Sunday, July 22, 2018

Case o' The Week: .22s and the Yakima Blues - Barnes and Necessity / Justification Defenses in 922(g) cases

  Eastern Wha? means new bad law.
United States v. Barnes, 2018 WL 3468136 (9th Cir. July 19, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Gould and Christen.

Facts: Yakima cops stopped Barnes, and (mistakingly) told him he was wanted for a felony. Id. at *1. (It was a misdo bench warrant). Barnes ran, was tackled and tazed, and had a .22 on him when searched. Id. at *2.
  Before his § 922(g) trial Barnes made a proffer for a “necessity defense.” Id. at *3. [Ed. Note: Judge Paez explains the distinctions between a “necessity” defense versus “justification” – this case is probably the latter. Id. at *8 & n.4]. 
  Barnes explained that he had been taking care of his meth-addicted adult son. Id. Barnes came across the gun in his house, grabbed it to keep it away from kids in the home, and was on the way to throw it in a dumpster when confronted by the cops. Id. at *3.
  The district court refused to allow a necessity / justification defense: Barnes was convicted at trial. Id.

Issue(s): “[Barnes] argues that the district court erred . . . by precluding him from presenting a necessity defense at trial.” Id. at *1.

Held: “A defendant is entitled to present evidence on a necessity defense and have the jury instructed accordingly once he has adequately established—through an offer of proof—that all four requisite factors are met: 

(1) he was faced with a choice of evils and chose the lesser evil; 

(2) he acted to prevent imminent harm; 

(3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and 

(4) there were no other legal alternatives to violating the law.” Id. at *8 (internal quotations, citations, and fn. omitted). Id. at *8. 

“[ ] Barnes’s offers of proof, even when viewed in the light most favorable to him, were insufficient to show that he acted to prevent imminent harm. “[T]he term ‘imminent harm’ connotes a real emergency, a crisis involving immediate danger to oneself or to a third party.” . . . There is no indication that Barnes acted in response to such a crisis. There was no evidence that the children had, for instance, already obtained possession of the gun or were about to do so. There was no evidence that the children were in close proximity to the firearm. At most, Barnes removed a dangerous weapon from a house where children were present . . . [T]he district court correctly denied Barnes’s request to present a necessity defense to the jury.” Id. (internal quotations and citations omitted).

Of Note: Barnes has a second disappointing holding, upholding the denial of a suppression motion. A [conspicuously unnamed] Yakima municipal judge failed to look at an incident report, or an affidavit, before “finding” probable cause for Barnes’ misdemeanor complaint. Id. at *2. Judge Paez finds “judicial abandonment.” Id. at *5. 
  However, in an unfortunate decision of first impression, the Ninth holds that, to overcome Leon good faith, a defendant must show both “judicial abandonment” and that the cops knew – or should have known – of the abandonment. Id. at *7. Barnes stumbled on this second step. 
  One gets the impression the Ninth isn’t keen on this rule, but finds itself “bound to follow the Supreme Court’s directives.” Id. at *7.
  Hopefully, Yakima defense counsel will explore complaints signed by this mystery municipal judge –how many complaints bear rubber stamps, in Eastern Washington?

How to Use: If you’re mulling this defense in a § 922(g) case, footnote four is where to start. Id. at *8 & n.4. Judge Paez explains how the Ninth considers this theory under the “justification” rubric in gun cases, and lays out the elements for the defense. Id. 
  A good blueprint when considering a justification challenge, for the waves of gun cases that await on the horizon.
For Further Reading: “Necessity,” “duress,” “justification:” this line of federal law is confusing. 
  For an interesting discussion of these theories, along with a thought-provoking recommendation, see Schwartz, Stephen S. (2008) “Is There a Common Law Necessity Defense in Federal Criminal Law?,” University of Chicago Law Review: Vol. 75 : Iss. 3 , Article 8, available here.

Steven Kalar, Federal Public Defender N.D. Cal. Website available at


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