Ferguson Protesters Did Not "Loot" McDonalds Sunday Night

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71. It's not that clear cut

. . .of course, you're not responding to anything I provided as as reasonable defense . . .

I'll post that here one last time for the thread-reading impaired . . .

there might be a reasonable and legally valid defense, in this case

Necessity

A defense asserted by a criminal or civil defendant that he or she had no choice but to break the law.


Private necessity

In tort law, a defense that can be used against charges of trespass where a defendant interferes with a plaintiff's property in an emergency to protect an interest of his own. Private necessity does not serve as an absolute defense to liability for trespass. A defendant who commits trespass and invokes the defense of private necessity must still pay for any harm done to the property caused by his trespass, however, the defendant is not liable for nominal or punitive damages. Furthermore, as long as the emergency continues which caused the defendant to commit trespass on the plaintiff's land, the defendant is entitled to remain on the plaintiff's land and cannot be ejected as long as the emergency situation continues. Contrast with public necessity.



Public Necessity

A defense to trespass can exist when you (or, more likely, government actors like law-enforcement agents) trespass out of necessity to protect the community or society as a whole during an emergency -- for example, burning down a row of homes to stop the spread of a fast-moving fire.

For this defense to work, there must be an immediate necessity for the trespass and you must have trespassed in genuine good faith that it was to protect public safety. It's meant to protect the public from a greater harm that would have occurred if you had not committed trespass.

Public necessity functions as a complete defense, meaning it shields you from liability for any damages caused by your trespass. But you lose the protection of this complete defense when your trespass becomes unreasonable under the circumstances.


Private Necessity

Although not a complete defense, private necessity lets you trespass if it's to protect yourself from death or serious bodily injury in an emergency -- for example, if you're being chased by a dangerous animal and are seeking shelter in someone else's toolshed.

Under the private necessity defense, you are entitled to stay on the land for as long as the emergency continues, even if the owner wants to eject you. However, just like public necessity, you lose the defense's protection as soon as your trespass becomes unreasonable.

Unlike public necessity, private necessity is not an absolute defense to liability for trespass. You may still be civilly liable for any damages that result from your trespass -- for example, if you drove onto someone else's property to avoid an imminent crash and caused $500 in damage to the property owner's fence, you'll probably have to pay for it. But you won't be liable for any nominal or punitive damages.

also . . .

1. What do I have to show to assert the legal defense of necessity?

1.1. Preventing significant bodily harm or evil

The first thing you have to show to assert the necessity defense is that you committed a crime 1) in an emergency, and 2) in order to prevent "significant bodily harm or evil" to either yourself or someone else.

The dictionary definition of an "emergency" is an unforeseen set of circumstances requiring immediate action. So the necessity defense will only be effective if you committed a crime in a situation that was unexpected, where you needed to act fast.

(But, unlike with the legal defense of duress, which we discuss more below, you don't have to have acted so quickly that you didn't have time to consider your options.)

The "significant bodily harm or evil" requirement means that you need to have acted to prevent a fairly serious harm, usually death or injury to you or someone else. But someone's life doesn't actually have to be in danger.

http://www.shouselaw.com/necessity.html#1.1


also . . .


RT @D_Towski: Protester behind line says McDonald's employees were treating tear gas victims by pouring milk in their eyes. #Ferguson—
George Sells (@GeorgeSells) August 18, 2014


also . . .

it appears the 'break in' could have been enabled by earlier vandalism.

One of the things which was reported by witnesses recorded on a live feed I watched last night was that, initially, when demonstrators were dispersed, many people rushed to find refuge inside the McDonalds in question. The manager reportedly became concerned that there weren't any purchases from the crowd seeking refuge and closed the shop.

here's a tweet and photo account of the vandalism by individuals (from all accounts, unrelated to the folks who got milk to treat the injuries) after they ejected the people seeking refuge and closed their doors:

Jon Swaine @jonswaine · 13h
McDonalds windows smashed in ferguson. People and staff inside



Jon Swaine @jonswaine · 13h
Something big landed next to McDonalds. Man picked it up and hurled through window, smashing it. Another guy smashed another window.

I don't know the law in MO., but this may well be a case of people 'entering' (evidently from the images, after the staff had left) through the broken glass opening, and not 'breaking' anything. Small distinction, perhaps, but I'd count it (as a juror) as another mitigating factor.

That factor, and second-hand reports that McDonald's employees were helping administer the first-aid milk applied to the burning eyes of the woman pictured.


the McDonald's in question was not actually boarded up until this morning:



Pearl Gabel @PearlGabel
Finally boarding up the McDonalds, which was apparently under siege last night #Ferguson


. . .on a personal note, I'm surprised to find you back on this thread so dismissive, without a shred of anything to support your assertion other than your own insistence that it constitutes 'looting'

. . . maybe I shouldn't be surprised.