California First-Year Law Students' Exam (Baby Bar) — MCCriminal LawHard
A client, a political activist, is participating in a protest against government policy. During the protest, a violent clash breaks out between protesters and police. The client, fearing for his safety, grabs a nearby police officer's baton and uses it to defend himself against an attacking protester. The jurisdiction follows the common law defense of necessity. Which of the following is most likely true regarding the client's use of the baton?
- AHe is liable for battery against the protester, as he used excessive force.
- BHe cannot claim necessity, as the situation was created by his participation in the protest.
- CHe can claim necessity, as he acted to prevent a greater harm (injury to himself).
- DHe is liable for theft of the baton, regardless of his defensive actions.
Show answer & explanationAnswer & explanation
Correct answer: C. He can claim necessity, as he acted to prevent a greater harm (injury to himself).
The defense of necessity (or choice of evils) applies when a person commits a crime to avoid a greater harm. Here, the client used the baton to prevent injury to himself from an attacking protester, which is a greater harm than the temporary taking and use of the baton. His participation in the protest doesn't automatically negate necessity if the immediate threat was unforeseen and required immediate action.
Why the other options are wrong
- A. His use of force might be justified under self-defense or necessity, not necessarily battery.
- B. While his presence was voluntary, the specific violent clash and the need for immediate self-preservation might still allow for a necessity defense.
- D. Taking the baton for immediate self-defense may be excused under necessity, making theft unlikely to be successfully prosecuted if the defense holds.
Necessity (Common Law)
A defense where a defendant commits a crime to prevent a greater harm from occurring, provided there was no reasonable legal alternative.
- Requires a threat of imminent danger.
- Defendant must reasonably believe the criminal act will abate the danger.
- Harm avoided must be greater than harm caused.
- Defendant must not have created the emergency (though some leeway exists).
Memory trick: Justified actions, even if they break the law.