Ferguson Protesters Did Not "Loot" McDonalds Sunday Night

[bigtree]

Last edited Mon Aug 18, 2014, 12:32 PM - Edit history (6)

Sarah Kendzior @sarahkendzior (Writer on politics, economy, media. Columnist for @AJEnglish. Researcher) 1h

Protesters did not "loot" McDonalds. They broke in to get milk to pour on faces of those gassed by the police
comp-pic: https://t.co/2wRwLmFiDv

(late with this edit and update . . . sorry)

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

Robert Cohen @kodacohen · 31m
Cassandra Roberts gassed, helped by strangers in #Ferguson #MikeBrown

K. @Remorse_1 · 3h
The media said "protesters looted mcdonalds" what they didn't mention.. #Ferguson pic.twitter.com/MJ7NlWXdAA



Λ ♦ Λ ♦ Ø @AlgorithmWriter · 33m
.@fjfuel80 @Remorse_1 Yeah, because when your eyes are burning during night while standing next to a McDonalds you've got a lot of options.



Matt Novak @paleofuture · 12h
Woman getting treated with McDonald's milk after getting hit with tear gas (via Getty)



Antonio French @AntonioFrench · 2h
Scene from last night in #Ferguson pic.twitter.com/cG95dhiTGH



Robert Cohen @kodacohen · 34m
Woman helped over a wall to escape tear gas in #Ferguson #MikeBrown




Robert Cohen @kodacohen · 23m
Protestors flee scene after marching toward police command center, tear gas flying in #Ferguson #MikeBrown




Jon Swaine @jonswaine · 13h
Woman in wheelchair speeding away from gas #Ferguson



Sarah Kendzior @sarahkendzior · 4m
They justify brutal tactics to keep #STL "safe" but the only thing that will preserve peace -- arresting killer cop -- they won't do.

[Trillo]

1. One of the problems with corporations?

They're not "part of the community" even though they have presence in a community? Their sole purpose is to be money funnels, and cannot act as a human neighbor when one of their likely past customers is hurt in the street out front?

[bigtree]

42. sorry for the lateness of this to the post, but this may be important to the story

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

[Recursion]

2. How is that not "looting"?

I'm missing the distinction here.

[bigtree]

3. yes, you are missing the distinction

Last edited Mon Aug 18, 2014, 01:04 PM - Edit history (1)

[talkguy365]

39. The definition of looting.

1.To take goods from (a place) by force or without right, especially in time of war or lawlessness; plunder.

The rule of law does not take a timeout because protesters want to clean their eyes.

[bigtree]

58. 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.

[talkguy365]

62. There was no emergency.

The suspects who broke into McDonalds ignored police orders to disperse before the tear gas canisters were used for crowd control. I'd also find it difficult to believe the suspects left the cash equivalence for the broken window repairs and milk they used to wash out their eyes. In conclusion it is a criminal act carried out by looters.

[bigtree]

64. personal emergency

. . . first aid.

read the statutes.

"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."


This same principle, it has been widely argued, applies as well
to a hiker who breaks into a cabin to save herself when trapped on a
mountain in an unexpected storm. The hiker saves her life by eating
some food and burning some wood she finds there. In such a case,
while the hiker is understood to have a privilege to do what she did, it
is generally asserted that she nonetheless owes a legal duty.

One interpretation of this position rests on these values.

from the document provided:

First, I believe that people should be under, and should feel themselves under, a moral obligation to help others in relatively easy rescue situations (which I consider these to be). In the society in which I would like to live, ordinary people would readily act upon that obligation without expecting to be paid for what they do (that is, assuming that the rescuer is not a professional rescuer). Indeed, when fate picks you out to be the one to rescue a fellow ordinary citizen, I believe that this provides you with what should be a welcome (but rare) opportunity to demonstrate your commitment to this important social norm. In situations covered by the defense of necessity, however, there typically is no would- be rescuer on the scene to make the rescue effort. Instead, the person in extreme need uses self-help to avail herself of something that, in my favored world, the other (had she been there) would have willingly provided with no expectation of payment. In effect, the cabin owner and dock owner are involuntarily forced to become the rescuers that they morally should have been had they only had the actual opportunity to have been.

http://www.law.berkeley.edu/sugarman/C__TEMP_Mozilla_Cache_A08652B0d01.pdf


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

[Vincardog]

65. TG what would it take for you to change your mind? Would, could any

argument be made to have you agree that:

the persons breaking a window to get milk to relieve another person's suffering, are not criminals?

