Friday, January 15, 2010

Subjective Self Defense Instruction Correctly Refused

US v. Gore: After getting into a heated argument with a correctional officer at FCI Gilmer, Gore got into a scuffle with a second officer that resulted in him being sent to "the hole." Gore was charged with assault on and forcibly resisting a correctional officer under 18 USC 111. At trial, Gore asked the district court to give a self defense instruction that allowed the use of force if the correctional officer "uses more force than appears reasonably necessary." The district court rejected that formulation, holding that it was too subjective, and instructed that self defense was available only if Gore "was under an unlawful present or imminent threat of serious bodily injury or death." Gore was convicted at trial and sentenced to 87 (more) months in prison.

Gore appealed, arguing that the district court erred by not giving his self defense instruction. The Fourth Circuit disagreed and affirmed the convictions. First, the court concluded that, although section 111 did not include a provision for self defense as a defense to the charge, self defense was available to defendants charged with that offense. Second, the court concluded that, given the particular circumstances present in a prison setting, such a defense must be narrowly construed and limited to situations where there is an objective fear of death or serious bodily injury.

No comments: