Concept

Fault and Availability

Necessity (choice of evils)

Fault and Availability

Every requirement taught so far asks whether the actor has earned the defense: the actor must believe the conduct necessary, the harm avoided must outweigh the harm caused, and the legislature must not already have answered the question for this offense. Section 3.02(2) comes into play only after an actor has cleared all of those hurdles, so it works as a limit on a defense that otherwise applies, and the Code's commentary counts it as the fifth limitation on the general defense.¹ Its question concerns the actor's own care rather than the legislature's choices: was the actor reckless or negligent in bringing about the situation that forced the choice of evils, or in appraising the necessity for the conduct? When the answer is yes, the justification is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.² The rule has three working parts, taken in order below: fault in causing the emergency, fault in judging the necessity, and the range of offenses to which the bar attaches.

Causing the Emergency

The first half of the rule asks how the emergency came to exist. When the actor was reckless or negligent in bringing about the situation requiring a choice of evils, the justification cannot be raised against a charge of any offense that recklessness or negligence, as the case may be, is enough to prove.³ Both fault terms take their meaning from § 2.02: recklessness is conscious disregard of a substantial and unjustifiable risk, and negligence is a failure to perceive such a risk that grossly departs from the care a reasonable person would use, each judged in the circumstances of the case.⁴ The trigger is therefore fault in producing the danger. An actor who set events in motion through careful, lawful conduct has triggered nothing, even if that conduct was a factual cause of the danger.

Two reasons support the rule, and they reinforce each other. The practical reason is causal: the evil the actor claims to have been avoiding traces back to the actor's own carelessness, so the argument that a prohibition must give way to a pressing evil is weaker when the actor helped produce that evil. The incentive reason is subtler. If a careless person could create a danger and then plead the danger as a justification, the defense would reward the risk-taking that offenses of recklessness and negligence exist to punish, because the actor would collect the benefit of the emergency while escaping responsibility for producing it. The Code answers by keeping the actor answerable for the fault actually shown, so that the careless creator of a crisis can still be convicted of an offense whose culpability level matches that carelessness.⁵

A familiar illustration shows the rule operating on a choice that would otherwise look justified. A driver drives recklessly and so creates a predicament in which the car must either stay on the roadway and run down two people or go onto the sidewalk and strike a third. If the driver picks the lesser harm and kills the person on the sidewalk, the choice standing alone is the kind the justification protects, because one life was weighed against two. The driver is nonetheless guilty of the reckless form of manslaughter of the person on the sidewalk, on account of the reckless conduct that created the situation.⁶ The justification fails against that charge for the reason subsection (2) gives: the predicament was the product of the driver's own recklessness.

The blameless actor stands on the other side of the line. In the forest-fire illustration, a fire advances on a town of 10,000 people and the actor burns a cornfield to make a firebreak; the burning satisfies every element of arson, yet the actor is likely to have a complete defense because society tolerates, even encourages, the conduct.⁷ Nothing in those facts makes the actor responsible for the fire, so subsection (2) has nothing to bar.

Two limits keep this half of the rule in proportion. The fault must lie in bringing about the emergency, and being the factual cause of a danger does not trigger the bar unless the actor was also reckless or negligent in producing it. The bar is also no general forfeiture, because it attaches only to charges of offenses that recklessness or negligence can establish, a limit developed in the last part of this section.

Misjudging the Necessity

The second half of § 3.02(2) shifts from how the emergency arose to how the actor judged it. An actor who had no part in creating the danger still loses the justification by being reckless or negligent in appraising the necessity for the conduct, and again the loss runs only to offenses that recklessness or negligence, as the case may be, suffices to establish.⁹ The provision applies to fault in appraising necessity in the same way it applies to fault in creating the situation.¹⁰

This clause works alongside the belief requirement but tests a different thing. Subsection (1) demands that the actor actually believe the conduct necessary, which is why a druggist who sells a drug without a prescription, unaware that the buyer needs it at once to survive, gains nothing from the buyer's actual need.¹¹ That requirement asks whether the belief existed at all, while the appraisal clause asks how the belief was formed. The Code's design is that an actor who has made a proper choice of values and honestly believes the conduct necessary to serve the higher value is exculpated, unless the offense can be committed recklessly or negligently, in which case recklessness or negligence in appraising the necessity can still support a conviction.¹²

