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The Necessity Defense?

Dave Hoffman

Dave Hoffman is a James E. Beasley Professor of Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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7 Responses

  1. logicnazi says:

    This 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.

    Does he need to actually be saving more people? Just have a reasonable belief? All sorts of interesting questions that would probably be obvious if I knew something about this area.

  2. MJ says:

    Mississippi’s necessity defense is stated as follows:

    To prove that he had an objective need to commit a crime excusable by the defense of necessity, a defendant must prove three essential elements: (1) the act charged was done to prevent a significant evil; (2) there must was no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided. The test employs the “reasonable man” standard and is also available where the defendant reasonably acts out of fear of “imminent danger of death or serious bodily harm” to others.

    Stodghill v. State, 892 So. 2d 236 (Miss. 2005).

    It strikes me that, should he ever be prosecuted by a Mississippi court – highly doubtful considering he was acting for the public good during a crisis – the sheriff would have a solid defense under the test as formulated in Stodghill.

  3. Joe Sherrill says:

    The problem here is that he is being charged in a federal court. The sheriff tried to contact FEMA for 5 hours and was told by people on the scene that even if he did contact FEMA, that FEMA would not know what to tell him to do. Given the fact that the ice was needed for medical reasons, I think that the feds are makeing a huge public relations error if they take this case foward.

  4. k3s793 says:

    Some details: There were roughly 1/3 of the ice trucks needed available that day. Forrest County had been receiving supplies since the first day trucks were available (August 31). Forrest County could have redistributed some of its own supplies to these outlying areas but choose to operate almost exclusively within the city of Hattiesburg. By taking the trucks the sheriff certainly insured that some other areas would receive no service. He may have prevented an evil in Brooklyn but properly made one worse in other areas.

  5. Dave Hoffman says:

    K3S – thanks for the information: it certainly complicates the picture found in the mainstream press.

  6. Karen says:

    I dont know where K3S lives, but I happen to live only 1/2 mile from the military base where the ice was held up. In a city that had been very effectively shut down by the storm, anyone located outside the city limits had no form of communication to tell them where the distribution center was located. The only form of communication for many was word of mouth. You can all talk about protocol, laws, rights, and jurisdictions, but until you suddenly find yourself isolated with your world fallen down around you, you have no right to judge ANY action of survival. I am PROUD….VERY PROUD of my fellow mississippians because of the way we all pulled together to rise above the horrid devastation that fell upon us. Neighbor helped neighbor, and our sheriff did what he could to help us survive. It has been obvious over the past months since the disaster that our government as well as the Red Cross and other Aid Organizations had no Disaster Recovery Plan in place. Right now….today….7 months after Katrina, FEMA is STILL picking up debris in Hattiesburg. Hurricane season begins in only 3 months and the only thing that worries me is that FEMA still hasnt gotten its act together. Quit worrying about two trucks of ice and be prepared for the next disaster..when it happens.

  7. Steve says:

    I don’t think that Sherrif McGee should be prosecuted, but I don’t think that the National Guardsman should be badmouthed either. If he hadn’t tried to stop the trucks, he’d probably be facing courtmartial right now.

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