Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DEAN SEIBOLD, )
) Court of Appeals No. A-6295
Appellant, ) Trial Court No. 4DJ-S95-147CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1593 - May 29, 1998]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: William R. Satterberg,
Fairbanks, for Appellant. Joseph S. Slusser, Assistant District
Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Joannides, District Court Judge.
[Stewart, Judge, not participating.]
COATS, Chief Judge.
MANNHEIMER, Judge, dissenting.
Dean Seibold was convicted, following a jury trial, of
criminal mischief in the third degree, a class A misdemeanor.
AS 11.46.484. Seibold appeals his conviction to this court,
arguing that District Court Judge Charles R. Pengilly erred in
refusing to instruct the jury on the defense of necessity. We
reverse Seibold's conviction.
On September 25, 1995, Paul Knopp was driving home to his
farm near Delta Junction in his flatbed truck. Dean Seibold, a
neighbor of Knopp, was on the highway behind Knopp. When Knopp
slowed down to turn into his driveway, there was a collision
between the two trucks. Knopp drove seventy-five to one hundred
feet up the driveway. Seibold followed, stopping his truck in
Knopp's driveway. Seibold approached Knopp's truck, and an
altercation occurred between the two men which resulted in Seibold
breaking the window in Knopp's truck. Knopp testified that he was
locking the door of his truck and rolling up the window as Seibold
approached, and Seibold broke the window of the truck with his
fist. He testified that Seibold attempted to assault him, but
Knopp picked up a hammer from the floor of his truck, and Seibold
retreated to his own truck. Seibold testified that when he
approached Knopp's truck the window was still open, and that when
he reached in to unlock the door Knopp closed the window on his
arm. The window broke while Seibold was struggling to free his
arm.
At this point Knopp's wife, Laure, approached from the
driveway of the residence. Laure was carrying a nine-millimeter
semi-automatic handgun in a shoulder holster and she was carrying
a camcorder with which to film the incident. Apparently Seibold
also had a camcorder with which he did some filming of the
incident. There was then an altercation between Laure Knopp and
Seibold. According to Laure Knopp, she told Seibold to get off of
the Knopps' property. Seibold hit Laure on the side of the head,
knocking her down. Seibold then took the nine-millimeter semi-
automatic handgun from her. According to Laure Knopp, at this
point Seibold's wife, Patty, who had arrived at the scene in her
truck, assaulted Laure by grabbing her by the hair and flinging her
into a ditch. According to Laure Knopp, Seibold then pointed the
gun in the air and fired a shot. Seibold and Patty then went back
to their truck. Seibold then put the gun on the ground, and
destroyed it. According to Dean Seibold, when Laure arrived at the
scene, Seibold was filming the Knopps with his camcorder. Laure
starting hitting him, and in the course of defending himself, he
was able to take the gun away from her. Seibold then tried to back
away with the gun but Laure kept pursuing him, attempting to take
the gun back from him. According to Seibold, the gun went off when
he was pointing it toward the ground, trying to figure out how to
unload the gun. Apparently the Seibolds had summoned the troopers
on a handheld radio. However, Seibold testified that because the
police had not yet arrived he felt that he had no choice but to
destroy the gun. Seibold maintained that he destroyed the gun out
of "total fear." He said he felt that he was in immediate danger
from the gun even though he had control of it because he feared the
Knopps might get it away from him. After he destroyed the gun,
Seibold tossed it on top of his truck. Patty Seibold then left in
her truck. A short time later Trooper Steve Baer arrived at the
scene and Seibold handed him the handgun.
The state charged Dean Seibold with three misdemeanor
offenses: criminal mischief in the third degree for smashing the
window of Paul Knopp's truck, criminal mischief in the third degree
for destroying the nine-millimeter handgun, and assault in the
fourth degree for assaulting Laure Knopp. The state charged Patty
Seibold with assaulting Laure Knopp. The state tried the Seibolds
together in a joint trial. The Seibolds defended on the ground
that they acted in self defense, and Judge Pengilly gave the jury
instructions on self defense. Judge Pengilly stated that the
evidence in support of self defense and defense of others was
"very, very thin" but agreed to give the proposed instruction.
However Judge Pengilly declined to instruct the jury on the defense
of necessity, which Seibold contended was applicable to the
criminal mischief charge for damaging the nine-millimeter semi-
automatic. The jury acquitted the Seibolds on all of the charges
except for the criminal mischief charge for destroying the handgun.
Seibold contends that Judge Pengilly erred in rejecting
his request to instruct on the defense of necessity. Under Alaska
law, the common-law affirmative defense of necessity is available
to criminal defendants except where preempted by the legislature.
AS 11.81.320; Bird v. Anchorage, 787 P.2d 119, 120 (Alaska App.
