[00:00:00] Speaker 01: Case number 24-3016, United States of America versus Ralph Joseph Celentano III, also known as Ralph Joseph Celento III. [00:00:11] Speaker 01: Ms. [00:00:11] Speaker 01: Baumgartel for the balance, Mr. Hill for the appellate. [00:00:16] Speaker 05: Good morning. [00:00:17] Speaker 04: Good morning. [00:00:19] Speaker 04: May it please the court, Sarah Baumgartel of the Federal Defenders of New York on behalf of Ralph Celentano, and I'd respectfully like to reserve two minutes for rebuttal. [00:00:29] Speaker 04: The court should vacate several of Mr. Celentano's convictions, primarily because the district court gave an erroneous defense of another charge, which went to the heart of Celentano's primary trial defense. [00:00:41] Speaker 04: The court should also order a resentencing. [00:00:44] Speaker 04: The government concedes that the district judge made multiple errors at Mr. Salantano's sentencing and the only question is whether these errors were prejudicial for the reasons that we set forth in our briefing they are. [00:00:55] Speaker 04: With respect to the self-defense claim, the district judge agreed that a self-defense charge or defense of another charge was warranted in this case. [00:01:04] Speaker 04: But the charge that the court gave made two critical errors. [00:01:08] Speaker 04: It erroneously effectively instructed the jury that Mr. Celentano had to prove that the officer that he shoved, Officer Ellis, was using excessive force before he could claim self-defense or defense of another. [00:01:24] Speaker 04: But that reverses the burden of proof. [00:01:26] Speaker 04: In fact, it's the government's obligation to prove that an individual [00:01:30] Speaker 04: is not using excessive force. [00:01:34] Speaker 04: And even if Mr. Celentano were mistaken that the officer was using excessive force, he should still be able to claim defense of another. [00:01:42] Speaker 04: But the district judge's instruction misstated this law. [00:01:46] Speaker 04: The other mistake that the instruction made was that it asked the jury to consider the use of force from the perspective of the law enforcement officer [00:01:54] Speaker 04: And as the government explained in its brief, as the government argues, this meant that their argument is that Mr. Salentano was supposed to consider the facts known to the law enforcement officer, and that should have been in his mind in order for him to be able to act in defense of another. [00:02:11] Speaker 04: But that's not how self-defense law works. [00:02:14] Speaker 05: Would there be any difference between self-defense instruction in a case [00:02:19] Speaker 05: where the person who was attacked, certainly for reasons of self-defense or defense of another, is a civilian versus a police officer. [00:02:32] Speaker 04: There is a difference, yes. [00:02:34] Speaker 05: How do the instructions reflect that difference? [00:02:37] Speaker 04: Well, the case law is clear that you can only use, the instruction has to say that the defendant believes that the officer is using excessive force. [00:02:46] Speaker 04: And so for an ordinary citizen, any use of force can precipitate defensive force. [00:02:52] Speaker 04: And so that's a critical difference. [00:02:54] Speaker 04: When the government talks about the right of self-defense being limited as to police officers, [00:03:00] Speaker 04: That's true, and the limitation is that there's this requirement that it be excessive force. [00:03:05] Speaker 04: But that doesn't answer the further question. [00:03:07] Speaker 05: Does the jury know what counts as excessive force? [00:03:11] Speaker 04: So they're supposed to consider it what they believe is reasonable under the circumstances. [00:03:16] Speaker 05: I mean, excessive force has a particularized meaning in the context of the law. [00:03:21] Speaker 05: And shouldn't the instruction at least inform the jury [00:03:26] Speaker 05: what that excessive force, determining excessive force means more, I'm not talking about your perspective issue, but simply that it means more than force that could reasonably, that the defendant would have to think that the officer was using more force than reasonably necessary under the relevant circumstances, and there's [00:03:48] Speaker 05: a lot of circumstances that are relevant to deciding whether something's excessive force. [00:03:52] Speaker 05: And so it just struck me that instruction proposed by the defense was sort of very simple and didn't seem to take account of informing the jury about its need to view force through a different lens when the person who was attacked was a police officer versus a civilian. [00:04:12] Speaker 05: And your objections with their instruction was that it changed the perspective entirely. [00:04:17] Speaker 05: Right. [00:04:18] Speaker 05: But doesn't there need to be more information for the jury about what it means for something to be excessive force? [00:04:24] Speaker 05: To address the concerns the government has raised about not inviting everyone to interfere with every law enforcement officer engaged in the use of force. [00:04:32] Speaker 04: Well, I mean, the problem, Your Honor, is that even if there needed to be an additional sentence in the defense instruction, the government's instruction was just erroneous. [00:04:40] Speaker 04: And so [00:04:41] Speaker 04: The government's instruction didn't provide the jury with any guidance as to determining excessive force in the manner that your honor is suggesting. [00:04:49] Speaker 05: Rather it- How did they get the defense instruction? [00:04:51] Speaker 04: Well, I don't actually think that's necessary because it says excessive force. [00:04:57] Speaker 04: And if you drilled out on some of the case law where they talk about it, it's what the jury believes is reasonable under the circumstances. [00:05:05] Speaker 05: This isn't something within the common ken of juries, what the definition of excessive force in the law enforcement context is. [00:05:12] Speaker 04: Well, but the issue is that it's not clear that the jury would need to find that it meets that definition. [00:05:20] Speaker 05: Well, they would have to find the defendant reasonably thought that it met this particularized standard in the law, and not just that it was a use of force. [00:05:31] Speaker 04: I don't believe that's correct, because there you are expecting the defendant to have some specialized knowledge as to the laws, what constitutes excessive force. [00:05:40] Speaker 04: And that's not what self-defense law requires. [00:05:42] Speaker 05: But otherwise, how do we protect law enforcement officers from interference? [00:05:45] Speaker 05: Because at some level, there has to be some burden on the defendant to think that this is more than, this isn't just the type of force that I could interfere with if it were a civilian engaged in it. [00:05:56] Speaker 05: We have to have, in your case, the defendant make [00:06:00] Speaker 05: a judgment before attacking that this is something outside the bounds of what the law allows a police officer to do. [00:06:10] Speaker 05: It's a different baseline. [00:06:12] Speaker 04: And all the issues that your honor is raising are addressed by the reasonableness requirement. [00:06:17] Speaker 05: And so general self-defense says that the use of force has to be... The use of force requirement is no different than instruction in a civilian case. [00:06:23] Speaker 04: But that's right, but what's reasonable with respect to a police use of force versus what's reasonable with respect to a civilian use of force may be different, but the jury- My point is exactly, but the jury needs to be told about, told that. [00:06:34] Speaker 04: No, because the defendant is not expected to have specialized knowledge in order to avail himself- But then it becomes the same standard as civilian self-defense. [00:06:41] Speaker 04: But it doesn't. [00:06:41] Speaker 05: You either have to tell the jury that it's a different standard. [00:06:45] Speaker 05: Now, it can still be from the defense perspective. [00:06:48] Speaker 05: That's a separate question, to be clear. [00:06:51] Speaker 05: But you have to at least inform the jury [00:06:54] Speaker 05: about the nature of what the person had to believe. [00:06:57] Speaker 05: They had to believe that it was reasonable for me to interfere with law enforcement, which is a different judgment than it was reasonable for me to interfere with a civilian who was beating somebody