A mutual combatant really can regain the right to self-defense

CAAF today released its opinion in United States v. Lewis, __ M.J. ___, No. 07-5002/AR (C.A.A.F. June 13, 2007). Judge Stucky for a unanimous court. CAAF rejects the Judge Advocate General's certification of ACCA's ruling "that the military judge erred in refusing to give an instruction that a mutual combatant could regain the right to self-defense when the opposing party escalates the level of conflict, even when the combatant does not withdraw in good faith." Id., slip op. at 2. (Bless you, Judge Stucky, for using the Garnarian bottom-line-up-front (BLUF) opinion writing style. It makes blogging about the decision so much easier.)

For those of you who want the Cliff Notes version, here is what you should know from the Lewis opinion:

In this case, there was evidence that Private Harvey was on top of Appellee, punching him to the point that it looked to a witness that Private Harvey was "winning the fight." Here, the members could have found that Appellee could not withdraw, even if he wanted to. When Mr. Bryant, a competitive powerlifter, entered the fray and delivered kicks to Appellee’s head and face the members could have found that Appellee was unable to withdraw, even if he wanted to. He was on the ground, underneath Private Harvey. Once Mr. Bryant escalated the fight to the level that Appellee could reasonably apprehend he would suffer death or grievous bodily injury from kicks to his head and punches to his body, Appellee was entitled, under our decision in [United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006)], to defend himself even if he was the original aggressor or was engaged in mutual combat, as long as he responded in a manner proportionate to the threat he faced. United States v. Acosta-Vargas, 13.C.M.A. 388, 393, 32 C.M.R. 388, 393 (1962). The fact that Appellee was placed in a situation in which it was physically impossible for him to withdraw, even if he had wanted to, is, as noted above, not addressed in R.C.M. 916(e)(4). We do not believe that the President, in promulgating this Rule, intended the absurd result of requiring a mutual combatant or even an initial aggressor, to withdraw when he is physically incapable of doing so. See United States v. Leonard, 21 M.J. 67, 69 (C.M.A. 1985) (Rules for Courts-Martial, like statutes, are to be construed reasonably, to effectuate the purposes of the particular rule.)

Lewis, slip op. at 10-11.


But while I applaud Judge Stucky's BLUF style, I am puzzled by one portion of his opinion. Judge Stucky writes for the court:

The plain language will control, unless use of the plain language would lead to an absurd result. United States v. Martinelli, 62 M.J. 52, 81 n.24 (C.A.A.F. 2005) (Crawford, J., dissenting) ("'When the statute's language is plain, the sole function of the courts -- at least where the disposition required by the text is not absurd -- is to enforce it according to its terms.'" (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000))); see also Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (bankruptcy statute, although grammatically awkward, is not ambiguous and should enforced according to its plain meaning, as long as that result is not absurd).

Lewis, slip op. at 9.

Why did Judge Stucky cite a dissenting opinion to establish that proposition? Weirder still, Judge Stucky's quotation from a footnote in Judge Crawford's Martinelli dissent consisted entirely of a quotation from the Supreme Court. Why not directly cite Justice Scalia's opinion for the Court in Hartford Underwriters rather than taking an unnecessary detour to the Martinelli dissent? Does anyone have a theory to explain that one?