Defense Privileges Flashcards
Examples of “Justification” Defenses
Consent
Self-Defense
Defense of Others
Defense of Property
Recovery of Property (shopkeeper’s privilege)
Necessity
Any time a defendant can argue they are justified (Authority of Law, Discipline) they are using a form of a justification defense.
Consent Issues
Actual Consent (subjective)
Obstacles to Actual Consent
Implied Consent (objective)
Apparent Consent
Implied by Law
Scope of Consent
Self-Defense Keys
Reasonable grounds during an attack (or imminent attack) to use such force as is reasonably necessary to protect against potential injury.
•Requires a subjectively sincere belief that is objectively reasonable (i.e., apparent need = reasonable mistakes allowed)
•Retaliation not Allowed
•Retreat not Necessary (usually)
•Defense not Available to Aggressor
Defense-of-Others Elements
(1): Sincere and reasonable belief that the third party would have the privilege of self-defense; [SUBJ/OBJECTIVE]
(2): Intervention is necessary; [OBJECTIVE]
(3): Force used is appropriate under the usual self-defense rules. [OBJECTIVE]
Defense-of-Property/Recovery-of-Property
Elements
(1): Sincere reasonable belief the other person is committing (or about to commit) a tort against one’s property; [SUBJ/OBJECTIVE]
(2): Request to desist is made, unless to do so would be futile or dangerous; [OBJECTIVE]
(3): Force used is reasonable and non-deadly;
[OBJECTIVE]
(4): Other person does not have a privilege to enter or possess the property. [OBJECTIVE]
Public Necessity Defense
Elements
(1) Act of trespass to real or personal property is done in the public interest
(2) Actor’s intent: done in reasonable belief it was necessary to avoid or minimize serious and immediate harm to the public
(3) Act is done in a reasonable manner (i.e., advantage to the actor must be greater than the harm to the owner of the property)
Private Necessity Defense
Elements
(1) Act of trespass to real or personal property is done due to an emergency
(2) Act is done to prevent apparent harm to the actor’s person, land, or chattels
(3) Act is done at a reasonable time and in a reasonable manner (i.e., advantage to the actor must be greater than the harm to the owner of the property)
True or False Actual Consent does not have to be express; it can be implied from conduct.
True
Actual or Implied consent? • What if Williams had operated on the correct ear, but a complication of surgery required him to operate on Mohr’s skull too?
•Holding: No implied consent simply b/c P is unconscious or the touching is beneficial.
Why does fraud invalidate a person’s otherwise legitimate consent?
Holding: Consent obtained by fraud is not valid consent.
Is sexual disease a form of fraud? If so, does it invalidate any consent for sex by partners?
• Yes. Fraudulent concealment of venereal disease or fertility would negate consent to sexual intercourse. P could recover in a battery action if P can show that D knew he was infectious/fertile. A negligence action would like if P could show that D should have known of the condition yet failed to disclose it.
Can deadly force be used to defend property?
Deadly force cannot be used to defend property.
Does a shopkeeper has a privilege to detain for a reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully.
Yes
In the absence of legislation providing compensation, do those whose property is destroyed by an act of public necessity have no right to recovery?
Yes Holding: In the absence of legislation providing compensation, those whose property is destroyed by an act of public necessity have no right to recovery.
Is Public Necessity is a COMPLETE Privilege=NO Requirement to Pay Damages!
Yes!