[talkguy365]

88. I can't see the emergency in this case.

The protesters knew the risk associated when confronting a heavy handed police force. If they do not want to be tear gassed then they need to leave when told to under the threat of force and arrest.

[bigtree]

90. it's fortunate then that you don't get to define that emergency

. . . a court would, and would likely send you packing with a claim like yours.

I don't know why you see fit to express such right-wing tripe on a mostly progressive forum, talkguy365.


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 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

[talkguy365]

91. The courts are not on your side.

First off, I'm a card carrying Democrat with centrist views. If that makes me right wing in your eyes then so be it. Labels don't bother me, nor will they scare me off.

Secondly, protesters violated a direct order to leave the area resulting in their exposure to tear gas. At that point they're already criminals. Then they broke into a McDonalds and stole milk. No court will side with them if they are arrested.

[bigtree]

92. as a juror in that town

. . . I'd soon show you the door with that view.

[Vincardog]

94. Are the alleged protestors members of the military? Do they not have the right

to assemble?
Do they not have the right to express their grievances?

Your opinions are why I don't trust so called "centrists" The problem with standing in the center is that they stand for nothing.

[talkguy365]

95. Please protest in a respectful manner.

I wholeheartedly support everyone's right to be heard. Where I take issue is the looting and burning of businesses that have nothing to do with the police department. It only hurts the message of the people trying to shed light on how they're treated in Ferguson.

[Vincardog]

96. What has that got to do with breaking a window go get milk to ease the suffering

of a person gassed by the police? BTW What exactly do you want to people to RESPECT? Is it the corrupt Police Department?

[talkguy365]

97. The right to assemble doesn't give way to breaking the law.

People watching are scratching their heads because they're told the police are brutal, but the protesters are the ones destroying businesses and shooting at the officers. It ruins the message of honest people trying to make a difference.

[Vincardog]

98. Your assumptions are not facts. No one is guilty until tried and convicted. Shooting

at officers? Please child get your facts straight.

[talkguy365]

99. The police said they were shot at last night.

Are they lying?

[Vincardog]

100. Please post a link. What happened to your assumptions about window breakers

"looting" milk, to aid gas attack victims? Have you decided they are not FELONS and are now snipers?

[Vincardog]

93. Blaming the victim is an old tactic.

[Warpy]

101. You will when you have to suck some tear gas

Police fired 2 canisters of the stuff into a home down the street. I had to decamp to a motel even with the doors and windows shut tight.

That law'n'order trash talk wears very thin when you get hit.

[Ms. Toad]

70. Perhaps you missed the tear gas coming from both directions last night.

Even people who wanted to disperse at police orders (ignoring, for the time being whether there was any valid reason for them to be issued) could not because the police set off tear gas both in front of and behind the crowd, leaving them no avenue by which to disperse.

Looting has a connotation of theft and destruction just for the heck of it - this was for a valid purpose - to alleviate the suffering which resulted from being exposed to tear gas.

[ThoughtCriminal]

84. Teargas - Try it on yourself sometime

In a fraction of a second, your definition of emergency will radically change.

[talkguy365]

89. I'm familiar with cs gas.

Unpleasant stuff. I'd move out of the area if it was about to be used.

[tblue37]

63. Remember the parallel pics from Katrina? According to the captions, a white couple

"found" supplies for survival, but the black persons who were doing the exact same thing were captioned as "looting.." I am on a Nook, so I can't post the pictures, but maybe someone else could do so.

[blackspade]

45. Bingo! +1000

[heaven05]

4. How was it not murder?

[Recursion]

16. I'm pretty sure it was murder

[Iggo]

5. Yes, you are.

[tkmorris]

6. Context is everything

"Looting" is generally understood to mean the opportunistic thievery of goods from homes and businesses during times of reduced security, often due to social unrest or natural disaster. The idea that such is done for personal gain is taken as a given.

You will find that during such events as described above there is also the purloining of goods and resources done for humanitarian purposes. Sometimes it is the authorities themselves that engage in such activity, though private citizens do as well. Such is never referred to as looting. The distinction being of course, the intent of those engaging in the act.

I hope this helps.

[Gormy Cuss]

9. +1

[Amimnoch]

33. +1 more

[moriah]

43. Reminds me of Katrina pics -- "looting" vs "finding" bread.

http://thesocietypages.org/socimages/2007/08/28/racism-in-the-aftermath-of-hurricane-katrina/

Yep, "context" is everything.

