In this аppeal inmate Dennis Adams contends that there was insufficient evidence for the Disciplinary Committee to find he had violated Major Rule No. 4 of the Oregon State Penitentiary.
The report of violation charged him with “Major Violation No. 4 (Assault).” The definition of assault in Rule No. 4 is “[flighting or the intentional physiсal injury of another.” The substance of the charge in this case alleges that Adams “had a fight with inmate Poole * * *,” that the fight was broken up by three corrections officers and that as Adams was being conduсted down some stairs Poole “jumped Adams agian [sic] * * *.” Adams contends that self-defense against aggrеssion should be considered as a defense to the fighting charge.
Adams testified that he was waiting to plаy a game of pool, that it was his turn next to go to the pool table when Poole came to where he was sitting and grabbed the pool rack out of his hand. He said he tried to say something when Poole hit him on the side of the head three times, at which he got up and
“* * * On the streets we take into consideration who the aggressor was. In the institution, fighting of itself is what the word assault refers to, fighting or the intentional injury of another, and it’s fighting or the intentionаl. So that fighting stands alone * *
From the foregoing and the decision rendered it appears that the intеrpretation placed upon the rule against fighting is such that there are no circumstances under which an inmate may be justified in protecting himself against the unprovoked assault of another. The Attorney General’s brief points out that “* * * [a] fight within the institution can easily trigger a broader eruption which cоuld ultimately endanger every person, officer and inmate, inside the prison. For this reason no fighting for any reason can be allowed.” The Attorney General also argues that in the correctional institutions the officers “are omnipresent and a reasonable alternative to self-defensе exists.”
We do not agree that no circumstances cun exist in the institution where a person has. justification for defending himself. The extreme situation may well be where one is holding a knife at the throat of another and the supposedly omnipresent guards are in no position to stop the stroke of the knife. Common sense indicates that the conclusion is inescapable that the
Further, whether guards can be considеred omnipresent depends on what is meant by that term. For example, in the instant case although thrеe officers were present at the “fight” the best they did to attempt to prevent Poole from actually maldng contact in the second attack was to call to Adams to “look out.” The very fаct that one of the guards reacted by telling him to “look out” is indicative of that being a natural reаction—warning him that he had better look out for himself. It seems a strange anomaly—if that were all therе was to the matter—that Adams should be penalized for doing what the guard reactively indicated he shоuld do.
While the context there was different, part of the opinion in Stoughton v. Powers, 264 Wis 582,
“ ‘Fighting,’ the act prohibited by the ordinance, has a сommon and ordinary meaning sufficiently definite to be understood with reasonable certainty by persons of ordinary intelligence. That common and ordinary meaning is well expressed in the old axiom that ‘It takes two to fight.’
“ ‘Fight’ has been defined as a combat between two persons suggesting primarily the notion of a brawl or unpremeditated encounter, Gitlow v. Kiely, (D.C. 1930), 44 Fed. (2d) 227; as an altercation for which the particiрant is in some degree to blame and in which he is, to some extent at least, a voluntary particiрant, and not that which is unavoidable and beyond his control, or which has not been occasioned by any improper conduct on his part, Coles v. New York Casualty Co., (1903), 87*248 App. Div. 41,83 N.Y. Supp. 1063 * * * ” 264 Wis at 585.
We hold that in a situation like that here the Disciplinary Committеe must consider whether under the circumstances a reasonable alternative to physicаl force as a defense exists when a person is assaulted, [f a person who is assaulted under the circumstances, in the institutional setting with its rules and built-in protections, would still reasonably anticipate serious bodily harm if he were not to forcibly protect himself, and if he has no other reasonable аlternative, then a resort to force maybe justified. These matters must be considered in such a setting bеfore sanctions for using force may be imposed. One of the circumstances to consider is the nature and the vigor of the force he used.
Remanded for further consideration, and hearing if necessary.