Are there times when breaking the law can be justified?

Human nature consists of three basic components. These are; to live, breed, and to enjoy life. If humanity were left without any restrictions, this natural state of existence would govern its behavior which could lead to a disaster in our lives. Fortunately, there are laws that govern our behavior in society. Laws are created for the purpose of maintaining order, monitoring our actions both at play and work for the best interest of society as a whole. If there were no laws, chaos and anarchy would be widespread. This is why society has set up governments, to maintain order and to provide safety to all of us.

Is anyone therefore ever morally justified in breaking the law? A lot would depend on the law and the circumstances surrounding the person wishing to break the law. For example, Dr. Martin Luther King, Jr. and thousands of his followers broke the law when they marched in the streets without first obtaining a permit in order to bring to the attention of White America, the problems and abuses the blacks in that nation were suffering from.

Dr. Martin Luther King, Jr. stated in his letter from Birmingham Jail “We should never forget that everything Adolph Hitler did in Germany was ‘legal’ and everything Hungarian freedom fighters did in Hungary was ‘illegal’.”

Necessity

Sometimes, an individual breaks the law because he feels it is his only choice. Known as a “necessity defense”, if established, it serves to excuse criminal conduct. When a defendant finds himself in a situation that he has not created, the situation presents an imminent threat of serious bodily injury and criminal action is the only escape from the injury, a necessity defense should be investigated. Here are a few instances in which the criminal laws of Florida have yielded to a properly investigated and presented affirmative defense:

In Bozeman V State, a decision rendered in 1998, the First District Court of Appeal ruled the defendant was entitled to rely upon the necessity defense in his trial for driving on a license suspended, revoked or cancelled. In Bozeman, the defendant was a passenger in a car driven by his ex-wife as they searched for their missing daughter. At the time they began the search he did not believe his ex-wife was drunk, and so did not intentionally or recklessly place himself in the position of having to later choose to drive. The defendant testified that once he realized his ex-wife was too drunk to drive, he believed he had no viable alternative to driving, as he had no money for a taxi.

In McCoy v State, a decision rendered by the Florida 4th District Court of Appeal in 2006, the Defendant was pepper sprayed, arrested, and placed in a squad car with the windows up and air conditioning off.

The defendant broke the window of the squad car and was charged with criminal mischief. The defendant testified that he was short of breath and believed he was suffocating when he broke out the window of the car. The Fourth District Court of Appeal held it was reversible error on the part of the trial judge to fail to give a jury instruction on the necessity defense.

Presenting this defense is complicated requiring proof of five elements:

1. The Defendant must have reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others;

2. The Defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct;

3. There must have existed no other adequate means to avoid the threatened harm except the criminal conduct;

4. The harm sought to be avoided must be more egregious than the criminal conduct perpetrated to avoid it, and

5. The Defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

Duress

The defences of duress and necessity apply where an individual is constrained or coerced into committing a crime by reason of serious threats (duress) or dire circumstances (necessity).In many cases the defences are discussed in relation to homicide, but they also apply to other offences, ranging from receiving stolen property to unlawful possession of firearms. In duress, the defendant is faced with threats of death or serious harm (‘do this or else’), unless he or she commits a crime. This causes an otherwise innocent person to break the law to avoid a greater evil. Generally, the defense of duress applies when a person has threatened to inflict bodily harm on the defendant if the defendant will not commit a certain crime.

In the leading Irish case on duress, People v Whelan that was heard in 1933, the defendant was charged with receiving stolen money. He admitted that he had accepted the money but said that he had done so under duress from another man, who had been armed with a revolver. The jury found that he had been under threats of ‘immediate death or serious personal violence’ and the defence of duress was accepted.

There are criminal gangs which require the performance of criminal conduct for initiation. One who chooses to join the gang cannot rely upon a duress defense, but what if the gang has targeted an individual for membership? Consider the case, Koontz v State, a decision rendered by the Florida 2nd District Court of Appeal in 1967. The Defendant admitted his attempt to rob a service station. He claimed that he was terrorized by members of a gang by repeated physical abuse and dire threats made toward him and members of his family. It was this duress that caused him to join in their criminal act. The Appellate Court found the defendant had the right to rely upon the affirmative defense of duress.

In U.S. criminal law, necessity may be either a possible justification or alternatively, a justifiable excuse for breaking the law. However, in English law, the defence of necessity does on occasion recognize that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded. However, the Crown Prosecution Service tends to choose not to prosecute those cases where it believes potential defendants have acted reasonably in all the circumstances.

For example, a drunk driver might contend that he drove his car to get away from being kidnapped. Here is a scenario to consider. Madison Avenue advertising executive; is mistaken for another man and kidnapped by thugs and taken to a house.

He is forced to drink bourbon in an attempt to stage a fatal accident. However, he pushes one thug out of the car, and drives off. At the end of a perilous drive, very intoxicated, he brakes to avoid hitting someone, and, stopped, is rear-ended by a police patrol car pursuing him. He is arrested and charged with drunken driving.

