Duress Is No Defense

By: Shawn O'Connor

Okay folks, here's the deal. We have heard a lot lately about people signing government forms under duress, claiming that the duress arose because our member thought that if the form wasn't signed, something bad might happen to them.  The two operative words in the last sentence are "thought" and "might".  Following is a court decision from the California First Appellate District which should shed some light on the duress defense many patriots erroneously lay claim to.  The case could be found at 61 Cal.App. 4th 1489 (1998).  However, the case was reversed on grounds different from the Court's opinion as to the defense of "duress."  The name of the case is People v. Metters.


Metters was convicted of robbery.   On appeal Metters contended that on June 13, 1994 he was forced to commit the robbery only because of duress and out of the necessity created when drug dealers to who he owed money threatened to "do a drive by" on Metters and his family if he did not pay them what he owed them by 9:00 p.m. of the same night.  The court refused to instruct the jury on the duress and necessity defenses because the factual situation did not support the legal defense of duress and necessity.  The appellate court upheld the conviction with the following reasoning.
First, to constitute duress, which would negate the intent or capacity to commit a crime.  to establish this defense, the defendant must show he acted under an immediate threat or menace that he reasonably believed his life would be endangered it he refused.  The duress defense is not available if the threat is not immediate.  "Because of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime."  The perceived immediacy and imminency of the threatened action cannot arise from a phantasmagoria of future harm.  People v. Otis (1959) 174 Cal.App. 2d 119, 125.  There must be a present and active aggressor threatening immediate harm.  Relevant cases addressing this defense reveal that the temporal requirement of immediacy is measured as of the time the crime is committed, not when the threat occurs.  People v. Lo Cicero (1969) 71 Cal. 2d 1186, 1190; People v. McKinney (1986) 187 Cal. App. 3d 583, 585.  The appellate court found that Metters was not under an immediate threat of death or harm at the time he committed the crime.

In addition, to establish the defense of duress the defendant must show that the threat or menace "must be accompanied by a direct or implied demand that the defendant commit the criminal act charged."  People v. Steele (1988) 206 Cal.App. 703, 706.  The court found that the drug dealers did not require Metters to commit the burglary, rather only that he pay them the money he owed by 9:00 p.m.

The necessity defense differs from the duress defense as it provides justification for the crime when the situation is "of an emergency nature, threatening physical harm, and lacking an alternative, legal course of action.  "The defense involves a determination that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented."  People v. Heath (1989) 207 Cal.App. 3d 892, 900 901. To establish this defense one must show that he violated the law: "(1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency."  People v. Kearns (1997) 55 Cal.App. 4th 1128, 1135 reveiw denied.  The appellate court found that Metters had many legal alternatives available to him and that he substantially contributed to the emergency when he purchased the illicit drugs on credit.

Starting to get the picture.  If not, let me give you a few illustrations.  You are sitting over tax form W 4 and your employer tells you that if you don't fill it out and sign it you won't be hired, so you fill it out as an "exempt" individual and sign it under penalty of perjury with the notation that you have performed under duress.  First, there is no threat of immediate death or bodily harm present; second, you are not being requested to commit a crime as the employer did not require you to claim exempt status, you have reasonable legal alternatives available to you; and third, you have time to formulate a reasonable and viable alternative course of conduct.   Is duress really present?

Let's take a more startling example:  You are in prison and the biggest, meanest, baddest guy in the joint (Big Bad Bob) has recently physically assaulted you with a ball peen hammer.  You're a 98 pound weakling.  Other inmates tell you that Bob said the next time he sees you he is going to kill you.  The inmates also tell you to settle the matter with Bob, whatever that matter may be, and warn you not to seek protective custody or they will kill you.  You are subsequently warned that Bob is going to attack you with a "shank" at 3:00 p.m. on Friday in the exercise yard.  Add to this the fact that you have reported Bob's attack on you to the prison authorities, and they have done nothing to protect you.

Now, imagine it is 2:59 p.m. Friday afternoon and you are in the exercise yard.  From across the yard you see Big Bad Bob coming your way; and, he is coming with an attitude.  Hell, you're not stupid and it doesn't take a rocket scientist to figure out that Bob bears a remarkable resemblance to the angel of death right about now.  So you exercise the only option available to you at the moment.  Suddenly, becoming endowed with Superman's ability to leap tall buildings in a single bound, otherwise known as being pumped up with adrenalin; you jump over the prison wall and escape from prison, and more importantly, from Big Bad Bob.

When you are caught by the authorities and charged for escaping from prison, you recite the above circumstances and claim you acted under duress and out of necessity to protect yourself.  Are either one or both of these defenses available to you as a matter of law, based upon the facts set forth above?

Well, I'm sure not going to tell you, but one of the above court cases will.  If you choose wisely you will only have to read one of the above cases to find out; and, if you choose poorly you may have to read them all.  Now is that duress or not?

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 shawnoconnor.org                                                                                               (Google) Shawn O’Connor/Federal Farmer

 

 

News Flash

Uncertainties of the Income Tax
(Courts At War with Themselves)

by Larry Becraft, Attorney


For several years now, a variety of high public officials have openly declared that the federal income tax laws are incredibly complex and need to be either substantially revised or scrapped.   But after making such statements, these officials invariably fail to identify what  specific parts of  the tax laws suffer from this condition, choosing instead to conceal them. Are the objectionable parts of the federal tax code secretly and quietly discussed behind closed Congressional committee doors? If they are, why doesn't someone inform the American public of these deficiencies so that they may likewise participate in this debate? Is it possible that it is the major and not various minor features of the tax laws which are complex, even uncertain? Is it possible that these major features are so fundamentally flawed that they simply cannot be repaired? If so, what is the legal consequence of this complexity?

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