A Guard Can Hit a Prisoner, But Can a Prisoner Hit a Guard? – Update for September 2, 2016

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headbutt160902As a general proposition – nearly as an immutable law – it’s a pretty bad idea for an inmate to take a swing at a correctional officer. There are a lot of reasons, starting with the fact that while the COs are not armed, they have a lot of friends nearby who are. Add to that 18 U.S.C. § 111, which makes assaulting a federal correctional officer a felony (and there’s no inmate who needs any more felony convictions), and you can make a pretty convincing case that only a butthead would throw a punch at a CO.

All that being said, the Constitution apparently does not mean that COs can wail on their charges without the inmates being entitled at some point to mount a defense. Federal inmate Josh Waldman recently explored the parameters of that right.

Josh was headed to the dining hall in his winter coat. That’s not uncommon, except that it was 70 degrees, which caused a CO to wonder whether Josh was hiding something in its folds. When the CO tried to pat down Josh, Josh decided to be a butthead, and objected by headbutting the officer.

That of course engendered an immediate response that wasn’t good for Josh. After he was subdued and sent to the hole for an extended cool-down period, Josh was charged with assaulting a CO. At trial, he argued self-defense but was convicted anyway (and got five more years on top of his existing sentence).

This week, the 7th Circuit upheld the conviction, but did so in a thoughtful opinion that examined an inmate’s right of self defense. True, the Court said, 18 U.S.C. § 111 does not explicitly address self‐defense, but “when a statute is silent on the question of affirmative defenses, we are to effectuate the defense as Congress may have contemplated it, looking to the common law as a guide.”

Rumble160902At common law, the Court said, self-defense is the use of force necessary to defend against the imminent use of unlawful force. But prisons are a bit different. “Sometimes,” the Court said, “it is within the bounds of the 8th Amendment for correctional officers to use force that would be unlawful outside of prison walls. That is because lawful incarceration brings about the necessary withdrawal or limitation of many privileges or rights, a retraction justified by the considerations of our penal system… And corrections officers face the difficult task of balancing the need to maintain or restore discipline through force against the risk of injury to inmates. So whether a prison security measure violates the 8th Amendment turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”

Although the government argued that prisoners should be allowed to use force only to prevent death or serious bodily harm, the Circuit held that same test should hold apply for a prisoner’s use of force. The 8th Amendment harm test applied to COs’ use of force, the Court said, “is as useful in determining if an inmate is justified in using self‐defense as it is in determining if a prisoner has an 8th Amendment claim against his jailers.” The government’s proposed standard, the Circuit wrote, would “prevent inmates from protecting themselves from sadistic and malicious acts which do not cause serious bodily harm, but which everyone can agree are egregious violations of the 8th Amendment.”

This sign is unlikely to be found hanging in Josh Waldman's cell.
This sign is unlikely to be found hanging in Josh Waldman’s cell.

An example, the Court observed, would be sexual abuse of inmates. The Court said, “We have previously held that forcing a prisoner to perform sexually provocative acts in front of spectators is a viable 8th Amendment claim. Prisoners should not endure such abuse when they could easily act to stop it because they would risk being convicted of assaulting an officer. Under the federal definition of “serious bodily harm,” the Court explained, “extreme physical pain, protracted and obvious disfigurement, or protracted loss of the function of a bodily member, organ or mental faculty, inmates would risk further incarceration if they tried to resist such abuse. In the midst of enduring abuse by officials, prisoners should not be expected to calculate whether the requisite disfigurement or loss of bodily function will come to pass before acting to protect themselves. Such a result is not consistent with the 8th Amendment, and would give prison officials free reign to maliciously and sadistically inflict psychological torture on prisoners, so long as they take care not to inflict any physical injury in the process.”

None of this helped Josh Waldman, however. The Court agreed that the only harm he faced was being frisked. That was not justification for headbutting the CO, so his conviction stands.

United States v. Waldman, Case No. 15-1756 (7th Cir. August 30, 2016)


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