The reason lies in how culpability should be graded. Compare a person who purposely kills for financial reward with one who purposely kills while believing that circumstances exist that would justify the killing. The second person is less culpable even if the belief was reached carelessly, but carelessness is still a fault, so the law should convict that person of a crime whose culpability level matches it: negligent homicide where the mistake was negligent, manslaughter where it was reckless.¹³ The Comments to the self-defense provisions make this argument and identify § 3.02(2) as one of the places where the Code carries it out.¹⁴ Older rules demanded a reasonable ground for the belief, and under them negligence in forming it could strip the actor of the defense entirely and permit conviction of a purposeful offense, even murder; the Code rejects that consequence.¹⁵

Hypothetical Illustration

A farmhand hears a rumor that a dam upriver is failing. A gauge on the barn wall, which she passes every day, shows the creek falling, and a posted notice lists the county's emergency line. Without a glance at either, she bulldozes a neighbor's fence and a strip of the neighbor's field to dig a diversion channel. No flood comes. She is charged under a statute punishing negligent destruction of another's property. She believed the damage necessary, but ignoring both the gauge and the notice before tearing down a neighbor's property grossly departs from the care a reasonable person would use, so she was negligent in appraising the necessity and the justification is unavailable against this charge. Change one fact: the gauge is stuck on a high reading, and the emergency line repeats a mistaken dam alert. She checked both, and her conclusion was careful but wrong. Her belief was formed without recklessness or negligence, so subsection (2) does not take the justification away, and the remaining requirements decide the case.

The question under this clause is whether the process of judging was careless, and a wrong conclusion is not itself a fault. Whether a particular judgment was reckless or negligent is decided under § 2.02 on the circumstances of the case.¹⁶ A hurried judgment is therefore not automatically careless when the emergency left no time to check anything, while a hurried judgment made when a glance would have corrected it is. The two halves of subsection (2) also operate independently. An actor who was blameless in causing the emergency can still lose the justification through careless judgment, and a careful judge of necessity can still lose it by having carelessly caused the emergency.

Matching Fault to Offense

The bar in subsection (2) is measured offense by offense. It operates only in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.¹⁸ The words as the case may be tie the actor's fault to what the charge demands: recklessness in creating or appraising the emergency removes the justification where recklessness is enough to convict, and negligence removes it only where negligence is enough.¹⁹ A negligent actor facing a charge that requires recklessness keeps the defense, because negligence does not establish that charge, and a careless actor of either kind keeps it against a charge that requires purpose or knowledge.²⁰

The reason is that the Code classifies an actor by the culpability actually shown toward the elements of the offense.²¹ A purposeful offense punishes a person who acted with the aim of producing the forbidden result. An actor whose only failing was carelessness in creating or judging an emergency did not have that aim, and a purposeful conviction would brand the actor with a culpability the facts do not show. The Code therefore precludes conviction of a purposeful offense when the actor's culpability lies in recklessness or negligence, while allowing conviction of a crime for which that level of fault is sufficient.²² For offenses defined by recklessness or negligence there is a further consistency, since the state must prove the fault as an element of the charge anyway, which is why subsection (2) leaves the actor answerable on those charges.²³

The driver illustration shows both sides of this line. The driver who recklessly created the predicament is guilty of the reckless form of manslaughter and, it would seem, not of intentional murder, because the culpability the driver actually showed was recklessness.²⁴ The deliberate choice to strike the person on the sidewalk was a choice of the lesser evil, and the only fault lay in the reckless driving that produced the choice.

The Code's approach differs from the older limitation that a defendant must come to the situation with clean hands.²⁵ Under a statute that requires the actor to be without blame in occasioning the situation, a person who negligently starts a fire loses any defense for destroying property or breaking traffic regulations while trying to stop its spread or to notify the authorities.²⁶ Under § 3.02(2) that actor can be prosecuted for offenses that negligence suffices to establish but keeps the justification for offenses committed in fighting the fire that require a higher level of culpability.²⁷ Students go wrong when they carry the clean-hands habit into a Code problem and treat any fault in creating the emergency as ending the defense for every charge.

Hypothetical Illustration

A rancher carelessly leaves a smoldering brush pile on a windy day. A reasonable person would have seen the danger, but he never perceived it, so his fault is negligence and not recklessness. The wind carries a fire toward a neighbor's barn, and the rancher deliberately chops through the neighbor's fence to reach a water trough and fight the fire. If the prosecutor charges purposeful destruction of the fence, negligence cannot establish that offense, so subsection (2) leaves the justification available and the other requirements decide the case. If the prosecutor instead charges negligent destruction of the fence, negligence is enough to establish that offense, and the justification is unavailable. The facts and the rancher's fault are identical in both versions; only the culpability the charge requires has changed.

