Rule: The “necessity defense” involves the situation where a criminal defendant’s illegal conduct is the lesser of two evils, justifying the defendant’s criminal acts taken to avert a greater harm. For the necessity defense to apply, a defendant must prove by a preponderance of the evidence, as viewed objectively, that (1) he was faced with a choice of evils and chose the lesser evil, (2) he acted to prevent imminent harm, (3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided and (4) there were no other legal alternatives to violating the law.  

Facts: Defendant Philip A. Powers III fancied himself a great outdoorsman. To prove it, he set out by himself on a “very hot and dry” day in May 2018, to begin a 19-mile hike on what is known as the Taylor Cabin Loop trail, near Sedona, Arizona. Expecting to finish this hike in a day, the only provisions he brought with him were some mandarin oranges, mangos, dehydrated granola, and 116 ounces of water. His camping gear was limited to a machete, a KA-BAR knife and a cigarette lighter. And of course, he had his smartphone with GPS. What he did not bring was a paper map or compass. Being an experienced hiker, Powers knew there were fire restrictions in the area prohibiting open campfires without a permit.  

The first 14 miles of his hike went according to plan and he reaching a cabin along the trail. But then, shortly after passing the cabin, Powers lost the trail. He panicked, becoming “very frantic.” Not wanting to simply turn around and redo the same path he had just traveled, he spent the next 40 minutes unsuccessfully searching for the connecting trail that would lead him around the mountain that was in his way. He finally gave up and doubled back to the cabin, arriving near sunset and well behind schedule. With no signal on his cellphone, he decided to stay the night at the cabin.  

The problem was that he already drank all but 16 ounces of his water and only had a couple of mangos and oranges left. Fearing that his meager rations might not be enough to sustain him for another day, he made the fateful decision to set a signal fire hoping the smoke would attract help (even though, at 9:30 at night, it was dark). Powers determined that using a firepit near the cabin would not create enough smoke to be noticed by passing planes. So, he decided to ignite a nearby patch of “dead grass mixed in with vegetation” that was just outside the firepit.  

The fire, later referred to as the Taylor Fire, spread to more than 1/10 of an acre, burning grass, brush, and small trees before it died out of its own accord. It did not attract the attention of any rescuers.  

The next morning, after finishing the last of his water, Powers began the 14-mile trek in the direction of the trailhead. But the hike, with no water and the ambient temperature hitting as high as 100 degrees, proved to be too much for him. He later testified that he believed he “was going to die,” suffering from leg cramps, no longer sweating, and feeling like his body was “shutting down.” He “knew [he] was in trouble.” He even resorted to drinking his own urine.  

After hiking only about three miles, he decided to try the signal fire idea again. Picking a spot where he believed the smoke would easily be seen by any passing aircraft, he lit some “dead brush that would easily ignite,” “stay lit,” and “cause smoke.” Without building a fire ring, digging a firepit, or removing any flammable materials from around the area before starting the fire, he lit a dead tree. He stayed with this fire for about an hour before it “appeared to be dying out,” although “still smoldering.” After abandoning his backpack, he set out again down the trail. Unbeknownst to him, the smoldering tree he left soon spread to 230 acres (and labeled the Sycamore Fire) before firefighters were able to extinguish it.  

Ignorant of the fire spreading behind him, Powers was able to walk only few hundred yards, taking frequent breaks, and again resorting to drinking his own urine. He later testified that he felt like he was “hunching over” and that his feet were “slipping” as he tried to walk. About 30 minutes after leaving the smoldering tree, Powers saw “a low-flying helicopter” that “looped around,” and then left. However, it returned a half hour later, prompting Powers to do “everything [he] could to get its attention.”  

After waiving his orange underwear on the end of a stick (his outer garments were of camouflage), but not knowing if he’d been seen, he decided he needed to light another fire. This fire — later labeled the Sycamore 2 Fire — was limited to a three-foot circle before it died out on its own. Again, Powers made no attempt to construct a fire ring or pit, or clear flammable materials from the area.  

The helicopter, belonging to the United States Forest Service (USFS), was in the area investigating reports of a wildfire. Upon landing, they found Powers lying under a tree. He was able to walk to the helicopter with the assistance of two firefighters. He was flown to Sedona,  where he was put in an ambulance and given intravenous fluids. At the hospital he was diagnosed with severe dehydration, rhabdomyolysis (a “breakdown of the muscles in the body,” releasing “toxins,” and which can cause various health problems, including kidney damage), acute renal failure, weakness and heat exhaustion.  

The treating physicians recommended that Powers be admitted to the hospital while they pumped additional fluids into him. But the USFS was not happy about all the fires he had set. He was later charged in federal court with seven misdemeanors including one count of leaving a fire unattended in violation of 18 U.S.C. § 1856, three counts of building a fire in violation of federal restrictions under 36 C.F.R. § 261.52(a), and three counts of causing a fire in a national forest without a permit in violation of 36 C.F.R. § 261.5(c).  

