The State of Washington, Respondent, v. Alonzo Bradley, Petitioner, 141 Wash. 2d 731

Talmadge, J. — We determine in this case the proper test for use of force by a person in self-defense to the actions of a correctional officer. Because we believe the circumstances of individuals using force in self-defense against correctional officers are analogous to the situation of persons resisting arrest, we hold a person may claim self-defense and use force to resist only when that person is in actual, imminent danger of serious injury. We affirm Alonzo Bradley’s conviction for custodial assault pursuant to RCW 9A.36.100(l)(b).

ISSUE When a person claims to be using force in self-defense to the actions of a correctional officer, must the person show he or she was in actual, imminent danger of serious injury, or is it sufficient to show only that he or she reasonably believed harm was imminent to establish self-defense? FACTS On May 15, 1997, Alonzo Bradley was detained at the King County Jail for probation violations on felony drug charges, assault in the second degree, investigation of assault, failing to appear on a resisting arrest charge, and telephone harassment.

His criminal history included convictions for possession and possession with intent to deliver controlled substances, and assault in the second degree with a deadly weapon. At approximately 10:30 p.m. that evening at shift change for the jail, Bradley complained to Correctional Officer Glenn Redman of stomach pains and requested to see a nurse. Redman let Bradley out of his cell, and Bradley went to sit on nearby stairs. Bradley did not appear to Redman to be in immediate need of medical assistance, so he asked Bradley to return to his cell.

He told Bradley he would summon a nurse at the end of the shift change period. Bradley refused repeated requests to return to his cell, even after at least two other correctional officers arrived to urge him to do so. Bradley testified he was physically unable to stand and walk back to his cell. 3 Report of Proceedings at 43 (“I said I can’t. My legs — at that time I lost all motor skills in my legs.”). Finally, the supervisor, Sergeant Kim Snodgrass, arrived. As supervisor, Sgt. Snodgrass is the only correctional officer authorized to carry pepper spray.

He testified pepper spray, a benign form of mace, causes extreme discomfort, but not permanent injury. He testified: “You wouldn’t use pepper spray unless everything else fails. It is part of the . . . continuum of force up the ladder from your presence [presence being the first step in the force continuum]. So, basically, yes, if talking with the inmate doesn’t work for you, can’t control the inmate or get them restrained, the next force would probably be pepper/mace.” 2 Report of Proceedings at 128. Sergeant Snodgrass assumed control of the scene and asked Bradley three times to return to his cell.

Bradley continued to refuse. He also asked Bradley to stand up so Snodgrass could handcuff him. Bradley refused to stand. Snodgrass again threatened him with use of pepper spray, telling him what would happen if it got into his eyes. Bradley still refused to stand to be handcuffed or to go back to his cell. Snodgrass then sprayed Bradley directly in the face with the pepper spray. Bradley sat up but did not otherwise react to the foaming spray. Allegedly in order to make the pepper spray work faster, Snodgrass testified he used his thumb to rub the spray into Bradley’s eye.

Snodgrass indicated Bradley then took a swing at him and bit his wrist, whereupon the other officers joined the fray, wrestled Bradley to the ground, and cuffed his hands behind his back, terminating his resistance. Bradley told a very different version of what occurred. He stated to the jury he had been handcuffed before Snodgrass sprayed him with the pepper spray. He said the officers then jumped on him and were crushing him so he could not breathe. He claims a hand covered his mouth and nose, further preventing his breathing and, in an attempt to get air, he bit someone on the wrist.

As a result of this incident, the King County Prosecuting Attorney charged Bradley with two counts of custodial assault in accordance with RCW 9A.36.100(l)(c)(i). One count was for assault on Redman and the other count was for assault on Snodgrass. Bradley argued self-defense. The jury by general verdict found Bradley guilty of an assault on Snodgrass and not guilty of an assault on Redman. Bradley appealed his conviction on the ground the trial court gave the jury an incorrect self-defense instruction.

He also claimed ineffective assistance of counsel and argued the State failed to disprove self-defense beyond a reasonable doubt. The Court of Appeals affirmed the conviction. State v. Bradley, 96 Wn. App. 678, 681, 980 P.2d 235 (1999). That court held the invited error doctrine barred Bradley from challenging a jury instruction he himself proposed; there was no ineffective assistance of counsel because Bradley’s trial counsel had not proposed an incorrect jury instruction; and sufficient evidence supported the jury’s conclusion the correctional officers used lawful force.

