On a beautiful day, A is visiting the beach with his family. Hundreds of families are building sandcastles and flying kites. The water is very low, and people are rushing out to collect sea shells.
A local police officer is standing just outside his vehicle, which is loaded with boxes full of pre-packaged ice cream cones; the officer is busy passing the cones out to children. The vehicle features a prominent loudspeaker, which can be heard clearly from every corner of the beach.
As A watches, the tide visibly retreats by two yards. A few weeks before, A took a series of certification courses on ocean safety, so he knows that an abnormally low tide, quickly drawn out, is a prime indicator of an imminent tidal wave capable of arriving at the shore within a few minutes. A tidal wave is an exceptionally large ocean wave; depending on its size, it can drown anyone within its reach.
To alert the beachgoers about the tidal wave, A takes off at a sprint and slams into the police officer, knocking him over and causing a minor bruise. With the officer dazed, A grabs the officer’s gun and starts shooting in the air. “There is a tidal wave coming in! If you don’t get up the hill, you’re all going to die!” he screams. After a few minutes of panic, the beach is cleared, and weeping families are huddled on the steep hill overlooking the beach.
The tidal wave that A rightly predicted sweeps in, covering the beach in a 12-foot wall of water. It withdraws twenty minutes later, dragging umbrellas, beach balls, palm trees, and the police car with it. Anyone on the beach when the wave struck would certainly have drowned.
A explains himself to the now-irate police officer. The officer growls, “Why didn’t you just tell me about the wave? I could have announced it on the loudspeaker!” Now silent, A allows the police officer to handcuff him.
The tidal wave comes in, but it is only two inches high. It washes away a flew plastic toys, but otherwise causes no significant harm.
In both scenarios, A is arrested and charged with one count of assaulting an officer in a common-law jurisdiction. Also in both scenarios, assume that (1) the prosecution can prove the relevant facts at A’s trial, and (2) the prosecution can prove, beyond a reasonable doubt, that A’s conduct satisfies the prima facie elements of the crime of assaulting a police officer.
- In scenario 1, does A have a valid affirmative defense of necessity? Explain, applying only the common law, but do not apply the Model Penal Code (MPC), and do not analyze any other issue that may be raised by the problem.
- In scenario 2, does A have a valid affirmative defense of necessity? Explain, applying only the common law, but do not apply the MPC, and do not analyze any other issue that may be raised by the problem.