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The Fundamental Right of Self-Defense in Prison

by Robert F. Nelson

[Editor's Note: In 1994 the court of appeals for the seventh circuit decided Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994) which held that an Indiana state prisoner had no constitutional right to self-defense in prison. The case arose after the plaintiff was infracted and punished for "fighting' after he warded off an attempted rape by another prisoner. As the dissent made clear in that case, the ruling stands for the prospect that prisoners must subject themselves to victimization at the hands of other prisoners and be left with no recourse from a state that fails to protect them or allow them to protect themselves. PLN subscriber Robert Nelson analyzes Rowe in the following article. He will receive a complimentary one year subscription to PLN for his well written article.]

For you now it remains to rival what they have done and, knowing the secret of happiness to be freedom and the secret of freedom a brave heart, not idly to stand aside from the enemy's onset.

-- Pericles' Funeral Oration, Thucydides (431 B.C.)

Self preservation is probably the most basic and tyrannical of all human instincts. Thomas Jefferson observed that "the earth belongs to the living." Thus, self defense is the right to survive. "If a legal system is to uphold the right to life, there must be a liberty to use force for the purpose of self defense." [A. Ashworth, Self Defense and the Right to Life, 34 Camb L.J. at 283 (1975).]

President Franklin Roosevelt subscribed to the Jeffersonian school of thought. On January 6, 1941 in his annual address to Congress, i.e., the renowned "Four Freedoms" speech, F.D.R. expounded upon imperilment to the democratic way of life .... The "four essential human freedoms" consisted of (1) freedom of speech and expression; (2) freedom to worship god; (3) freedom from want, and (4) freedom from fear.

"Every person, including an incarcerated felon, has the right to be free from the fear of offensive bodily contact and to be free from actual offensive bodily contact ... Every person has the right to protect himself against an assault by another." [John W. Palmer, Constitutional Rights of Prisoners (4th Ed. 1991).]

Recently, the United States Court of Appeals for the Seventh Circuit wrote two more chapters in the erosion of the United States Constitution. In Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994), cert. denied 115 S.Ct. 508 (1994); the court held that there is no federal constitutional right to self defense, either in or out of prison, as a matter of substantive due process [See PLN, Vol. 5, No. 7]. Shortly after, in Gibbs v. Franklin, 18 F.3d 531 (7th Cir. 1994), vacated and remanded, 63 USLW 3291, 1994 WL 286921 (10-11-94), in a patently obvious attempt to quell the influx of eighth amendment failure to protect claims resulting from the reprehensible Rowe decision, the court upheld a jury instruction that prison guards are not constitutionally required to protect prisoners from prisoner on prisoner violence if it is not "easy" for them to do so ....

In its holding, the court in Rowe cites a case from the sixth circuit, White v. Arn, 788 F.2d 338 (6th Cir. 1986), cert. denied, 480 US 917 (1987), as authority for its position. White holds that a murder defendant did not have a constitutional right of self-defense founded in the eighth, ninth or fourteenth amendment.

The Rowe decision violates the United States supreme court holding in John Bad Elk v. United States, 177 U.S. 529 (1900). Bad Elk dealt with the murder of a policeman who had attempted to effectuate an illegal arrest. The court held: 'When a person being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justifiable." (Emphasis added) (citation omitted).

In People v. Eisenberg, 72 Mich App 106 (1976) the Michigan Court of Appeals cited Bad Elk and observed that: "The right to resist an unlawful arrest, however, is merely one aspect of self defense. An unlawful arrest is nothing more than an assault and battery against which the person sought to be restrained may defend himself as he would against any other unlawful intrusion upon his person or liberty." (Emphasis added)(citation omitted).

How is it not evident to the Sixth and Seventh federal judicial circuits that 95 years ago, when the U.S. supreme court spoke of 'the right of self-defense," in Bad Elk that very judicial pronouncement was clearly proposed to allude that self-defense is an inalienable right? It does not require an LL.D to arrive at this determination. Nor does it require an LL.D to conclude that in Eisenberg when the Michigan Court of Appeals held that a person may defend himself against an illegal arrest 'as he would against any other unlawful intrusion upon his person or liberty" the court was invoking the protections of the fourteenth amendment.