[TeeYiYi]

53. Black people "loot", white people "find"...

TYY

[arcane1]

55. Yay, that's my picture! I've seen it pop up a few times in the past week.

It's amazing how things circulate on the net and come full circle

[TeeYiYi]

57. It's at Huffington Post...

...from 2005. Good job!

http://www.huffingtonpost.com/van-jones/black-people-loot-food-wh_b_6614.html

TYY

[valerief]

7. Oh, yes, if they're black, it's looting. If they're white, it's quick thinking.

Happy to put you on my ignore list.

[Lex]

15. ^^ Correct.

[Recursion]

18. Yeah, I remember the Katrina photos.

Both were "looting" as far as I can tell. I'd loot too if I had to.

[zeemike]

40. Glad you explained it to him.

I could not have done it better.

[Cali_Democrat]

59. Boom!

Nailed it...

[1StrongBlackMan]

12. Were you similarly confused by the Katrina Photos?

http://politicalhumor.about.com/library/images/blkatrinalooting.htm

[Recursion]

19. No, they both looked like looting to me

[1StrongBlackMan]

25. Oh ... Okay. eom.

[SomethingFishy]

27. Yeah from your safe chair in front of your computer

it looks like looting.

When you are trying anything to stop the burning in your eyes, (it's painful, believe me) stealing a carton of milk from McDonlads seems downright sensible.

However I do know there are a tiny minority of idiots actually looting, running off with TV's and shit But maybe you should check out my OP about the 24,000 arrest warrants Ferguson issued last year. Maybe the residents are just trying to get back what was legally stolen from them.

Funny when the town runs a scam to steal money from people, they are praised for it. When the residents have finally had enough, well they need to be gassed, shot at, beaten, and called animals.

[Recursion]

28. Maybe I'm wrong about what "looting" means

As was pointed out downthread, it's mass burglary and theft in during a (police-caused) disaster. If that isn't what "looting" is, I've been using the word wrong my whole life.

When you are trying anything to stop the burning in your eyes, (it's painful, believe me) stealing a carton of milk from McDonlads seems downright sensible.

And, as I mentioned earlier, it's what I would do in their situation (the only time I was tear gassed outside of training in the military was the World Bank protests, and the stores nearby were still open so I didn't have to. Milk doesn't help all that much, though.) I would call what I would do "looting". It's one reason I hate those "looters will be shot" signs after hurricanes.

[gollygee]

78. Looting is about opportunism, not survival or health

So if you break into a store because you really wanted something out of it and with the confusion no one will notice if you take it, you are looting.

If you see someone in huge amounts of pain because they have teargas in their eyes and you take milk to pour in their eyes for health reasons, it is not looting. You aren't taking the milk because you have wanted it and now have the opportunity. You are taking it because there is an immediate emergency where milk is needed and it is available there.

[SomethingFishy]

20. Do you not remember the Fox News piece during Katrina?

When they showed pictures of "black people" "looting" food and water from the grocery store. But when they showed white people taking the same fucking food they weren't looting, they were using "whatever was available to get what they need to survive".

The distinction is all there... in black and white.

[Recursion]

21. As I've said twice, I remember those photos, and they both seemed like "looting" to me

Maybe I'm not attaching as much of a negative sense to "looting" as other people are... I would call any time somebody breaks into an abandoned store and takes stuff "looting".

[moriah]

52. And you're missing the point that while you may be oh-so-colorblind.... few actually are.

Especially those in the media that decide to use words like "strong-arm robbery" to describe shoplifting (quickly turned via Twitter's 160 char limit into "armed robbery&quot , and "looting" to describe people getting first-aid supplies from McDonald's employees.

[Ms. Toad]

72. Although I agree with you about this description of the McDonald's break-in

and Katrina, your assertions about the term strong-arm robbery are off base - it was not media spin. Strong-arm robbery is a term the Missouri police are trained to use when there is force (without weapons) + theft. The term used by the media came from the report - which used the term as set forth in the code manual (I've pulled several copies, and although they are not consistent about which crimes they apply to, the term is consistently used to distinguish the level of force used in a crime.)