The Court of Appeals specifically determined the trial court properly employed the “actual danger” standard for self-defense because “[t]he dangers to law enforcement officers and the needs for security are heightened in both the arrest setting and the custodial setting.” Id. at 684. We granted Bradley’s petition for review. ANALYSIS Initially, we note the State contends Bradley’s argument on self-defense is barred by the doctrine of invited error.

Because Bradley himself proposed the jury instruction he now challenges, the Court of Appeals correctly held he is barred from claiming error on appeal by the invited error doctrine. State v. Neher, 112 Wn.2d 347, 352-53, 771 P.2d 330 (1989). But in a criminal case, where the offering of an incorrect jury instruction may constitute ineffective assistance of counsel, we reach the merits of the challenge anyway in determining if counsel was ineffective. State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999).

To establish ineffective assistance of counsel, Bradley must demonstrate both that (1) his counsel’s representation fell below an objective standard of reasonableness based on a consideration of all the circumstances, and (2) he was prejudiced. State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286, 50 A.L.R.5th 921 (1995). At the core of this test here is the question of the standard for self-defense where a detainee assaults a correctional officer.

RCW 9A. 16.020(3) provides the general test for self-defense in Washington: The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary[.] It has long been the law in Washington that self-defense may be justified by apparent danger to the person claiming the benefit of the defense, as opposed to actual danger. In State v.

Carter, 15 Wash. 121, 123-24, 45 P. 745 (1896), we approved a trial court self-defense instruction based on apparent danger: We think there was no impropriety in the court’s explaining to the jury the nature and legal effect of defendant’s plea; and the latter portion of the instruction must be considered in the light of the entire charge, and when so considered it is plain that the jury were given to understand that it was the right of the defendant to act upon the “apparent,” as distinguished from the “actual” danger.

In fact, the court expressly charged that— “A person need not be in actual imminent peril of his life or great bodily harm before he may defend himself.

It is sufficient if in good faith he has a reasonable belief from the facts, as they appear to him at the time, that he is in imminent danger; if he honestly believes such to be the case then he had a right to act in self-defense.” Further: “The term ‘apparent danger’ is to be understood as meaning not apparent danger in fact, but apparent danger as to defendant’s comprehension; that is, did the defendant believe there was an apparent danger of being killed or of great bodily harm being inflicted upon his person at the time of the alleged stabbing.” Accord State v.

LeFaber, 128 Wn.2d 896, 899-900, 913 P.2d 369 (1996). Thus, the general rule in Washington is that reasonable force in self-defense is justified if there is an appearance of imminent danger, not actual danger itself. A different rule applies, however, if one seeks to justify use of force in self-defense against an arresting law enforcement officer. Numerous cases have held a person may use force to resist arrest only if the arrestee actually, as opposed to apparently, faces imminent danger of serious injury or death. The Court of Appeals in State v. Westlund, 13 Wn.

App. 460, 467, 536 P.2d 20, 77 A.L.R.3d 270 (1975), first articulated the policy rationale for this rule: [T]he arrestee’s right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom. However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better.

They create violence where none would have otherwise existed or encourage further violence, resulting in a situation of arrest by combat. Police today are sometimes required to use lethal weapons for self-protection. If there is resistance on behalf of the person lawfully arrested and others go to his aid, the situation can degenerate to the point that what should have been a simple lawful arrest leads to serious injury or death to the arrestee, the police or innocent bystanders. In State v. Holeman, 103 Wn.2d 426, 430, 693 P.2d 89 (1985) (quoting Westlund, 13 Wn.

App. at 467) we specifically adopted the Westlund court’s analysis: “ ‘Orderly and safe law enforcement demands that an arrestee not resist a lawful arrest. .. unless the arrestee is actually about to be seriously injured or killed.’ ” Accord State v. Ross, 71 Wn. App. 837, 843, 863 P.2d 102 (1993) (actual danger is standard for self-defense in assault on law enforcement officer). Holeman and Westlund involved lawful arrests.

Demonstrating the importance we place on “orderly and safe law enforcement,” we extended the Holeman /Westlund rule even to allegedly unlawful arrests, specifically affirming Holeman in State v. Valentine, 132 Wn.2d 1, 20-21, 935 P.2d 1294 (1997), a case involving an alleged unlawful arrest. Thus, the established rule for use of force in self-defense cases involving arrests requires the person face a situation of actual, imminent danger, not just apparent, imminent danger. In this case, the jury instruction was patterned after the law for resisting arrest.