Did he break the law while driving while intoxicated? Yes he did. Was he morally wrong in doing so? No he wasn’t. However, if he ran over someone and killed that person, he could be held civilly responsible for the death.

Need

The lack of shelter, affordable housing, and income resources in various cities indicate that homeless people often have no place to go and have little opportunity to find housing in the near future. For homeless persons sleeping on the street, the lack of opportunity to find and maintain housing inevitably translates into continued violations of city anti-camping and sleeping ordinances. Therefore, in a great number of cities, homeless people often do not have any other choice but to live on the street and in doing so, are breaking the law. Should they be punished? I think not. Until the needs of homeless people are met through social services, arresting and citing homeless people will not relieve homelessness and certainly will not reduce the presence of homeless people in public places.

Years ago, the police came to my door and told me that they found a young man asleep in my car. It was during a cold winter night. He was homeless and chose to get out of the cold winds by sleeping in my car. I asked the police to take him to a shelter and not to charge him with breaking into my car. The police agreed with me that his needs justified him breaking into my car to protect himself from the freezing winds.

I would have preferred it if he instead merely knocked on my door and asked to come in from the freezing cold. He probably thought that I would turn him away and instead chose to break into my car instead. That in my opinion was a reasonable conclusion on his part although I would have let him spend the night in my home.

No other Alternative

Suppose your driver’s licence was suspended and you lived in the country and your wife was about to have her baby. Would you be breaking the law if you drove your wife to the hospital? Yes, you would. Would you be morally wrong? No, you would not because her wellbeing and that of her baby would take precedence over the suspension of your driver’s licence.

Offences in which mens rea, (criminal intent) consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.

The defence of necessity would be available to you if you reasonably took all possible steps to avoid driving your wife to the hospital yourself by trying to find a neighbour with a driver’s licence to take your wife to the hospital in his or your car.

Suppose you didn’t have a car but your neighbor did but he wasn’t home and the keys to his car were left in the ignition. Would you be breaking the law by taking his car off his property and driving your wife to the hospital in the car? Yes, you would. Would you be morally wrong, No, you wouldn’t because again, her wellbeing and that of her baby would take precedence over the crime you committed.

When I was practicing law before I retired, a man charged with speeding came to my office and asked me to represent him at his trial. He was clocked at going 90 kilometres an hour in a 40-kilometers-per-hour zone during rush hour on a busy street. He was being tailgated by a large van and he couldn’t move to his right to escape the van since he didn’t know if other cars behind the van in the lane to his right that were unseen at that moment would hit him. When he tried to speed up his vehicle, the van driver matched his speed and again, caught up to him until he was a mere meter (39 inches) behind him. The police stopped them both and both drivers were charged with speeding.

My client testified that he didn’t know who the van driver was and didn’t know why he was chasing him. He said that he had no other choice but to keep speeding in hopes that the police would come onto the scene and stop the van driver from following him so closely. I argued in court that my client had the right to speed on the basis of necessity. I said that a crime was being committed behind him (dangerous driving is a crime in Canada) and that he had the right to take whatever steps he could to flee from the scene of the crime unfolding behind him. The justice of the peace agreed with me and dismissed the charge laid against my client. The arresting officer’s testimony helped. He testified that the van driver told him that he was just testing his van for speed. He was convicted of dangerous driving.

The use of force may also be excused if the defendant reasonably believed himself to be acting under necessity. The doctrine of necessity in Anglo-American law relates to situations in which a person, confronted by the overwhelming pressure of natural forces, must make a choice between evils and engages in conduct that would otherwise be considered criminal. There are times when this form of ‘necessary defence is argued in court but the argument eventually fails. Here is a case in point.

Necessity defence not acceptable

This necessity defence was used in the early trial of Regina v. Dudley & Stephens in 1884 where four shipwrecked sailors were cast adrift in a small boat without provisions. To save themselves, the three strongest decided to eat the fourth, the 17 year-old cabin boy. The court ruled that cannibalizing the boy was not urgently necessary. Even though the cabin boy would almost certainly have died of natural causes, the sailors killed the boy intentionally and were guilty of murder. There was some degree of necessity arising from the threat of starvation but, at any moment, a ship could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could never be sure that the killing was actually necessary from one minute to the next, the defence was denied. Cannibalism itself is not an offence so long as the death occurs naturally. Dudley and Stevens were convicted of murder and sentenced to be hanged, however their sentence was later shortened to just six months in prison. The fourth man, Brooks, was not tried, as he had not participated in the murder.

The principles from this case form the basis of the defence of necessity not being available for murder. This means that if a murderer points a gun at your head and tells you that he will shoot you dead if you don’t cut the throat of another person, you cannot cut the throat of another person just to save your own life. The reason is obvious. You cannot take the life of an innocent person to save another life including your own.