A couple of examples Here page 22 and here page 8

[moriah]

76. Contracting it down to "armed robbery" certainly was more than media spin.

And the continual reference to "strong armED robbery" -- which a simple Google will show continues in the media -- when the actual criminal offence is Robbery in the 2nd Degree also per your documents, is definitely media spin, if you're going to say the technical term isn't.

And search for "ferguson armed robbery" on Google, see how many people decided to take the term and shorten it. Even the press did (though it looks like they retracted it fairly quickly, one example is on Google Cache http://webcache.googleusercontent.com/search?q=cache:Yfa9-KuzKg8J:www.wcvb.com/news/ferguson-police-release-video-showing-teen-before-being-shot-killed/27512442+&cd=11&hl=en&ct=clnk&gl=us ).

[Ms. Toad]

86. That, I agree with (the shortening).

I don't know how much of the shortening was spin, though, and how much just media (or individual twitter users) being stupid. Media almost never gets legal stuff right.

As to the actual crime, there is a difference between the statute and how police are trained to code crimes. It is more likely that police will consistently get it right if their choices are no force (plain theft), force without a weapon (strong armed), force with a knife or other cutting instrument, or force with a gun, or force with some other deadly weapon - and those categories remain the same regardless of the underlying crime (with the degree being sorted out later - because equal levels of force don't necessarily translate into the same degree.

[Stellar]

22. What would you suggest that they should have done

to stop the burning in their eyes?

[Recursion]

24. Same thing I would have done: break into a McDonalds

Which as far as I can tell is what they did. And I would call that action "looting".

[Stellar]

83. OK, point taken.

I initially misunderstood where you were going with this.

[840high]

38. Got milk and water from their homes?

[Ms. Toad]

73. Can't - many of them were blocked off from being able to leave the area

by the tear gas coming at them from two directions.

[840high]

77. Thanks. I didn't know that.

[Ms. Toad]

85. I was up late last night watching one of the live streams

and the guy who was narrating kept connecting with other media folks so I heard about a half dozen perspectives of what happened. One them showed video of the tear gas being set off chasing folks in one direction, followed almost immediately by tear gas coming from the direction they were being moved to.

Apparently there were some small children caught in it - and quite a few people were just trying to leave, and couldn't get out.

[840high]

87. CNN live stream was not very good.

[LanternWaste]

69. The actions also fit well within the first three parameters of the word 'requisition'

The actions also fit well within the first three parameters of the word 'requisition'.

[Eleanors38]

8. McDonalds: Last place I would "loot."

[BumRushDaShow]

10. And another generation gets added to 2 centuries worth of this repertoire. nt

[cstanleytech]

11. Ok, not looting got it. Just burglary. nt

[1StrongBlackMan]

13. Yes, Burglary ...

and if they didn't leave money on the counter, petty theft ... which is far more concerning than a dead Black guy and local/state government restricting the first Amendment rights of an entire community, in order to protect property.

[cstanleytech]

14. Odd, I was under the impression that its still burglary regardless if they left money for

what they took.

[Lex]

17. Were you under the impression that you are deciding the charges?

Has McDonald's pressed charges? Do you know?

[cstanleytech]

26. Nope I'm just trying to make sure we are all on the same page since its not "looting".

Thus the proper word has to burglary.

http://legal-dictionary.thefreedictionary.com/burglary

The criminal offense of breaking and entering a building illegally for the purpose of committing a crime.

[Lex]

29. Their intent was not to commit a crime but to help someone in a medical emergency.

Your element of intent is not going to hold.

[cstanleytech]

30. Did they have a key? No. Thus they broke in. Did they take something? Yes. Thus it is burglary

at the very least.
That aside I can fully see their point of of trying to help these people exposed to the gas and if charges are brought against them and they are found guilty hopefully the court will show leniency and do whats right which is to set aside the verdict providing they make restitution for breaking in.

[Lex]

34. Wrong. If the intent was to help someone in a medical emergency

then your intent "to commit a crime" is not there.

Look up defenses to burglary.

[Maedhros]

41. Wow. You have a really messed up set of priorities.[n/t]

[Recursion]

31. Their intent was to commit a crime to help someone in a medical emergency

You're acting like anything done to help someone in pain is legal.

[Lex]

35. I'm not "acting like" anything. I'm telling you that if their intent

was to help someone in a medical emergency then that is a valid defense to burglary.

[Recursion]

36. Exigency is not an affirmative defense for theft

Though it can (and should) influence prosecutors' and judges' decisions. eg, I really hope McDonalds doesn't press charges here.

