A group of five young Latino men was crossing the street when a car speeding around the corner suddenly braked to permit the young men to cross the street. Some of the young men, including the defendant, yelled at the driver to slow down. The driver, Alex Bernal, responded that he was looking for his daughter and that they should move out of the way. Bernal pulled the car to the side of the road and the defendant approached the passenger side of the car. Heated words were exchanged and Bernal exited the auto, removed his shoes, and began kicking into the air without hitting anyone. At some point during the ensuing exchange, Bernal appears to have swung at the defendant and the defendant responded by thrusting a knife into Bernal’s heart. Bernal later died; the autopsy indicated that he had been stabbed three times. The defendant testified that he only intended to scare the unarmed Bernal and stab him in the leg, and that he was motivated by a desire to protect his brother from possible injury. The trial court ruled that the testimony of expert witness and sociologist Professor Martin Sanchez Jankowski was irrelevant and inadmissible. Professor Jankowski would have testified that (1) street fighters in the Hispanic culture do not retreat; (2) the Hispanic culture is based on honor; and (3) the defendant’s testimony indicates that he was concerned with protecting his younger brother. Should the California Court of Appeal reverse the defendant’s conviction because of the failure of the trial court judge to permit the jury to hear Professor Jankowski’s testimony? See People v. Romero, 81 Cal. Rptr. 2d 823 (Cal. Ct. App. 1999).

         People v. Romero, 81 Cal. Rptr.2d 823 (Cal.Ct.App. 1999). The California appellate court affirmed the trial court judge’s ruling that Professor Jankowski could not testify at Romero’s trial. Self-defense entails a belief by the defendant that he or she confronts an imminent danger of great bodily harm or death and that the belief is reasonable. The appellate court explained that whatever the views of a “street fighter,” that there was no indication that Romero actually believed that he confronted an imminent threat of death or great bodily harm. The appellate court judges also asked whether a Hispanic street fighter would consider it honorable, as well as reasonable, to kill an unarmed individual whose physical assault was limited to kicking in the air. In any event, the exclusion of Professor Romero’s testimony was harmless error given that Romero had not established a subjective fear of imminent injury or death. 

In the early afternoon of May 16, 1990, Spokane, Washington, Police Officer Rick Robinson observed a “suspicious subject on the corner at First and Jefferson.” Robinson radioed another officer, John Moore, who observed the suspect enter an automobile. Officer Moore followed and decided to stop the auto after the driver failed to signal a turn. Moore was driving an unmarked auto and placed a rotating blue light on the dashboard, flashed his headlights, and honked his horn. Officer Moore pulled in behind the driver who had parked at the side of the road. Moore testified that he recognized that the operator of the other vehicle was Valentine, whom he had cited on two prior occasions for front license plate violations. Officer Robinson and several other officers overheard Moore’s radio transmission and quickly arrived at the scene. Valentine refused to turn over his license and registration, and Moore advised Valentine that he was being issued a citation for failing to signal for a turn. Moore testified that Valentine stated that since Moore had given Valentine a ticket a few days earlier that Moore had all the information he required. Valentine reportedly responded to a second request by proclaiming that “you . . . cops are just harassing me. I’m Black, and I’m tired of the harassment.” Valentine turned over his license in response to a third request, but when asked his current address replied, “Look it up.” Moore then asked Valentine if he was going to cooperate and sign a citation and, according to Moore, Valentine refused. Moore then informed Valentine that he was under “arrest for failure to cooperate . . . [and] refusing to sign an infraction.” Valentine reportedly walked to the front of the car to show Moore that the car had a front license plate. He then returned to his car and began to open the door. Moore directed Valentine to stay away from the automobile and grabbed Valentine’s left arm to keep him from gaining access to the inside of the automobile. Moore then grabbed Valentine’s right arm to keep him from entering the car. Valentine reportedly then spun toward Moore and hit him in the side of the head. Robinson also claimed that he was hit. Officers Jones, Webb, and Yates then came to Moore’s assistance and subdued Valentine. Officer Moore testified that he felt Valentine’s hand on the butt of his firearm and stated that he was only able to subdue Valentine by applying a “carotid choke hold” to his neck. Valentine was taken to the hospital where he signed a citation for failing to signal for a turn. He then was transported to the Spokane County Jail where he was charged with assaulting two police officers engaged in their official duties.