At trial, Powers invoked the common law defense of “necessity.” Despite a doctor testifying that Powers probably would have died within 24 hours had he not been rescued, describing him as “pretty ill” even though “not (yet) on death’s door,” a federal magistrate found Powers guilty of all charges, concluding that the necessity defense did not apply.  

The magistrate listed three reasons for his decision. First, when Powers set the fires, the harm he faced was not sufficiently “imminent.” Second, Powers acted unreasonably by setting the fires in the manner that he did because he had safer alternatives that, although “per se illegal,” made his chosen conduct objectively unreasonable. Third, Powers himself created the conditions underlying the alleged necessity because he was reckless and negligent in the preparations for the hike he intended to do. (See Note, below.)  

Powers was sentenced to one year of supervised probation, ordered to pay a special assessment of $70.00 and pay restitution in the amount of a whopping $293,413.71 for the recoverable fire suppression costs. He appealed to the federal district court, which affirmed the magistrate’s conclusion that the necessity defense did not excuse the defendant’s criminal conduct. (See United States v. Powers (Sep. 12, 2023) 2023 U.S. Dist. LEXIS 161697.) The defendant appealed this ruling to the Ninth Circuit Court.  

Held: The Ninth Circuit Court of Appeals affirmed.  

The issue was whether the “necessity defense” was applicable to any of the three fires at issue.  

Elements of a Necessity Defense: The court first described the necessity defense and its elements: “The necessity defense is an affirmative defense that removes criminal liability for (a) violation of a criminal statute.” (Raich v. Gonzales (9^th Cir. 2007) 500 F.3^rd 850, 861.) It “traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.” (United States v. Bailey (1980) 444 U.S. 394, 410.) Also, it has been held that “the necessity defense justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime.” (United States v. Schoon (9^th Cir. 1991) 971 F.2^nd 193, 196; as amended Aug. 4, 1992.)  

As a classic example: “‘An escapee who flees from a jail that is in the process of burning to the ground’ may be entitled to the defense...‘for he is not to be hanged because he would not stay to be burnt.” (United States v. Kirby (1868) 74 U.S. (7 Wall.) 482, 487 [19 L.Ed. 278].)  

The courts, however, have imposed strict requirements on the use of this defense. As noted by the court here: “Because the necessity doctrine is utilitarian (designed to be useful or practical rather than attractive. I had to look it up)...strict requirements contain its exercise to prevent nonbeneficial criminal conduct.” (United States v. Schoon, supra, at p. 197.)  

There are four prerequisites to the use of the necessity defense, which a defendant must show: “(1) that he was faced with a choice of evils and chose the lesser evil, (2) that he acted to prevent imminent harm, (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided and (4) that there were no other legal alternatives to violating the law.” (United States v. Perdomo-Espana (9^th Cir. 2008) 522 F.3^rd 983, 987.) “All four elements must be proven by a preponderance of the evidence, and each is viewed through an objective framework.” (Id., at 987-988; Italics added.) Overall, the courts have held a defendant claiming a necessity defense to a standard of “reasonableness,” (Ibid.) that violating a law to escape a greater harm was “his only reasonable alternative.” (United States v. Bailey, supra, at pp. 410-411.)  

The court discussed each fire using this framework: 

The Taylor Fire: The court first considered the Taylor Fire, the one he lit near the Taylor Cabin on the evening of the first day (counts two and five). The magistrate found that Powers was not entitled to the necessity defense for this fire because he was not facing “imminent harm” at the time, and because his conduct in setting the fire in nearby brush rather than in the firepit that was only a few feet away was objectively unreasonable. The Ninth Circuit agreed. As noted by the court: “The term ‘imminent harm’ connotes a real emergency, a crisis involving immediate danger to oneself or to a third party.” (Citing United States v. Barnes (9^th Cir. 2018) 895 F.3^rd 1194, at p. 1205.)  

When he set this fire, he still had some water and fruit. Except for some muscle cramping, he was not yet ill. Per the court: Powers “did not present testimony or other evidence suggesting that, when he set the Taylor Fire, he was facing a ‘serious or imminent risk of bodily harm at that time.’” The court therefore held that “(t)he magistrate judge did not err by finding that defendant was ‘not yet in a life-threatening state’ when he set the Taylor Fire.”  