Bradley himself proposed as his self-defense instruction WPIC 17.02.01, which provides in relevant part: WPIC 17.02.01 LAWFUL FORCE — RESISTING POLICE OR CORRECTIONAL OFFICER It is a defense to a charge of (fill in crime) that the force [used] [attempted] [offered to be used] was lawful as defined in this instruction. A person may [use] [attempt to use] [offer to use] force [to resist] [to aid another in resisting] an arrest by someone known by the person to be a [police] [correctional] officer, only if the person being arrested is in actual danger of serious injury.

The person [using] [or] [offering to use] the force may employ such force and means as a reasonably prudent person would use under the same or similar circumstances. 11 Washington Pattern Jury Instructions: Criminal 17.02.01, at 199 (2d ed. 1994) (emphasis added). Notwithstanding the WPIC caption, because the instruction refers only to arrests, the trial court changed the language without objection from Bradley or the State to reflect the circumstances involving correctional officers: It is a defense to a charge of Custodial Assault that the force used was lawful as defined in this instruction.

The use of force upon or toward the person of a known correctional officer is lawful only when the person using the force is in actual danger of serious injury as a result of the use of unlawful force by the officer. The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar circumstances as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of the incident. The state has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful.

Clerk’s Papers at 36 (emphasis added). Bradley’s trial counsel specifically said in open court he had no objection to the “actual danger” language. On appeal, however, Bradley now asserts that language misstates the law. He claims RCW 9A. 16.020(3) controls, notwithstanding our case law, because the Legislature made no exception in that statute for custodial assault cases. This argument fails in light of Holeman and Valentine, cases articulating the actual danger standard in interpreting the statute.

Bradley also urges us not to adopt the Holeman rule because the policy reasons behind Holeman — prevention of the escalation of violence — do not apply to correctional officers in jails. Bradley contends that in jail, where such officers do not carry firearms, the danger of deadly violence is much less than on the streets. “The possibility that a conflict will escalate to a loss of life is remote.” Supplemental Br. of Pet’r at 14-15.

In other words, Bradley advances a more permissive standard for using physical force against correctional officers than the standard we have adopted for using physical force against arresting officers. Bradley bolsters his argument by citing two cases. First, he cites State v. Miller, 89 Wn. App. 364, 949 P.2d 821 (1997), where the Court of Appeals considered a claim of self-defense by a detainee in the Asotin County jail who was tried for third-degree assault against a jailer.

In a brief opinion, the Court of Appeals overturned the conviction because the trial court did not instruct the jury the State had the burden of proving the absence of lawful force beyond a reasonable doubt. Id. at 365. But Miller had nothing to do with the issue in the present case — whether force in self-defense was justified by a person facing actual or only apparent, imminent harm. The only issue Miller considered was whether the instruction on the burden of proof was proper. The Miller court quoted at length from State v.

Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997), to establish the State bears the burden of disproving self-defense. Miller, 89 Wn. App. at 368. The parties and the Court of Appeals in Miller did not address the issue we now face; there was no issue before the Miller court as to whether there was actual danger or only apparent danger of imminent harm to Miller when he struck the jailer. Bradley also points to State v. Hutchinson, 135 Wn.2d 863, 959 P.2d 1061 (1998), for support. Hutchinson killed two Island County police officers who had taken him into custody. He claimed self-defense.

Although this case might have been good precedent for the issue in the case at bar, the Hutchinson trial court did not employ the same jury instruction the trial court here used. Rather, the Hutchinson trial court instructed the jury on the more lenient standard, WPIC 16.02: Homicide is justifiable when committed in the lawful defense of the slayer when the slayer reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished. Hutchinson, 135 Wn.2d at 884.

The State did not argue on appeal this instruction should have used the words “actual intention to inflict death.” Thus, we had no occasion in Hutchinson to decide whether actual or apparent was the correct standard to employ as justification for self-defense. While Bradley argued from Hutchinson in his brief to the Court of Appeals, he has not cited to Hutchinson in his supplemental brief here, and has apparently abandoned the case as support for his position.

Finally, with respect to the question of whether escalation of violence is more or less likely in jails than on the streets, Bradley’s assertion that jails are inherently less volatile than the circumstances of a street arrest simply defies common knowledge and common sense. As is apparent from the facts in Hutchinson, weapons may be available in custodial situations. See In re Personal Restraint of Anderson, 112 Wn.2d 546, 772 P.2d 510 (1989) (discussing problem of weapons found on prison detainees).