         Valentine testified that he had been cited for license plate violations on two previous occasions, one of which was four days earlier. Officer Yates, who was present at the time of Valentine’s arrest, along with two other police, allegedly engaged in a verbal exchange with Valentine earlier in the day and vowed to “get you.” The police subsequently spotted Valentine on a downtown corner and he was followed by two squad cars and a motorcycle. Valentine complained that he was tired of being harassed and Moore allegedly responded that “We’ve got a place for your people, you know. It’s downtown.”

         Valentine testified that his turn signals were not working and that he had used hand signals to indicate his intention to turn. He claimed that he stopped his car as quickly as possible and that he informed Moore that he was going to lock the car to protect some personal items. Valentine denied that he told Moore to look up his address and also denied that he had thrown the first punch. Valentine testified that he delivered blows in self-defense. He also alleged that the officer had not written or presented him with a citation and that, as a result, he had not been given an opportunity to sign the citation. Instead Valentine was immediately informed that he would be arrested and his automobile impounded. He testified that as he was closing the window to his automobile, Officer Moore told Officer Robinson to “get him now.”

         Robinson testified that he subdued Valentine by twisting his arms behind his back while wrenching the thumb to the wrist. According to Valentine, at the same time, Moore cracked Valentine in the face with a police radio. Valentine then hit Officer Moore. Officer Yates, who reportedly had exchanged words with Valentine in the tavern, slammed Valentine’s head into the car and stated that “we’re going to kill him.” Yates then applied a potentially lethal chokehold. Valentine was not admitted to the jail due to his injuries and was taken to the hospital emergency room and was charged with assault. He signed a citation for failing to signal for a turn.

         In Washington State, an individual may be subjected to a custodial arrest for an ordinary traffic violation and a failure to sign a citation is a misdemeanor that may also result in a custodial arrest. Valentine alleged that he was never provided an opportunity to sign a citation by the arresting officer. The trial court refused to instruct the jury that Valentine possessed a right to resist an illegal arrest. He was convicted of assaulting two police officers engaged in the performance of their official duties, and he appealed to the Washington Supreme Court. The Supreme Court held that an individual may not employ force against an officer based on the belief that he or she is being subjected to an unlawful arrest. The Supreme Court, however, recognized the right of an individual to employ reasonable and proportional force to resist an attempt to illegally injure him or her during an arrest. Consider the facts supporting the prosecution and the defense. Did Valentine have a right to resist his arrest under the English rule? Did he have a right to resist under the American rule? Discuss whether Valentine had the right to protect himself against the excessive use of force by the police from the point of view of the prosecution and defense. See State v. Valentine, 935 P.2d 1294 (Wash. 1997).

         Washington v. Valentine, 935 P.2d 1294 (Wash. 1997). The Washington Supreme Court observed that it was not necessary to decide in this case whether it is lawful in Washington to employ reasonably proportioned force to resist an unlawful arrest. The court nevertheless noted that there was confusing revolving around this question. The Supreme Court pointed out that individuals possess protections that did not exist when the common-law rule developed that provided for the right to resist an unlawful arrest. The array of weapons possessed by the police makes it likely that resistance will result in serious injury to citizens. Individuals thus "may be reasonably required to submit to a possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty."' The court concluded that the common-law rule is "outmoded" and promotes "anarchy" and that a preferable course is to file a civil action for damages.

         The court stressed that a person who is being unlawfully arrested has the right to use reasonable and proportional force to resist an officer's attempt to inflict excessive harm during the arrest. The Supreme Court affirmed. 

         Aiken and the victim had been next-door neighbors in an apartment building in the Bronx, New York, for roughly forty years. The two families had a falling out in 1994 or 1995 when a disagreement arose when the victim accused the defendant of siphoning his family’s cable and telephone service. The service providers found no basis for this accusation. In 1997, the victim stabbed Aiken in the back resulting in his hospitalization. The two families continued to live next to one another from 1997 to 1999. This could not have been pleasant because the victim continually “threatened to shoot, stab or otherwise injure defendant. He made these threats to defendant’s face, to his father and to neighbors—at one point even brandishing a boxcutter.” On December 21, 1999, Aiken and the victim argued through the shared bedroom wall between their apartments. The defendant took a metal pipe and dented his side of the wall. The victim’s mother called the police, and the victim left his apartment to go downstairs and open the building’s front door for the police. The defendant remained inside his apartment, walked to the front door several times, and then opened the door when he saw the victim standing outside his door with a friend. “Still holding the metal pipe he had earlier used to hit the wall, the defendant then engaged in an angry argument with the victim, who remained in [the defendant’s] doorway. . . . [H]e [the defendant] continued standing in the doorway, never going into the hall, when the victim reached into his pocket, came up to defendant’s face ‘nose to nose,’ and said ‘he was going to kill’ him.” The defendant believed that he was about to be stabbed once again and hit the victim in the head with the metal pipe, killing the victim. The trial court instructed the jury that “a person may . . . not use defensive deadly force if he knows he can with complete safety to himself avoid such use of deadly physical force by retreating.” The trial court refused the defendant’s request to “charge the jury that, if a defendant is in his home and close proximity of a threshold of his home, there is no duty to retreat.” Do you agree with these jury instructions? Was Aiken in his home? Did Aiken act in self-defense in killing the victim? See People v. Aiken, 828 N.E.2d 74 (N.Y. 2005).

State v. Aiken, 2005 N.Y.INT’L 39.

         Defendant presented evidence of his prior history with the victim, the victim's threats and violent conduct, as well as defendant's subjective belief that the victim was about to stab him again. While he was thus entitled to the self-defense charge, he was not entitled to a jury instruction that he had no duty to retreat. Under no reasonable view of the evidence was defendant actually inside his apartment when confronted by the victim. Both in his trial testimony and in his pretrial statement to the police, defendant repeatedly stated that he was in the doorway, not inside the apartment, when the victim confronted him. Further, the victim collapsed and died in the hallway, with no part of his body inside defendant's apartment. Consequently, defendant was not entitled to a jury instruction that he had no duty to retreat on the theory that he was inside his apartment. Nor did defendant's claim that he was standing in the doorway, or threshold, of his apartment entitle him to that instruction. Defendant argues that the doorway between the apartment and the shared hall was part of his dwelling -his private sanctuary. As we recognized in People v. Hernandez (8 NY2d 175, 183 [2002]), whether a particular area is part of a dwelling under Penal Law § 35.15 "depends on the extent to which defendant . . . exercises exclusive possession and control over the area in question." Here, defendant was in an area that functioned as a portal between an interior world and a public one. It was the region where a stranger, seeking access to the interior, could ask for entry. The actual physical space of the doorway straddled both the private apartment and the public hall. A nonresident could stand there and knock, ring a bell or turn the door's handle. The resident had exclusive control and possession only over that part of the apartment, the private property, from which nonresidents could ordinarily be excluded. The doorway did not function as the asylum of the home -it was instead a hybrid private-public space in which a person did not have the same reasonable expectation of seclusion and refuge from the outside world. Indeed, the Penal Law and its common law history reflect the concept behind the castle doctrine that inside one's home a person is in a unique haven from the outside world. While a person is not bound to abandon one's home, requiring a person standing in the doorway to step inside the apartment to avoid a violent encounter is not the equivalent of mandating retreat from one's home. Here, defendant need only have closed the door, or pulled up the drawbridge, to be secure in his castle.

Officer Pfeffer was off duty and spending the day at home. His wife, Sally, noticed a man, later identified as Paul Billingsley, cross the street and attempt to enter their front yard. He was prevented by the bushes from entering the yard and then walked down the sidewalk and entered a neighbor’s driveway. Sally called Officer Pfeffer’s attention to Billingsley’s movements and watched as Billingsley unsuccessfully attempted to enter the locked back door of two homes, before gaining entrance to the home of Gary Machal. Officer Pfeffer asked his wife to call 911, retrieved his service revolver, and confronted Billingsley in Machal’s home. Pfeffer drew his revolver and informed Billingsley that he was a police officer and ordered the intruder to halt and to raise his hands. Billingsley had a purse in his left hand and Pfeffer could not observe his right hand. Billingsley ran out the back door onto the deck and jumped some fifteen feet over the railing to the ground. Pfeffer ran to the railing and ordered the suspect to halt. Billingsley landed in a crouched position and then “rotated his left shoulder.” Officer Pfeffer fired a shot that struck Billingsley in the lower right back and exited out his groin. Pfeffer did not observe a weapon and the suspect was determined to be unarmed. Billingsley filed an action under 42 U.S.C. § 1983 for a violation of his Fourth Amendment rights. Consider the arguments that might be offered by the prosecution and defense. Was Officer Pfeffer justified in resorting to deadly force? See Billingsley v. City of Omaha, 277 F.3d 990 (8th Cir. 2002).

