Tuesday, April 01, 2008

On-base 911 = official; off-base 911 = generally not official

In United States v. Day, __ M.J. ___, No. 07-0690/AF (C.A.A.F. Apr. 1, 2008), CAAF holds that for Article 107 purposes, statements made to on-base emergency medical personnel were "official," but statements made to a civilian 911 operator weren't. Judge Baker wrote for a unanimous court.

CAAF construes Article 107 broadly. For example, CAAF emphasizes that "[f]alse official statements are not limited to line of duty statements." Day, slip op. at 7. Applying its broad interpretation of Article 107, CAAF holds that statements are official where "they were made to civilian personnel who were members of the base fire department charged with performing an on-base military function." Id., slip op. at 8.

But Article 107 is not so broad that it reaches Airman Basic Day's false statements made to an off-base 911 operator. CAAF holds: "On this record the evidence is not sufficient for us to conclude that the statements to the 911 operator were official, but this conclusion does not affect the finding of guilt as to the charge and specification." Id. But CAAF adds this caveat: "In theory, statements made to an off-base 911 operator might implicate Article 107, UCMJ, in situations where, among other things, there is a predictable and necessary nexus to on-base persons performing official military functions on behalf of the command." Id., slip op. at 8 n.4.

The Air Force Court's opinion in the case is available here.

5 comments:

No Man said...
This comment has been removed by the author.
No Man said...

Sadly I agree with the JO'C assessment, snore. But, breaking news to follow tomorrow in the area of potential hot, civilian contractor UCMJ action.

No Man said...

Ok, I will leave that comment up, but it was not intended to sound dirty.

Christopher Mathews said...

"... in situations where, among other things, there is a predictable and necessary nexus to on-base persons performing official military functions on behalf of the command ...

So, for an Article 107 violation, we look for a

(1) predictable and
(2) necessary nexus to
(3) on-base persons
(4) performing official
(5) military functions
(6) on behalf of the command

I know most currently-serving JAGs were brought into the military justice system post-Solario, so maybe I'm showing my age ... but am I the only person who sees a multi-part test like this and gets the shivers?

Cloudesley Shovell said...

Military courts have ratified the use of Article 107 as a catch-all to convict "bad" people when a case is otherwise weak or meritless, the same way federal courts have used 18 USC 1001.

One longs for the days when courts actually enforced the rule of lenity. Nowadays they trip over themselves justifying liberal applications of broad interpretations of the statute.

If the government had offered evidence that whether the baby was found face up or face down was at all material to any duty of any medical care provider or emergency responder, I might be a little bit sympathetic to the Court's ruling. Unfortunately, materiality does not appear to be part of the Court's multi-step test.

Given the incredibly broad scope of Article 107, and its own justifications for criminalizing the statement made to the firefighters, CAAF's exclusion of the statement to the 911 operator makes no sense. The "face down" statement to the firefighters was criminal because "These personnel were providing on-base emergency services pursuant to the commander’s interest in and responsibility for the health and welfare of dependents residing in base housing over which he exercised command responsibility" according to CAAF.

So what about the 911 operator? According to the facts, when someone in base housing calls 911, they get an off-base operator who is able to dispatch the on-base fire department. This 911 operator also gave instructions to appellant over the phone on how to perform CPR. Clearly, the base and the local 911 system cooperate to improve response time to emergencies on base. So, even though the 911 operator is physically located off-base, she is certainly included in the definition of "personnel providing on-base emergency services pursuant to the commander’s interest in and responsibility for the health and welfare of dependents residing in base housing." The ONLY difference is that the 911 operator is off-base, and the firefighters are on-base. Is CAAF saying that if the firefighters who responded had come from off-base, then appellant would not be guilty? Hardly. CAAF's pointless exclusion of the statements to the 911 operator, when those statements are clearly included in the Court's legal test for false official statements, demonstrates how far afield the Court has strayed in interpreting Article 107.

The law would be well-served by returning Article 107 jurisprudence to firmer foundations, together with a healthy application of the rule of lenity.