In the
United States Court of Appeals
For the Seventh Circuit
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No. 15‐1756
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOSHUA A. WALDMAN,
Defendant‐Appellant.
____________________
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.
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ARGUED FEBRUARY 16, 2016 — DECIDED AUGUST 30, 2016
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Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Inmate Joshua Waldman was con‐
victed of forcibly assaulting a correctional officer after head‐
butting him during an argument about a pat‐down search. He
advanced a self‐defense argument at trial, but was unsuccess‐
ful. On appeal, he argues that the district court erred in hold‐
ing that there needed to be an imminent threat of death or se‐
rious bodily harm before he could justifiably use force in self‐
2 No. 15‐1756
defense. We agree. Requiring that an inmate fear serious bod‐
ily harm or death before using force to protect himself is in‐
consistent 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. Con‐
cerned 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 some‐
one 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
No. 15‐1756 3
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 Wald‐
man 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 Wald‐
man’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 of‐
ficer, in violation of 18 U.S.C. § 111(a) and (b). Following his
4 No. 15‐1756
indictment, Waldman appeared before the district court for a
one‐day bench trial. At the close of evidence, the judge re‐
quested 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 pur‐
suit 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 immi‐
nent threat of death or serious bodily injury. Because
Buescher’s actions did not expose Waldman to a threat of im‐
minent serious bodily injury or death, and Waldman could
have complied with Buescher’s orders to avoid escalation of
the situation, the court found Waldman guilty and sentenced
him to 60 months in prison.
II. ANALYSIS
On appeal, Waldman challenges his conviction on two
grounds: first, that the district court legally erred when it con‐
ditioned a prisoner’s right of self‐defense on the presence of
an imminent threat of death or serious bodily injury, and sec‐
ond, that the district court factually erred when it found that
Buescher did not expose Waldman to an imminent threat of
harm and that Waldman had a reasonable legal alternative to
head‐butting Buescher. We review Waldman’s challenge to
the district court’s legal conclusions de novo, and its factual
findings for clear error. United States v. P.H. Glatfelter Co., 768
F.3d 662, 676 (7th Cir. 2014).
A. Self‐Defense under 18 U.S.C. § 111
While 18 U.S.C. § 111 does not explicitly address self‐de‐
fense, when a statute is silent on the question of affirmative
No. 15‐1756 5
defenses, we are to effectuate the defense as “Congress may
have contemplated it,” looking to the common law as a guide.
See United States v. Dixon, 548 U.S. 1, 13‐14 (2006). At common
law, self‐defense is the use of force necessary to defend
against the imminent use of unlawful force. See United States
v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (citing Model Pe‐
nal Code 3.04(1) (1962)). But what is unlawful force in a prison
setting? Obviously correctional officers will sometimes need
to use force to maintain order inside prison walls. The gov‐
ernment urges that we adopt the definition of unlawful force
used by the Fourth Circuit, and hold that an inmate is only
permitted to use force in self‐defense against a correctional
officer if the inmate faces an “unlawful and present threat of
serious bodily injury or death.” United States v. Gore, 592 F.3d
489, 494 (4th Cir. 2010); see also United States v. Jones, 254 Fed.
Appx. 711, 722 (10th Cir. 2007) (unpublished). But unlike the
defenses of duress or necessity, fearing death or serious bodily
harm is not required to make out a claim of self‐defense.
While using lethal force to defend oneself may require such a
serious threat, under our own Pattern Instructions, non‐lethal
force (like head‐butting, for example) does not contain such a
requirement. See Pattern Criminal Jury Instructions of the
Seventh Circuit 6.01 at 85 (2012).
Rather than fashioning our own definition of unlawful
force in a prison setting, we look to the Eighth Amendment,
which already sets the legal limits on prison officials’ acts to‐
wards inmates.1 Sometimes, it is within the bounds of the
1 Three of our sister circuits have adopted a similar approach to analyzing
what type of unlawful force justifies self‐defense under Section 111 out‐
side of prison walls. The Fifth, Sixth and Ninth Circuits have suggested
that self‐defense might be available under Section 111 when a defendant
6 No. 15‐1756
Eighth 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.” Bell v. Wolfish, 441
U.S. 520, 545‐46 (1979). And corrections officers face the diffi‐
cult task of balancing the need to maintain or restore disci‐
pline through force against the risk of injury to inmates. Hud‐
son v. McMillian, 112 S. Ct. 995, 999 (1992). So whether a prison
security measure violates the Eighth 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.” Whitley v. Albers, 475 U.S. 312,
320‐21 (1986). We think this test is as useful in determining if
an inmate is justified in using self‐defense as it is in determin‐
ing if a prisoner has an Eighth Amendment claim against his
jailers.
The government argues that if self‐defense is not contin‐
gent upon fearing serious bodily injury or death, inmates will
be allowed to use force against guards any time they believe
the officer might be using slightly more force than necessary
against them. But such a danger is overblown. Prisoners will
still need to prove their fear was reasonable, meaning that there
was an objective reason to believe that officers intended to
cause sadistic and malicious harm. That is not an easy burden.
uses force against a law enforcement agent who engages in excessive force
against him first. See United States v. Acosta‐Sierra, 690 F.3d 1111, 1126 (9th
Cir. 2012) (citing United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992));
United States v. Branch, 91 F.3d 699, 715 (5th Cir. 1996); United States v.
