necessity defense in Virginia

2024To establish the necessity defense, a defendant must demonstrate “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Id. at 45 (quoting Buckley v. City of Falls Church, 7 Va. App. 32, 33 (1988)). “[W]hether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” Id. at 49 (alteration in original) (qu

2023Affirmed. 5 This Court has held that to use the defense of necessity, a defendant must show “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Edmonds v. Commonwealth, 292 Va. 301, 306 (2016) (quoting Humphrey v. Commonwealth, 37 Va. App. 36, 45 (2001)). 6 To the extent that Mohammad argues that arguing a necessity defense would create a new “scienter” or intent

2024The necessity defense has three essential elements: “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Id. (quoting Buckley, 7 Va. App. at 33 ).

2024The necessity defense has three essential elements: “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Id. (quoting Buckley, 7 Va. App. at 33 ).

2023Affirmed. 5 This Court has held that to use the defense of necessity, a defendant must show “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Edmonds v. Commonwealth, 292 Va. 301, 306 (2016) (quoting Humphrey v. Commonwealth, 37 Va. App. 36, 45 (2001)). 6 To the extent that Mohammad argues that arguing a necessity defense would create a new “scienter” or intent

2022In the criminal context, the necessity defense requires “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Edmonds v. Commonwealth, 292 Va. 301, 306 (2016) (quoting Humphrey v. Commonwealth, 37 Va. App. 36, 45 (2001)).

2024To establish the necessity defense, a defendant must demonstrate “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Id. at 45 (quoting Buckley v. City of Falls Church, 7 Va. App. 32, 33 (1988)). “[W]hether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” Id. at 49 (alteration in original) (qu

2001As set out above, the essential elements of the necessity defense, which allows a convicted felon to possess a firearm for self-defense, 4 include “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Buckley, 7 Va.App. at 33 , 371 S.E.2d at 827-28 . “[W]hether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the t

2023Defense counsel had nothing more to offer, stating, “Everything that we could get in, I think, through testimony has been mentioned on the record.” 5 The Commonwealth argued at its motion in limine that a necessity defense cannot apply to a charge of DUI, because “there is no mens rea requirement for DUI.” Warren replied that the necessity defense is available to a DUI charge because in the DUI statute, Code § 18.2-266, there is no language abrogating the common law defense of necessity, citing Humphrey v. Commonwealth, 37 Va. App. 36, 45 (2001), and Long, 23 Va. App. at 544 .

2003See Long v. Commonwealth, 23 Va.App. 537, 543-44 , 478 S.E.2d 324, 326-27 (1996). 2 .

2016“The reasons given by the movant for ‘delaying’ assertion of his defenses by means 4 of an intervening guilty plea must be weighed according to the circumstances of his particular case.” United States v. Barker, 514 F.2d 208, 221 (D.C.

2016"The reasons given by the movant for 'delaying' assertion of his defenses by means of an intervening guilty plea must be weighed according to the circumstances of his particular case." United States v. Barker , 514 F.2d 208 , 221 (D.C.

2025First, that he had “a reasonable belief” that his possession of the firearm “was necessary to avoid an imminent threatened harm,” second, “a lack of other adequate means to avoid the threatened harm,” and third, “a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Small v. Commonwealth, 292 Va. 292, 299 (2016) (quoting Humphrey, 37 Va. App. at 45 ).

2024“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Hughes v. Commonwealth, 39 Va. App. 448, 464 (2002) Code § 18.2-308.2(A) also provides that “any person who violates this section . . . and 6 who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment for five years.” (Emphasis added). -6- (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)).

2024“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Hughes v. Commonwealth, 39 Va. App. 448, 464 (2002) Code § 18.2-308.2(A) also provides that “any person who violates this section . . . and 6 who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment for five years.” (Emphasis added). -6- (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)).

2023His evidence was only relevant to the necessity defense, and such evidence became immaterial to the case when he failed to proffer minimal evidence as to each element of the defense.5 See, e.g., Claytor v. Commonwealth, 62 Va. App. 644, 656 (2013) (“Because Claytor’s affirmative defense is without legal basis, the trial court did not err in granting the Commonwealth’s motion to suppress evidence related solely to that affirmative defense.”).

2023See Commonwealth v. White, 293 Va. 411, 419 (2017) (deciding case on the “best and narrowest grounds available”). - 15 -

2023“Generally, we review a trial court’s decision to admit or exclude evidence using an abuse of discretion standard and, on appeal, will not disturb a trial court’s decision to admit evidence absent a finding of abuse of that discretion.” Avent v. Commonwealth, 279 Va. 175, 197 (2010).

2023See Morgan v. Commonwealth, 50 Va. App. 120, 126 (2007) (“To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the requirements of the affirmative defense.” (citing White v. Commonwealth, 272 Va. 619, 629 (2006))).

2023See Morgan v. Commonwealth, 50 Va. App. 120, 126 (2007) (“To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the requirements of the affirmative defense.” (citing White v. Commonwealth, 272 Va. 619, 629 (2006))).

2023See Sam, 13 Va. App. at 3 There is no distinction “between a threat of harm directed against the defendant and a threat of harm against members of the defendant’s family.” Sam, 13 Va. App. at 323 . - 13 - 327 (holding “jury could not have reasonably found” that appellant “reasonably believed his participation in the crime was the only reasonable opportunity he had to prevent his family from being harmed”).

2023See Sam, 13 Va. App. at 3 There is no distinction “between a threat of harm directed against the defendant and a threat of harm against members of the defendant’s family.” Sam, 13 Va. App. at 323 . - 13 - 327 (holding “jury could not have reasonably found” that appellant “reasonably believed his participation in the crime was the only reasonable opportunity he had to prevent his family from being harmed”).

2019Although requiring such temporal proof may seem harsh in individual cases, the necessity of such a rule in a no-fault regime such as that established by the Virginia Workers’ Compensation Act is apparent: “[I]f the time of the causative event cannot be fixed, the employer will be unable to investigate the claim and defend it[.]”5 Morris, 238 Va. at 586 ; see also Aistrop, 181 Va. at 293 (noting that “if the event cannot be fixed with reasonable certainty” there is an increased risk of “fraud”).

1996United States v. Schoon, 971 F.2d 193, 196-97 (9th Cir.1991), cert. denied, 504 U.S. 990 , 112 S.Ct. 2980 , 119 L.Ed.2d 598 (1992).