1990). To establish a necessity defense the defendant must show
that:
(1) the act charged was done to prevent a
significant evil;
(2) there was no adequate alternative; and
(3) the harm caused was not disproportionate
to the harm avoided.
Bird, 787 P.2d at 121. The defense is established if the accused
reasonably believed at the time of acting that the first and second
elements were present, but a reasonable belief will not suffice for
the third element; the court makes "an objective determin-
ation . . . as to whether the defendant's value judgment was
correct, given the facts as he reasonably perceived them." Bird,
787 P.2d at 120-21 (citing Cleveland v. Anchorage, 631 P.2d 1073,
1078 (Alaska 1981)). A defendant is entitled to a jury instruction
on the necessity defense if he presents "some evidence" in support
of each of the three elements of the defense. Degler v. State, 741
P.2d 659, 661 (Alaska App. 1987); Schnabel v. State, 663 P.2d 960,
966 (Alaska App. 1983).
In rejecting Seibold's request for a necessity defense,
Judge Pengilly found that Seibold had not presented evidence that
he had no reasonable alternative to destroying the gun. Judge
Pengilly contended that the evidence showed that Seibold could have
given the weapon to Patty Seibold or that Seibold could have locked
the weapon in the cab of Seibold's truck. [Fn. 1]
We start out with the premise that a defendant is
entitled to a trial by jury and that the court should instruct the
jury on the defendant's defense. Folger v. State, 648 P.2d 111,
113-14 (Alaska App. 1982). In determining whether a defendant has
presented some evidence in support of his defense, "any weakness or
implausibility in the evidence supporting [a defendant's] story is
not a relevant consideration." Toomey v. State, 581 P.2d 124, 126
n.10 (Alaska 1978); Houston v. State, 602 P.2d 784, 785-88 (Alaska
1979). In Folger, a case where the defendant alleged self defense,
we stated:
We think a strong argument can be made
that a trial judge should err on the side of giving instructions on
self defense so as to avoid a needless appellate issue in cases in
which a weak case for self defense is presented. We also think
that in a case such as this where self defense is presented as a
possible defense, there is a danger that the jury may consider its
own understanding of what self defense is in the absence of an
instruction from the court. It seems preferable to have the jury
correctly instructed.
Folger, 648 P.2d at 114 n.3. In general, similar considerations
apply regardless of what defense the defendant proposes. The
defendant is entitled to a jury trial, and it is the duty of the
trial judge to instruct on any defense for which there is some
evidence. In Willett v. State, 836 P.2d 955, 958 (Alaska App.
1992), we stated:
"In order to satisfy the 'some evidence' test,
it is not necessary that the defendant testify or even offer direct
evidence in his own behalf. Some evidence establishing a dispute
as to a factual issue may arise from weakness in the prosecution's
evidence or from impeachment of its witness. Similarly, cir-
cumstantial evidence presented as part of the state's case-in-chief
may give rise to some evidence of a disputed fact." Nathaniel v.
State, 668 P.2d at 855 (Alaska 1983) (citations omitted). To
determine whether this test has been met in a particular case the
court must view the evidence in the light most favorable to the
defendant. Paul v. State, 655 P.2d 772, 776 (Alaska App. 1982).
As long as there is some evidence to support the defendant's theory
of the case, any weakness or implausibility in that theory is a
matter for the jury, not for the court. See Folger v. State, 648
P.2d at 113.
Admittedly, there are some exceptions to this doctrine
where the defense of necessity is concerned. There are several
Alaska cases which conclude that trial judges did not abuse their
discretion in refusing to give necessity defenses. However, we
believe that a close reading of those cases establishes that the
defendants in those cases had clear legal alternatives to violating
the law. See Nelson v. State, 597 P.2d 977, 980 (Alaska 1979)
(finding that defendant had several lawful alternatives and that
"[t]he seriousness of the offenses committed by Nelson were
disproportionate to the situation he faced."); Schnabel, 663 P.2d
at 966 (holding that defendant "had adequate alternatives in
judicial and administrative remedies to the course he took");
Cleveland, 631 P.2d at 1081 (holding necessity defense not
available to abortion clinic protesters since "Alaska's Legislature
has . . . already spoken as to the balancing before us, and
concluded that the interests in potential life appellants sought to
vindicate are outweighed by the very privacy interests in potential
life appellants sought to invade."); Gerlach v. State, 699 P.2d
358, 361-63 (Alaska App. 1985) (finding that non-custodial mother
charged with custodial interference for taking her child out of the
state for a year was not entitled to necessity instruction based on
her claim that the child's father was abusive, because the harm she
caused was disproportionate to the harm avoided and because she
"had adequate remedies at law. Her failure to avail herself of
those remedies precludes her reliance on a necessity defense.").
