Ninth Circuit Denies Shank-Induced Self-Defense Jury Instruction

Sticks and stones may break your bones, but shanks will earn you jail time.

The Ninth Circuit clearly does not understand life on the inside. When someone in prison calls you a bitch, you're allowed to defend yourself; at least that's what Lenny Urena claimed. This week, however, the Ninth Circuit Court of Appeals dismissed Urena's appeal to a conviction stemming from a prison fight that started with name-calling.

Federal prisoner Gary Dennis grabbed Urena, a fellow inmate, and called him a "bitch." Hours later, Urena attacked Dennis by surprise, striking him in the face. Dennis tried to disengage but Urena pursued and struck him repeatedly from behind. Dennis eventually grabbed Urena and wrestled him to the ground. Another inmate, Nekis Atwater, intervened, kicking Dennis in the back of the head and punching him at least 14 times.

Dennis's injuries were superficial, but he suffered shank injuries that required stitches. The prison recovered the shank from underneath Urena's shoulder. Eyewitnesses disagree about whether Atwater or Urena had the shank in the fight, but Urena confessed that he had used shank during the fight.

At trial, Urena changed his tune, arguing that Atwater attacked Dennis with the shank, and that he confessed because he did not want to "snitch" on Atwater. He also argued self-defense, claiming that he was in danger because Dennis had called him a bitch, which is a serious threat in prison. The district court, however, refused to grant Urena's request for a self-defense jury instruction.

Urena appealed to the Ninth Circuit, arguing that he "had to attack ... so that no one would think he really was a bitch." The court was not persuaded.

The Ninth Circuit Court of Appeals found that the district court did not abuse its discretion in concluding that there was not a factual foundation to support a self-defense jury instruction. It seems that the court was so consumed in relying on its two-part test for self-defense jury instructions in United States v. Biggs - reasonable belief that force is necessary plus use of no more force than reasonably necessary - that it failed to appreciate subtleties of prison life.

According to the Ninth Circuit, a person insulted by a personal slur cannot stab the offending speaker in the neck, bash his skull with a baseball bat, send a bullet to his heart, or otherwise deploy deadly force in response to the insult. While the court noted that Urena's being called a bitch in prison might pose a threat to him, it found that name-calling did not give Urena warrant to attack Dennis with a prison-made knife or justify a surprise, pre-emptive attack.

Like we said before, the Ninth Circuit Court of Appeals is out of touch with prison life.

The lesson for attorneys in this case? Advise your clients before they enter prison that they cannot use deadly force - or any force, really - to defend against name-calling.

Related Resources:

• U.S. v. Urena (Ninth Circuit Court of Appeals)
• Supreme Court Rejects Appeal; Jonathan Doody Retrial Imminent? (FindLaw's Ninth Circuit blog)
• Can Violence Be Allowed When a Warning Is Prohibited? The Kansas High Court Issues a Perplexing Ruling (FindLaw)
• ATF Entrapment Scheme Snares Jury Instruction Victim (FindLaw's Ninth Circuit blog)