[bigtree]

44. I'm a bit late with this, but it was buried in someone's timeline

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

original tweet:

Danny Wicentowski @D_Towski · 13h
Protester behind line says McDonald's employees were treating tear gas victims by pouring milk in their eyes. #Ferguson

[Recursion]

46. Well, that's a huge difference

Thanks!

[bigtree]

49. if this account holds up, we'll see

. . .and I apologize for the lateness in my posting of this one second, third-hand account.

Police launch tear gas near McDonald's into #Ferguson crowd, scattering reporters etc. Angry residents smash windows. http://t.co/Im4afKdEIO—
Jacqueline Lee (@BNDJLee) August 18, 2014

[cstanleytech]

60. Now that does change it a whole hell of alot.

If the employees did it then its clearly not burglary nor any other crime........unless the company decides to be a dick and try to press charges against the employees for theft.

[Ms. Toad]

74. So whether or not it is a crime depends on whether the company decides to press charges?

that is actually not the case, from a legal perspective. McDonald's would merely be a witness for the state if their property was stolen - whether it was by employees who decided to aid the protesters, or by the protesters who decided to aid themselves.

Without looking up the specific elements, there are affirmative defenses to burglary - and providing first aid to injured individuals likely provides that defense.

[cstanleytech]

75. No. It depends on if there was actually any illegal entry.

[bigtree]

37. it may not be an important distinction to you

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

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

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 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, 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

[1StrongBlackMan]

23. That's why I included the conjunction, "AND" ...

breaking in is burglary ... whether one takes something or not. Taking something during a burglary becomes the included offense of theft, if no money is left to pay for the articles taken.

[nilesobek]

32. So if someone breaks into my house

and takes something, possibly something that is an heirloom or has sentimental value, and leaves money of equal value for the item, its not burglary? I'm not a lawyer so I have no idea. I hope McDonald's does not try to press charges. From upthread it sounds like the police force has been extorting money using the criminal justice system. I live in a town that tries to do that. Frequently heard is, "I came here for vacation and stayed on probation."

[1StrongBlackMan]

47. That's not what I am saying ...

It would steal be a burglary; but not theft (assuming the money left, approximated the value of the article taken).

[nilesobek]

51. I'm a cashier graveyard shift

and people grab things all the time and put money down because they are in a hurry and don't want to wait in line. I agree its definitely not theft.

[bigtree]

54. “The necessity defense"

(-The Legal Dictionary, The Free Dictionary.com states that “The necessity defense has long been recognized as Common Law and has also been made part of most states’ statutory law.”

It goes on to explain:

“Almost all common-law and statutory definitions of the necessity defense include the following elements: (1) the defendant acted to avoid a significant risk of harm; (2) no adequate lawful means could have been used to escape the harm; and (3) the harm avoided was greater than that caused by breaking the law. Some jurisdictions require in addition that the harm must have been imminent and that the action taken must have been reasonably expected to avoid the imminent danger. All these elements mirror the principles on which the defense of necessity was founded: first, that the highest social value is not always achieved by blind adherence to the law; second, that it is unjust to punish those who technically violate the letter of the law when they are acting to promote or achieve a higher social value than would be served by strict adherence to the law; and third, that it is in society’s best interest to promote the greatest good and to encourage people to seek to achieve the greatest good, even if doing so necessitates a technical breach of the law.”

Most states that have codified the necessity defense make it available only if the defendant's value choice has not been specifically contradicted by the state legislature. For example, in 1993 the Massachusetts Supreme Judicial Court rejected the necessity defense of two people who were prosecuted for operating a needle-exchange program that was intended to reduce the transmission of AIDS through the sharing of contaminated hypodermic needles (Massachusetts v. Leno, 415 Mass. 835, 616 N.E.2d 453). Their actions violated a state law prohibiting the distribution of hypodermic needles without a physician's prescription. In rejecting the defense, the court held that the situation posed no clear and imminent danger. The court reasoned that citizens who disagree with the legislature's policy are not without remedy, as they can seek to have the law changed through popular initiative.