         Billingsley v. City of Omaha, 277 F.3d 990 (8^th Cir. 2002). The Eighth Circuit Court of Appeals held that the inquiry is whether the seizure by deadly force was objectively reasonable under the Fourth Amendment. This requires attention to the facts and circumstances of each particular case, including the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade arrest by flight. “In short, the objective reasonableness test examines whether the totality of the particular circumstance justifies the seizure by deadly force. The test of reasonableness is judged from the “perspective of the officer on the scene, taking into consideration the facts known to him, as opposed to one possessing the illuminating power of hindsight.” Probable cause for the use of deadly force is “satisfied by the immediate threat of death or serious bodily harm, as observed through the Fourth Amendment prism of objective reasonableness.”

         Although Billingsley was unarmed, an officer is privileged to employ deadly force if “objectively reasonable.” The appellate court found that the jury could “properly draw the inference of an immediate threat of death or serious bodily harm to Officer Pfeffer from his inability to observe Billingsley’s hand and his shoulder movement.” An officer is not required to wait until he or she actually is confronted with a weapon so long as the use of force under the circumstances was reasonable and not excessive.

         “Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after her birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing, so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie's heart will eventually fail.”                  
    The parents cannot bring themselves to consent to the operation. The twins are equal in their eyes and they cannot agree to kill one even to save the other. As devout Roman Catholics, they sincerely believe that it is God's will that their children are afflicted as they are and they must be left in God's hands. The doctors are convinced they can carry out the operation so as to give Jodie a life which will be worthwhile. So the hospital sought a declaration (in Family Division of Supreme Court of England) that the operation may be lawfully carried out. Johnson J. granted it on 25th August 2000. The parents applied to us for permission to appeal against his order.” Would you affirm the order of Justice Johnson that the operation separating the twins should proceed. See Re: A 2000 4 ALL ER 961.

RE: A (children)

[2000] 4 ALL ER 961

LORD JUSTICE WARD, BROOKE AND WALKER

LORD JUSTICE WARD:

Introduction

         In the past decade an increasing number of cases have come before the courts where the decision whether or not to permit or to refuse medical treatment can be a matter of life and death for the patient. I have been involved in a number of them. They are always anxious decisions to make but they are invariably eventually made with the conviction that there is only one right answer and that the court has given it.                   
    In this case the right answer is not at all as easy to find. I freely confess to having found it exceptionally difficult to decide—difficult because of the scale of the tragedy for the parents and the twins, difficult for the seemingly irreconcilable conflicts of moral and ethical values and difficult because the search for settled legal principle has been especially arduous and conducted under real pressure of time.                    
     The problems we have faced have gripped the public interest and the case has received intense coverage in the media. Everyone seems to have a view of the proper outcome. I am very well aware of the inevitability that our answer will be applauded by some but that as many will be offended by it. Many will vociferously assert their own moral, ethical or religious values. Some will agree with Justice Scalia who said in the Supreme Court of the United States of America in Cruzan v Director, Missouri Department of Health (1990) 110 S. Ct. 2841, 2859:

         "The point at which life becomes ‘worthless’, and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate’, are neither set forth in the constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory."

         It is, however, important to stress the obvious. This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply the relevant principles of law to the situation before us—a situation which is quite unique.   
     It truly is a unique case. In a nutshell the problem is this. Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after her birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie's heart will eventually fail.       
     The parents cannot bring themselves to consent to the operation. The twins are equal in their eyes and they cannot agree to kill one even to save the other. As devout Roman Catholics they sincerely believe that it is God's will that their children are afflicted as they are and they must be left in God's hands. The doctors are convinced they can carry out the operation so as to give Jodie a life which will be worthwhile. So the hospital sought a declaration (in Family Division of Supreme Court of England) that the operation may be lawfully carried out. Johnson J. granted it on 25th August 2000. The parents applied to us for permission to appeal against his order. We have given that permission and this is my judgment on their appeal.     
      Exceptionally we allowed the Archbishop of Westminster and the Pro-Life Alliance to make written submissions to us. We are grateful for them. We are also very grateful for the very considerable research undertaken by the Bar and by the solicitors and for the powerful submissions counsel have advanced which have swayed me one way and another and left me at the conclusion of the argument in need of time, unfortunately not enough time, to read, to reflect, to decide and then to write.

