US v. Perdomo-Espana (9th Cir. 4/14/08)

GOULD, Ikuta, Wardlaw

Defendant argued that "necessity" was a defense to illegal reentry, because he had diabetes and needed urgent medical attention to control his blood sugar. Held: necessity is judged on an objective, not subjective basis; and objectively, his claim fails because he could have obtained treatment in Tijuana, his blood sugar level wasn't that high, and hiding in the bushes wasn't an effective way to obtain urgent medical treatment.

Read opinion here: 

1.  Necessity is a valid defense, but is judged objectively.

“[T]he defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond [an] actor’s control rendered illegal conduct the lesser of two evils.” United States v. Bailey, 444 U.S. 394, 410 (1980). In recent years, our case law has expanded the scope of the defense. We have held that a defendant may present a defense of necessity to the jury as long as the defendant “establish[es] that a reasonable jury could conclude: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.” Arellano-Rivera, 244 F.3d at 1125-26 (internal quotation marks omitted). A defendant must prove each of these elements to present a viable necessity defense. See id.

   Perdomo’s principle argument is that these elements require a subjective analysis and that the relevant inquiry is thus into his state of mind—i.e., his allegedly genuine fear of the likely, dire medical consequences that he would have faced if he did not illegally reenter the United States. By contrast, the government asserts that the inquiry is an objective one. We agree with the government.

* * *

   We therefore hold that the test for entitlement to a defense of necessity is objective. The defendant must establish that a reasonable jury could conclude that (1) he was faced with a choice of evils and reasonably chose the lesser evil; (2) he reasonably acted to prevent imminent harm; (3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) he reasonably believed there were no other legal alternatives to violating the law. See Arellano-Rivera, 244 F.3d at 1125-26; Schoon, 971 F.2d at 195; Dorrell, 758 F.2d at 430-31. It is not enough, as Perdomo argues, that the defendant had a subjective but unreasonable belief as to each of these elements. Instead, the defendant’s belief must be reasonable, as judged from an objective point of view.

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