In all of the above cited cases, it seems clear that the defendants
had clear legal alternatives. However this is not so in the
present case. The general principle for which Seibold argues
appears beyond dispute: it would be preferable for Seibold to
destroy the handgun rather than have it used in an assault, which
could have resulted in death or serious physical injury. The
question that the case raises is whether it was necessary for
Seibold to destroy the weapon to avoid this possibility. The
answer to this question turns on the specific facts of the case and
therefore falls particularly within the province of the jury.
Although Judge Pengilly's view of the facts was that Seibold had
several preferable alternatives to destroying the weapon, the jury
might have taken a different view. We note that although Judge
Pengilly described Seibold's self defense claims as "very, very
thin" the jury ultimately acquitted based on that self defense
theory. This illustrates that the jury might have taken a
different view of the evidence than Judge Pengilly. Since Seibold
was entitled to a jury trial, he was entitled to have the jury pass
on the sufficiency of his defense.
We are also influenced, to some degree, by the statute
which criminalizes criminal mischief in the third degree. AS
11.46.484(a)(1) provides:
(a) A person commits the crime of
criminal mischief in the third degree if, having no right to do so
or any reasonable ground to believe the person has such a right
(1) with intent to damage property of
another, the person damages property of another in a amount of $50
or more but less than $500[.]
(Emphasis supplied.) In reviewing this case, we discovered that
the trial court did not instruct on the language which we have
emphasized in the statute. It occurred to us that the omitted
language could arguably encompass a necessity defense. We
therefore asked the parties to submit supplemental briefs
discussing whether the omission of this language might constitute
plain error. The parties submitted supplemental briefs which were
not helpful in resolving this question. The state alleged that the
language in question merely exempted from prosecution a person who
destroyed his own property or who acted in good faith on the belief
he had authority to destroy the property. The state did not cite
to any authority for this proposition. Seibold contended that the
language in question authorized a necessity defense and that,
therefore, the omission of this language constituted plain error.
Seibold also did not cite any authority for this proposition. With
this limited briefing, we do not believe that it is appropriate for
us to attempt to interpret the statute. [Fn. 2]
The conviction is REVERSED.
MANNHEIMER, Judge, dissenting.
When the defendant in a criminal case raises the
affirmative defense of necessity, one of the elements the defendant
must prove is that the defendant had "no adequate alternative" to
breaking the law. Cleveland v. Anchorage, 631 P.2d 1073, 1078
(Alaska 1981). To determine whether a defendant had an "adequate
alternative" to breaking the law, one must ask two questions.
First, would a reasonable person in the defendant's position have
perceived that an alternative course of action was available?
Second, if an alternative course of action was available, was that
alternative course "adequate"?
The majority opinion treats both of these questions as
issues of fact that should be determined by the jury. However,
Alaska law on this subject (indeed, case law from around the
country) shows that this second question the "adequacy" of a
particular available alternative is a question of law for the
court. This is because "adequacy" is a legal conclusion.
A defendant who raises the defense of necessity may have
had several alternative courses of action open to them. To call
one or more of these alternatives "adequate" means that the law
requires a person in the defendant's position to pursue that
alternative rather than break the law. Courts and Alaska courts
in particular have consistently treated the "adequacy" of
particular alternatives as a question of law. That is, while the
trier of fact decides whether a particular alternative course of
action was in fact available to the defendant, and whether a
reasonable person in the defendant's position would have perceived
that this alternative was available, the court decides whether the
unpursued alternative course of action was legally "adequate".
In the present case, it was undisputed that Seibold knew
that he had alternative courses of action. The trial judge denied
Seibold's request for a jury instruction on the defense of
necessity because the judge ruled that two of these alternatives
were "adequate" that is, Seibold was legally obligated to pursue
these alternatives rather than violate the law by destroying his
neighbors' property.
It was the trial judge's proper role to decide this issue
of law. And, because I conclude that the trial judge reached the
correct legal conclusion, I would affirm Seibold's conviction.
Facts of the case
Following a collision between their two vehicles, Dean
Seibold and Paul Knopp became involved in an altercation at the
Knopp residence. The men's wives also became involved: Patty
Seibold arrived in a separate vehicle, and Laure Knopp came out of
the house. Laure Knopp was carrying a camcorder in her hands, and
she had a 9 mm pistol in a holster.
Seibold grabbed the pistol and took control of it. In
addition, one of the Seibolds contacted the State Troopers by radio
and summoned them to the scene. The two couples separated and
stood beside their respective vehicles. While everyone was waiting
for the troopers to arrive, Seibold used a crowbar and then a rock
to destroy the pistol. Patty Seibold then left the scene in her
vehicle. After the troopers arrived and investigated the occur-
rence, Seibold was charged with third-degree criminal mischief for
his act of destroying the Knopps' handgun.
At his trial, Seibold testified that he destroyed the
pistol because he thought "it was necessary to just destroy the
usefulness of the gun", that it was "critical at that time to
render [the gun] unusable". Seibold was asked why he didn't give
the pistol to his wife, who was leaving in her separate vehicle.