The same logic governs the middle level. Because negligence does not establish a charge that requires recklessness, the rancher's negligence would leave the justification open against a reckless-destruction charge as well. The analysis therefore ends by asking what the charged offense requires, and the actor's fault can remove the justification only where it matches that requirement.

Causing the Emergency

The first half of § 3.02(2) looks at how the emergency arose. When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils, the justification is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.²⁹ Recklessness means consciously disregarding a substantial and unjustifiable risk, and negligence means failing to perceive a risk of that kind that a reasonable person would have perceived. The trigger is therefore fault in producing the danger. The requirements of § 3.02(1) ask whether the choice, once the emergency exists, was a sound one. Subsection (2) asks a separate question: whether this particular actor may claim the protection of that choice at all.

Two reasons support the bar, and they reinforce each other. The causal reason is that the evil the actor says he was avoiding traces back to the actor's own carelessness, so the claim that a prohibition should yield to a pressing evil carries less force when the actor helped produce that evil. The incentive reason is subtler. If a careless person could start a danger and then plead the danger as a justification, the defense would reward the very risk-taking that offenses of recklessness and negligence exist to punish, because the actor would collect the benefit of the emergency while escaping responsibility for producing it. The bar removes that temptation by keeping the actor answerable for the fault actually shown, so the careless creator of a crisis can still be convicted of an offense whose culpability level matches the carelessness.

A standard problem puts the bar to work. Paul recklessly starts a fire in a heavily wooded area, and the fire immediately threatens a row of occupied houses. Paul correctly concludes that the only way to save the houses is to burn down Jennifer's unoccupied house as a firebreak, and he does so, saving the row and perhaps lives. He is prosecuted for arson, defined to include recklessly burning a dwelling house.³⁰ Taken by itself, the choice to burn an empty house to protect occupied ones is the kind of choice the Code endorses, since it treats the destruction of property to stop the spread of a fire as justified.³¹ Paul nonetheless cannot rely on § 3.02, because he was reckless in bringing about the situation and recklessness suffices to establish the arson charge against him.³²

The problem invites the question whether Paul should be permitted the defense, since the neighborhood is better off whether or not Paul lit the fire. The Code's answer is that the benefit of the choice does not erase the fault that created the need for it. The prosecution may reach Paul for the offense that matches his own recklessness, and his rescue is not treated as though a stranger with no hand in the fire had performed it. Everything else about his choice may be sound, which is why the bar must be a separate requirement rather than a byproduct of the weighing of harms.

The same logic governs a choice between lives. A driver who drives recklessly creates a predicament in which the car must either stay on the roadway and run down two people or go onto the sidewalk and strike a third. If the driver picks the lesser harm and kills the person on the sidewalk, one life has been weighed against two. The driver is nonetheless guilty of the reckless form of manslaughter of the person on the sidewalk, on account of the reckless conduct that created the situation.³³ The justification fails against that charge because the predicament was the product of the driver's own recklessness.

Hypothetical Illustration

Change one fact in the fire problem: lightning, not Paul, starts the blaze, and Paul burns Jennifer's unoccupied house as the only way to save the occupied row. No recklessness or negligence brought about the emergency, so the subsection (2) bar does not apply, and Paul may argue the justification on its remaining requirements, such as imminent danger, the absence of any lawful alternative, and a harm avoided that is greater than the harm of the offense.

Now keep Paul as the source of the fire but remove the fault. He lights a small brush pile on a day when burning is permitted, clears the ground around it, and watches it, and an unforeseeable gust carries an ember into the woods. Paul is a factual cause of the emergency, yet he was neither reckless nor negligent in bringing it about, so the bar again stays out of the case.

The second variation isolates the point that is easiest to miss. The bar attaches to fault, not mere causation, so an actor whose careful, lawful conduct set events in motion has triggered nothing, even if that conduct was a necessary link in the chain. The bar is also limited to prosecutions for offenses that recklessness or negligence can establish. A careless fire-starter who is charged with an offense requiring a higher level of culpability is not caught by it, a limit developed in the last part of this section.

