There are certain occasions in which individuals in emergencies have a partial or complete privilege against a claim for trespass or a cause of action. However, the privilege of private necessity can only be invoked to avert a public disaster or serious harm that is imminent to others. Private necessity, also known as lesser harm, is a type of criminal defense that is used by the defendant when the defendant does an act to prevent a greater harm even though the act done by the defendant is a crime by itself.

The elements for a private necessity defense includes:

  • the act needed to be done to avoid a greater harm
  • no more should be done than reasonably necessary for the purpose to be achieved
  • the act did not create a greater harm or danger
  • The defendant did not create or contribute to the emergency

What Are Types of Private Necessity?

There are many instances that might fall under public necessity. These include:

  • Avoidance of a Crime - There are many instances such as if a person is running away from a potential robbery and might trespass onto the land of another
  • Attempting to Save Others - Individuals that commit a cause of action because of attempting to prevent harm being caused to others fall under the doctrine of private necessity

What Does Privilege Constitute?

A privilege means that a private landowner does not have a cause of action against an individual whose action constitutes a necessity. In addition, private landowners don't have a right to force the individual off their property because a necessity. However, the privilege doesn't extent to damages that occur when entering the land of another. For instance, if a private citizen trespasses against another person's land they are liable for damages such as breaking a window, glasses, furniture, etc.

In a criminal setting, the first thing that the defendant has to show to assert the necessity defense is to claim that the crime was committed (1) in an emergency (2) in order to prevent significant bodily harm or evil (3) the defendant did not create or contribute to the emergency

What is Public Necessity?

Public necessity is different from private necessity in that a pubic individual such as a policeman, fireman, etc will undertake some action that might cause damages to someone's property to save the property of many others.

What Is Required to Invoke Public Necessity?

There are generally three requirements to invoke public necessity. These necessities include:

  • The individual believed that action was needed for the common good of others
  • The belief must have been reasonable in light of the surrounding circumstances
  • Public interest must be involved

What Should I Do if My Property Is Damaged?

A private property owner who has obtained damages as a result of a public necessity claim has a cause of action for reasonable compensation. Therefore, depending on the particular situation the government must be required to adequately pay a property owner to put him back in the position he would've been had the necessity not been necessary.

Do I Need an Attorney for a Necessity Defense?

If you or a loved one needs help with necessity as a legal defense and you are looking to find assistance, hiring a criminal defense attorney would be very helpful. A experienced criminal defense attorney would help protect your rights and  guide you through the complex criminal process.