal] statute and leave[s] it to the
legislature to clarify statutory terms if it wishes harsher or broader application”), and
the Supreme Court, see Liparota, 471 U.S. at 424 (explaining that “ambiguity
concerning the ambit of criminal statutes should be resolved in favor of lenity,” inter
alia, to “strike[] the appropriate balance between the legislature, the prosecutor, and
the court in defining criminal liability”).
12
Alternatively, to the extent our colleagues argue that there is no “genuine”
dispute about how common law principles of causation apply in a murder case when
there is a third party intervenor, see ante at 32, the above discussion speaks for itself.
58
This brings us back to where we started. Our court is sitting en banc to
interpret a statute, D.C. Code § 22-2103. If that statute, enacted by Congress over a
century ago, does not clearly punish certain conduct the government now wishes to
prosecute as the most serious crime of murder (as opposed to some lesser offense),
it is not the role of this court to give the government that authority—either under a
made-up urban gun battle theory or some other exercise of common law creativity.
Rather, it is the role of the District’s legislature, now the Council for the District of
Columbia, to amend the statute to reflect the views of the District’s citizens.
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.” 13 D.C.
Code §§ 3-151, -152 (2016 Repl.); see generally CCRC website, https://ccrc.dc.gov.
Now in its fourth year, the CCRC is on track to present its “combined, final reform
recommendations . . . to the Council and Mayor by the agency’s statutory deadline”
in September 2020. CCRC, FY 2019, Fourth Quarter Report (2019),
https://ccrc.dc.gov/sites/default/files/dc/sites/ccrc/publication/attachments/CCRC-
13
The CCRC has been working with a Code Revision Advisory Group
comprised of stakeholders in the District’s criminal justice system. See D.C. Code
§ 3-153 (2016 Repl.).
59
FY-2019-Fourth-Quarter-Report-of-Activities.pdf; see also D.C. Code § 3-156
(2016 Repl.). Thereafter the Council presumably will discuss and debate the
Commission’s recommendations, including those regarding causation. CCRC,
Compilation of Draft Revised Criminal Code Commentary to Date, RCC § 22E-204.
Causation Requirement (2019),
https://ccrc.dc.gov/sites/default/files/dc/sites/ccrc/publication/attachments/4-15-19-
Compilation-of-RCC-Draft-Commentary-Subtitle-I.pdf. Our colleagues in the
majority should let the legislature do its work and not inject this court into an
upcoming public policy debate about the scope of our criminal laws.