Monday, January 19th, 2009

The Rare Necessity

United States v. White, No. 07-1180-cr (2d Cir. January 9, 2009)(Kearse, Sack, Livingston, CJJ)

Police officers entered Anthony White’s home in response to a domestic violence call. According to the officers, they found him in the bedroom. He was sitting on the bed loading a sawed-off shotgun that was pointed at the doorway where the officers stood.

White’s version was that, before the police arrived, his girlfriend had threatened him with the shotgun and he had disarmed her. White claimed that he was protecting both himself and his son, who was also in the house. Finally, he testified that he was unloading the gun, not loading it, when the police arrived, and denied pointing it at them. He said that he had possessed the gun for a total of “three and a half minutes.”

Charged with being a felon in possession, White requested jury instructions both on necessity and “fleeting-possession.” The court refused, instead telling the jury that a defendant’s motive or reason for possessing a firearm was not an element, thus the government need not prove or disprove any “particular reason or motivation.” During jury deliberations, when the jury asked whether there were any exceptions for the law for “self-defense purposes,” the court responded that there “may be” exceptions “in the universe” depending on “the facts of the case,” but that none applied in White’s case. He was convicted and sentenced to eighty-four months’ imprisonment.

The circuit affirmed. It continued its long practice of refusing to decide whether there is a necessity defense to a felon-in-possession charge. The court noted that the statute does not provide for such a defense, but also that some courts have recognized it. Here, however, the court held that even if the defense existed, the facts of White’s case did not support it.

White’s testimony “was clearly sufficient” to establish that he was in imminent danger when his girlfriend pointed the gun at him. But once he disarmed her, any immediate danger to him was dispelled. Nor was the threat to his son sufficiently imminent to trigger a necessary defense charge. The threat that White described was “attenuated and speculative in nature.” Moreover, even if White was fully justified in taking possession of the weapon to safeguard his son, he did not show that he maintained possession of it “only for as long as necessary to dispel any threat.”

The court was even more dismissive of White’s asserted entitlement to a charge on “fleeting” or “innocent” possession. He did not possess the gun for “mere seconds, but picked it up, carried it to another room, began handling ammunition, and all told, had the gun in hand” for several minutes.

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