02-1235 U.S. v. Ebert

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“The court refused the instruction because Ebert failed to introduce any evidence on one aspect of self-defense -that the action was a response to imminent unlawful force. Ebert contends on appeal that we can infer unlawful force based on ‘evidence that the guards did not tell him what was going on and evidence from which one could conclude that the guards were lying about the shot.’ That evidence, however, does not support an inference that unlawful force was being used. Ebert essentially is arguing that because the guards did not say anything about sedating him, and because one guard stated that he was not going to get a shot, Ebert therefore could reasonably believe not only that he would be sedated, but that the sedation would be unlawful. This inference is argued despite the absence of any evidence of a needle in the room, and despite the absence of any evidence that sedation was ever contemplated by the guards. There is no reasonable basis for the inference Ebert would have us draw. Moreover, Ebert has presented no argument that it would in fact be unlawful for the physician’s assistant to sedate him in these circumstances, which further defeats his claim here. In short, Ebert failed to present any evidence that his action in assaulting the guards was in response to imminent unlawful force, and therefore the court properly refused to give the self-defense instruction.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Rovner, J.