Weekes, 517 Fed. Appx. 508, 511 (6th Cir. 2013) (unpublished).
No. 15‐1756 7
A prisoner cannot prevail under the Eighth Amendment be‐
cause he “reasonably believed his handcuffs were too tight
causing momentary interruption of his circulation.” Gore, 592
F.3d at 495 (citing Jones, 254 F.App’x at 722). Indeed, under the
Eighth Amendment, “not every push or shove by a prison
guard violates a prisoner’s constitutional rights.” United States
v. DeWalt, 224 F.3d 607, 620 (7th Cir. 2000). Similarly, the fear
that “guards would second‐guess every use of force to ascer‐
tain whether the force used exceeded, even by a bit, what was
necessary” is no different than the fear that guards already
have that they will be sued for using excessive force. Gore, 592
F.3d at 495 (internal citation omitted). So we hold that an in‐
mate may act in self‐defense if he reasonably fears imminent
use of sadistic and malicious force by a prison official for the
very purpose of causing him harm.
The opposite holding would prevent inmates from pro‐
tecting themselves from sadistic and malicious acts which do
not cause serious bodily harm, but which everyone can agree
are egregious violations of the Eighth Amendment. For exam‐
ple, what about cases of sexual abuse of inmates? We have
previously held that forcing a prisoner to perform sexually
provocative acts in front of spectators is a viable Eighth
Amendment claim. Calhoun v. Detella, 319 F.3d 935, 940 (7th
Cir. 2003). Prisoners should not endure such abuse when they
could easily act to stop it because they would risk being con‐
victed of assaulting an officer. Under the federal definition of
“serious bodily harm,” without a substantial risk of death, ex‐
treme 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. See 18 U.S.C. § 1365 (h)(3) (de‐
fining “serious bodily harm”). In the midst of enduring abuse
8 No. 15‐1756
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 Eighth Amendment, and
would “give prison officials free reign to maliciously and sa‐
distically inflict psychological torture on prisoners, so long as
they take care not to inflict any physical injury in the process.”
Calhoun, 319 F.3d at 940. Under common law principles, re‐
quiring the threat of serious bodily injury or death certainly
might be appropriate for use of lethal force in self‐defense, see,
e.g., United States v. White Feather, 768 F.3d 735, 740 (7th Cir.
2013). But in a case where a prisoner is simply acting to stop
abuse completely untethered to official discipline, which can
only be interpreted as sadistic, malicious, and intended to
cause harm, she is entitled to act in self‐defense. And while
Congress clearly intended to protect correctional officers from
harm in passing 28 U.S.C. § 111, that purpose must be harmo‐
nized with Eighth Amendment protections, not supersede
them.
B. No Error in Finding Waldman Had Reasonable Legal
Alternative to Using Force
In addition to showing that the force threatened against
them violated the Eighth Amendment, inmate‐defendants
have other hurdles to mount. They must prove that the un‐
lawful use of force against them was imminent, and that they
had no reasonable legal alternatives to using force in self‐de‐
fense. United States v. Haynes, 143 F.3d 1089, 1092 (7th Cir.
1998).2 The district court correctly evaluated whether Wald‐
man had reasonable legal alternatives to striking Buescher,
2 The district court appeared to place the burden of disproving self‐de‐
fense on the government, which may have been an error. See Dixon, 548
No. 15‐1756 9
which was a required element of his defense. While we are
very dubious that Buescher used or threatened any force
which violated the Eighth Amendment, we can affirm Wald‐
man’s conviction solely based on the district court’s finding
that he did not avail himself of legal alternatives to assaulting
Buescher.
Waldman could have simply submitted to Buescher’s
search—which no one is arguing was itself a violation of
Waldman’s constitutional rights—instead of escalating the sit‐
uation into a physical fight. Waldman insists that he did sub‐
mit to the search and only used force after Buescher need‐
lessly grabbed his arm and advanced toward him as if to
strike him in the throat. But the district court was entitled to
credit Buescher’s version of the facts—that Waldman was the
first aggressor, and used force before Buescher even touched
him. We will not disturb the court’s factual findings unless we
are left with a definite and firm conviction that a mistake has
been made, and if two permissible views of the facts exist, the
fact‐finder’s choice between them cannot be clearly errone‐
ous. United States v. Breland, 356 F.3d 787 (7th Cir. 2004). There
was no clear error here. We see no basis for reversing the dis‐
trict court’s factual findings, and agree with its conclusion that
Waldman had reasonable alternatives to striking Buescher.
U.S. at 1 (no Constitutional requirement that government negates ele‐
ments of a defense that does not negate an element of the charged offense;
rather the allocation of proof depends on statute, or, in absence of clear
guidance, common law). Because the government did not raise this issue
on cross‐appeal, and Waldman cannot prevail regardless of which party
bears the burden of proof, we decline to rule on the burden of proof allo‐
cation for self‐defense claims under Section 111.
10 No. 15‐1756
III. CONCLUSION
For the foregoing reasons, we AFFIRM Waldman’s convic‐
tion.