         [His Lordship goes on discussing the legal issues in medical law, family law and Human Right Act, and then conclude:] 

LORD JUSTICE BROOKE:

         [After considering the history of the doctrine of necessity, the case of R v Dudley and Stephens, his Lordship continued:]

         Those who prepared that report would have been familiar with a modern update of the "two men on a plank" dilemma (which dates back to Cicero, de Officiis) and the "two mountaineers on a rope" dilemma which was mentioned by Professor John Smith in his 1989 Hamlyn Lectures (published under the title "Justification and Excuse on the Criminal Law"). At the coroner's inquest conducted in October 1987 into the Zeebrugge disaster, an army corporal gave evidence that he and dozens of other people were near the foot of a rope ladder. They were all in the water and in danger of drowning. Their route to safety, however, was blocked for at least ten minutes by a young man who was petrified by cold or fear (or both) and was unable to move up or down. Eventually the corporal gave instructions that the man should be pushed off the ladder, and he was never seen again. The corporal and many others were then able to climb up the ladder to safety.                      
     In his third lecture, "Necessity and Duress", Professor Smith evinced the belief that if such a case ever did come to court it would not be too difficult for a judge to distinguish R. v Dudley and Stephens. He gave two reasons for this belief. The first was that there was no question of choosing who had to die (the problem which Lord Coleridge had found unanswerable in R. v Dudley and Stephens at p 287) because the unfortunate young man on the ladder had chosen himself by his immobility there. The second was that unlike the ship's boy on the Mignonette, the young man, although in no way at fault, was preventing others from going where they had a right, and a most urgent need, to go, and was thereby unwittingly imperilling their lives.  

               I would add that the same considerations would apply if a pilotless aircraft, out of control and running out of fuel, was heading for a densely populated town. Those inside the aircraft were in any event "destined to die." There would be no question of human choice in selecting the candidates for death, and if their inevitable deaths were accelerated by the plane being brought down on waste ground, the lives of countless other innocent people in the town they were approaching would be saved.

              It was an argument along these lines that led the rabbinical scholars involved in the 1977 case of conjoined twins to advise the worried parents that the sacrifice of one of their children in order to save the other could be morally justified. George J Annas, "Siamese Twins: Killing One to Save the Other" (Hastings Center Report, April 1987 at p 27, described how they:

         "… reportedly relied primarily on two analogies. In the first, two men jump from a burning aeroplane. The parachute of the second man does not open, and as he falls past the first man, he grabs his legs. If the parachute cannot support them both, is the first man morally justified in kicking the second man away to save himself? Yes, said the rabbis, since the man whose parachute didn't open was 'designated for death.’"

         The second analogy involves a caravan surrounded by bandits. The bandits demand a particular member of the caravan be turned over for execution; the rest will go free. Assuming that the named individual has been 'designated for death', the rabbis concluded it was acceptable to surrender him to save everyone else. Accordingly, they concluded that if a twin A was 'designated for death' and could not survive in any event, but twin B could, surgery that would kill twin A to help improve the chance of twin B was acceptable".

         There is, however, no indication in the submission we received from the Archbishop of Westminster that such a solution was acceptable as part of the philosophy he espoused. The judge's dilemma in a case where he or she is confronted by a choice between conflicting philosophies was thoughtfully discussed by Simon Gardner in his article "Necessity's Newest Inventions" (Oxford Journal of Legal Studies Vol II, 125-135). He explored the possibility of rights-based justifications based on a principle that otherwise unlawful actions might be justified where the infraction was calculated to vindicate a right superior to the interest protected by the rule, but he was perplexed by the idea that judges in a democracy could make their own decisions as to what was right and what was wrong in the face of established law prohibiting the conduct in question. The whole article requires careful study, but its author concluded that in jurisdictions where rights were guaranteed, the judicial vindication of a guaranteed right would be seen as protecting democracy rather than contravening it. This consideration does not, however, assist us in a case where there are conflicting rights of apparently equal status and conflicting philosophies as to the priority, if any, to be given to either.