Seibold answered that this was not an option because "Patty doesn't
like guns". Seibold was also asked why he didn't simply lock the
weapon in his truck. Seibold answered that he "didn't want to have
anything to do with [the pistol]. I didn't consider that an
option. It didn't cross my mind."
At the end of the trial, Seibold asked Superior Court
Judge pro tem Charles R. Pengilly to instruct the jury on the
defense of necessity. Judge Pengilly, however, ruled that the
evidence did not justify an instruction on necessity. The judge
stated:
[T]here is simply no evidence to justify
a conclusion that [Seibold's] belief that the gun had to be
destroyed was a reasonable [belief]. There were certainly several
adequate alternatives ... . Among [these alternatives were] the
option of giving the pistol to Mrs. Seibold for safekeeping ...
[or] the pistol could simply have been put in[to] the cab of
[Seibold's] pickup. There was no indication that the Knopps were
in any way making a move towards retrieving the pistol. ...
[T]here is no evidence [to support] ... an objectively reasonable
belief [that the pistol had to be destroyed]. So there will be no
necessity instruction as to the damage to the [pistol].
The law of necessity
Under AS 11.81.320(a), the common-law defense of
"necessity" is available as an affirmative defense in all criminal
prosecutions unless the legislature has plainly indicated an intent
to prohibit this defense to someone in the defendant's situation.
The rationale of the necessity defense is founded on public policy:
"[T]he law ought to promote the achievement of higher values at the
expense of lesser values, and sometimes the greater good for
society will be accomplished by violating the literal language of
the criminal law." Wayne R. LaFave and Austin W. Scott, Jr.,
Substantive Criminal Law (1986), sec. 5.4, Vol. 1, p. 629.
In Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska
1981), the Alaska Supreme Court described this defense as having
three elements: (1) the defendant's violation of the law must have
been done to prevent a significant evil, (2) there must have been
no adequate alternative method to prevent this evil, and (3) the
harm caused by the defendant's violation of the law must not have
been disproportionate to the foreseeable harm that the defendant
was trying to avoid. Cleveland's description of these three
elements is deceptively simple; the three enumerated components of
the defense actually present a mix of questions of fact and
questions of law.
As can be inferred from the wording of Judge Pengilly's
ruling, Seibold's case hinges on the second element of the
necessity defense. Was there no adequate alternative to Seibold's
act of destroying the pistol?
In Cleveland, addressing this second element of the
defense, the supreme court stated that a defendant must prove that
they acted reasonably. That is, the defendant must prove that they
reasonably believed, when they violated the law, that there was no
adequate alternative means to forestall the threatened harm.
Cleveland, 631 P.2d at 1078.
Cleveland states that the reasonableness of the
defendant's belief is to be assessed from the viewpoint of a
reasonable person in the defendant's position. Id. Judge Coats's
majority opinion interprets this statement from Cleveland as
meaning that the defendant's belief about the existence (or non-
existence) of an adequate alternative is simply a question of fact,
a question to be resolved by the jury. This is not wholly
accurate.
Say, for instance, that a man walks out of his house
carrying a number of envelopes that he intends to mail, and also a
prescription that he intends to fill. He drives to his local
mailbox and, distractedly, he shoves the prescription through the
mail slot along with the envelopes. Realizing his error, he then
uses a crowbar to break open the mailbox and retrieve his
prescription. Can he assert the defense of necessity if he is
prosecuted for damaging government property?
To decide whether there was an adequate alternative path
of action available to the defendant, one must of course look to
the facts. How essential was it that the man procure the medicine?
Could he have asked a postal employee to open the mailbox and
retrieve the prescription for him? Or could the man have obtained
a replacement prescription from his doctor's office? How long
would this have taken, and how quickly did he need the medicine?
These are all questions of fact.
However, once the facts are established, a question of
law still remains. Assume that the evidence shows that a reason-
able person in the defendant's position would have known that the
defendant's medical condition was not life-threatening; without the
medicine, the man would be in significant pain, but he would still
be able to pursue his normal activities. Assume also that the
evidence shows that a reasonable person in the defendant's position
would have known that the defendant could obtain a replacement
prescription, but not until the next morning. Under these facts,
is waiting until the next morning an "adequate alternative" to
breaking into the mailbox?
This is a question of law for the court. Professors
LaFave and Scott discuss this issue:
The defense of necessity applies when the
defendant is faced with [the] choice of two evils[.] ... If,
however, there is open to him a third alternative, which will cause
less harm than will be caused by violating the law, he is not
justified in violating the law. ... [For instance, a] starving
man is not justified in stealing from a grocery if he can obtain
food by presenting himself at a soup kitchen. A prisoner subjected
to inhuman treatment by his jailors is not justified in breaking
prison if he can bring about an improvement in his conditions by
other means [i.e., through administrative or judicial channels].
