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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 17-CM-331
                                                                    10/11/2018
                        MAURICE COLEMAN, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                      Appeal from the Superior Court of the
                              District of Columbia
                                (CMD-11325-16)

                    (Hon. Kimberly S. Knowles, Trial Judge)

(Argued June 14, 2018                                 Decided October 11, 2018)

      Fletcher P. Thompson for appellant.

      Katherine M. Kelly, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney, and Elizabeth Trosman and John P. Mannarino,
Assistant United States Attorneys, were on the brief, for appellee.

      Before GLICKMAN and FISHER, Associate Judges, and WASHINGTON, Senior
Judge.

      WASHINGTON, Senior Judge: Appellant Maurice Coleman was convicted in

a bench trial of three counts of simple assault on three Metropolitan Police

Department (“MPD”) officers, in violation of D.C. Code § 22-404 (a)(1) (2012

Repl.).   Appellant urges this court to find that, in passing the Neighborhood
                                           2

Engagement Achieves Results Act (“NEAR Act”), the District of Columbia

Council implicitly intended to limit prosecutorial discretion by requiring the

government to charge defendants who assault police officers with a jury-

demandable offense. In the alternative, appellant argues that, as a sanction for the

exercise of that discretion, he is entitled to use a broad self-defense argument, as

though the complainants were ordinary citizens and not police officers.1 Finding

no support for this interpretation of the NEAR Act in its plain language or

legislative history, or for appellant’s claim of a right to use self-defense in response

to the officers’ conduct, we affirm.



                                           I.



      On July 19, 2016, appellant was approached in his vehicle by three police

officers for excessive window tint, in violation of D.C. Code § 50-2207.02 (a)(1)

(2012 Repl.).    The officers described appellant as “agitated” and “irate” and

initially resistant to any attempts by officers to investigate the violation. After



      1
         Appellant also alleges that he was entitled to a claim of limited self-
defense as “the police had been aggressive before the altercation and [appellant]
was in fear” because he had been “accosted by three armed police officers” who
“threatened to arrest him” and “grabbed him in an effort to get him to comply with
their demands.”
                                          3

appellant exited the vehicle2 and ignored one officer’s verbal request to step to the

rear of the vehicle so he was no longer standing in the street, one of the officers

attempted to guide him by placing his hand on appellant’s elbow, which appellant

shrugged off. When the officer grabbed his elbow again, appellant began flinging

his arms, which struck one of the officers in the jaw and another one in the back of

the head. In an attempt to regain control of the situation, the officers worked

together to effectuate a “tactical takedown,” during which appellant tore the third

officer’s uniform.



      Prior to trial, appellant filed a motion seeking a jury trial. The prosecutor in

this case, however, elected to charge appellant with simple assault, a lesser-

included charge of assault on a police officer (“APO”), the charge for which he

was arrested.3 The trial judge thus denied appellant’s motion for a jury trial

concluding simple assault is not a jury demandable offense.           Appellant then

asserted a right to argue that he was acting in self-defense.4 The court denied the


      2
          One of the officers explained that it was “safer” for the officers to run the
tint test with the operator outside of the vehicle.
      3
       We note that APO is jury-demandable by virtue of its maximum possible
punishment of six months, while the lesser-included simple assault, punishable by
a maximum on 180-days, is not. See D.C. Code § 16-705 (2012 Repl.).
      4
          This claim was framed as a sanction on the government for exercising its
                                                                   (continued…)
                                          4

broad self-defense claim but held the limited self-defense claim in abeyance,

pending any evidence of excessive force produced at trial.



      Appellant was found guilty on all three counts. In so finding, the trial judge

relied on the body camera footage, the officers’ testimony, and photographs of the

officers’ injuries, noting that appellant possessed a different state of mind than he

claimed at trial5 and thus, found that appellant was not entitled to a limited self-

defense claim.6



                                         II.