up. [00:07:08] Speaker 04: And respectfully, all of that is covered by the instruction that the defense proposed and by the requirement that in the law that the defendant know the person is [00:07:15] Speaker 04: police officer for there to be a separate rule and for the actions to be reasonable under all the circumstances. [00:07:20] Speaker 04: And if the jury here had been given a correct instruction, then the government could have properly argued in closing [00:07:26] Speaker 04: maybe this use of force would have been objectively reasonable against a civilian, but it's not objectively reasonable against a police officer for X, Y reason. [00:07:34] Speaker 04: However, the jury was not properly instructed. [00:07:36] Speaker 04: And to bring it to the facts of this case, here you have an officer in full riot gear repeatedly striking an individual with a baton. [00:07:43] Speaker 04: And so this is not a situation where the use of force was so obviously lawful. [00:07:49] Speaker 04: of a riot where people were running amok, trying to break into a governmental building. [00:07:53] Speaker 04: Whether you call it a protest or a riot, it's not licensed for police brutality. [00:07:57] Speaker 04: A police officer repeatedly beating someone with a baton. [00:08:00] Speaker 05: It's also not licensed for civilian brutality on police officers. [00:08:02] Speaker 04: No, Your Honor. [00:08:03] Speaker 04: And that, again, goes to the reasonable use of force. [00:08:06] Speaker 04: And so that was all part of the defense instruction that the force has to be reasonable under the circumstances. [00:08:12] Speaker 04: But in this situation, there's no requirement in self-defense law [00:08:19] Speaker 04: and consider the use of force from the perspective of the person against whom he's using force. [00:08:24] Speaker 04: That's antithetical to the concept of self-defense, because the idea is that, I think as Justice Holmes famously wrote, detached reflection cannot be demanded in the presence of an uplifted knife. [00:08:35] Speaker 04: Here we have an uplifted knife. [00:08:36] Speaker 06: And the Supreme Court has repeatedly talked about the circumstances under which a law enforcement officer must make decisions. [00:08:49] Speaker 06: You don't say this in your brief, but it's undisputed that your client did not know the circumstances that were facing the police officer he attacked. [00:09:03] Speaker 06: Do you agree with that? [00:09:06] Speaker 04: Yes, we agree that Mr. Santon did not know all the things that Officer Ellis testified he knew, yes. [00:09:13] Speaker 06: So what does your instruction tell the jury? [00:09:17] Speaker 06: It says that [00:09:19] Speaker 06: if the defendant, although not familiar with all the facts, thought the officer was acting excessively [00:09:31] Speaker 06: then the defendant can attack the officer? [00:09:36] Speaker 06: No, Your Honor, but the gravamen- No, but I'm trying to understand how it works from the perspective of your instruction. [00:09:45] Speaker 04: That he has a sincere and reasonable belief that he's preventing excessive police force. [00:09:51] Speaker 04: Here's what I'm getting at. [00:09:57] Speaker 06: An officer [00:09:59] Speaker 06: is in a chokehold. [00:10:01] Speaker 06: A second officer sees that and the chokehold is being done by the rioter. [00:10:10] Speaker 06: And so the second officer takes action. [00:10:13] Speaker 06: Your client doesn't see any of that. [00:10:18] Speaker 06: All he sees is the second officer's taking action. [00:10:23] Speaker 06: So I'm trying to understand how your instruction [00:10:27] Speaker 06: Given that excessive force is just, you know, force that's not reasonable under the circumstances, how it actually works, because if your client testifies he had a sincere belief that the officer was acting excessively, [00:10:54] Speaker 06: Is that the end of the question for the jury? [00:10:56] Speaker 04: And his belief has to be reasonable under the circumstances. [00:11:01] Speaker 04: And so they're leading to that. [00:11:05] Speaker 06: Why isn't the error harmless? [00:11:10] Speaker 04: So that's obviously an argument the government makes in this situation. [00:11:14] Speaker 04: And that's why I'm asking you to address it. [00:11:17] Speaker 04: Yes. [00:11:18] Speaker 04: In this situation, both Mr. Salentano and Officer Ellis testified. [00:11:22] Speaker 04: The video is quite equivocal. [00:11:25] Speaker 04: So the video that was presented to the jury, particularly the video from Mr. Salentano's perspective, [00:11:30] Speaker 04: You see Officer Ellis repeatedly striking someone. [00:11:33] Speaker 04: You do not see that person attacking another officer or putting another officer on a chokehold. [00:11:39] Speaker 06: Was there any testimony challenging Officer Ellis' testimony as to that point, as to why he was acting in light of, I'm going to call this person the third person, the rioter's conduct? [00:11:59] Speaker 04: Well, [00:12:00] Speaker 04: Mr. Salentano's testimony was that he couldn't see that. [00:12:03] Speaker 04: And so the point is that this is exactly why the- He doesn't know what's happening. [00:12:07] Speaker 06: That's my point. [00:12:09] Speaker 06: So he makes a decision about what is reasonable and unreasonable and excessive force by the officer. [00:12:19] Speaker 06: And I'm just trying to understand how the jury is supposed to parse this [00:12:24] Speaker 06: if it doesn't consider it from the officer's perspective in light of all the officer knows, since excessive force is excessive under the circumstances. [00:12:38] Speaker 06: You may be right, but I'm just trying to understand. [00:12:41] Speaker 06: When I read your brief, I wasn't clear how your concept works in terms of if I'm a member of the jury, you know, [00:12:54] Speaker 06: What do I do under your instruction? [00:12:58] Speaker 06: Because you are going, as will any defendant, present evidence that he or she had an honest belief that the officer was acting unreasonably. [00:13:14] Speaker 04: Certainly your honor's question goes to the heart of why this instruction is prejudicial. [00:13:19] Speaker 04: So Ellis and Celentano testify if the jury credited both of their testimonies and viewed the video evidence at trial. [00:13:26] Speaker 04: The jury could have easily concluded that it wasn't clear if Ellis was using excessive force, or perhaps he wasn't, but they could have credited Celentano that he didn't see this person with the chokehold, and so he believed that the force was excessive. [00:13:42] Speaker 04: Under those circumstances, Mr. Celentano should have been able to avail himself of this defense of another instruction. [00:13:49] Speaker 04: However, under the court's erroneous instruction, [00:13:53] Speaker 04: Under those circumstances, the jury concluded that there was no self-defense available. [00:13:58] Speaker 04: That's exactly the problem with this instruction, is that if the jury credited the testimony of Celentano and Ellis, which was supported by the video evidence that the jury saw, they would have thought that Mr. Celentano was not entitled to self-defense, even though under a correct statement of the law, he should have been entitled to self-defense. [00:14:20] Speaker 03: Ms. [00:14:20] Speaker 03: Baumgartel? [00:14:21] Speaker 03: even if we accepted your understanding of how the defense of another instruction should have been, even if we accept that, I mean, why isn't the error still harmless? [00:14:35] Speaker 03: Because it seems that it's highly probable that the jury could have concluded that the person that Officer Ellis was hitting was the initial aggressor. [00:14:50] Speaker 04: So the law is actually that Mr. Santana would have had to know that that person was the initial aggressor and there was no evidence that he did. [00:14:57] Speaker 04: So if the jury concludes that Mr. Santana was truthfully testifying, which from his perspective on the video, you could easily conclude he doesn't know that this person is the initial aggressor. [00:15:08] Speaker 04: All he sees is a [00:15:10] Speaker 04: police officer in full riot gear repeatedly batoning someone. [00:15:13] Speaker 04: And so that, you know, and again, the common law on this is very clear is that a third party intervener may actually have a greater right to use force than an individual against whom, who they're acting to protect if they don't know everything that that person knows. [00:15:29] Speaker 04: And