In United States v. Panter, 688 F.2d 268 (5th Cir. 1982), the fifth circuit noted: "The right to defend oneself from a deadly attack is fundamental." Id, at 271. In Berrier v. Egeler, 583 F.2d 515 (6th Cir. 1978), the sixth circuit held that "self defense ... is the right of every person." Id, at 520. In United States v. Peterson, 483 F.2d 1222 (DC Cir. 1973), the D.C. circuit referred to "the right of self-defense" as being "the law of necessity." Id, at 1229. In United States v. Heliczer, 373 F.2d 241 (2nd Cir 1967), the second circuit acknowledged "the right of self-defense." Id, at 248. Over a fifteen year period the D.C. circuit and three other circuits encompassing nine states recognized the right of self defense.

The seventh circuit in Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982), stated "there is no constitutional right to be protected by the state against being murdered by criminals or madmen." Id, at 618. The right to self-defense is the right to live. 'Indeed, on practical grounds a liberty to use force in self-defense is essential if members of society are not to be put at the mercy of the strong and unscrupulous." A. Ashworth, Self Defense and the Right to Life, 34 Camb. L.J. at 282 (1975). The right of self-defense predates written law and is essential to self-preservation. "There is no dispute that self-defense historically is one of the primary justifications for otherwise unlawful conduct." Martin v. Ohio, 480 U.S. 228 (1987).

" .... It is uncontradicted that self-defense may exist on appearances, whether accurate in fact or not, which would lead a man of ordinary prudence to conclude that the taking of steps in self-defense was necessary." Griffin v. Martin, 785 F.2d 1172, 1173 (4th Cir. 1986).

It would not be amiss to point out that "....We must be mindful 'Congress in enacting criminal statutes legislates against a background of Anglo-Saxon common law....' Part of this common law is the doctrine of self-defense." Panter, supra, quoting United States v. Bailey, 444 US 394 n. 11 (1980). At common law, assault was, 'an unlawful setting upon one's person." Chase, Blackstone's Commentaries, 4th ed., page 675 (1914). American law was derived from English common law, according to the first amendment to the U.S. constitution. Under English common law: "...self-defence, therefore, as it is justly called the primary law of nature, so is not, neither can it be in fact, taken away by the law of society." 2 H. Broom, Commentaries on the Laws of England, with notes by William Wait 3 (1875). Self defense then is the right to survive, without a right to self defense all other rights recognized under the U.S. constitution are illusory.

Simply because self-defense is not enumerated under a constitutional amendment does not make it any less of a fundamental right. See Amendment IX. "Bill of Rights presumes the existence of a substantial body of rights not specifically enumerated but easily perceived in the broad concept of liberty and so numerous and so obvious as to preclude listing them." [Story, Commentaries on the Constitution of the United States (1833).]

The U.S. supreme court, in selecting which of the Bill of Rights to incorporate in the fourteenth amendment due process clause looks for either "principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental," and therefore "implicit in the concept of ordered liberty" Palko v. Connecticut, 302 US 319 (1937), or for principles that are "basic to our system of jurisprudence." In Re Oliver, 333 U.S. 257 (1948). Consequently, the supreme court has recognized a number of rights, none of which are specifically enumerated in the U.S. constitution, e.g., abortion, marriage, contraception, overseas travel, protection against bodily intrusions, family relationships, procreation, and the upbringing and education of children. Is self-defense any less of a fundamental right?

"I believe it is a natural right and principle of life for all people to defend themselves ... Self-Defense is a natural right and no one can take that away from you." Mumia Abu Jamal, Revolutionary Journalist.

How the sixth and seventh circuits can reconcile the White and Rowe decisions, which go against the supreme court ruling in Bad Elk and subsequent supreme court decisions concerning substantive due process is beyond comprehension. The Rowe court held that "DOC's policy to deny a prisoner the right to raise it [self-defense] as a complete defense is reasonably related to legitimate penological interests. The policy purportedly advances prison security by discouraging all physical violence against inmates. It acts as a didactic by warning prisoners that violence against another inmate is a unilaterally condemned and perpetually sanctionable violation of prison rules."

"Self-defense is not violence, it is intelligence." Malcolm X.

Jailhouse lawyers should not allow the Rowe decision to dissuade them from pursuing a Section 1983 or Bivens claim alleging a fourteenth amendment right of self-defense was violated. The Bad Elk ruling makes clear the right of self-defense is fundamental. In Perrin v. Anderson, 784 F.2d 1040, 1045 (10th Cir. 1986) the court held that a self-defense claim in a civil case is not functionally different from a self-defense claim in a criminal case.

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