         Before I leave the treatment afforded to the topic of necessity by modern academic writers of great distinction (there is a valuable contemporary summary of the issues in the Ninth Edition of Smith and Hogan's Criminal Law (1999) at pp 245-252), I must mention the section entitled "Justifications, Necessity and the Choice of Evils" in the Third Edition (1999) of "Principles of Criminal Law" by Professor Andrew Ashworth. After referring to the facts of the Zeebrugge incident he said at pp 153-4:

         "No English court has had to consider this situation, and it is clear that only the strongest prohibition on the taking of an innocent life would prevent a finding of justification here: in an urgent situation involving a decision between n lives and n + 1 lives, is there not a strong social interest in preserving the greater number of lives?"

         Any residual principle of this kind must be carefully circumscribed; it involves the sanctity of life, and therefore the highest value with which the criminal law is concerned. Although there is a provision in the Model Penal Code allowing for a defence of 'lesser evil', it fails to restrict the application of the defence to cases of imminent threat, opening up the danger of citizens trying to justify all manner of conduct by reference to overall good effects. The moral issues are acute: 'not just anything is permissible on the ground that it would yield a net saving of lives'. Closely connected with this is the moral problem of 'choosing one's victim', a problem which arises when, for example, a lifeboat is in danger of sinking, necessitating the throwing overboard of some passengers, or when two people have to kill and eat another if any of the three is to survive. To countenance a legal justification in such cases would be to regard the victim's rights as morally and politically less worthy than the rights of those protected by the action taken, which represents a clear violation of the principle of individual autonomy. Yet it is surely necessary to make some sacrifice, since the autonomy of everyone simply cannot be protected. A dire choice has to be made, and it must be made on a principle of welfare or community that requires the minimisation of overall harm. A fair procedure for resolving the problem –perhaps the drawing of lots–must be found. But here, as with self-defence and the 'uplifted knife' cases, one should not obscure the clearer cases where there is no need to choose a victim: in the case of the young man on the rope-ladder, blocking the escape of several others, there was no doubt about the person who must be subjected to force, probably with fatal consequences."

         [His Lordship continued by looking at recent work of the Parliament and continued:]

         I have described how in modern times Parliament has sometimes provided "necessity" defences in statutes and how the courts in developing the defence of duress of circumstances have sometimes equated it with the defence of necessity. They do not, however, cover exactly the same ground. In cases of pure necessity the actor's mind is not irresistibly overborne by external pressures. The claim is that his or her conduct was not harmful because on a choice of two evils the choice of avoiding the greater harm was justified. . . .

Conclusion

         I have considered very carefully the policy reasons for the decision in R v Dudley and Stephens, supported as it was by the House of Lords in R v Howe. These are, in short, that there were two insuperable objections to the proposition that necessity might be available as a defence for the Mignonette sailors.

         The first objection was evident in the court's questions: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured?

         The second objection was that to permit such a defence would mark an absolute separation of law from morality.

         In my judgment, neither of these objections are applicable to the present case. Mary is, sadly, self-designated for a very early death. Nobody can extend her life beyond a very short span. Because her heart, brain and lungs are for all practical purposes useless, nobody would have even tried to extend her life artificially if she had not, fortuitously, been deriving oxygenated blood from her sister's bloodstream.

         It is true that there are those who believe most sincerely—and the Archbishop of Westminster is among them—that it would be an immoral act to save Jodie, if by saving Jodie one must end Mary's life before its brief allotted span is complete. For those who share this philosophy, the law, recently approved by Parliament, which permits abortion at any time up to the time of birth if the conditions set out in Section 1(1)(d) of the Abortion Act 1967 (as substituted) are satisfied, is equally repugnant. But there are also those who believe with equal sincerity that it would be immoral not to assist Jodie if there is a good prospect that she might live a happy and fulfilled life if this operation is performed. The court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut case, marking an absolute divorce from law and morality, which was of such concern to Lord Coleridge and his fellow judges.

         There are sound reasons for holding that the existence of an emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency.

     There are also sound reasons for holding that the threat which constitutes the harm to be avoided does not have to be equated with "unjust aggression", as Professor Glanville Williams has made clear in Section 26.3 of the 1983 edition of his book. None of the formulations of the doctrine of necessity which I have noted in this judgment make any such requirement. . . .

         If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted.

         According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity:

         the act is needed to avoid inevitable and irreparable evil;

         no more should be done than is reasonably necessary for the purpose to be achieved;

         the evil inflicted must not be disproportionate to the evil avoided.

         Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.

         Finally, the doctrine of the sanctity of life respects the integrity of the human body. The proposed operation would give these children's bodies the integrity which nature denied them.

         For these reasons I, too, would dismiss this appeal.

