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November 17, 2008

Notable new Sixth Circuit opinion on federal necessity/justification defense

Rather than talk about Dudley and Stevens again, I suggest we consider this new decision handed down Friday by the Sixth Circuit (after we discuss the amazing Unger case).  This new ruling deals with a modern attempt to invoke the defense of necessity in a federal prosecution.  The decision in US v. Billy Ed Kemp starts this way:

Kemp was arrested in May 2005 with a .32 caliber derringer pistol in his pocket.... Kemp was charged with being a felon in possession of a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Kemp did not contest any of the elements of this offense at trial.

Kemp did not contest any of the elements of this offense at trial.... Kemp’s sole defense, instead, was that his possession of the gun was justified because he had taken it from an intoxicated friend who might harm herself or others.

November 17, 2008 in Course materials and schedule | Permalink


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I looked up some other cases, in addition to U.S. v. Singleton, 902 F.2d 471 (which was used for the Kemp decision).
U.S. v. Deleveaux, 205 F. 3d 1292, was affirmed that “1.) justification may be defense to charge of being a convicted felon in possession of a firearm; 2.) justification is an affirmative defense to charge under felon-in-possession statute, and does not negate any element of offense; and 3.) defendant had to prove justification by a preponderance of the evidence.” This defense can only be used in “extraordinary circumstances.” This case has different circumstances, though, as he USED the gun in response to threat of death or serious injury to himself or his family.
Here is another case that I found that was comparable to the Kemp one:
Bond V. Commonwealth (no reported S.E.2d, 1996 WL 742013) is a similar case from 1996 where Bond’s friend, Deloatch was intoxicated and so Bond took his friend’s gun. In this case the gun remained in a cabinet for two years, but Bond was still arrested for possession of a firearm after having been convicted of a felony. This case quoted State v. Crawford, 521 A.2d 1193 “that the law promotes the achievement of higher values at the expense of lower ones and that “sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.’” Although Bond got off because the Commonwealth failed to prove that Bond constructively possessed the gun, I thought the quote was interesting. Maybe Kemp was helping the “greater good for society” by taking the gun from Pigg, even if he violated the literal language of the criminal law.
In U.S. v. Beasley 346 F.3d 930, the court decided that a defendant is not entitled to a “reasonable period of time” to dispose of a firearm, even if he WAS justified in taking possession of it. U.S. v. Gomez, 92 F.3d 770, sited Singleton and Stover, that “a defendant who is justified in possessing the gun in the first place must nonetheless discard it as soon as he may safely do so”. In the Kemp case, the facts stated that he was pulled over “soon thereafter" (after he took the gun). So even if we could be convinced that Kemp was justified in breaking the law and taking the gun from his friend, how soon after would he have to get rid of it?

Posted by: Alexandra Wolfe | Nov 17, 2008 9:11:36 AM

I know we are not to coercion and duress yet but this case from yahoo provides an extreme example. It involves some sort of spiritual coercion, a corpse on a toilet, and demon attack.


Posted by: Jake | Nov 17, 2008 10:35:35 PM

Man, Jake, now I want to join the Order of the Divine Will. Who wouldn't want to hide a corpse 'on a toilet'? I want to know how you go about propping up the corpse. I just picture a 'Weekend at Bernies' type of scenario, except in this case the body, of course, never leaves the bathroom. I bet God would've revived Ms. Middlesworth if those meddling authorities wouldn't have gotten involved. The demons probably tipped off the deputy to the whereabouts of the body.

Posted by: Josh | Nov 19, 2008 11:19:07 PM

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