LaFave & Scott, supra, sec. 5.4(d)(5), pp. 638-39.
Obviously, the existence of alternative courses of action
involves questions of fact. For instance, was there a soup kitchen
available to the starving man? Or was the prison inmate being
subjected to such severe mistreatment that he might not survive to
seek relief through official channels?
However, assuming that the facts show that an alternative
was available (and that a reasonable person in the defendant's
position would have perceived the alternative), the next question
is a legal one: was that alternative "adequate", in the sense that
the law requires a person in the defendant's position to pursue
that alternative rather than break the law?
This distinction was recognized by the Alaska Supreme
Court in Nelson v. State, 597 P.2d 977 (Alaska 1979). In Nelson,
the defendant drove his vehicle off the Steese Highway and down a
side road, where it became stuck in a marsh about 250 feet off the
highway. After an hour's unsuccessful labor trying to free his
vehicle, Nelson had a friend drive him to a nearby Highway
Department maintenance yard. There, Nelson stole two Department
vehicles (a dump truck and a front-end loader) and used them to
free his vehicle. Both of the government vehicles sustained
considerable damage in the process. Nelson was prosecuted for
joyriding and for reckless destruction of personal property (under
the former criminal code). Nelson, 597 P.2d at 977-78.
Nelson raised the defense of necessity, and the trial
judge did instruct the jury on this defense. Nelson was, neverthe-
less, convicted. On appeal, Nelson argued that the necessity
instruction given by the trial judge was flawed. The supreme
court, however, held that Nelson had not been entitled to a
necessity instruction in the first place. The court ruled that
Nelson failed to present a prima facie claim of necessity because
he had had adequate alternatives to breaking the law.
The supreme court agreed with Nelson "that the necessity
defense is available if a person acted in the reasonable belief
that an emergency existed and that there were no alternatives
available[,] even if that belief was mistaken." Nelson, 597 P.2d
at 979. Read by itself, this passage makes it sound as if the
availability of adequate alternatives were a pure question of fact,
an issue to be decided by the jury. However, the remainder of the
Nelson opinion makes it clear that the court was saying something
a little different.
The supreme court ultimately ruled that Nelson had not
been entitled to any instruction on necessity because
it [cannot] be said that Nelson had no lawful
alternatives in his situation. The record shows that[,] during the
time Nelson was trying to free [his] vehicle[,] people stopped on
several different occasions and offered their services in the form
of physical assistance, rides, or offers to telephone [the] state
troopers or a tow truck.
Nelson, 597 P.2d at 980. The supreme court clearly did not think
that the adequacy of these alternatives was a question of fact to
be decided by the jury at Nelson's trial. The court simply held
(as a matter of law) that these possibilities were adequate lawful
alternatives to breaking the law.
If there had been some factual dispute as to whether
these alternatives were truly available to Nelson, that would have
been an issue for the jury. Similarly, if the evidence
undisputedly showed that these alternatives were available, but
there was some dispute as to whether a reasonable person in
Nelson's position would have perceived the availability of these
alternatives, that too would have been an issue for the jury. But
the evidence was undisputed that Nelson knew these alternatives
were available. That left only one question: whether these
alternatives were "adequate" whether the availability of these
alternatives precluded any claim of necessity. The supreme court
treated this last question as an issue of law. The court held that
the offers of help from passing motorists constituted adequate
lawful alternatives to Nelson's decision to violate the law. Since
it was undisputed that Nelson was aware of these offers of help, he
was not entitled to a necessity instruction.
The existence of an adequate alternative course of action
makes a difference in several areas of the criminal law. Sometimes
the legislature enacts rules for deciding the adequacy of the
defendant's alternative. For example, with regard to self-defense
(a defense that is based on much the same policies as the defense
of necessity), the Alaska Legislature has adopted rules regarding
the alternative of safe retreat. In most circumstances, a person
who is threatened with imminent deadly attack, and who might
otherwise be entitled to use deadly force in self-defense, must
take advantage of an opportunity to retreat with safety. However,
the legislature has declared that an opportunity to retreat with
safety can be disregarded that is, safe retreat is not an
"adequate" alternative if the attack occurs on the person's
property, or if the person under attack is a police officer engaged
in his or her duties. See AS 11.81.335(b).
With the defense of necessity, the Alaska Legislature
purposely chose a different path: the rules governing the defense
of necessity would be developed by the courts under their power to
declare the common law. [Fn. 1] As this court explained in Wells
v. State, 687 P.2d 346 (Alaska App. 1984), the drafters of Alaska's
criminal code
declin[ed] to adopt a detailed statutory
formulation [of the necessity defense]. Instead, the
necessity defense was incorporated into the Revised
[Criminal] Code "to the extent permitted by common law"
[subject to] the qualifications described in subsections
(1) and (2) [of AS 11.81.320(a)].