         [Declaration granted. Robert Worker and Ward L. JJ delivered separate judgments also upholding the grand of the declaration that the operation to separate the twins could lawfully be performed. ]

Richard and Jose, two juveniles, were shooting at each other with BB guns. Jose was hit and lost his eye, and Richard was charged with third-degree assault. What would Richard argue in his defense? Would he be successful? See State v. Hiott, 987 P.2d 135 (Wash. 1999).

         The trial court held that the two juveniles had not consented to be injured. Defendant Hiott then argued that Jose had consented to participate in a game in which an injury was foreseeable. Hiott compared the shooting of BB guns as a sport to dodgeball, football, rugby, hockey, boxing, wrestling, “ultimate fighting,” fencing, and “paint ball.” The court of appeals declined to recognize that paintball was a generally accepted lawful athletic contest. The sports cited by Hiott have generally accepted rules that protect individuals against unnecessary injury and require protective devices or clothing.

              The appellate court also held that consent is not a valid defense when individuals engage in an activity that is against public policy. You cannot consent to a fraternity hazing and a gang member cannot consent to an initiation beating. The shooting of another person with a BB gun, according to the appellate court, constituted a breach of the peace and therefore is against public policy. 

            Maryland judicial decision recognizes that an individual who is unlawfully arrested may use any reasonable means to affect his escape even to the extent of using such force as is reasonably necessary.” On July 7, 1974, Baltimore police officers Coates and Morgan received a call requesting their assistance in serving an arrest warrant for “assault over the telephone.” The two uniformed officers were provided with a description of the suspect, Zachariah Barry Rodgers, and spotted Rodgers in an alley three blocks from his home. The officers approached Rodgers who identified himself as “Barry.” The officers informed Rodgers that there was an outstanding warrant for his arrest and asked him to accompany them to so that the warrant could be “checked out.” The officers neither searched nor handcuffed Rodgers as the three of them walked toward the squad car. At this point, neither the officers nor Rodgers had seen the arrest warrant. They next encountered the mother of the victim of Rodgers alleged threatened assault who identified Rodgers as the individual charged in the warrant. According to the officers, Rodgers “turned and grabbed Officer Coates around the waist, causing the officer and himself to fall to the ground. . . . Rodgers allegedly wielded a straight edged razor and slashed Officer Coates across the arm, inflicting three wounds.” Coates screamed to Morgan, "don't let him get my gun, don't let him get my gun," and . . . Morgan struck Rodgers on the head and on the hand, subduing him.” He was then placed in the patrol car. Rodgers was charged with resisting arrest and possession of a deadly weapon and was prosecuted in the Criminal Court of Baltimore by a jury. Rodgers’s version of the events was that he had objected to his arrest and that one of the officers had struck him in the face and that when he grabbed the officer that the other officer had struck him twice with a blackjack. This account generally was corroborated by an eyewitness. Rodgers was acquitted of possessing a deadly weapon (razor blade), but was convicted of resisting arrest and was sentenced to three years in prison.          
     The appellate court agreed with Rodgers that his arrest was unlawful because the warrant charged Rodgers with an act that does not constitute a crime in Maryland, threatening an assault to inflict bodily harm by telephone. Rodgers accordingly contended that he was entitled to use reasonable force to resist the arrest. Maryland argued in response that there is no right to resist an arrest that is based on an arrest warrant that is issued by a judge who has determined that there is probable cause to arrest an individual. Respect for the law would be significantly undermined if individuals were authorized to resist warrants issued by a judge. The proper course was for the suspect to challenge the basis of the warrant in court rather than to take the law into his or her own hands. Why does the Minnesota appellate court authorize individuals to resist unlawful arrests by police officers while prohibiting resistance to arrests based on arrest warrants? How should the Maryland Court of Appeals rule in this case? Did Rodgers have the right to resist the officer’s efforts to subdue him? See Rodgers v. State, 373 A.2d 944 (Md. App. 1977). An interesting comparison is State v. Wiegmann, 714 A.2d 841 (Md.App. 1998). A good overview of the law of resisting arrest is Commonwealth v. Hill, 570 S.E.2d 805 (Va. 2002).

Rodgers v. State, 373 A.2d 944 (Md.App. 1977).

