A Colorado inmate passed a note to a correctional officer saying other prisoners were planning to jump him at dinner. They had a weapon – and he was afraid. He admitted he had a makeshift knife in his cell and asked for help.

Instead, prosecutors charged Thomas J. Hibdon with possession of contraband, a jury convicted him, and a Lincoln County judge sentenced him to an additional four years in prison.

On Thursday, the Court of Appeals ordered a new trial for Hibdon, concluding the judge mistakenly barred the defense from arguing to the jury that Hibdon made a “choice of evils” by committing a crime for the purpose of avoiding imminent harm.

“In our view, a jury could well find that Hibdon initiated a viable and reasonable course of action by notifying prison authorities of his predicament,” wrote Judge John Daniel Daily in the opinion of the three-member appellate panel.

Hibdon was incarcerated at Limon Correctional Facility on May 25, 2018, when he gave a note to a sergeant that read: “the blacks plan on Jumping me at dinner and they have a weapon, and me fearing for my life I also have one too, I will talk to whoever I have to about this and what’s going on[.] Please don’t access my door, because I know there’s another key that works to open it. I need to be taken off the yard a.s.a.p. I will put mine in my coat pocket.”

Guards found a five-inch shank in his coat, as Hibdon described, and removed him from the general population.

During his trial, Hibdon’s attorney told the jury that Hibdon “did what he thought he needed to do” by protecting himself and asking for assistance. Under Colorado law, it is a defense against criminal charges to assert that a person resorted to unlawful conduct as an emergency measure to avoid imminent injury, where all other reasonable alternatives proved futile. This is known as a “choice of evils” defense.

But District Court Judge Cynthia D. Mares denied Hibdon’s request to offer the defense. She concluded that Hibdon’s letter describing a potential attack at dinner did not qualify as “imminent,” and that “clearly there is not an action that is happening at that moment for which [Hibdon] needs to take action immediately.”

During oral arguments before the appellate panel, public defender Jeffrey Wermer told the judges that the combined threat of Hibdon’s assailants having a weapon and also possibly a key to his cell motivated Hibdon to try and save his life.

Judge Rebecca R. Freyre observed that reporting a threat in prison involved filling out a form and waiting for an investigation. By contrast, discovery of a shank triggered removal from general population, with an investigation happening later.

“These inmates get a book when they get checked into prison that says these are our rules. And so if the normal procedure isn’t going to accomplish his goal of getting out of general population ASAP, what other procedure was available for him other than doing something he knew would get him into [administrative segregation] immediately and get him removed?” she asked.

Dailey also pointed to the allegations in Hibdon’s letter: “They’re going to jump me at dinner. They have a weapon. This is not just a generalized fear of other inmates,” he said.

Senior Assistant Attorney General John T. Lee said that under the “choice of evils” defense, a threat “needs to be exactly at that moment.”

“Did he actually need to go to dinner with the weapon in his pocket and wait until he was jumped?” Freyre quizzed him. 

“I mean, potentially,” Lee answered.

The panel sided with Hibdon, finding he pursued reasonable alternatives by both alerting authorities to his need for protection and also arming himself in case the prison took no action. The court reversed Hibdon’s conviction and ordered a new trial.

The case is People v. Hibdon.