again, I understand that some of this may be counterintuitive, but [00:15:34] Speaker 04: Self-defense law is designed to protect defendants who act with a sincere and reasonable belief. [00:15:39] Speaker 05: I understand, but we've also said it's really important in this context of law and attacking law enforcement officers that the tests factor in all the relevant circumstances to determining whether force was excessive. [00:15:52] Speaker 05: And your argument today seems to be the less the defendant knows. [00:15:58] Speaker 05: be more than justified in attacking police officers. [00:16:01] Speaker 05: He didn't know who started it. [00:16:03] Speaker 05: He didn't know what the police officer was doing. [00:16:05] Speaker 05: He didn't know why he was hitting the other person. [00:16:06] Speaker 05: He couldn't see over the ledge. [00:16:09] Speaker 05: He just saw a police officer in the midst of a riot engaged in trying to control somebody and thought it was a good time to body block him. [00:16:16] Speaker 04: Your honor, not at all. [00:16:18] Speaker 04: Again, the stopgap is that a jury gets to consider whether or not the defendant's actions are reasonable. [00:16:24] Speaker 05: And so these are exactly the sort of... You said reasonable under the circumstances, but the circumstances seem to be only what Mr. Celentano thought for a split second. [00:16:32] Speaker 05: And that gives no reality at all to the requirement that excessive force looks at all the circumstances in which the officer is acting. [00:16:43] Speaker 04: No, for every self-defense claim, there's a subjective and an objective perspective. [00:16:47] Speaker 04: The subjective is the defendant's, and then there is an objective reasonable person standard. [00:16:52] Speaker 04: And we agreed with that. [00:16:53] Speaker 04: That's what our instructions said. [00:16:54] Speaker 04: And these are exactly the sort of fact-intensive decisions that 12 jurors should be making. [00:16:59] Speaker 05: But what exactly is your objective reasonable person test? [00:17:04] Speaker 05: Because it would have to be a reasonable person unaware [00:17:09] Speaker 05: of all the circumstances. [00:17:11] Speaker 05: Yes, because you said, you admitted he didn't know that in fact there was a person with a police officer in a choke hold right there. [00:17:18] Speaker 05: And that was one of the circumstances in which, that was the key circumstance that caused the officer to be striking the person with a baton. [00:17:27] Speaker 05: That's an incredibly, you have to agree that's incredibly relevant circumstance. [00:17:31] Speaker 04: A defendant doesn't have to know everything the officer knows. [00:17:35] Speaker 04: The question is whether the actions are overall objectively reasonable. [00:17:38] Speaker 05: No, but doesn't a defendant have to take some time to assess the relevant circumstances? [00:17:44] Speaker 05: Otherwise, we're back to where I started, which is the less you know and the less you bother to learn, the more entitled you are to attack police officers. [00:17:52] Speaker 05: And that seems a troubling rule. [00:17:54] Speaker 05: Not at all, Your Honor, but part of what you're arguing with is... No, how does your test protect against my concern that the less he knew, [00:18:02] Speaker 05: He didn't know who was the initial aggressor. [00:18:04] Speaker 05: He didn't know why the officer was engaged in the behavior the officer was engaged in. [00:18:10] Speaker 05: He didn't bother to stop and think about it before attacking. [00:18:14] Speaker 05: And yet your argument is that's perfectly reasonable from his perspective. [00:18:18] Speaker 04: Because there's always a stopgap that it has to be objectively reasonable. [00:18:22] Speaker 05: No, you just told me objectively reasonable based on you don't want it to be on the officer's knowledge. [00:18:28] Speaker 05: You don't want it to be on what was actually going on. [00:18:31] Speaker 05: You only want it to be objectively reasonable based on the facts that he had. [00:18:35] Speaker 04: Is that correct? [00:18:35] Speaker 04: No, Your Honor. [00:18:36] Speaker 04: Objective is objective. [00:18:38] Speaker 04: But objective doesn't mean the officer's opinion. [00:18:40] Speaker 04: And that's the problem with the government's instruction. [00:18:43] Speaker 05: Does that include the fact that there was a [00:18:45] Speaker 05: person in a chokehold, another officer in a chokehold that this officer was trying to free. [00:18:51] Speaker 04: Well, the jury has to decide that. [00:18:53] Speaker 04: So the jury, if the jury credited that when Officer Ellis said it, that would be the first decision for the jury. [00:18:59] Speaker 05: That seems inconsistent with your argument that it's really, even if in fact it was objectively reasonable, he could still have a reasonable belief that it was not objectively reasonable and be okay in attacking him. [00:19:11] Speaker 04: Your argument is very straightforward. [00:19:13] Speaker 04: There's a subjective and objective component. [00:19:15] Speaker 04: Subjective is what Mr. Salantano knew. [00:19:17] Speaker 04: Objective is a reasonable person, not the officer's own testimony about whether... Your Honor, the law is a hypothetical reasonable person. [00:19:29] Speaker 05: I mean, in this context, take this case, what would that reasonable person know? [00:19:33] Speaker 05: Would that reasonable person know [00:19:35] Speaker 05: that the officer was engaged in the use of force because another officer was in a chokehold and he was trying to protect that officer. [00:19:43] Speaker 05: Would the reasonable person take that into account? [00:19:45] Speaker 04: That's a fact question for the jury. [00:19:46] Speaker 04: Officer Ellis testified that that's why he was striking this person. [00:19:50] Speaker 04: And so it's the first step for the jury. [00:19:52] Speaker 04: And there's no counter evidence at all. [00:19:54] Speaker 04: Well, Mr. Salampano didn't see that. [00:19:55] Speaker 04: He said he couldn't see. [00:19:56] Speaker 05: That's all. [00:19:57] Speaker 05: That's not counter evidence. [00:19:59] Speaker 04: No, Your Honor, but that's what I'm saying is that you're asking, what would the jury be looking at? [00:20:04] Speaker 04: The jury would be deciding whether accredited this person's testimony as to why they were doing what they were doing. [00:20:09] Speaker 04: They would be looking at the videos. [00:20:11] Speaker 04: they would be making a decision about whether what Mr. Solentano did was objectively reasonable, given everything that they saw. [00:20:17] Speaker 05: And that is a really fundamental- That's what the defense instruction conveyed, because you've also argued that even if he was wrong and couldn't see and didn't know what was going on, as long as based on what he saw, he reasonably thought it was necessary to use force. [00:20:32] Speaker 05: So you're disavowing that position now. [00:20:34] Speaker 04: No, Your Honor, but we've also gotten far away from the other mistake with the instruction. [00:20:38] Speaker 05: No, I'm trying to understand your instruction, so let's stay on this question. [00:20:42] Speaker 05: Emma, are you arguing, this is where I'm getting confused about, you think the reasonableness inquiry is here, are you arguing that if in fact the jury credited Officer Ellis's testimony, [00:20:56] Speaker 05: but also credited Mr. Zelentanos that I couldn't see, I didn't know, I just saw this officer hitting someone with a baton. [00:21:06] Speaker 05: And I, and let's assume they, I, if that's all we knew and that's all the facts that there were, reasonably thought that was excessive force, that he should [00:21:21] Speaker 05: the instructions say that should be sufficient for him to be self to, for a jury to find that he engaged in self-defense, even if somebody standing back would also, the jury also credited Mr. Officer Ellis's test. [00:21:33] Speaker 04: Yes, a defendant can avail himself of self-defense if he makes a reasonable mistake of fact. [00:21:38] Speaker 04: And so if Mr. Salanchano. [00:21:40] Speaker 05: In all the circumstances. [00:21:41] Speaker 05: Yes. [00:21:42] Speaker 05: Then we are back to saying, the less you know. [00:21:45] Speaker 05: No, Your Honor, but the self-defense. [00:21:47] Speaker 05: You can't say it's all of it, and you can't say that he still can have his defense without knowing. [00:21:55] Speaker 05: He can act reasonably. [00:21:57] Speaker 