February 16, 2016
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.
Posner, Williams, and Hamilton, Circuit Judges.
Williams, Circuit Judge.
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.
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.
Waldman's Account of the Incident
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.
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.
Buescher's Account of the Incident
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.
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.
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 ...