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Any way you look at it, the images of the aftermath of Hurricane Katrina are disturbing. Men, women and children moved through deserted stores, scavenging everything from big-screen televisions to baby formula. Some were arrested for stealing. Others were permitted to help themselves to abandoned goods. For those apprehended, the legal system must now sort out whether they are guilty of a crime or are entitled to a necessity defense because, under the circumstances, their actions were justified. The ‘necessity defense’ may come up short In general, it is difficult to succeed with a necessity defense. The strict legal requirements make it unlikely most defendants will succeed. Courts are reluctant to broaden the scope of a defense created for exceptional circumstances that are not otherwise covered by the laws. Courts are particularly reluctant to allow the defense as an excuse for civil disobedience. See, e.g., U.S. v. Kabat, 797 F.2d 580 (8th Cir. 1986) (jurors do not get to decide whether America’s nuclear weapons policy is moral, religiously sound or politically wise); City of Wichita v. Tilson, 855 P.2d 911 (1993) (necessity defense not available for abortion protesters accused of trespass); U.S. v. Scranton, 25 F. Supp. 2d 1131 (D. Idaho 1997) (necessity defense unavailable for environmental protesters). However, the necessity defense is still available in those situations where a defendant has no choice but to violate the law. In most jurisdictions, a necessity defense, also known as a “choice of evils” or “justification” defense, requires that the defendant demonstrate: (1) he faced an unlawful, present, imminent and impending threat of death or serious bodily injury; (2) he did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal activity; (3) he had no reasonable legal alternative to violating the law; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. See U.S. v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000); see also U.S. v. Dodd, 225 F.3d 340 (3d Cir. 2000); U.S. v. Singleton, 902 F.2d 471 (6th Cir.), cert. denied, 498 U.S. 872 (1990); U.S. v. Crittendon, 883 F.2d 326 (4th Cir. 1989); U.S. v. Gant, 691 F.2d 1159 (5th Cir. 1982). In some jurisdictions, the necessity requirements are formulated slightly differently. There, a defendant is entitled to a necessity defense only if she establishes: (1) she faced a choice of evils and chose the lesser evil; (2) she acted to prevent imminent harm; (3) there was a causal relationship between her conduct and the harm to be avoided; and (4) there were no legal alternatives to violating the law. U.S. v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989), cert. denied, 498 U.S. 1046 (1991). For those swept up in Katrina’s destructive path and the ensuing floods, meeting the first two requirements of a necessity defense under either approach will not be difficult. Death was all around. For the first few days of the disaster, basic supplies were not forthcoming. Even at the so-called rescue centers, basic necessities were in short supply. Tragically, tens of thousands of people faced an imminent threat of death or grave illness if they could not obtain food, water and shelter. Similarly, the second requirement of a necessity defense was probably met, although a callous prosecutor might try to argue otherwise. Even if it is claimed that the residents of the flood zone should have evacuated and therefore were reckless in putting themselves in a situation where they might be forced to engage in illegal activity, there was simply no way for many of the residents to leave. It would be hard to argue that someone with no transportation out of the city and no place to go should be blamed for his or her predicament once the storm struck. Even if legally there is such an argument, it would be a hard sell to most juries. Taking necessities doesn’t guarantee a free ride It is when one gets to the third and fourth requirements of a necessity defense that the differences between looters and victims trying to survive become apparent. People who went into the stores to get the basic necessities of life (food, water, baby goods, medical supplies), have a strong argument that there was a direct causal relationship between their needs and their illegal actions. They also had no alternative. They simply could not survive without the goods they stole. However, there were also troubling images of people taking non-necessities during the disaster. It will be difficult for a defendant to characterize taking 12 pairs of jeans, a television or a vacuum cleaner as an act of necessity. These defendants simply took advantage of a tragic situation for self-enrichment. They should not benefit from the necessity defense. This is not to say that all defendants who steal such basics as baby food will get a free ride under