05: without knowing the relevant circumstances. [00:22:00] Speaker 04: Your Honor, I think your primary complaint is with self-defense law and not with our argument, particularly, because self-defense law understands. [00:22:07] Speaker 05: Well, this is a difficult question on which I'm not seeing a whole lot of precedent on how we instruct a jury in the context of a decision to attack a police officer without pausing for a second to figure out what's going on. [00:22:24] Speaker 04: There are many stop gaps, right? [00:22:27] Speaker 04: And so the first thing is there has to be an appearance that the officer is using excessive force. [00:22:31] Speaker 04: And so if an officer is using what any reasonable person would consider to be a non-excessive amount of force. [00:22:38] Speaker 05: Any reasonable person or did your defendant reasonably believe? [00:22:42] Speaker 04: No, no. [00:22:42] Speaker 05: That's not the same thing. [00:22:43] Speaker 04: Your Honor, because there are two inquiries, subjective and objective. [00:22:47] Speaker 04: And so the stopgap. [00:22:49] Speaker 05: Are you calling that the subjective or objective inquiry? [00:22:52] Speaker 04: But Your Honor, I think Your Honor's concern is that if the less you know, the better off you are. [00:22:58] Speaker 04: That only pertains to the subjective. [00:23:01] Speaker 04: For the objective component of the self-defense charge, which our instruction considered, [00:23:07] Speaker 04: The jury looks at all of the surrounding circumstances. [00:23:09] Speaker 04: And so, for example, and I write this in the brief, if a uniformed police officer tries to handcuff someone on the street, just puts them in handcuffs. [00:23:17] Speaker 04: the defendant tried to claim, well, I thought that they were doing something unlawful. [00:23:22] Speaker 04: It would be very easy to see that that would be unreasonable. [00:23:24] Speaker 04: The defendant's belief would be unreasonable. [00:23:26] Speaker 04: And so there are many circumstances where, no matter what the defendant objectively says, a jury might conclude that that was simply an unreasonable opinion. [00:23:35] Speaker 04: And so that's where the objective reasonableness comes into play. [00:23:38] Speaker 04: The problem with the government's instructions is that it went beyond simply objective reasonableness to suggest that the police officer's own opinion about his use of force [00:23:46] Speaker 04: should cover this question, and that's the problem. [00:23:49] Speaker 06: The second problem, of course, is that it suggests- I suppose, though, the first problem, as you see it, is that the jury was required to accept Officer Ellis's perception, and I don't see that. [00:24:12] Speaker 04: The government said that it was from the perspective of a reasonable law enforcement officer. [00:24:18] Speaker 04: And so the only testimony about the law enforcement officer perspective was Alice's. [00:24:23] Speaker 04: And then the government further argued that the defendant should be essentially imputed to know everything that Officer Alice knew. [00:24:29] Speaker 04: And so that's why it takes it beyond what would purely be objectively reasonable to a more subjective [00:24:35] Speaker 06: Well, you want to use these words to bolster your argument, and I understand that, but I don't think it's helpful here where you're just putting subjective where it favors you and objective where it doesn't favor the government. [00:24:52] Speaker 06: So that's why we're pressing you on this, because this is not a context of a man on a street where the officer is trying to handcuff him. [00:25:03] Speaker 06: This is a riot. [00:25:05] Speaker 06: where police officers were injured, one was killed, and in that circumstance, whose perspective should the jury first consider? [00:25:20] Speaker 06: And again, I'm back to where Judge Rao's question, why isn't any error harmless given the circumstances here? [00:25:32] Speaker 04: Truly, even if it is a riot, that does not give police officers license to beat someone. [00:25:38] Speaker 06: No, no, but it does go back to the fundamental question of what do we expect of law enforcement officers? [00:25:48] Speaker 06: And Congress has repeatedly passed statutes [00:25:52] Speaker 06: with requirements, and the common law has requirements. [00:25:58] Speaker 06: And you, as I understand it from your instruction, want to reverse that by saying, whatever the defendant thought, regardless of his basis of knowledge, if he thought the officer was acting unreasonably, then [00:26:20] Speaker 06: He was entitled to attack the officer. [00:26:26] Speaker 06: Isn't that what your instruction says? [00:26:29] Speaker 04: No, Your Honor. [00:26:30] Speaker 07: Why doesn't it? [00:26:31] Speaker 07: That's what I can't understand. [00:26:33] Speaker 07: It says that he has to have a reasonable belief that the use of force was necessary. [00:26:38] Speaker 06: It's reasonable from his perspective, because what he sees is the officer repeatedly hitting a rioter on the head. [00:26:49] Speaker 06: So from his perspective, as I understand your argument, all he did was to body ram the officer to stop. [00:27:01] Speaker 06: I mean, your client said, all I wanted to do was to get the officer to stop hitting the rioter on the head. [00:27:09] Speaker 06: but there's never any acknowledgement of the circumstances bringing the officer to the conclusion that was necessary. [00:27:19] Speaker 06: And that's what I'm trying to understand what our legal system as a jurisprudential matter expects of the fact finder in a criminal case [00:27:31] Speaker 06: where we're talking about actions of law enforcement officers. [00:27:36] Speaker 06: And that's why all these cases that both sides cite do not speak in a holding that makes it clear that we are bound one way or the other. [00:27:50] Speaker 06: And we're trying to figure out within our system what [00:27:57] Speaker 06: should be the rule if we have to even decide that question or we can just say, you know, it was harmless error. [00:28:06] Speaker 04: I understand. [00:28:08] Speaker 04: I mean, I would encourage the court not to find it harmless because again, the self-defense instruction was addressed by both parties. [00:28:15] Speaker 04: It went to the heart of Mr. Celentano's primary trial defense. [00:28:19] Speaker 04: the government specifically cited the instruction that we claim was erroneous. [00:28:23] Speaker 04: And so it was clearly an important part of the trial. [00:28:26] Speaker 06: I would also say that under the circumstances- There's no question, but all the cases that sort of lean in your favor are just so distinct where the defendant is essentially the victim of the police ulcer. [00:28:42] Speaker 06: And that decision has already been made. [00:28:46] Speaker 04: I also just to some of what else your honor mentioned in terms of you know the government sites in 1983 cases and there are obviously many doctrines protecting officers who use force. [00:28:57] Speaker 04: I think it makes sense to look at it from a different perspective here. [00:29:00] Speaker 04: Those are cases where we're determining the liability of the officer and in those situations it makes sense to consider the perspective of the officer to determine [00:29:09] Speaker 04: from their perspective whether their actions are reasonable. [00:29:12] Speaker 04: Here we're considering the liability of Mr. Salentano and that's why self-defense law has a different focus than the 1983 cases. [00:29:21] Speaker 05: But we have to realize the consequences of a ruling would be when we say [00:29:26] Speaker 05: You're opening the door to attack some police officers while they are engaged in the very, very difficult job of physically detaining, restraining, or halting a suspected criminal defendant. [00:29:43] Speaker 05: So I understand the liability shoe is on a different foot here. [00:29:49] Speaker 05: But the legal consequence of a ruling that says, [00:29:54] Speaker 05: A jury could say, well, here are the facts Mr. Solentano knew. [00:29:59] Speaker 05: And given those facts, just those facts, he acted reasonably, even if those were not the relevant objective circumstances. [00:30:09] Speaker 04: So many cases have recognized that there is a right to self-defense against police officers, and there is a right to self-defense in 111 charges. [00:30:19] Speaker 04: And so, but I understand your officer's concern or your honor's concern. [00:30:22] Speaker 