Wednesday, May 10, 2017

The Necessity Defense To Criminal Liability

In general, the law only punishes those individuals who have the capacity to make a moral choice of whether to engage in the prohibited behavior.  Consequently, insane persons who commit crimes are generally believed to lack the moral fault necessary for punishment.  Similarly, persons below a certain age are deemed to lack the full capacity for criminal liability and are typically liable only as juvenile delinquents.  Likewise, those who commit crimes while voluntarily intoxicated are liable for their behavior, though sometimes at a lesser level.

Sometimes, however, conduct that would otherwise constitute a crime is not because it is deemed necessary.  That’s an issue that sometimes arises in agriculture.

Necessity - Defined

The Model Penal Code (MPC) states that conduct that is believed to be necessary to avoid a harm or evil to oneself or to another is justifiable, provided that the harm or evil sought to be avoided is greater than that sought to be prevented by the law defining the offense charged, and the law does not provide another exception or defense.  Under a necessity defense, for example, property may be destroyed to prevent the spread of a fire or a speed limit may be violated in pursuing a suspected criminal.

In 1884, in a case brought before the Queen's Bench in England, the court completely rejected the necessity defense.  R. v. Dudley & Stephens, 15 Cox Crim. Cas. 624 (QB 1884). The defendants, while adrift on a lifeboat about 1,000 miles from land, killed a weak and sick boy, and fed upon his body to avoid their own death by starvation.  The Queen's Bench found that this act constituted willful murder and sentenced the defendants to death, the only penalty then available for murder.  Later, the Crown commuted the sentence to six-months imprisonment.  In the United States, however, the approach of the English court has been rejected.

Wyoming Case

In a prominent Wyoming Supreme Court decision in 1962 (Cross v. State, 370 P.2d 371 (Wyo. 1962)), the court found the defendant not guilty of illegally shooting game animals in defense of his property due to the constitutional guarantee that one cannot be deprived of property without due process of law.  Under the facts of the case, a rancher was charged on six counts for various acts associated with shooting two moose in violation of Wyoming law.  He plead not guilty, but the jury found him guilty on all of the charges.  The problem stemmed from a large herd of wild game in a nearby refuge that followed natural water courses and creek bottoms in the winter time in search of food that caused them to ultimately gather on the defendant’s ranch.  The wild game, including a large herd of moose, did serious and substantial damage to the defendant’s ranch by consuming pasture and other forage that was for the defendant’s livestock.  The wild game also prevented the production of hay and other natural grasses on the defendant’s ranch, as well as destroying fences.  Overall, the defendant’s ranching operations were substantially interrupted. 

Because of these problems, the defendant sought help from the Wyoming State Game and Fish Department, and ultimately ended up in litigation designed to induce the Department to enforce sufficient controls to protect his ranch and residents in the area.  The Department and the defendant took various measures to keep the moose away, but to no avail.  The two moose at issue were in feeding in the defendant’s meadow and he tried to “spook” them away.  One of them ran into his fence and got entangled in the wire.  When the moose tried to free itself, it instead tore down a considerable amount of good fence.  The defendant shot the moose to protect his property from further destruction.

After being charged, the defendant plead that he was justified in protecting his private property.  While the trial court disagreed with the defendant, the Wyoming Supreme Court reversed and dismissed the complaint.  The state claimed that the defendant had violated the state’s game law.  However, the Wyoming Supreme Court noted that the power of the state cannot conflict with constitutional provisions.  Framed that way, the issue was whether the state could bar the defendant from protecting his property from the depredations of wild animals.  The court determined that the defendant should not be penalized because the killing of the moose was reasonable necessary (based on the facts) for the protection of his private property.  The court did emphasize that before force can be taken to protect one’s property from wild animals that are protected by law, a person must use every available before killing the animals.  Then, the property owner can use only such force as is reasonably necessary and suitable to protect the private property and that force must be what a reasonably prudent person would use under the circumstances. 

Defending Property – Generally

In certain parts of the United States damage to crops, poultry and livestock by wildlife is a significant concern.  All states have criminal statutes that prohibit the taking of protected wildlife out of season and without a license.  However, a broader question is whether such a statute violates a state Constitutional provision vesting state citizens with certain inalienable rights – including the right to protect one’s property. For instance, the Iowa Constitution provides that, "All men and women are, by nature, free and equal, and have certain inalienable rights among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.”  Iowa Const. art. I, §1.

The Constitutional defense of property provisions most often make a difference in cases where the defendant claims a right to kill wild animals to protect property.  Courts considering these cases have read the right to protect property as a judicially enforceable constitutional right that trumps state statutes and regulations.  The longest line of such cases comes from Pennsylvania, where, from 1917 to 2000, the courts held that the constitutional right to protect property entitles landowners and their agents to kill wild animals that are threatening the landowner's crops, and that it is unconstitutional for state game laws barring the killing of wild animals to be applied in such situations.  Courts from Iowa, Kentucky, Montana, New Hampshire, and Ohio have taken the same view.  Courts from Alabama, South Carolina, Washington, and Wyoming have taken this view even though the respective state constitutions do not have an express provision for the protection of property. 

In a 1997 Ohio case, State v. Troyer, No. 97CA0015, 1997 Ohio App. LEXIS 5207 (Ohio Ct. App. Nov. 19, 1997), the defendant’s primary source of income was from the raising of exotic and domestic birds on his farm.  To combat the threat from great horned owls preying on his birds, the defendant erected traps at various locations on the farm near where his birds were located.  He was charged and convicted of violating a state statute which provided that “…hawks or owls causing damage to domestic animals or fowl may be killed by the owner of the domestic animal or fowl while such damage is occurring.”  The State claimed that the defendant was attempting to take or kill an owl at a time when damage to his property was not occurring.  The defendant claimed that waiting until an owl had actually caught one of his birds in its beak would be too late to prevent damage to his property.  On appeal, his conviction was reversed on the basis that the statute unconstitutionally abridged the defendant’s right to protect his property.  The court noted that the statute should be construed in such a manner to allow the defendant to use such force as is reasonably necessary to protect his property from predatory owls.

Under the MPC, the necessity defense is limited to those situations where the harm or evil sought to be avoided is greater than that sought to be prevented by the law defining the offense charged, and a legislative purpose to exclude the justification claimed does not plainly appear.  MPC §3.02


It is certainly frustrating for farmers, ranchers and rural landowners to have property damaged or destroyed by wildlife.  If the wildlife are protected game under state law, it’s important to know your rights before taking action to remedy the situation.

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