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Thread: Common Law defense of necessity

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    Regular Member TFred's Avatar
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    I've been following this case, and yesterday the convictions were tossed out and sent back for retrial.

    The part that I found particularly interesting was the reference to the "common law defense of necessity". The appellant was convicted of possession of a firearm by a convicted felon, and was not allowed to argue that he used the gun only in an instant of self-defense.

    Here's the blurb from the opinion:

    For similar reasons, we hold the errors also were not harmless as to appellant's conviction for possessing a firearm after having been convicted of a felony. Appellant conceded he possessed the firearm long enough to shoot the decedent but claimed he was entitled to invoke the common law defense of necessity as recognized in Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001). The "essential elements" of this defense "include `(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.'" Id. at 49, 553 S.E.2d at 552 (quoting Buckley v. City of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)).

    [...]

    Thus, we cannot conclude the error was harmless beyond a reasonable doubt as to appellant's bench trial conviction for possessing a firearm after having been convicted of a felony. Accordingly, we also reverse appellant's conviction for this offense and remand for retrial.
    Interestingly, the appeals court opinion seems to agree that this is a valid defense, and should have been heard in the original trial.

    That is the "on-topic" part of the case, the rest of it has to do with the suppression of the apparent fact that the victim of the shooting, and the primary witness against the shooter and his claim of self-defense, were both gang members. The shooter was not a member of a gang.

    This case really has a bad smell to it. The CA seemed to be gunning for a conviction, any conviction, no matter what the facts may be.

    Here is a local news article about the ruling.

    TFred


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    TFred wrote:
    I've been following this case, and yesterday the convictions were tossed out and sent back for retrial.

    The part that I found particularly interesting was the reference to the "common law defense of necessity". The appellant was convicted of possession of a firearm by a convicted felon, and was not allowed to argue that he used the gun only in an instant of self-defense.

    Here's the blurb from the opinion:

    For similar reasons, we hold the errors also were not harmless as to appellant's conviction for possessing a firearm after having been convicted of a felony. Appellant conceded he possessed the firearm long enough to shoot the decedent but claimed he was entitled to invoke the common law defense of necessity as recognized in Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001). The "essential elements" of this defense "include `(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.'" Id. at 49, 553 S.E.2d at 552 (quoting Buckley v. City of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)).

    [...]

    Thus, we cannot conclude the error was harmless beyond a reasonable doubt as to appellant's bench trial conviction for possessing a firearm after having been convicted of a felony. Accordingly, we also reverse appellant's conviction for this offense and remand for retrial.
    Interestingly, the appeals court opinion seems to agree that this is a valid defense, and should have been heard in the original trial.

    That is the "on-topic" part of the case, the rest of it has to do with the suppression of the apparent fact that the victim of the shooting, and the primary witness against the shooter and his claim of self-defense, were both gang members. The shooter was not a member of a gang.

    This case really has a bad smell to it. The CA seemed to be gunning for a conviction, any conviction, no matter what the facts may be.

    Here is a local news article about the ruling.

    TFred
    Well I can understand not charging a felon for possessing a firearm if he uses the firearm in a self defense situation, and he only possessed it for that reason (example, a felon grabs a gun dropped by an armed robber to shoot that robber). However, if that felon had the firearm before he had his lethal encounter, or if he had it close by for that reason, then I believe he should still be found guilty of the firearms charge regardless of why he used his firearm.

    Any other opinions?

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    I wonder if this doctrine is the VA version of what is sometimes called the Doctrine of Necessity or the Doctrine of Competing Harms.
    I'm not sure if this is the same case, or a different one. Some months ago there was brief mention of a felon charged with possession. A court in connection with that one decided that the doctrine of necessity applied, or contemplated that a blanket prohibition on all felons was too broad, for example a check-fraud felon who was crime was not a violent crime. I'm too foggy on the details anymore.
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    Regular Member TFred's Avatar
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    NovaCop10 wrote:
    Well I can understand not charging a felon for possessing a firearm if he uses the firearm in a self defense situation, and he only possessed it for that reason (example, a felon grabs a gun dropped by an armed robber to shoot that robber). However, if that felon had the firearm before he had his lethal encounter, or if he had it close by for that reason, then I believe he should still be found guilty of the firearms charge regardless of why he used his firearm.

    Any other opinions?
    The full opinion that I linked was fairly long, so I didn't expect anyone to read it all the way through, but that was almost exactly the situation claimed by the appellant in this case. According to the testimony, the passenger had the gun, and as the encounter commenced, he retrieved it from out of sight. When the situation escalated to the point where the appellant feared for his life, he took possession of the gun and fired once at the decedent. The appellant claimed that he was not aware of the gun in the car prior to the incident.

    True or not, I don't know, but at a minimum, the defense attorney constructed the case to support your opinion.

    TFred


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    Campaign Veteran skidmark's Avatar
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    It's been decided before that "necessity" is an excuse for otherwise violating a law prohibiting felons from possessing/using firearms.

    stay safe.


    Common Law Right To Self Defense Includes Felons

    Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001).