There must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law. This reflects the distinction between the defences of necessity and duress in that the former is pressure of circumstances arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will of the defendant. Consider the following case in light of this paragraph.

In 1991, when Laverne Collins-Macchio began to consider moving from Boise Idaho to Livingston Montana so that she could be closer to the headquarters of the Church Universal and Triumphant, a new religious movement that combines Christianity with "new age" and other beliefs. In order to persuade Collins-Macchio that the Church Universal and Triumphant was harmful, her mother, Laverne Coelho, hired a group of "cult deprogrammers." Pretending to deliver a pizza, the deprogrammers kidnapped Collins-Macchio and held her for one week as they preached, sang and otherwise tried to demonstrate that her religious beliefs were in error. At the end of the week Collins- Macchio remained unmoved, and was released by her kidnappers.

When she returned to her home, Collins-Macchio contacted the police. Four of the people involved with the deprogramming were charged with kidnapping. In explaining their actions, the deprogrammers used a "necessity" defense. By this, the deprogrammers' attorneys argued that the harm caused by kidnapping Collins-Macchio was less severe than the harm she would have experienced by joining the group. In other words, they claimed that it was necessary to kidnap her in order to avoid more severe harm. In the first trial, the deprogrammers' use of the necessity defense was successful. The case was appealed to the Idaho Supreme Court, which ruled unanimously that the necessity defense was insufficient. The court said that the deprogrammers were in error, and that there was no evidence that Collins-Macchio faced impending harm from the Church Universal and Triumphant. As a result of this judgment, the deprogrammers were found guilty of felony kidnapping charges. Their sentence included seven days in jail, the same length of time that Collins-Macchio was held against her will, fines, and community service.

The general approach was laid down by Lord Denning in Southwark London Borough Council v Williams heard in 1971 in which he ruled that necessity should be denied as a general defence because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of necessity, any poor person might seek to justify burglary to steal food by arguing that he or she had reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty (e.g. by seeking welfare support or charity), would deny the defence of necessity.

I might add that in Canada, a judge may find the thief guilty of stealing a loaf of bread to subsist on but at the same time, give him an absolute discharge meaning that there is no penalty or a record of conviction.

In Quayle and Others v R; a decision handed down in an English court of appeal in 2005 each defendant appealed convictions associated variously with the cultivation or possession of cannabis resin to be used for pain management. The choice facing the appellants was not severe pain without cannabis or absence of pain with cannabis; rather it was absence of pain with adverse side effects without cannabis, and absence of pain with minimal side effects with cannabis. The difference was restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a prima facie possibility of serious injury, let alone one such as would overwhelm the will of the defendant. Further, for the defence of necessity to succeed, the threat of injury must be immediate and imminent, and come from an extraneous source.

Affirmative Defence

When using an affirmative defense the accused concedes that he committed the elements of the offense, that is he admits they are true, but raises additional facts, which establish a valid excuse, justification, or right to engage in the conduct at question. There are many compelling reasons why one may be forced to break the law including necessity, duress and involuntary intoxication.
There are times when the affirmative defence decisions may go too far. Here is a case in point.

On December 28, 1984, a commemoration of the Holy Innocents feast was held at the headquarters of the Williams International Corporation in Walled Lake, Michigan. Williams International is responsible for the small fan-jet engines that are an essential component of modem U.S. cruise missiles. During the service, Dan Lagrou was arrested for pouring his blood upon the company’s fence and charged with malicious destruction.

His argument was that no reasonable and effective remedy existed to the present and imminent danger posed by the cruise missile that does not include acts of civil disobedience. He further argued that sociologically, public opinion has an impact on U.S. public policy, and civil disobedience has been a sociologically significant component in determining public opinion.

At the trial’s conclusion, Judge Boyle focused on the ‘malicious’ requirement of the law and found himself convinced that no malicious intent existed. The judge said in part; “His testimony is clear and convincing that he did not act out of malice. He may have acted wrongfully. He certainly acted willfully but in the eyes of the law he did not act maliciously. We can’t go beyond the language of the statute, and the court would have to find Mr. Lagrou not guilty for that reason.”

I disagree with that decision for the following reason. Suppose the commemoration of the Holy Innocents feast was held in a church and Mr. Lagrou threw a brick threw the stained glass window to interrupt the religious ceremony. In Canada, interfering with any form of religious activity is a crime. In my opinion, it doesn’t matter where the religious ceremony takes place. Further, breaking a window is malicious, no matter how righteous your cause may be. The same applies when you pour blood or paint on someone’s fence.

Conclusion

My understanding of the necessity defense is that the defendants must show, first, there is a situation posing a serious and imminent danger to life and limb; second, they believe their act of breaking civil law is a necessary and effective remedy to that situation; and third, they were compelled, or under duress, to so act. No other alternative should be acceptable.