      Whether defendants who are charged with simple assault when the victim is

a police officer are entitled to assert a broad right to self-defense is a question of

 (…continued)
prosecutorial discretion to charge a non-jury demandable crime and would, in
effect, treat the interaction as though the officers were ordinary people (i.e. not
persons who were privileged to investigate the tint violation or engage with
appellant in any way).
      5
         Appellant was not “scared or humiliated,” but instead “annoyed, pissed,”
despite “police [] trying to explain [the reason for the stop] to him,” and “angry.”
      6
         The judge saw “absolutely no excessive force” and appellant was “the one
who became aggressive and started this. And he is the one who escalated it into a
physical confrontation” by punching the officer who was trying to guide appellant
to the back of the vehicle.
                                          5

law reviewed de novo. See Wynn v. United States, 80 A.3d 211, 217 (D.C. 2013)

(statutory interpretation issue subject to de novo review); Newby v. United States,

797 A.2d 1233, 1239 (D.C. 2002) (whether simple-assault statute applies to

conduct, and issues regarding the legal parameters of an affirmative defense, are

reviewed de novo).



                                         III.



      In 2017 the Council of the District of Columbia passed the NEAR Act

(“Act”) which amended the statute prohibiting APO due to a concern that the

statute was over inclusive. COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE

ON THE JUDICIARY,    REPORT   ON   BILL 21-0360, THE NEIGHBORHOOD ENGAGEMENT

ACHIEVES RESULTS AMENDMENT ACT OF 2016 (“NEAR REPORT”), at 10 (Jan. 28,

2016) (“Wiggling while handcuffed, bracing one’s hand on the steering wheel

during an arrest, and even yelling at an officer have all led to cases in which

individuals were prosecuted for ‘assaulting a police officer’ (APO).”). Former

Police Chief Lanier acknowledged that “[t]he language is so broad . . . [it] allows

for too many things to fit into that category.” NEAR REPORT at 11. To address

this concern, the bill created “separate offenses for ‘assault on a police officer’ and

‘resisting arrest,’” and increased the penalties for resisting arrest and misdemeanor
                                         6

APO to make them jury demandable. See D.C. Code § 16-705 (b)(1)(A) (2012

Repl.) (granting a jury trial where the maximum punishment is more than 180-

days); NEAR REPORT at 16 (noting these offenses were made “jury-demandable

due to the overwhelming number of states that have attached significant jail time to

their APO statute”).



      A. Prosecutorial Discretion



      At trial, appellant’s counsel conceded that the government had the discretion

to “choose not to paper APO” and to “charge simple assault,” and did not allege

any improper motive on the part of the prosecutor.            However, on appeal,

appellant’s contention appears to be that the NEAR Act intended to limit this

discretion by requiring an APO charge when the victim is a police officer.

Because the prosecutor acted contrary to this intent, appellant argues, a sanction is

necessary by permitting him to claim self-defense as though the victims’ statuses

as police officers were irrelevant.



      Neither the plain language of the Act nor the legislative history captured in

the NEAR REPORT, discuss limiting the charging decisions of the government, or

expanding the scope of a self-defense claim when a police officer is involved. This
                                           7

court has long recognized that there is a limited right of self-defense when a citizen

is engaged with a police officer and neither the facts of this case, nor the legislative

history of the NEAR Act, support reconsideration of those standards. Nelson v.

United States, 580 A.2d 114, 117 (D.C. 1990). To the contrary, our decisions, as

well as those of other courts of competent jurisdiction, recognize the

appropriateness of a limited right of self-defense in interactions with the police

because of the role police officers play in maintaining peace in our communities.

Arizona v. Johnson, 555 U.S. 323, 330 (2009) (recognizing “that traffic stops are

‘especially fraught with danger to police officers’”) (quoting Michigan v. Long,

463 U.S. 1032, 1047 (1983)); People v. Troiano, 341 N.Y.S.2d 858, 862 n.5 (N.Y.

App. Div. 1973); Commonwealth v. Reed, 19 A.3d 1163, 1166-67 (Pa. 2011).

Whether the government chooses to charge unlawful conduct against police

officers under one statute or another does not alter that fundamental truth.