different circumstances. For example, in California, a defendant with a prior record for robbery and petty theft was given a life sentence under the state’s “three strikes” law for stealing cases of baby formula to feed his two young daughters. See Thompson v. Small, 2005 U.S. App. Lexis 17801 (9th Cir. 2005) (unpublished). Each jury must decide whether a particular defendant acted out of actual necessity or simply decided to circumvent the law. Also, simply being in a dangerous situation does not guarantee a successful necessity defense. In U.S. v. Carter, 1993 U.S. App. Lexis 23202 (9th Cir. 1993) (unpublished), the defendant asserted a necessity defense to the charge of illegal possession of a firearm because he lived in a neighborhood with frequent riots. The court rejected the necessity defense because it found that Carter did not act to prevent a specific, imminent harm, nor did he establish that there were no other legal alternatives to violating the law. Although the police were clearly ineffective in preventing crimes in his neighborhood and he could not afford to move from the area, the court would not let him take the law into his own hands. It held that it would be better for Carter to stay in his home or seek the help of friends and neighbors than to violate the law by illegally possessing a weapon. Defendants have had mixed results when raising a defense of necessity to charges of drunken driving. The court usually rejects the defense because there is no real emergency justifying the defendant’s actions. See, e.g., Reeve v. State, 764 P.2d 324, 326 (Alaska Ct. App. 1988); State v. Squires, 519 A.2d 1154, 1155 (Vt. 1986); State v. Fee, 489 A.2d 606, 607 (N.H. 1985); State v. Haley, 667 P.2d 560, 564 (Ore. Ct. App. 1983). In some jurisdictions, statutes bar using the defense in cases involving a driving offense. See, e.g., State v. Fell, 52 P.3d 218 (Ariz. 2002). In rare cases, however, defendants can prevail with a necessity defense, even to a drunken driving charge. For example, in State v. Noyes, 439 N.W.2d 646 (Wis. Ct. App. 1989), Maxine Noyes claimed that she was forced to drive under the influence of alcohol. She was a passenger in a car when the driver suddenly became unconscious and started bleeding from the mouth. Believing that the man was dying, Noyes took over control of the car. Initially, she stopped and tried to flag down help from other vehicles. When no one stopped, she drove to the police station. En route, a police officer stopped her and charged her with drunken driving. The trial court initially prohibited a necessity defense, but the appellate court reversed. For that court, the necessity defense was not limited to situations where natural disasters like hurricanes and earthquakes force desperate people to take otherwise illegal actions. A sudden, serious illness also qualified. Courts also take a mixed approach to ruling on the necessity defense in cases of parental child kidnapping or violating protective orders. Many courts simply do not allow the defense for these violations. See, e.g., Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985) (no necessity defense for child custody violation); State v. Holmes, 821 N.E.2d 1072, 129 Ohio Misc. 2d 38 (Hamilton Co., Ohio, Mun. Ct. 2004) (no necessity defense when defendant claimed he violated protective order because he needed to remove lice from his children’s hair). But the defense is allowed if fear of bodily harm However, some courts allow the defense if there is sufficient evidence of a reasonable fear of imminent bodily harm to the child. For example, in State v. Rome, 452 N.W.2d 790 (S.D. 1990), the defendant argued that he kidnapped his 6-year-old child to prevent further abuse at the hands of the child’s mother and her boyfriend. In a split decision, the court held that it would allow the necessity defense. Although the burden would be heavy, it might be possible for the defendant to prove that he had a fear of imminent bodily harm to the child and that no other alternatives, such as law enforcement, were available. See also State v. Boettcher, 443 N.W.2d 1 (S.D. 1989). Ultimately, the defendant’s goal in raising the necessity defense is just to get the issue before the jury. Jurors often vote with their hearts and will refuse to convict a defendant if they sympathize with his plight, despite the strict legal requirements of the defense. For the looters arrested in New Orleans, prosecutors will have to be extremely judicious in selecting cases to prosecute. Greedy defendants might face the jurors’ wrath, but those who trudged through feet of water to recover food, water and medical aid are more likely to be recognized as victims than as villains. Laurie L. Levenson is a professor of law, William M. Rains fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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