         In 1958, in an address to the American Law Institute, Judge Learned Hand said:

         "The idea that you may resist peaceful arrest . . . because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine, . . . [is] not a blow for liberty but on the contrary, a blow for attempted anarchy." Judge Hand's comment was intended to apply to any arrest made by a peace officer, but it certainly has overwhelming application to those cases, like the one at hand, where an officer makes an arrest upon a warrant that is defective through no fault of his. At least where a citizen resists with force an illegal arrest made by a police officer without a warrant, that force is directed at the individual responsible for the improper deprivation of the citizen's liberty; but the officer engaged in carrying out the mandate of a court that he arrest an individual named in a warrant is blameless if that warrant has been issued in error, and it would be a betrayal of our duty to such an officer to say that the citizen is entitled to inflict injury on the officer because the courts had erred in issuing the warrant. Indeed, to sanction resistance to arrest under these circumstances would be to invite the very destruction of the entire judicial process, for we would then impose upon every police officer commanded by a warrant to make an arrest the duty to make his own independent judgment as to whether the judicial officer had properly performed his duty in issuing the warrant. Such a practice would make a mockery of the courts and place an impossible burden on police officers, who, however well trained in the performance of their police duties, cannot be expected to have sufficient training in the law to make a reasoned judgment as to whether the face of every arrest warrant contains any fatal defect or irregularity.
      The Appellant, of course, does not argue the desirability of seeking redress for an illegal arrest on the streets rather than in the courts, but, instead, asserts that it is fundamentally unfair to punish a citizen who has been reasonably provoked to resistance by an unlawful arrest. We do not agree with that contention, at least in a case such as the one at hand, where the arresting officer played no part in the composition of the charge which rendered the warrant defective. In such a case we can think of nothing more appropriate or more fundamentally fair than that the arrested person seek redress for his wrongs in court, rather than be seeking to do violence to the person of the court's innocent emissary.
     Our concerns about the right to use force to resist an illegal arrest made upon a defective warrant arise in large measure, as we have noted, from the right of police officers to be free from attacks upon their person. But our concerns are not limited to the safety of police officers and extend in equal measure to the well-being of our citizens, including those subjected to an illegal arrest of this kind, for a dispute between an unarmed citizen and an armed police officer will most frequently result in injury to the citizen—at least in disproportion to the injuries received by his armed opponent. And even where the citizen may possess and attempt to use a deadly weapon, the probabilities are that he will suffer the greater damage to his person because of the superior skills of his police opponent. Nor can we ignore the fact that combat on the streets between police officers and a citizen resisting arrest can and often does involve passersby or other citizens, some of whom may be inclined to enter the fray, to their detriment—others of whom may suffer injury merely by being in the way. In this regard, the Supreme Court of California, in People v. Curtis, 74 Cal. Rptr. 713, 70 Cal. 2d 347, 450 P. 2d 33, 36 (1969), said:

         "While defendant's rights are no doubt violated when he is arrested and detained a matter of days or hours without probable cause, we conclude the state in removing the right to resist does not contribute to or effectuate this deprivation of liberty. In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to temporary evasion, merely rendering the officer's task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era when the common law doctrine permitting resistance evolved. . . . Indeed, self-help not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself. Accordingly, the state, in deleting the right to resist, has not actually altered or diminished the remedies available against the illegality of an arrest without probable cause; it has merely required a person to submit peacefully to the inevitable and to pursue his available remedies through the orderly judicial process."

              We are not unmindful that under present conditions the available remedies for unlawful arrest—release, followed by civil or criminal action against the offender—often may be inadequate. This circumstance, however, does not elevate physical resistance to anything other than the least effective and least desirable of all possible remedies; as such, its rejection, particularly when balanced against the State's interest in discouraging violence, cannot be realistically considered a deprivation of liberty.
     We affirm the judgment of the Court of Special Appeals. We agree with that Court that our holding in Sugarman v. State, and our other decisions (affirming the right to resist an unlawful arrest) adhering thereto—which we have no occasion to re-examine today—have no application to a situation where an arrest is made by a peace officer on a warrant duly issued by a judicial officer. We cannot believe that the General Assembly, having made peace officers agents of the court for the purpose of serving arrest warrants, could have intended that citizens arrested pursuant to such a warrant be free to dispute its validity by doing violence to the officer serving the judicial process. Moreover, to do other than uphold the Appellant's conviction in this case would be to reach a ridiculous result, as he is attempting to justify his use of force in resisting this arrest by pointing out a defect in a warrant that neither he nor the arresting officers saw until after the arrest had taken place.