      Because the prosecutor is granted broad discretion in charging decisions and

there is no indication that the NEAR Act was intended to affect the breadth of that

discretion, we see no basis for concluding that there was any intent to restrict the

government’s charging authority as a quid pro quo for narrowing the scope of the

Act. Thus, we conclude that appellant was not entitled to a jury trial based on the

NEAR Act, and as such, his request for broad self-defense as a sanction must also
                                           8

be denied.



      B. Self-Defense



      It is well-settled in this jurisdiction that the use of self-defense is unavailable

against a police officer unless “excessive force [is used] in carrying out official

duties.”7 Cheek v. United States, 103 A.3d 1019, 1022 (D.C. 2014) (quoting

Nelson, 580 A.2d at 117). This court has held that simple assault is a lesser-

included charge of APO such that “when an individual is approached by a police

officer acting in an official capacity, the individual’s right of self-defense is

limited.” Speed v. United States, 562 A.2d 124, 127 (D.C. 1989); see also Blocker

v. United States, 940 A.2d 1042, 1049 (D.C. 2008); Nelson, 580 A.2d at 117-18.

Moreover, even in jurisdictions where the assault statute does not differentiate

between police officers and civilians, defendants are entitled only to limited self-

defense arguments when the victim is a police officer. See Bowen v. Texas, 162

      7
          A second, limited exception is where there is some evidence that the
defendant was unaware that the person he assaulted was a police officer when the
police officer was the initial aggressor. Wilson v. United States, 673 A.2d 670,
672-73 (D.C. 1996); see also Robinson v. United States, 649 A.2d 584, 586 (D.C.
1994) (directing the jury to acquit on both felony and misdemeanor APO if the
defendant was unaware he was assaulting a police officer in his official duties).
Appellant does not claim he lacked knowledge of the officers’ statuses as police
officers.
                                          9

S.W.3d 226, 230-31 (Tex. Crim. App. 2005) (Keller J., dissenting) (“[T]he self-

defense statute requires . . . a showing that, before the actor offered any resistance,

the officer used or attempted to use ‘greater force than necessary to make the

arrest’ and the actor reasonably believed her response was immediately necessary

to protect herself against that type of force.”); see also McClatchy v. Texas, 758

S.W.2d 328, 330 (Tex. App. 1988) (“Were the courts to hold that a person may not

be prosecuted for physically attacking an arresting officer when the calm analysis

of hindsight reveals the officer’s judgment of probable cause was faulty, we would

be effectively declaring open season on arresting officers.”).



      If we permit a broad self-defense claim when a person is charged with

simple assault and the victim is a police officer, police would be placed at greater

risk of assault each time they approach a suspect and would be impeded in their

ability to make an arrest. Because no one has a right to resist an arrest, regardless

of that arrest’s lawfulness, D.C. Code § 22-405 (d) (2016); Jones v. United States,

512 A.2d 253, 259 n.8 (D.C. 1986), one who assaults a police officer is in a

fundamentally different position than one who assaults a non-police officer.



      While the NEAR Act did limit the circumstances under which a suspect

could be charged with assaulting a police officer or resisting arrest, it altered
                                         10

nothing with respect to the burden on the government to prove that the defendant

was not acting in self-defense.      See D.C. Code § 22-405 (d) (“It is neither

justifiable nor excusable cause for a person to use force to resist an arrest when

such an arrest is made by an individual he or she has reason to believe is a law

enforcement officer, whether or not such arrest is lawful.”). Thus, we see no

justification or support for Coleman’s argument that this court’s decision in Speed

has been legislatively overruled by the passage of that Act or that the obligations of

the public to respond appropriately to police conduct was intended to be curtailed.

Because the evidence in this case demonstrates that Coleman was well aware that

he was being stopped by the police, that the police were engaged in an

investigation regarding the degree of tint in his car windows, and that there was no

evidence of any excessive force used by the police in the course of that

investigation before Coleman began flailing his arms, the judgment of the trial

court is



                                              Affirmed.