Security problems, some occasioned by the fact correctional officers are usually outnumbered by detainees, are serious in correctional facilities. “[A] detention facility is a unique place fraught with serious security dangers.” State v. Baker, 28 Wn. App. 423, 425, 623 P.2d 1172 (1981). As we have noted, “[a] prison is ‘a tightly controlled environment populated by persons who have chosen to violate the criminal law, many of whom have employed violence to achieve their ends.’ ” In re Personal Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984) (quoting Dawson v.

Hearing Comm., 92 Wn.2d 391, 396, 597 P.2d 1353 (1979)). The United States Supreme Court has noted in a much-cited passage: Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for anti-social criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others.

Even a partial survey of the statistics on violent crime in our Nation’s prisons illustrates the magnitude of the problem. During 1981 and the first half of 1982, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period. Over 29 riots or similar disturbances were reported in these facilities for the same time frame. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium (Mar. 1983).

Additionally, informal statistics from the United States Bureau of Prisons show that in the federal system during 1983, there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides. There were in the same system in 1981 and 1982 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel. Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984).

In this case, Sergeant Snodgrass testified detainees at the King County jail are out of their cells during the late evening shift change and not yet asleep: “And if we have a disruption and everybody has to — if you are an officer, you have to freeze your wing and try to make everybody go back to their cells.” 2 Report of Proceedings at 131. It is possible to conclude that a situation in which detainees become upset at what they might consider brutal treatment of one detainee may lead to a general affray, in which many might be injured.

We conclude the use of force against correctional officers should have the same status as the use of force against arresting officers, and should generally be discouraged as a matter of public policy. There seems to be little reason to differentiate between law enforcement officers making an arrest and correctional officers maintaining order in jails or other correctional facilities. We adhere to our preference expressed in Mierz, Valentine, and other cases for persons to resort to the processes of law rather than the self-help violence of the street.

CONCLUSION We hold correctional officers should be in the same position as law enforcement officers with respect to the use of force against them by those claiming they acted in self-defense. The jury instruction employed by the trial court accurately describes the law in circumstances involving the use of force by persons in self-defense to the actions of correctional officers. We affirm Bradley’s conviction for custodial assault. Guy, C.J., and Smith, Ireland, and Bridge, JJ., concur.

Prior to the incidents in question here, Bradley, who has mental health problems, received valporic acid from jail health services to address his inability to sleep and his speech difficulties. While the side effects of the medication include overt psychoses, hearing voices, stumbling, loss of motor control, slurred speech, and stomach upset, Bradley testified at trial that he discontinued use of the drug two days before the events of this case. “

(1) A person is guilty of custodial assault if that person is not guilty of an assault in the first or second degree and where the person: “(c)(

i) Assaults a full or part-time community correction officer while the officer is performing official duties.” Bradley argued below in the Court of Appeals the State failed to prove the absence of self-defense beyond a reasonable doubt but has not renewed that contention here. In Mierz, 127 Wn.2d at 475, we likewise expressed a strong policy favoring the rule of law over the law of the street: “[I]n many cases the law enforcement officer and the citizen may both have sincere or reasonable beliefs about the lawfulness of the entry or arrest.

Encouraging citizens to test their beliefs through force simply returns us to a system of trial by combat. The proper location for dealing with such issues in a civilized society is in a court of law.” Actually, Bradley discussed the Court of Appeals decision, State v. Hutchinson, 85 Wn. App. 726, 938 P.2d 336 (1997), rev'd, 135 Wn.2d 863, 959 P.2d 1061 (1998), in his opening brief in the Court of Appeals because our decision had not yet been published. Br. of Appellant at 13-16. The dissent is an interesting compendium of cases that largely do not bear on the issue before us.

These cases mostly address the question of whether an arrestee or detainee may use force to resist excessive or unlawful force by peace officers. The settled answer to that question is yes. In State v. Valentine, 132 Wn.2d 1, 21, 935 P.2d 1294 (1997), we said a person who is being unlawfully arrested has a right to use “reasonable and proportional force” to resist an attempt to inflict injury on him during the course of the arrest. But that is not the question here.

The only question before the Court is whether Bradley must have been in actual danger of serious injury or only believes he was in danger of serious injury in order for his self-defense theory to be successful. By this opinion we neither address nor condone the excessive use of force to subdue jail detainees. We note, without expressing any opinion, Bradley retains his civil remedies for excessive use of force by King County correctional officers in effectuating his return to his cell. See, e.g., Staats v. Brown, 139 Wn.2d 757, 991 P.2d 615 (2000).