America strips its felons of some basic rights it affords to their clean-nosed compatriots. The most notable are the rights to vote and to possess firearms. This blog post does not comment on the wisdom of such restrictions. Neither does this post also address the right of a felon to defend himself, as another post will cover the general use of self-defense as a defense in a murder prosecution. This post addresses an exception to the restrictions on felons bearing arms. What happens when a felon arms himself to protect against an imminent threat of death or bodily harm? Does the law of necessity protect him from a conviction for possession of a firearm by a convicted felon? The answer to this question is yes, but the circumstances in which this exception applies are narrow. 

The Law of Necessity

Typically, a violent felon possessing a firearm faces a mandatory minimum of five years of incarceration. A five-year sentence for someone who takes up arms in the face of a deadly assailant seems offensive to our natural ideals of self-preservation, and the courts agree.  Therefore, Virginia carves out an exception to firearms penalties in certain situations based on the law of necessity. In a nutshell, the law of necessity recognizes that society prefers some outcomes over others, and in the case of self-defense by a convicted felon, society recognizes that it is better for the felon to break the law and arm himself than to die by the hands of a predator. When a felon alleges necessity as a defense to his firearms conviction, he must prove to the jury three things: (1) that he had a reasonable belief that his action was necessary to avoid an imminent threatened harm; (2) that he had a lack of other adequate means to avoid the threatened harm; and (3) that there was a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm. Remember, these are not the elements of self-defense as a justification or excuse for murder. These are the elements the defendant must prove to show it was necessary for him to break the felony firearms law to avoid serious harm.

Imminence Requirement

Virginia’s courts have spent the most energy explaining the law of necessity’s imminence requirement. Much like the imminence requirement of self-defense as a justification for homicide, this requirement not only requires that the defendant actually believed there was a present threat of death or serious bodily injury and that grabbing a gun would stop it, but that his belief was reasonable. The distinction between actual and reasonable belief is best illustrated. If the defendant grabs his father’s shotgun from his father’s shed while sprinting through a hail of bullets to defend himself from active shooters, the imminence requirement is undoubtedly met. There is nothing more imminent than receiving active gun fire and it is reasonable that firing back would stop the shooters. However, if the defendant armed himself because the grapevine told him some thug was coming to kill him, the imminence requirement is not met. He may have actually believed that death or serious bodily harm was coming, but the temporal proximity of the potential harm and his defensive action was simply not close enough for a reasonable person in the defendant’s position to think it necessary to break the law when he could have called the police.

Lack of Alternatives and Direct Causal Relationship

The other two elements of necessity are almost consumed by the first and the courts treat them as such. However, the above examples can serve to delineate them. The second element requires a lack of adequate means be available to the felon other than breaking the law and arming himself to avoid the harm in question.  In the shotgun example, grabbing a gun and firing back at the shooters may be the only adequate means to avoid getting killed, as it is hard to outrun a bullet. In the other example, calling the police would be a better way to avoid future harm from some punk who may or may not follow through on his threats. Finally, the third element only requires that the means the defendant uses to defend himself (grabbing a gun) can be reasonably anticipated to help avoid the harm which he seeks to avoid. This element requires us to ask, “did the defendant’s breaking the law have any possible chance to help him avoid the future harm?” In most cases, a court would be hard-pressed not to find this element if a defendant meets the other two, as one is probably always safer from extraneous harm if he is armed than if he is not. 

A Narrow Defense

The defense of necessity is true to its name. It is stingy, allowing for a felon to break the law only when it is necessary to protect himself and only for as long as it takes to do so. If the defendant meets the above three elements but arms himself before a threat becomes imminent or any longer than is required to eliminate the threat, the law of necessity will not protect him. If in the above shotgun example the defendant did not throw the shotgun from his possession immediately after the shooters left or he killed them, then necessity probably would not save him from a firearms charge. The bottom line is this: if one is a convicted felon, he can defend himself just as any other citizen can defend himself, he just has to drop the gun as quickly as circumstances allow. 

Case Briefs: 

Byers v. Commonwealth, 554 S.E.2d 714 (Va. Ct. App. 2001): Defendant challenged his conviction of possession of a firearm by a convicted felon on the ground the trial court erred in not instructing the jury on his self-defense claim. An individual shot the defendant, hospitalizing him when the defendant tried to stop him from stealing a car. The shooter left the state, but the defendant heard the shooter was coming back to finish him. This rhetoric caused the defendant to request his girlfriend to purchase a shotgun for protection. His girlfriend left him; the police found the firearm in the defendant’s home; he was a felon, which resulted in his charge. The court reiterated the elements of a necessity defense: (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. The court found that the defendant’s fear was merely speculative. There was simply no evidence that the defendant faced an imminent threat of death or injury. 

Humphrey v. Commonwealth, 553 S.E.2d 546 (Va. Ct. App. 2001): Defendant appealed his conviction of possession of a firearm by a convicted felon because the trial court refused to instruct the jury on his self-defense claim. The defendant had been dining with some friends in his trailer. When his girlfriend arrived, he asked them to leave. They were appalled and left after some argument. They came back later firing guns at him. Defendant ran to his father’s shed and got a shotgun; he fired it into the air, they left, and he immediately threw the gun onto the roof of his trailer. The police came and charged the defendant with possession of a firearm by a convicted felon. The court held the defendant was entitled to assert the common law defense of necessity. However, the court established some parameters. A felon can only arm himself after the threat becomes imminent. Necessity will not provide a defense (to the firearms charge) to the convicted felon who takes possession of a firearm before a threat becomes imminent or who retains a firearm longer than required after the danger passes. Because the defendant grabbed the gun to fight an imminent threat and then immediately disposed of it, the jury should have been instructed on his necessity claim. 

Smalls v. Commonwealth, 788 S.E.2d 702 (Va. 2016): Defendant appealed the trial court’s denial of him withdrawing his guilty plea of possessing a firearm as a convicted felon. Defendant claimed necessity, as he had been testifying against a man that had not yet been arrested. He worried the man would come after him. The Court reiterated the elements to the defense of necessity. There must be (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. The court focused on the imminence requirement, finding there was no present threat of death or serious bodily injury.