04: I just I want to highlight a couple of [00:30:24] Speaker 04: sort of stop-gap safety measures in this. [00:30:26] Speaker 04: You know, the government talks about the fact that self-defense against an officer is limited, and we agree with that. [00:30:31] Speaker 04: So it's not against an officer using any amount of force. [00:30:35] Speaker 04: There is this requirement that there has to be a belief that it's excessive force. [00:30:40] Speaker 04: Many of the cases the government cites also talk about basically the abandonment of the common law. [00:30:46] Speaker 05: Does it have to be an informed reasonable? [00:30:48] Speaker 05: You said a belief that it was excessive force. [00:30:50] Speaker 05: Obviously, I assume you meant a reasonable belief. [00:30:52] Speaker 05: A reasonable belief. [00:30:53] Speaker 05: Right. [00:30:53] Speaker 05: Right. [00:30:53] Speaker 05: A reasonable belief. [00:30:54] Speaker 05: Does it have to be an informed reasonable belief or uninformed? [00:30:57] Speaker 04: So obviously that sounds like a trick question. [00:31:00] Speaker 04: Uninformed. [00:31:00] Speaker 05: I do not mean that question. [00:31:02] Speaker 05: I'm really trying to test my concerns. [00:31:03] Speaker 04: No, I know. [00:31:03] Speaker 04: But I just... Uninformed in the sense that you don't have to know all the facts of the situation. [00:31:10] Speaker 04: Your actions have to be reasonable. [00:31:12] Speaker 04: Uninformed. [00:31:13] Speaker 05: All right. [00:31:14] Speaker 05: That clarifies... [00:31:15] Speaker 04: I mean, the with, you know, you don't have the right, for example, to resist arrest. [00:31:20] Speaker 04: So that's that's established. [00:31:22] Speaker 04: I think most jurisdictions now abandon the idea that you have the right to forcibly resist even unlawful arrest. [00:31:28] Speaker 04: And so we're talking about a very limited right where there's a sincere and reasonable belief that a police officer is using excessive force and you may respond with no more force than is necessary. [00:31:40] Speaker 04: reasonably necessary under the circumstances. [00:31:43] Speaker 04: And so it is in fact a fairly limited rule that permits individuals when they think they've witnessed what is essentially police brutality to take an action to stop that brutality. [00:31:53] Speaker 06: In reply in all criminal cases. [00:31:57] Speaker 06: I don't know why it's limited. [00:32:10] Speaker 06: Is that right? [00:32:11] Speaker 06: I'm sorry. [00:32:12] Speaker 06: You said there are all kinds of stop gaps. [00:32:15] Speaker 06: Yes. [00:32:15] Speaker 06: And this is a very narrow rule that would only apply when a defendant is in a riot on the US Capitol grounds. [00:32:23] Speaker 06: I mean, this is a general rule about when you can come to the defense of another. [00:32:29] Speaker 06: That's what you're asking for. [00:32:32] Speaker 06: So this is not a narrow holding. [00:32:34] Speaker 04: Well, your honor, I think it will probably be more sympathetic when the rules applied outside of this context, frankly, because we've seen a lot of incidents of police brutality, unfortunately, in this country in the last several years. [00:32:46] Speaker 04: And so if you have a situation where a police officer is, for example, [00:32:50] Speaker 04: In New York, we had many protests after George Floyd's death. [00:32:53] Speaker 04: If you have a situation where in the context of a protest, even a protest that turns violent, where a police officer is viciously beating someone, there should be the right of someone to intervene. [00:33:03] Speaker 06: Well, in those cases where the courts have recognized where there's sadistic conduct by a correctional officer, [00:33:13] Speaker 06: I mean, you suggest that the instruction that was given abandons the defendant's right to show that an officer was acting excessively. [00:33:31] Speaker 04: No, it reversed the burden. [00:33:33] Speaker 04: So even though the law should be clear that it's the government's burden to prove that the officer was not using excessive force, it suggested that before even considering Mr. Celentano's claim, he had to show that the officer was using excessive force. [00:33:48] Speaker 04: And our argument is [00:33:48] Speaker 04: that's not correct because he could have been mistaken or the jury could have been unsure if he was using excessive force and he still should have been entitled to avail himself of self-defense. [00:34:00] Speaker 04: I see that I have gone way over and so I apologize. [00:34:03] Speaker 04: I would answer any questions related to this sentencing. [00:34:05] Speaker 04: I would just urge the court to remand the case for re-sentencing. [00:34:09] Speaker 04: It was an extremely complicated sentencing. [00:34:11] Speaker 04: and the government concedes that there are a number of errors in this context, it just makes sense to give the district court another opportunity. [00:34:18] Speaker 06: Well, but the district court already told us what he would do, so you have to win on your instructional error, don't you? [00:34:26] Speaker 04: No, Your Honor, the district court made a very specific statement that he would impose the same sentence if one issue was different. [00:34:35] Speaker 04: But in fact, there were several errors. [00:34:37] Speaker 04: And so I think there are a number of errors the district court, including just the consideration of the 1512 charge, of which Mr. Celentano was acquitted and which now I think the government agrees under Fisher. [00:34:48] Speaker 06: And the district court was fully aware of that. [00:34:51] Speaker 04: No, Your Honor, that was before the Supreme Court's decision in Fisher. [00:34:55] Speaker 04: And so at the time, I think the district court was acting under a misapprehension as the law on that. [00:35:00] Speaker 04: And then just because of the number of issues, we asked for a remand for resensing. [00:35:05] Speaker 05: Any more questions from my colleagues? [00:35:08] Speaker 05: Mr. Rogers, do you have any more questions? [00:35:09] Speaker 05: No, thank you. [00:35:10] Speaker 05: Thank you very much, counsel. [00:35:12] Speaker 05: We'll still give you two minutes for rebuttal. [00:35:25] Speaker 02: May it please the court. [00:35:36] Speaker 02: Dietrich Hill on behalf of the United States. [00:35:39] Speaker 02: The instruction given at trial fairly stated the law on Solentano's defense of another self-defense claim. [00:35:48] Speaker 02: Self-defense in this context is more limited because the police are different. [00:35:53] Speaker 02: We apply different standards to the use of force by the police. [00:35:57] Speaker 02: Both sides agree in this context that Mr. Salentano had to have an actual belief that the police officer was using excessive force. [00:36:05] Speaker 02: And the question is just how to assess the reasonableness of that belief. [00:36:10] Speaker 02: We should assess the reasonableness of that belief. [00:36:12] Speaker 05: What instruction required the jury to find that it was excessive, that intervention, shall we say, the intervention was reasonable [00:36:21] Speaker 05: in the view of the police officer and not in the view of the defendant? [00:36:25] Speaker 02: It required, in some sense, yes. [00:36:28] Speaker 05: In some sense, no. [00:36:29] Speaker 05: How about in terms? [00:36:30] Speaker 02: Well, it required the jury. [00:36:32] Speaker 02: One element of the self-defense or defense of another defense was that the police officer had to be using excessive force from the perspective of an objective police officer. [00:36:44] Speaker 02: In other words, an objective police officer would agree that this force was excessive. [00:36:49] Speaker 02: Now, that didn't reverse the burden [00:36:51] Speaker 02: as opposing counsel contends, because at the end of all of those instructions, the district court made clear to the court. [00:36:59] Speaker 05: It's a completely different perspective than what the law has always been for self-defense, which is you view the right to intervene from the perspective of the defense. [00:37:14] Speaker 05: Was it reasonable for the defendant to conclude? [00:37:18] Speaker 02: It is a different perspective. [00:37:19] Speaker 05: And what yours is, did the officer who was engaged in clubbing the other person think it was, would a reasonable officer, did the officer reasonably believe it was excessive? [00:37:32] Speaker 05: So this is a total shift in