The [Criminal Code Revision] Subcommis-
sion concluded ... that "it is more
appropriate to leave this issue to the
judiciary[.] [T]he rarity of the defense and the imponderables of
the particulars of specific cases convinces us that the courts can
better define and apply this defense than can be done through
legislation."
Wells, 687 P.2d at 349. (The internal quotations in this passage
are from the Alaska Criminal Code Revision, Tentative Draft (1977),
Part II, pp. 48-49.)
In other words, when the issue of necessity is raised in
a criminal trial, the courts are charged with two duties. The
first duty is to fulfill the courts' normal role of ensuring that
the parties have a fair opportunity to litigate all the legal
issues properly raised in the case. But the second duty is
different: with regard to the defense of necessity, the legisla-
ture has directed the courts to act as law-givers and not just
referees. It is the duty of the courts to declare the law of
necessity to define the scope and the limits of the defense
through the process of deciding individual cases. [Fn. 2]
While such a role is unusual for courts, it is not
without precedent. Both the Alaska Supreme Court and this court
have exercised our common-law authority to define the scope and the
elements of various criminal law defenses. For instance, in Miller
v. State, 462 P.2d 421, 426 (Alaska 1969), the supreme court held
that a person may not use force to resist an unlawful but peaceable
arrest. The supreme court ruled that it was "not too much to ask
that one believing himself unlawfully arrested should submit to the
officer and thereafter seek his legal remedies in court." Id. at
427. In other words, unless the arresting officer uses excessive
force to make the arrest, the arrestee's alternative of seeking
legal redress is, by law, an "adequate" alternative (even though it
is conceivable that, if the issue were tried to a jury, some juries
might disagree).
This court reached a similar result in Jurco v. State,
825 P.2d 909, 914-15 (Alaska App. 1992); we held that a person is
not entitled to use force to resist an official seizure of their
property, even if the person reasonably believes that the seizure
is illegal. Again, seeking redress in the courts is, by law, an
"adequate" alternative even though reasonable people on the jury
might disagree.
Turning to cases that directly involve the defense of
necessity, the Alaska Supreme Court ruled in Cleveland that
abortion protesters can not rely on the doctrine of necessity to
justify trespass at medical clinics or other conduct that
physically impedes the performance of abortions. The court
essentially held that, given the fact that abortion is legal, the
protesters' alternatives of political agitation and public debate
on the issue of abortion must be deemed "adequate", and actual
disruption of abortions can not be justified by the doctrine of
necessity, even when the protesters' motive is to prevent the
imminent performance of abortions. Cleveland, 631 P.2d at 1078-
1081.
The supreme court obviously viewed its ruling in
Cleveland as the resolution of a question of law the announcement
of a rule that would be applied in future cases, regardless of the
particular facts. In other words, it is not for juries to decide
in individual cases whether political agitation is an "adequate"
alternative for protesters who want to stop abortions. That issue
has been resolved by defining the scope of the necessity defense
as a matter of law.
Courts in other jurisdictions have reached the same
conclusion: the "adequacy" of a factually available alternative
course of action is a question of law for the courts, not a
question of fact for the jury. For instance, in State v. Marley,
509 P.2d 1095 (Hawai'i 1973), the court upheld the trespass
convictions of anti-war protesters against the contention that
their actions were needed to help stop unjustified killing. The
court held that, as a matter of law, other lawful forms of protest
constituted an "adequate" alternative to the anti-war protesters'
act of trespass, and thus the protesters could not rely on the
doctrine of necessity:
Where there is a third alternative available
to defendants that does not involve violation of the law,
defendants are not justified in violating the law. Other forms of
non-criminal protest were and are available to [the] defendants to
enable them to dramatize, and hence hopefully terminate, conduct
which they may view [as] harmful.
Marley, 509 P.2d at 1109 (citations omitted).
Accord, United States v. Seward, 687 F.2d 1270, 1275-76
(10th Cir. 1982) (necessity defense not available to protesters at
a nuclear power plant site); United States v. Cassidy, 616 F.2d 101
(4th Cir. 1979) (even assuming that the United States' possession
of nuclear weapons was illegal, the necessity defense was not
available to protesters who damaged government property at the
Pentagon).
In Schnabel v. State, 663 P.2d 960 (Alaska App. 1983),
this court employed similar reasoning when we rejected a miner's
assertion that his decision to cross a salmon stream with heavy
equipment was justified by "necessity". The normal summer road to
the mine was closed, and the only way to deliver the equipment to
the site was to cross a salmon stream. The bridge across the
stream was too narrow to accommodate the heavy equipment, so
Schnabel drove the equipment through the stream. Id. at 961-62.