The necessity defense has been used with sporadic and very limited success in the area of civil disobedience since the 1970s. The most common circumstances involve public protests against Abortion, Nuclear Power, and Nuclear Weapons. Virtually all abortion protesters who have tried to avail themselves of the defense have lost. The courts have reasoned that because the right to an abortion is constitutionally protected, it cannot simultaneously be a legally recognized harm justifying illegal action. In these cases the courts have also denied the defense on the basis that the criminal act of protest would not stop abortions from occurring; that the harm caused by the act was greater than the harm of abortion; and that legal means of protest, such as demonstrating outside of the clinic rather than entering the clinic or trespassing on its property, were available. Consequently, according to the courts, there was no necessity for the protesters to break the law. In the vast majority of cases in which protesters, trespassing on property, blocked the entrance to nuclear plants, the courts have denied the necessity defense on the grounds that there was no imminent danger and that the trespassing protesters could not reasonably have believed that their actions would halt the manufacture of nuclear materials (see, e.g., State v. Marley, 54 Haw. 450, 509 P.2d 1095 [Haw. 1973]). The defense has also been denied in civil disobedience cases involving protests against U.S. policy abroad, the homeless problem, lack of funding for AIDS research, harmful logging practices, prison conditions, and human and Animal Rights violations.

http://legal-dictionary.thefreedictionary.com/necessity

[EC]

48. They knew enough to have scarfs to cover their faces

but not enough to bring a container of milk with them? Be prepared.

[bigtree]

50. that might be good advice, as an afterthought

[DirkGently]

56. Milk's not really helpful for CS.

Everything I've seen indicates air, water (cool, not hot) and maybe soap are about all you can do. But clearly that's what everyone was thinking about here.

[ReRe]

61. I know what would happen to me....

... if I was tear gassed. I have asthma/allergies. I would drop dead in my tracks. Thanks for the pics, bigtree.

[bigtree]

66. .

one more kick

[Iamthetruth]

67. So they broke in to a locked business to take something they did not pay for

Okay, so how is that not looting?

[840high]

68. It is looting. Period.

[bigtree]

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.

[kwassa]

79. I was tear-gassed with about 3000 other people. Tear gas burns like hell ...

Jefferson Airplane at the Dayton Rubber Bowl in the '70s. Incompetent police battling some kids at the top of the stadium released massive amounts of tear gas that drifted down over a third of the audience, who all rushed out of their seats down into the field. One third of the stadium was emptied. The police arrested the band, who had no idea of what was going on, for inciting a riot.

Tear gas burns like hell, and you will do anything to get it off your face. We had a huge thermos full of ice and lemonade, and rubbed the ice cubes over our faces. It worked.

[lululu]

80. does milk work?

I got tear gassed back in the 60s. I had no idea anything would help - does milk or eye drops or something work?

[bigtree]

81. not so much

. . . little to not at all.

Water, ice, time . . .

[Uncle Joe]

82. Treatment for tear gas.

http://chemistry.about.com/od/chemicalweapons/a/teargasexposure.htm

What to Do

Tear gas usually is delivered in the form a grenade, which is fitted onto the end of a gas gun and fired with a blank shotgun cartridge. Therefore, you may hear shots being fired when tear gas is used. Don't assume you are being shot at. Do not panic. Look up when you hear the shot and avoid being in the path of the grenade. Tear gas grenades often explode in the air, delivering a metal container which will spew gas. This container will be hot, so do not touch it. Do not pick up an unexploded tear gas canister, since it could explode and cause injury.

The best defense against tear gas is a gas mask, but if you don't have a mask there are still steps you can take to minimize damage from tear gas. If you think you might encounter tear gas you can soak a bandana or paper towel in lemon juice or cider vinegar and store it in a plastic baggie. You can breathe through the acidified cloth for several minutes, which should give you sufficient time to get upwind or reach higher ground. Goggles are a great thing to have. You can use tight-fitting swim goggles if chemical safety goggles aren't available. Don't wear contacts anywhere you might encounter tear gas. If you are wearing contact lenses, immediately remove them. Your contacts are a loss as is anything else you can't wash. You can wear your clothes again after you wash them, but wash them separately that first time. If you don't have goggles or any sort of mask, you can breathe the air inside your shirt, since there is less air circulation and therefore a lower concentration of the gas, but that is counterproductive once the fabric becomes saturated.

First Aid

First aid for eyes is to flush them with sterile saline or water until the stinging starts to abate. Exposed skin should be washed with soap and water. Breathing difficulties are treated by administering oxygen and in some cases using medication that are used to treat asthma. Medicated bandages can be used on burns.

I also know from boot camp training, you shouldn't rub your eyes after being exposed to tear gas.

Thanks for the thread, bigtree.