State v. Crawford - 308 Md. 683, 521 A.2d 1193 (1987)

Rule:

Necessity is a valid defense to the crime of unlawful possession of a handgun when five elements are present: (1) the defendant must be in present, imminent, and impending peril of death or serious bodily injury, or reasonably believe himself or others to be in such danger; (2) the defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; (3) the defendant must not have any reasonable, legal alternative to possessing the handgun; (4) the handgun must be made available to the defendant without preconceived design, and (5) the defendant must give up possession of the handgun as soon as the necessity or apparent necessity ends. If the threatened harm is property damage or future personal injury, the defense of necessity will not be viable; nor can the defense be asserted if the compulsion to possess the handgun arose directly from the defendant's own misconduct.

Facts:

When the police approached defendant Leonard Rollon Crawford, he had a handgun. Defendant testified that he was under attack and had been shot by an unknown aggressor from whom he was attempting to defend himself. Defendant was charged with assault on a police officer and unlawful possession a handgun. The jury convicted defendant of unlawful possession of a handgun. The Maryland Court of Special Appeals found that the trial court erred in not giving a necessity instruction. Certiorari ws granted. 

Issue:

Was the defense of necessity available to a charge of illegal possession of a handgun under Md. Ann. Code art. 27, § 36(b) (1957)? 

Answer:

Yes.

Conclusion:

The court noted that the necessity defense was available to all crimes except the killing of an innocent person. However, Md. Ann. Code art. 27, § 36(b) (1957) prohibited the possession of a handgun, except in narrow circumstances which were inapplicable to the case at hand. After a review of handgun control legislation, the court determined that it did not address the unexpected and sudden circumstance when an individual was threatened with present, impending danger to life or limb. The court found that it was entirely consistent with the legislative purpose of § 36(b), that in such a situation, temporary custody of a handgun for no longer than the necessity required use of the handgun was a defense to the charge of unlawful possession of a handgun. The court enumerated a five-part test to determine when necessity was a valid defense to the crime. The court found that defendant met the five parts of its necessity test, and thus, it affirmed the decision of the court of special appeals.