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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.”
                                          13

                                          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.
                                            14



                                            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.