perspective. [00:37:36] Speaker 02: It is a shift in perspective. [00:37:36] Speaker 05: You have no cases to cite for it. [00:37:39] Speaker 02: Well, no. [00:37:41] Speaker 05: You're citing 1983 cases. [00:37:42] Speaker 05: You have no court that's ever adopted instruction like this? [00:37:45] Speaker 02: We have, well, the closest case that we've seen is Branch from the Fifth Circuit, which squarely holds that you get a self-defense instruction in a Section 111 case only if there's evidence of excessive force as viewed from the perspective of a reasonable law enforcement officer on the scene. [00:38:03] Speaker 02: That's the closest case in the 111 context. [00:38:06] Speaker 02: There are a number of other cases in the 111 context that are somewhat ambiguous on the point. [00:38:11] Speaker 02: They say there has to be a reasonable belief. [00:38:13] Speaker 05: Why isn't it sufficient to keep it the question from the perspective of the person who engaged in self-defense? [00:38:24] Speaker 05: But inform the jury what the relevant framework for analyzing that is, instead of shifting it over to this impossible question of how a defendant is supposed to know what the reasonable officer, knowing all kinds of facts that the defendant doesn't know, would think. [00:38:46] Speaker 02: That ever happens right then objectively reasonable person is often not going to be equipped either because they're just a civilian or because they don't have all the facts to make an assessment of whether the officer is using excessive force and to be candid that means that sometimes a person can make a mistake that [00:39:05] Speaker 02: in some sense is objectively reasonable from a non-police officer's perspective and still be liable because the police officer was lawfully using force. [00:39:14] Speaker 02: But the point of that is to protect police officers. [00:39:17] Speaker 05: You want actual unlawfulness. [00:39:20] Speaker 02: Effectively, yes. [00:39:21] Speaker 05: But self-defense has never, I mean, it's just been pretty well established that as long as the defendant reasonably believed that the use of force was necessary, [00:39:32] Speaker 05: If it doesn't matter that, in fact, you got the facts wrong. [00:39:38] Speaker 05: That's always been the standard. [00:39:40] Speaker 05: It's not necessary to protect police officers to go that far as long as one were to instruct the jury on the appropriate framework in which to analyze objectively whether one could reasonably conclude that excessive force was being used. [00:39:59] Speaker 02: There are a number of jurisdictions that support us on this point, including DC, which is the most common jurisdiction, as I read it, cited in the defendant's brief, which says that in an assault on a police officer prosecution, you get defense of another only if there's actual excessive force. [00:40:16] Speaker 02: You can't make a reasonable mistake about whether there's excessive force. [00:40:20] Speaker 02: And that's also consistent with the common law rule on resisting an unlawful arrest. [00:40:25] Speaker 02: You had to be right. [00:40:26] Speaker 02: If you made a reasonable mistake about whether [00:40:28] Speaker 03: that consistent with a common law understanding of self-defense in general, right? [00:40:35] Speaker 03: That it's a justification for what someone did, which means that it has to be from the perspective of the person engaged in the action. [00:40:44] Speaker 02: It is a different rule than the common law as applied to ordinary people and not police officers. [00:40:50] Speaker 02: We're asking for a different rule. [00:40:51] Speaker 02: We think that's correct in this context. [00:40:53] Speaker 02: There should be a special rule for police officers that says that you look from the perspective of a reasonable police officer. [00:41:00] Speaker 03: Why isn't it sufficient though for the reasonableness standard to take into account the particular context of the fact that it's a law enforcement officer? [00:41:11] Speaker 02: That's the alternative standard, but this is the more protective standard. [00:41:15] Speaker 02: And it doesn't seem fair to put a police officer in the position of using force that a court would later agree is objectively reasonable, and yet expose that police officer to attack by a civilian who doesn't necessarily know all the facts. [00:41:30] Speaker 02: And they're coming at it from a different perspective. [00:41:33] Speaker 05: In this case, of course, one of the reasons that we think any error was going to happen if an objective person viewing all the relevant circumstances would conclude that the force was excessive. [00:41:45] Speaker 05: So we're not talking about protecting law enforcement officers generically. [00:41:50] Speaker 05: We're talking about how to strike the balance protecting officers engaged in the use of force when objectively a reasonable person [00:42:00] Speaker 05: familiar with all the relevant circumstances would conclude that the force is excessive. [00:42:06] Speaker 02: Well, it's not a reasonable person familiar with all of the relevant circumstances, as Your Honor alluded to earlier, because they, under the defendant's view here. [00:42:14] Speaker 05: No, that may be the defendant's one, but I think the jury was asking about informing the jury what the relevant circumstance, what the framework is for analyzing this as part of the reasonableness inquiry. [00:42:27] Speaker 05: And so as long as the jury [00:42:30] Speaker 05: is informed as to how excessive force needs to be analyzed. [00:42:36] Speaker 05: It's not just a lay person standard, and they would have to determine that under the relevant circumstances, the force was excessive, from the viewpoint of a reasonable person. [00:42:51] Speaker 02: This puts the burden on a civilian observer to find out all of the circumstances known to the officer, and then to assess whether the force was excessive from an officer's perspective. [00:43:03] Speaker 02: If the civilian can't do those things, he or she should not be intervening and violently assaulting a police officer. [00:43:12] Speaker 05: There's a risk here of tipping the balance too far the other way, because there are plenty of situations. [00:43:20] Speaker 05: where in fact, police are engaged in excessive force and intervention might've saved an innocent life. [00:43:27] Speaker 05: But if we say, oh no, oh no, don't take any risks unless you've done your legal research and have a lawyer advising you that this is excessive force, don't intervene. [00:43:39] Speaker 05: I mean, there needs to be a relevant balance here and the self-defense balance has always stopped short of requiring that in fact, [00:43:49] Speaker 05: what the other person was doing was unlawful. [00:43:52] Speaker 02: Well, and we agree that if the police officer is using actual excessive force, there is a defense of another defense available. [00:43:59] Speaker 05: This is- Person reasonably informed conclude, could a reasonably informed person reasonably conclude that it was excessive force is different from whether it was excessive force. [00:44:09] Speaker 02: It is different, I'm just pointing out. [00:44:11] Speaker 05: And why is that margin the one, why do we need to go beyond the way I've articulated it and protect that extra margin? [00:44:18] Speaker 02: There are, because there is this gray area where we don't want police to be using legal force and still subjected to violent intervention that the law protects. [00:44:27] Speaker 02: And the police officer is going to know, oh, I'm using reasonable force, but a person who can't see the hands of the person I'm using force against, can't see that they have a knife, could come along and assault. [00:44:39] Speaker 06: But isn't our jury system premised on the notion that reasonable people [00:44:47] Speaker 06: who have been through voir dire can make a judgment if they are instructed on what factors need to be taken into account. [00:44:59] Speaker 06: My concern, as my questions to counsel for appellant indicated, I'm just not sure how this defense of another works in fact [00:45:10] Speaker 06: under either party's instructions, because any officer is going to testify that based on his training and experience what he did was reasonable given the facts he knew. [00:45:24] Speaker 06: I mean, to be a rare case, [00:45:27] Speaker 06: that that doesn't happen. [00:45:28] Speaker 06: So two, in my view, as a former prosecutor, it's going to be a rare case that a defendant