The trial judge refused Schnabel's request to instruct the jury on
the defense of necessity, and this court upheld the trial judge's
decision. This court ruled that Schnabel could not claim
"necessity" because Alaska law gave him an adequate alternative:
the law allowed Schnabel to seek a waiver of the normal prohibition
against using wheeled vehicles in a salmon stream, and also granted
him administrative (and ultimately judicial) review if his waiver
application was denied.
It is important to note that Schnabel's administrative
remedies were deemed "adequate" even though there was no guarantee
that Schnabel would ultimately be granted what he desired
permission to cross the stream. We stated that Schnabel's
administrative remedies were adequate because they "provided a
forum for weighing and balancing the loss or damage to Schnabel
from not crossing the stream against potential damage to the fish
in the stream should he be permitted to cross the precise
determination that is in issue whenever the defense of necessity is
raised." Schnabel, 663 P.2d at 966. In other words, because an
administrative procedure existed wherein Schnabel could argue that
his personal interests outweighed the normal prohibition against
crossing the salmon stream with wheeled vehicles, this court held
that Schnabel had no right to litigate this question to the jury at
his criminal trial that Schnabel "failed to satisfy the 'some
evidence' test as a matter of law". Id.
Although cloaked in the language of the "some evidence"
test, this court's ruling amounted to a decision of a point of law,
a decision limiting the scope of the necessity defense. No matter
how compelling Schnabel's particular need to cross the stream might
have been, and no matter how reasonable his actions might have
appeared in hindsight, he was not entitled to a jury instruction on
the defense of necessity, and he was not entitled to have the jury
determine the reasonableness of his actions. Schnabel holds that,
as a matter of law, people in Schnabel's situation must pursue
administrative remedies rather than violate the law.
This court issued a similar ruling in Wells v. State,
supra, a case involving a prisoner who escaped from prison and
raised the defense of necessity. Wells offered two justifications
for his escape.
First, Wells asserted that prison officials were ignoring
his medical and psychological needs. Apparently because prisoners
can seek administrative (and, ultimately, judicial) review of
decisions made by corrections officials regarding their medical
care, this court held that Wells's "evidence [of purported medical
neglect] was insufficient as a matter of law to raise a necessity
defense". Wells, 687 P.2d at 350-51. This was a decision defining
and limiting the defense of necessity. This court in effect held
that, no matter how well-founded Wells's complaints of medical
neglect might have been, he was not entitled to raise them at his
criminal trial as justification for his escape.
Wells's second purported justification for escaping was
his claim that he faced a danger of physical injury at the hands of
fellow inmates who were angered because Wells had revealed their
intention to commit theft. This court held that "this evidence [of
possible attack] would have been sufficient to [raise] the
[defense] of necessity if there had been some evidence suggesting
that Wells tried unsuccessfully to obtain protection within the
institution". Id. at 351. Again, in other words, this court ruled
that, regardless of how well-founded Wells's fear of attack might
have been, the defense of necessity was not available to him as
a matter of law because he failed to pursue administrative
remedies.
Similar reasoning was applied in Gerlach v. State, 699
P.2d 358 (Alaska App. 1985), a case in which a parent claimed that
her act of custodial interference was justified by necessity. This
court ruled that, even if Gerlach legitimately and reasonably
feared that her estranged husband was neglecting and/or physically
mistreating their child, she could not raise the defense of
necessity because "Gerlach, like [the defendant in Schnabel], had
ready remedies at law. ... She was involved in an ongoing custody
dispute and was represented by counsel. ... Her failure to avail
herself of [legal remedies] precludes her reliance on a necessity
defense." Gerlach, 699 P.2d at 362.
Applying the law to the facts of Seibold's case
Seibold asserted that he destroyed the Knopps' pistol to
prevent the possibility that the Knopps would attack him, regain
possession of the pistol, and then use the weapon against him or
his wife. Obviously, a threatened harm to the Seibolds' life or
physical safety could easily outweigh the Knopps' property interest
in the pistol. The question, however, is whether Seibold had any
adequate alternatives to destroying the pistol.
As Judge Pengilly noted in his ruling, "[t]here was no
indication that the Knopps were in any way making a move towards
retrieving the pistol." Under those circumstances, Judge Pengilly
ruled, Seibold had at least two adequate alternatives to destroying
the pistol. One option was to give the pistol to his wife for
safekeeping. (She was getting ready to leave in her separate
vehicle.) Another option was to lock the pistol inside the cab of
Seibold's pickup until the troopers arrived. (The troopers had
been summoned and were en route.)
As explained above, Seibold was asked about these
alternative courses of action when he testified at trial. With
respect to the first alternative (giving the pistol to his
departing wife), Seibold said that he did not do this because his
wife "doesn't like guns". With respect to the second alternative
(locking the pistol in his truck), Seibold said that he "didn't
want to have anything to do with [the pistol]". He added that he
"didn't consider that an option".