As to whether his actions in setting this fire were reasonable, the court held that the actions he took, by igniting a “bunch of dead grass mixed in with vegetation right next to [the] fire pit’ near (the) Taylor Cabin,” and then by failing to “clear the area or make any effort to limit its spread beforehand,” were not objectively reasonable. No reason was made as to why he did not use the fire ring or why he failed to remove flammable material in the area to keep it from spreading. Also, Powers testified that he hoped the smoke from the Taylor Fire would attract attention, but at the same time acknowledged that smoke from this fire wouldn’t be seen because it was dark out. Being “objectively unreasonable,” setting this fire was not excused by the necessity defense. ,” setting this fire was not excused by the necessity defense.  

The Sycamore Fire: On the second day, Powers ignited a fire that ultimately burned 230 acres (counts one, three and six). As to all three counts, the district court magistrate ruled that the necessity defense did not apply in that Powers (1) was not facing immediate harm despite his weakened condition when he set and then abandoned this fire and (2) his actions were objectively unreasonable.  

The Ninth Circuit disagreed as to the first half of this ruling, noting that because defendant no longer had food or water and because his physical condition had likely deteriorated, the court assumed that defendant did in fact face imminent harm when he started the Sycamore Fire.  

However, the court agreed with the magistrate that how he set the Sycamore Fire, and his decision to leave it unattended and unextinguished were both “objectively unreasonable.”  

The court agreed with the magistrate’s conclusion that Powers could have chosen one or more of several alternatives that were more reasonable, such as clearing brush, creating a fire ring or pit, and/or extinguishing the Sycamore Fire before leaving it. Thus, the court determined that Powers acted in an objectively unreasonable manner by failing to take these reasonable safety precautions. The court also agreed with the magistrate that although Powers was seriously fatigued, the facts suggest that he still had the physical ability to take steps to build a safer fire and to extinguish the smoldering tree before leaving it unattended.  

Lastly, the court held that Powers was engaging in speculation when he argued that any efforts to make the fire safer would have sapped his remaining energy and “destroy[ed] any possibility of making further progress down the trail.” Ultimately, the court ruled that, “(b)y choosing not to take any precautions and to set the Sycamore Fire in an unnecessarily careless manner (and then abandon it, unextinguished), Powers acted unreasonably.”  

The Sycamore 2 Fire: After abandoning the Sycamore Fire and attempting to resume his hike toward the trailhead, Powers observed a low-flying helicopter that may or may not have seen him. After waiving his orange underwear, Powers determined that yet another fire was necessary. He thus ignited what became known as the Sycamore 2 Fire (counts four and seven), which never grew larger than a three-foot circle and eventually died on its own.  

Again, Powers made no attempt to construct a fire ring or pit or clear flammable materials from the area. By this time, Powers was seriously dehydrated and in an extremely weakened condition. So, it can be assumed that he was in “imminent harm.” Even so, he was not acting reasonably when he set this fire, the court again criticizing his failure to clear the area, build a fire ring, or otherwise take reasonable precautions to ensure that the fire would not spread.  

Noting that he could still hike (even if in short bursts), and that he was able to remove his underwear and waive it on a stick (albeit with difficulty), the court ruled that Powers had failed in his evidentiary burden of showing that he was so incapacitated that he could not be expected to take reasonable precautions in setting this fire. As such, his actions were again held to be unreasonable under the circumstances. The court therefore upheld his conviction for setting the Sycamore 2 Fire.  

Conclusion: Because the magistrate’s view of the evidence was plausible, the court found no error in the conclusion that the necessity defense did not excuse the defendant’s criminal conduct. The court therefore upheld the defendant’s conviction on all counts.  

Note: As you can see, the necessity defense is not one that’s going to be successful except in very rare circumstances. I’ve seen it raised in court before, but never successfully. As discussed above, one of the elements of a necessity defense is that a defendant must prove by a preponderance of the evidence that he acted for the purpose of preventing “imminent harm.” 

Although the court here flirts with the issue of what defines “imminent harm,” it never really decides the issue, noting only that as to the two Sycamore fires, being on the verge of death (possibly within 24 hours) is probably enough. So, whether being within 24 hours of dying, as one doctor testified, when he set the Sycamore fires is imminent enough was never really discussed or decided, the court just assumed for the sake of argument that it was.  

As a result, we really don’t know from this case how “imminent” death has to be before a court will find this element of the necessity defense to have been satisfied.  

Also of interest is the issue of whether a person who “recklessly or negligently” puts himself into a dangerous situation can still claim a necessity defense. In footnote eight, the court comments on the magistrate’s finding that Powers was not entitled to the necessity defense because he acted recklessly or negligently by not properly preparing for the hike (taking more food and water with him, for instance).  

In this footnote, the Ninth Circuit points out that neither the Supreme Court nor the Ninth Circuit has ever addressed whether a defendant’s reckless or negligent pre-incident creation of a dangerous situation is relevant to a viable necessity defense. Because the court held here that a lack of “reasonableness” in failing to prevent the spreading of a fire was enough to support a conviction, they declined to decide the pre-incident “recklessness” issue.