The Code's rule is more selective than the older requirement that an actor come to the situation with clean hands, meaning that the actor bear no blame for being in it.³⁴ Under a statute that denies the defense to anyone not without blame in producing the situation, a person who negligently starts a fire loses any defense for destroying property or breaking traffic regulations while trying to stop its spread or to summon help.³⁵ Under § 3.02(2) the same actor can be prosecuted for offenses that negligence suffices to establish but keeps the justification against charges requiring a higher culpability level.³⁶ An exam answer that treats any fault in starting the fire as ending the defense for every charge applies the older clean-hands rule rather than the Code.

Misjudging the Necessity

The second half of § 3.02(2) shifts the inquiry from how the emergency arose to how the actor judged it. When the actor was reckless or negligent "in appraising the necessity for his conduct," the justification is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.³⁸ Recklessness in this setting means consciously disregarding a substantial and unjustifiable risk that the harm is not coming or that a less harmful course is open, and negligence means failing to notice such a risk that a reasonable person would have noticed. Fault in appraising necessity is handled the same way as fault in creating the danger, so the actor's liability is carried to the level of culpability actually shown.³⁹ Because the two halves of the subsection operate independently, an actor who played no part in starting the emergency can still lose the justification through a careless judgment about what to do once it arrived.

The clause is needed because of how the justification is built. As the earlier discussion of belief showed, § 3.02(1) turns on whether the actor believed the conduct necessary to avoid a greater harm, so an honest but mistaken actor can satisfy it. Left alone, that structure would let anyone who formed a belief in necessity on a hasty hunch collect a complete acquittal, since the honesty of the belief would be the only filter. Subsection (2) supplies the missing filter by asking how the belief was formed. The decision to break the law is made by the actor alone, in the moment, so the care taken before making it is the check the law can place on that decision, and the clause attaches a price to skipping that care.

The price is graded rather than total. Treating the careless appraiser as fully justified would excuse carelessness, and treating the same actor as a purposeful wrongdoer would overstate the fault. The Code instead classifies an actor by the culpability actually manifested toward the material elements of the offense.⁴⁰ Consider one actor who purposely destroys property for profit and another who destroys it because the actor honestly, but carelessly, believes the destruction is needed to save something greater. The second actor is culpable, but not at the level of the first, and the grading rule places each where the facts put them. The same logic appears in § 3.09(2) for the use-of-force justifications, where an honest but unreasonable belief that killing is necessary supports a conviction for negligent homicide rather than murder.⁴¹

Hypothetical Illustration

A brush fire that the resident did not start is advancing along a wooden fence toward a neighbor's house. Without looking around, the resident decides the fence must come down to stop the fire and tears it out with a truck. A charged hydrant stood at the corner of the lot with a hose coiled beside it, in plain view, and the resident never considered it. Charged with negligent destruction of the neighbor's property, the resident honestly believed the destruction necessary, but a reasonable person would have seen the hydrant, so the appraisal was negligent. Negligence suffices to establish that offense, so subsection (2) makes the justification unavailable.

Change one fact: before touching the fence, the resident walks the lot, finds no water source within reach of a hose, learns the fire department is twenty minutes away, and only then pulls the fence down. The appraisal was careful, so subsection (2) leaves the justification open even though the same fence is destroyed under the same charge. The remaining requirements, such as imminent danger and a harm avoided that is greater than the harm of the offense, decide the case.

The question under this clause is whether the process of judging was careless, and a wrong conclusion is not itself fault. An actor who honestly and reasonably, but inaccurately, believes a neighbor's house must be burned as a firebreak, and then sees the fire burn itself out before it comes close, has appraised the situation without carelessness, so subsection (2) does not remove the justification.⁴² The reverse also holds. An actor who unreasonably believes a fire will reach the town has appraised the necessity negligently even if, unknown to everyone, a strong wind would have carried the fire there.⁴³ The subsection examines the quality of the judgment when it was made, so later events that happen to match a careless conclusion do not repair it.

Time pressure bears on the standard without displacing it. A hurried judgment is not automatically careless, since an emergency that leaves no moment to check anything may leave a reasonable person acting on what is visible. A hurried judgment made when a glance would have revealed the hydrant is different, because a reasonable person would have taken the glance. What the careless appraiser loses also depends on the charge, since the justification fails only against offenses that recklessness or negligence suffices to establish, a limit the next sub-section develops.