will not say, even when the officer is putting on handcuffs, that the officer used excessive force. [00:45:46] Speaker 06: So where does that leave [00:45:49] Speaker 06: the system we have. [00:45:51] Speaker 06: And I thought that's what my colleagues' questions are getting at. [00:45:55] Speaker 06: And I understand from the government's perspective why it's favorable to have the instruction that was given. [00:46:04] Speaker 06: But I don't know that that's consistent with sort of the history of what the role of self-defense was all about. [00:46:13] Speaker 06: Namely, when some person is attacked by organized forces of government, what's your defense? [00:46:23] Speaker 06: And you may not know everything, but from your perspectives, seeing any officer under any circumstances, as I understand the argument here, hitting somebody repeatedly on the head with a baton is a reason to try to take [00:46:43] Speaker 06: what from the defendant's point of view was reasonable action to stop that. [00:46:51] Speaker 06: And the jury can reject his defense on the grounds that he was totally unaware of this second officer being held in a chokehold by this rioter and we're in the midst of a riot. [00:47:11] Speaker 06: That's what I'm concerned about. [00:47:13] Speaker 06: And I think that's sort of what our questions are getting at. [00:47:18] Speaker 06: It's easy to see why each side wants the most favorable instruction, but what is it doing to the system and how we have conceived of it through the common law and of course through the statutory law as well in terms of our procedures and what defenses can be raised by a defendant at trial. [00:47:40] Speaker 02: Right. [00:47:40] Speaker 02: I think I have three responses. [00:47:43] Speaker 02: First is simply that there could be hard situations in which, for example, expert testimony was required to determine whether an officer was using reasonable force. [00:47:52] Speaker 02: I don't think that is this situation. [00:47:54] Speaker 02: There's no real evidence in the record that there was, in fact, excessive force from the perspective of a reasonable officer. [00:48:01] Speaker 02: Second, thinking about the common law, there are jurisdictions that support this test that the government is asking for. [00:48:08] Speaker 02: And there is the common law of using force to resist, as I said before, an unlawful arrest, where if you were wrong, even if you were reasonable in thinking that the arrest was unlawful, you were criminally liable for assault. [00:48:21] Speaker 02: So you did so at your own peril, as a number of cases have said. [00:48:25] Speaker 02: Third, this is a matter of federal common law. [00:48:29] Speaker 02: It's a federal common law defense. [00:48:31] Speaker 02: And so, to some extent, the court is looking at the real world consequences, as well as Congress's intent in enacting Section 111, which, as the Supreme Court put it in Theola, is to extend maximum protection to federal officers. [00:48:48] Speaker 03: about defense of another, has the Department of Justice been taking this position consistently across civil disorder context, or is this a position that it's taking in the context of these January 6 cases? [00:49:04] Speaker 02: I have not seen, it's certainly possible that some brief somewhere has addressed this before. [00:49:10] Speaker 02: I have not seen a general position. [00:49:12] Speaker 02: I have not seen a brief that addresses this exact question. [00:49:16] Speaker 02: I can tell you in fact that more recently we have taken a more conservative instruction on the belief that we can win almost all of these cases with a more defendant-friendly construction like that proposed by the defendant here. [00:49:32] Speaker 02: But frankly, we think this is right in any case. [00:49:35] Speaker 02: And this is, in some ways, not the most dramatic case. [00:49:38] Speaker 02: The worst case is the situation where somebody is threatening to use lethal force on an officer. [00:49:44] Speaker 02: The officer has his gun drawn, and the third-party intervener can't see why and is going to tackle the police officer and put everybody's life at risk. [00:49:53] Speaker 02: is going to escalate the situation. [00:49:55] Speaker 02: That's why in these difficult cases where a civilian is not equipped generally to know when a police officer, whether a police officer should be using force, we want to discourage intervention. [00:50:07] Speaker 05: When you say that the government position is this one considered within main justice, including consultation with the Civil Rights Division, which section that prosecutes crimes against police officers for unconstitutional conduct? [00:50:20] Speaker 02: No, we did not consult with them. [00:50:21] Speaker 05: So this is just your office's position? [00:50:24] Speaker 02: Yes. [00:50:25] Speaker 02: And I apologize. [00:50:25] Speaker 05: I thought the question was the government's position. [00:50:27] Speaker 02: Right. [00:50:28] Speaker 02: I apologize if that was unclear. [00:50:29] Speaker 02: To my knowledge, there's no main justice position on this. [00:50:32] Speaker 02: And I could be mistaken about that. [00:50:36] Speaker 02: I do think this is consistent with. [00:50:38] Speaker 05: We could be buying a position that the Justice Department might not be willing. [00:50:43] Speaker 05: to defend one further review after consultation with the Civil Rights Division that sees, at least a section of it, that sees the very different side of police officer conduct. [00:50:55] Speaker 02: To my understanding, though, this position is the same as taken in both the 1983 cases and prosecutions against police for police brutality, which is, from the perspective of a reasonable police officer, should the police officer have been using force, or that degree of force in that sort of thing. [00:51:13] Speaker 03: the culpability of the off talking about the culpabl in to defend another perso [00:51:25] Speaker 02: It is a different perspective. [00:51:27] Speaker 02: And again, to be candid, we're asking for a rule here that's specific to police officers because the law has rules that are specific to police officers. [00:51:34] Speaker 02: They use a different degree of force and they use force under circumstances that ordinary people could not and circumstances where an ordinary person might not even be able to assess whether the use of force is appropriate. [00:51:48] Speaker 03: Can I ask you a question about the double jeopardy [00:51:54] Speaker 03: Yes. [00:51:55] Speaker 03: So Section 231A3's requirement that a civil disorder affect commerce or the performance of a federal function seems to be a jurisdictional element. [00:52:08] Speaker 03: And there is a split in the circuits about how a jurisdictional element of a crime should count for the purposes of the block burger analysis. [00:52:16] Speaker 03: So I'm wondering, to rule in favor of the government on double jeopardy, do we have to reach that circuit split? [00:52:24] Speaker 02: No. [00:52:25] Speaker 02: And I guess I have two responses. [00:52:26] Speaker 02: One is that there's another element that's clearly distinct, which is the performance of the officer's duties during a civil disorder. [00:52:33] Speaker 02: And as this court held in Stevens, these offenses are clearly other than one another. [00:52:40] Speaker 02: But also the real point of the block murder analysis is that in order to prove the Section 111 violation, we didn't have to prove anything about the 231 because we could prove the felony Section 111 violation purely by proving physical contact. [00:52:54] Speaker 02: We charged that and we did prove it that way, which is why there's no hard block murder question here. [00:53:00] Speaker 05: Do we look at block murder after the fact based on the conviction or do we look at it upfront based at the time of charging? [00:53:09] Speaker 02: Ordinarily, I think the court looks at it upfront. [00:53:14] Speaker 02: In this case, we're not contesting that, essentially, we look back to determine what the other felony was. [00:53:19] Speaker 02: Normally, for example, in a felony murder case, the government would charge murder in the course of a robbery or something. [00:53:26] Speaker 02: Here, it charged murder in the course of another felony. [00:53:28] Speaker 02: But we're not contesting that, after trial, we should treat that other felony as the actual felony that a jury concluded there was intent to commit. [00:53:38] Speaker 05: I'm trying to understand how your black [00:53:41] Speaker 05: Do you have any authority for us looking, applying the Blockburger analysis at the, essentially the tail end of the case, based maybe on jury findings, since you had the two alternative grounds here, and specific findings, and not applying it upfront when you charged 111 and intent, one option of which was intent to commit another felony, which brought in, necessarily brought in all the elements of 231, since that was your other felony. [00:54:11] Speaker 02: Right. [00:54:12] Speaker 02: It doesn't matter here because we charged the alternative physical contact up front and we proved it. [00:54:17] Speaker 05: Why does it matter if we're looking up front? [00:54:19] Speaker 05: If the jury had come back and not found the physical contact portion, had only found the intent to commit a 231 felony, would there then be a black burger problem? [00:54:31] Speaker 02: Then we would reach the very difficult question of whether one of the Section 111 verbs, such as resist or oppose, always constitutes a substantial step for purposes of the Attempt Theory 231. [00:54:45] Speaker 05: When would it not? [00:54:47] Speaker 02: Frankly, Your Honor, because Blockberger is an entirely hypothetical test based purely on the elements, you have to answer some very difficult and weird hypotheticals about [00:54:58] Speaker 05: I'm trying to understand what the position of the government would be if the jury had come back with a no on the physical contact alternative for 111. [00:55:09] Speaker 05: What would the answer to Blackwater be? [00:55:11] Speaker 05: I understand it might be a difficult analysis. [00:55:13] Speaker 05: What is the government's position as to what the answer would be then? [00:55:17] Speaker 02: We haven't formally formulated a position. [00:55:20] Speaker 02: My instinct is that we would still argue that there's no block burger problem because there are conceivable ways to violate section one eleven that jury could rationally conclude wouldn't count as a step towards interfering with a. [00:55:34] Speaker 02: I think in most practical cases, we would argue that whatever the offense was that was committed under Section 111 also constituted a substantial step. [00:55:44] Speaker 02: The question is just whether you can think of any conceivable way to violate Section 111 that would not constitute a substantial step. [00:55:52] Speaker 05: Which is why you get into weird if we do block burger up front, why don't we have to do that difficult analysis here rather than relying on the post hoc fortuity that the jury found both prongs satisfied here? [00:56:04] Speaker 02: If block burger, if you do block burger up front, then it's even easier because it didn't matter whether we prove physical contact at all. [00:56:10] Speaker 02: And in fact, normally it's a special verdict here that makes it odd. [00:56:14] Speaker 05: Sorry. [00:56:15] Speaker 05: You're saying it doesn't matter that you, it's irrelevant whether you approve physical contact if you turn up front. [00:56:19] Speaker 05: Why? [00:56:20] Speaker 05: That's exactly the hard question you said you didn't want to answer. [00:56:22] Speaker 02: Right. [00:56:23] Speaker 02: Well, because ordinarily there's no special verdict form. [00:56:25] Speaker 02: So if you charge two alternatives. [00:56:28] Speaker 05: I understand. [00:56:29] Speaker 05: I'm very confused about your answer because I'm asking you if up front, we don't know how the jury is going to come back. [00:56:37] Speaker 05: Let's assume you're planning to do a special verdict form at least to help you out with Black Burger. [00:56:43] Speaker 05: We don't know how the jury is going to come out. [00:56:45] Speaker 05: So why don't we have to do that difficult analysis of whether your 111 claim that specifically charged as being predicated on [00:56:58] Speaker 05: committing the other felony, 231, is not a double jeopardy problem. [00:57:03] Speaker 05: Why do we have to decide that? [00:57:04] Speaker 02: Because we also indicted on physical contact. [00:57:07] Speaker 02: So because we indicted. [00:57:08] Speaker 05: No, we don't know what the jury's going to do. [00:57:10] Speaker 05: And you said if the jury, at the upfront point where you're doing Blackburger, we don't know the jury's coming back. [00:57:16] Speaker 05: And you've said if the jury doesn't come back on physical contact, we've got an issue. [00:57:21] Speaker 02: if because if we have to do it up front why don't we have that issue now why don't we have that same issue look at it without yet knowing how the jury is coming back because if we do if we do it up front i do think that's the easiest case because we charge physical contact and if we get an ultimate jury verdict we know that the government actually didn't need to prove and we don't even know if they did prove intend to commit the 231 we only know they proved one of the prongs and so you definitely [00:57:47] Speaker 05: We don't, we definitely both. [00:57:49] Speaker 05: So we know what the government proved in this case. [00:57:52] Speaker 02: Yes. [00:57:53] Speaker 05: And if it's a very difficult question about double jeopardy, we know that he may very well may have been put in jeopardy. [00:58:01] Speaker 05: to the extent the government pursued the commit another felony prong theory? [00:58:09] Speaker 02: No, there's no double jeopardy problem because we charged and proved the physical contact prong. [00:58:15] Speaker 02: So the government did not necessarily or invariably have to prove the 231 intent. [00:58:22] Speaker 02: And so there's simply no double jeopardy problem. [00:58:27] Speaker 05: questions? [00:58:29] Speaker 05: No, thank you. [00:58:30] Speaker 05: Thank you very much. [00:58:31] Speaker 02: We would ask the court to affirm. [00:58:37] Speaker 05: Okay, Miss Baumgartel, am I saying that right? [00:58:39] Speaker 05: Gartel? [00:58:40] Speaker 05: That's enough, Baumgartel. [00:58:41] Speaker 05: I apologize for the few minutes that you asked for. [00:58:44] Speaker 05: Thank you. [00:58:47] Speaker 04: I mean, just briefly, I believe as Judge Rogers mentioned, [00:58:51] Speaker 04: Our first issue is actually unsettled. [00:58:53] Speaker 04: I think the government said that branch from the Fifth Circuit squarely holds their way. [00:58:57] Speaker 04: That's not right. [00:58:58] Speaker 04: That was a case where the court was affirming the refusal to give any self-defense charge in a very different context. [00:59:05] Speaker 04: Same for DC. [00:59:06] Speaker 04: And if you drill down on a number of the cases that the government sides, there is not actually a case that holds. [00:59:12] Speaker 04: And there's certainly not a consensus that you have to charge this perspective of a reasonable officer. [00:59:17] Speaker 04: Just with respect to the government's argument that special rules should apply to police officers, I just want to highlight that even the government agrees that the self-defense rules only change if the defendant knows that the individual is a police officer. [00:59:30] Speaker 04: And I think that really underscores that [00:59:32] Speaker 04: Even when we're dealing with the use of force against people who are police officers, it's fundamentally the defendant's own perceptions that govern a self-defense claim. [00:59:42] Speaker 04: And so if you have an undercover officer, the government agrees. [00:59:46] Speaker 04: If the defendant doesn't know the person's an officer, they may be entitled to use the same amount of force as in any other context of self-defense, which [00:59:55] Speaker 04: I think supports our argument that it fundamentally comes back to the defendant's perspective. [00:59:59] Speaker 04: The final argument I just like to make is that these are extremely fact intensive questions about when [01:00:07] Speaker 04: it is reasonable for an individual to use defensive force. [01:00:10] Speaker 04: And they are the sorts of questions that are truly best left to a properly charged jury to hash out the facts and to decide whether in their opinion, as the conscience of the community, the defendant's actions were reasonable. [01:00:24] Speaker 04: And so that's why our instruction would have been sufficient here, and this should have been a jury question. [01:00:29] Speaker 05: Thank you. [01:00:30] Speaker 05: Any other questions? [01:00:32] Speaker 05: All right, thank you very much, counsel. [01:00:33] Speaker 05: The case is submitted.