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United States v. Waldman

United States Court of Appeals, Seventh Circuit

August 30, 2016

United States of America, Plaintiff-Appellee,
Joshua A. Waldman, Defendant-Appellant.

          Argued February 16, 2016

         Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:13-cr-00039 - Jane E. Magnus-Stinson, Judge.

          Before Posner, Williams, and Hamilton, Circuit Judges.

          Williams, Circuit Judge.

         Inmate Joshua Waldman was convicted of forcibly assaulting a correctional officer after headbutting him during an argument about a pat-down search. He advanced a self-defense argument at trial, but was unsuccessful. On appeal, he argues that the district court erred in holding that there needed to be an imminent threat of death or serious bodily harm before he could justifiably use force in self- defense. We agree. Requiring that an inmate fear serious bodily harm or death before using force to protect himself is inconsistent with both the Eighth Amendment and common law principles justifying the use of self-defense. But we find no clear error in the district court's finding that Waldman had a legal alternative to force in complying with the pat-down. So we affirm Waldman's conviction because he failed to prove at least one of the required components of his defense.

         I. BACKGROUND

         On June 30, 2013, correctional officer Jason Buescher and two of his fellow officers conducted random pat-down searches while inmates walked to the cafeteria in the Terre Haute Federal Correctional Complex. Waldman grabbed his winter coat before heading outside for lunch, even though it was warm out. Noticing Waldman wearing the winter coat, Buescher called Waldman for his pat-down search. Concerned that Waldman could be hiding contraband under the coat, Buescher ordered Waldman to take off his coat. The two began arguing and Waldman took the coat off, wadded it up, and threw it down next to Buescher. The testimony at trial conflicted as to how the argument turned physical.

         A. Waldman's Account of the Incident

         Waldman testified that Buescher grabbed his left arm in a very hard grip and ordered Waldman to stand against a nearby wall. In his pretrial statement, Waldman stated that Buescher grabbed and threw him against the wall. But this was inconsistent with Waldman's trial testimony that someone he could not see had grabbed him and he walked to the wall on his own. He further testified that Buescher told him that he would "punk him out" in front of everyone. Multiple defense witnesses testified that the men raised their voices and may have used profanity during the argument.

         Waldman testified that Buescher then advanced toward him in a threatening manner, causing Waldman to fear harm. As Buescher completed his approach, Waldman reacted by head-butting him. Waldman testified that when Buescher stuck his fingers in Waldman's mouth and pushed his fingers into Waldman's eye socket, he bit Buescher's finger to get it out of his mouth and to stop the attack. Waldman admitted that it took two other officers to help Buescher to restrain him. Waldman suffered bruises to his face, head, and arms.

         B. Buescher's Account of the Incident

         Buescher testified that after Waldman threw his jacket on the ground, he ordered him to stand against the wall for a pat-down search. Waldman initially followed his order and walked toward the wall, but as Buescher approached him, Waldman turned around quickly and head-butted him in the face, causing him to fall backwards. The other two officers conducting pat-down searches testified that they saw Waldman head-butt Buescher. Buescher testified that while he and the other two officers tried to restrain Waldman, Waldman flailed his legs around, tucked his arms under his chest, and bit Buescher's finger. Buescher said his hand dug into Waldman's eye socket as he tried to stop Waldman's biting. Buescher suffered a fractured nose, head injury and a bite wound on his left index finger.

         C. Prior Proceedings

         Waldman was indicted for forcibly assaulting, resisting, impeding, intimidating, or interfering with a corrections officer, in violation of 18 U.S.C. § 111(a) and (b). Following his indictment, Waldman appeared before the district court for a one-day bench trial. At the close of evidence, the judge requested further briefing from the parties regarding Wald-man's theory of self-defense, and specifically what constitutes unlawful force by a federal correctional officer acting in pursuit of his official duties.

         After hearing arguments on what should be considered unlawful force, the district court held that in a prison setting, for an inmate to establish self-defense, he must face the imminent threat of death or serious bodily injury Because Buescher's actions did not expose Waldman to a threat of imminent serious bodily injury or death, and Waldman could have complied with Buescher's orders to ...

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