Matching Fault to Offense

The bar in § 3.02(2) works one charge at a time, and it does not switch the justification off merely because the actor was careless. Its text makes the justification unavailable "in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability."⁴⁵ The phrase "as the case may be" ties the actor's own level of fault to the charge, so the question in every application is whether the fault the actor showed is enough to establish the offense charged. One actor, one set of facts, and one lapse in care can therefore be barred on one count and free to claim the justification on another, which is the limit the two preceding sub-sections each flagged and that this one develops.

The Code's design is that, once the actor has made a proper choice of values, a belief in necessity exculpates unless the crime can be committed recklessly or negligently. When it can, recklessness or negligence in creating the situation or in appraising the necessity may support conviction. The result is that a purposeful offense cannot be established on the actor's carelessness, while an offense that carelessness suffices to establish can.⁴⁶ The reason is that a conviction should rest on the culpability the actor actually showed. Carelessness in creating or judging an emergency is inattention to a risk, a different mental state from the purpose to cause harm or the knowledge that harm will follow, and those are what a purposeful or knowing offense requires. A rule that convicted the careless actor of such an offense would brand an inattentive person as a deliberate wrongdoer, and a rule that acquitted the same actor of everything would leave the fault unanswered. Matching the charge to the fault avoids both results, because the actor remains answerable at exactly the level of fault that can be proved.

What counts as recklessness or negligence is decided under § 2.02, which § 3.02(2) borrows rather than restates. Recklessness there means consciously disregarding a substantial and unjustifiable risk, where the disregard is a gross deviation from the conduct of a law-abiding person. Negligence means failing to perceive such a risk that the actor should have perceived, where the failure is a gross deviation from the care a reasonable person would use.⁴⁷ The actor's lapse in creating the emergency or in appraising the necessity has to be measured against those definitions before any comparison with the charge is made. A lapse that falls short of negligence triggers no bar at all.

The standard illustration is the reckless driver. The driver drives recklessly and thereby creates a predicament in which the car must either stay on the roadway and run down two pedestrians or go onto the sidewalk and strike a third. The driver chooses the lesser harm and kills the one on the sidewalk. Charged with the recklessness type of manslaughter of that pedestrian, the driver cannot use § 3.02, because the fault shown in creating the predicament is recklessness and recklessness suffices to establish that offense.⁴⁸ Change nothing about the driving, the swerve, or the death, and charge the driver instead with intentional murder of that pedestrian. Recklessness does not establish a purposeful killing, so subsection (2) has no application, and the driver may invoke the justification.⁴⁹ Remaining available is not the same as succeeding. The driver must still show a belief in necessity, a harm avoided that is greater than the harm of the offense (two lives set against one), and the other requirements of § 3.02(1).⁵⁰

Hypothetical Illustration

Lower the driver's fault and keep the predicament the same. The driver never registered a dashboard warning about the brakes that had been lit for weeks, though a reasonable driver would have noticed it, so the driver was negligent but not reckless. When the brakes fail on a downhill street, the car must either stay in the roadway and strike two pedestrians or swerve and strike one, and the driver swerves. Charged with negligent homicide, the driver faces an offense that negligence suffices to establish, so subsection (2) makes the justification unavailable. Charged with reckless manslaughter, the same driver faces an offense that negligence cannot establish, so the bar stays out of the case and the requirements of subsection (1) decide it. The conduct and the fault are identical across the two charges, and only the culpability the charge demands has moved.

The most common error is to stop after finding fault. An answer that reads "the driver was reckless, so § 3.02 is unavailable" has skipped the comparison, which asks about the culpability the charged offense requires. The answer can differ for each count when a prosecutor charges several offenses out of one episode. The opposite error treats the justification as a complete shield for the careless actor, when against any charge that the actor's fault suffices to establish, it protects nothing.

Exam Analysis Steps

Because the bar operates on each charge separately, it is best run as a short comparison for every count in the problem. The steps are these:

Identify the offense charged and the level of culpability its definition requires: purpose, knowledge, recklessness, or negligence.
Ask whether the actor was reckless or negligent in bringing about the emergency or in appraising the necessity, measuring the lapse against the definitions in § 2.02.
Compare the fault found with the culpability the charge requires, and ask whether that fault suffices to establish the offense.
If it does suffice, treat the justification as unavailable on that count, because the actor's fault already establishes the offense.
If it does not suffice, treat the bar as inapplicable on that count and decide it under the requirements of § 3.02(1).