    "[The legislature] in enacting criminal statutes legislates against a background of Anglo-Saxon common law . . . ." Part of this common law is the doctrine of self-defense. . . . [S]tatutes rarely enumerate the defenses to the crimes they describe. . . . We do not believe that [the legislature] intended to make [convicted felons] hapless targets for assassins. The right to defend oneself from deadly attack is fundamental. [The legislature] did not contemplate that [Code 18.2-308.2] would divest convicted felons of that right....Further, as the Commonwealth acknowledges, "[t]he fact that a man has been drinking does not ipso facto deprive him of the right of self-defense, even though the necessity for the exercise of the right might not have arisen had neither he nor his aggressor been drinking." Hawkins v. Commonwealth, 160 Va. 935, 941, 169 S.E. 558, 560 (1933); see Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546-47 (1998) (holding that accused was not at fault in inviting aggressors to his house for drinks)....Courts and commentators disagree over whether the appropriate label for the defense is self-defense, necessity or duress. See Panter, 688 F.2d at 272 n.7 (discussing self-defense and necessity and holding that accused was entitled to instruction under either); Castrillo, 819 P.2d at 1328 & n.2 (comparing justification defenses of duress and necessity to self-defense). The justification defenses of duress and necessity are similar in that both require that "the perceived harm must be imminent." Castrillo, 819 P.2d at 1328 n.2. Self-defense is similar to duress and necessity in that it "provides a justification for an otherwise criminal act; strictly speaking, however, it is not a defense to possession, although it may justify the possession."...The [common law] defense of necessity traditionally addresses the dilemma created when physical forces beyond the actor's control render "illegal conduct the lesser of two evils." . . . We have held that, under appropriate circumstances, constructive possession of a firearm may support a conviction for possession of a firearm by a convicted felon. See Blake v. Commonwealth, 15 Va. App. 706, 707-09, 427 S.E.2d 219, 220-21 (1993) (holding accused constructively possessed firearm which was in actual possession of his companion while accused and companion acted jointly to commit robbery). Here, however, neither the Commonwealth nor the trial court took the position that appellant constructively possessed the firearm earlier on December 29, 1999, before he took actual possession of it, presumably because the evidence indicated the firearm was located in a storage shed which was owned and used by appellant's father and located on property owned by appellant's father. "

    See Also : Joann Marie Crews Walker v. Commonwealth, Va. App. (2004 Unpublished)
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    I think this topic is more common than some may think. Letter of law vs spirit of law. There is a lot of discretion for officers and commonwealth attorneys. Example: someone speeds to take their wife who is having a heart attack to the emergency room and is stopped. Obviously the officer should call for an ambulance and not charge the traffic offense. The law is there to be flexible enough for those who make decisions to decide what is right for that circumstance. Although I don't like felons (for me, not committing a felony is quite simple), like mentioned above, in certain circumstances, I would be open to them possessing a firearm during extreme conditions.

    Ps. I know there has been previous issues with an officer/prosecutor bringing down the law on someone in a situation that they should not (those usually make the news). Honestly, in my opinion, most officers use their discretion wisely. I think it's a case by case basis.


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    Campaign Veteran marshaul's Avatar
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    I think we can, and should, expect better than reliance on the whims of individual "discretion". What does that even have to do with the actual point at hand, anyway?

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    marshaul wrote:
    I think we can, and should, expect better than reliance on the whims of individual "discretion". What does that even have to do with the actual point at hand, anyway?
    I was just bringing up the point that there is a great deal of discretion already in place in the legal system. Common law of necessity or not, the attorneys/police don't have to charge someone who breaks the law in certain situations.

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    Regular Member TFred's Avatar
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    NovaCop10 wrote:
    marshaul wrote:
    I think we can, and should, expect better than reliance on the whims of individual "discretion". What does that even have to do with the actual point at hand, anyway?
    I was just bringing up the point that there is a great deal of discretion already in place in the legal system. Common law of necessity or not, the attorneys/police don't have to charge someone who breaks the law in certain situations.
    So what you are observing (and I agree that it is true) is that Justice is not always blind, and it can look upon you either favorably, or not so much...

    TFred


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    TFred wrote:
    NovaCop10 wrote:
    marshaul wrote:
    I think we can, and should, expect better than reliance on the whims of individual "discretion". What does that even have to do with the actual point at hand, anyway?
    I was just bringing up the point that there is a great deal of discretion already in place in the legal system. Common law of necessity or not, the attorneys/police don't have to charge someone who breaks the law in certain situations.
    So what you are observing (and I agree that it is true) is that Justice is not always blind, and it can look upon you either favorably, or not so much...

    TFred

    Just adding, not disputing. Yet.

    There is a concept or doctrine of law that recognizes the laws can never be complete because the circumstances of individual cases can vary in so many different ways no set of laws could ever be written to cover everything perfectly. I cannot recall the name of this doctrine; perhaps another member can refresh our memory.

    The problem comes in when the discretion goes off on a tangent away from liberty or other factors are permitted to enter by the one using the discretion--politcal points, personal advancement, bigotry, and the like.

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member TFred's Avatar
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    Citizen wrote:
    TFred wrote:
    NovaCop10 wrote:
    marshaul wrote:
    I think we can, and should, expect better than reliance on the whims of individual "discretion". What does that even have to do with the actual point at hand, anyway?
    I was just bringing up the point that there is a great deal of discretion already in place in the legal system. Common law of necessity or not, the attorneys/police don't have to charge someone who breaks the law in certain situations.
    So what you are observing (and I agree that it is true) is that Justice is not always blind, and it can look upon you either favorably, or not so much...

    TFred
    Just adding, not disputing. Yet.

    There is a concept or doctrine of law that recognizes the laws can never be complete because the circumstances of individual cases can vary in so many different ways no set of laws could ever be written to cover everything perfectly. I cannot recall the name of this doctrine; perhaps another member can refresh our memory.

    The problem comes in when the discretion goes off on a tangent away from liberty or other factors are permitted to enter by the one using the discretion--politcal points, personal advancement, bigotry, and the like.
    And unfortunately there are many cases that we can refer to that illustrate your point.

    The Gerald Ung case comes to mind... one reason the judge decided to hold him for trial was because he shot his attacker "too many times..." what utter hogwash.

    That is a case of INjustice with a motive.

    TFred


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