Under these facts, it is essentially undisputed that a
reasonable person in Seibold's position would have understood that
these alternative courses of action were available to him. Thus,
Seibold's case is legally equivalent to the case the Alaska Supreme
Court confronted in Nelson the case of the truck owner whose
vehicle became stuck in marshy ground and who waved aside offers of
help from passing motorists, deciding instead to help himself to
some heavy equipment from a nearby Highway Department maintenance
yard.
In both Seibold's and Nelson's cases, the evidence
clearly showed that the defendants had alternatives to breaking the
law. The issue was whether those available alternatives were
"adequate" whether the law required the defendant to pursue those
alternatives rather than break the law. The supreme court in
Nelson treated this issue as a question of law, and Judge Pengilly
acted properly when he did the same.
Because the adequacy of Seibold's alternatives is an
issue of law, on appeal this court must assess de novo the adequacy
of the available alternatives. I reach the same conclusion as
Judge Pengilly: Seibold's alternatives were "adequate".
Seibold asserted that he did not give the pistol to his
departing wife because his wife was not comfortable with guns. I
would hold that the Knopps' interest in having their property
returned to them outweighed the possibility that Seibold's wife
might be discomforted by a brief possession of a firearm in her
vehicle. Seibold asserted that he did not lock the pistol in the
cab of his truck because he "didn't want to have anything to do
with [it]". Again, I would hold that the Knopps' interest in
having their property returned to them outweighed Seibold's desire
to be done with the pistol, his desire not to concern himself with
the weapon any more.
Because Judge Pengilly properly treated the adequacy of
Seibold's alternatives as a question of law, and because I conclude
that Judge Pengilly correctly resolved that question of law, I
would affirm Judge Pengilly's refusal to instruct the jury on the
defense of necessity, and I would therefore affirm Seibold's
conviction.
FOOTNOTES
Footnote 1:
Seibold testified that he did not give the handgun to Patty
Seibold to take away from the scene because Patty was afraid of
guns.
Footnote 2:
We have done some limited research on the derivation of the
Alaska statute. Alaska's pre-1978 "malicious mischief" did not
contain the phrase, "having no right to do so or any reasonable
ground to believe the person has such a right." The 1976
preliminary report of the Criminal Code Revision included in the
criminal mischief statute the words, "having no right to do so."
The commentary says, "Under this draft, one who honestly but
unreasonably believes he has a right to deal with the property in
the way he does is covered." The commentary also says that the
statute is "derived from the New York Revised Penal Law sec. 145 et
seq" and is "almost identical to the Oregon Code."
By the time of the 1977 Tentative Draft of the Criminal
Code Revision, the phrase had evolved to the language: "having no
right to do so or any reasonable ground to believe he has such a
right." Alaska Criminal Code Revision, Part IV at 17 (Ten. Draft
1977). The commentary to the draft says only: "Common to each
degree of criminal mischief is the requirement that the defendant
have no right nor any reasonable ground to believe he has a right
to interfere with the property."
AS 11.46.484 was enacted using the language of the 1977
Tentative Draft in sec. 4 ch 166 SLA 1978. The 1978 Senate Journal
Supplement No. 47, which contains commentary to the 1978 Criminal
Code, contains no reference to the enigmatic phrase.
Both the Oregon and New York statutes use the phrase,
"having no right to do so nor reasonable ground to believe that the
person has such a right." The New York statute is accompanied by
commentary that says:
Finally, defendant must have no right to
damage the property of another nor any reasonable ground to believe
that he/she has such right. Notably, the crime is not committed
where there is a reasonable, but mistaken, belief in the right to
destroy the property in question. Thus, if A inten-tionally
destroys property of B, under the mistaken but reasonable belief
that A has title to such property, A is not guilty of criminal
mischief.
New York Penal Code Sec. 145, commentary at 61 (1988) (citations
omitted).
FOOTNOTES (Dissent)
Footnote 1:
"[T]he common law is dynamic, not static; ... it reflects the
evolution of law through court decisions. ... [I]n the absence of
statute, it is [an] appellate court's duty to explicate the common
law which will apply unless and until the Alaska legislature acts
to modify it." Wells v. State, 687 P.2d 346, 348-49 (Alaska App.
1984).
Footnote 2:
Federal courts recognize the same principle. See United States
v. Schoon, 971 F.2d 193, 196-97 (9th Cir. 1991):
In some sense, the necessity defense allows [courts] to
act as individual legislatures, amending a particular criminal
provision or crafting a one-time exception to it, subject to court
review, when a real legislature would formally do the same thing
under those circumstances. For example, by allowing prisoners who
escape a burning jail to claim the justification of necessity, we
assume [that] the lawmaker, confronting this problem, would have
allowed for [such] an exception to the law proscribing prison
escapes.
