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Wednesday, March 08, 2006

The Necessity Defense

Dave Hoffman, at Concurring Opinions, has a link to an interesting news story about the necessity defense in the aftermath of Hurricane Katrina.  Dave reports that "Sheriff Billy McGee [was] charged with 'intimidating and impeding a federal officer'" after he "'seized a pair of 18-wheelers full of ice from Camp Shelby without Federal Emergency Management Agency authorization' to obtain ice to preserve the insulin of local residents suffering from diabetes."  One of the commenters observes, "[t]his seems like a tricky situation for the necessity defense.  Presumeably such a defense does not allow one to seize goods in a triage situation to give them to individuals that have been given lower priority.  Now quite likely in this case the sheriff did move the ice from a less necessery use to a more necessery use but it is an interesting question what he would need to prove for a valid defense."  What do people think?

Posted by Rick Garnett on March 8, 2006 at 11:24 AM in Criminal Law | Permalink


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I wonder how the facts of the situation effect the case for the defense. The facts are that counties in Mississippi requested somewhere around 150 truck loads of ice that day but only roughly 50 were available to be dispersed. The decision on where to send those was made at the State level based on priorities of need. Forrest County had been receiving allocations of ice daily since the first trucks made it that far south (Aug 31) while some other counties had received less service. Apparently the Forrest County emergency operations center wasn't doing much to distribute its supply around the county and held the supplies at a couple of central dispensing locations. The rumor that trucks were sitting at Camp Shelby and not being sent out is just not true. One of the items often included is that people needed the ice for their insulin. Forrest County certainly had enough allocation to meet those kinds of high priority needs without hijacking two trucks (brings up another issue about those trucks being properly paid for). Also, the extent of the injuries to the National Guard soldier have not been published but they were significant.

Posted by: Ks3 | Mar 10, 2006 11:21:40 AM

One more thought (actually finally thinking like a lawyer): The defendant is entitled to a jury from his state and district. (Sixth Amendment). Will the federal government find one that will convict under these facts?

Posted by: nk | Mar 9, 2006 11:52:07 AM

I want to see the federal statute authorizing the necessity defense but the MPC and common law absolutely weigh priorities. You do a small harm to prevent a greater harm. In my state it applies to everything short of homicide. (It does not apply to strict liability offenses either but those are mostly traffic offenses). The defendant here just needs to raise a reasonable doubt that he prevented a greater harm than the harm he did "by intimidating and impeding a federal officer". (In my state, by the way, peace officers can be deemed to have been impeded, disobeyed or assaulted but not intimidated. We presume them to be brave as lions). I hope the case is before a good judge who will give a broad hint to the prosecutor to nolle prosse.

Posted by: nk | Mar 8, 2006 3:14:45 PM

Cases like this make me say, Screw separation of powers: There should be an efficiency defense! I also call this the if-that's-your-biggest-problem defense. Seriously, when the government prosecutes someone for a "crime" like this, it makes me smile since obviously all the real criminals like child pronographers and child molestation must be arrested. Then I frown wondering why the prosecutor doesn't find something better to do with my tax dollars.

Posted by: Mike | Mar 8, 2006 12:45:27 PM

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