§ 28-1407 — Justification; choice of evils

Nebraska § 28-1407

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
(b) Neither sections 28-1406 to 28-1416 nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Legislative History

Source: Laws 1972, LB 895, § 2; R.R.S.1943, § 28-834, (1975). Annotations: A defense under this section, otherwise known as the choice of evils justification, was not available to a defendant who left the scene of an injury accident to allegedly prevent loss to the cattle he was hauling in his semi-truck, where there was no allegation that the defendant intentionally collided with a motorist in an attempt to save the cattle in his trailer, and the defendant's act of leaving the scene was not done with force. State v. Schmaltz, 304 Neb. 74, 933 N.W.2d 435 (2019). Generalized and nonimmediate fears are inadequate grounds upon which to justify a violation of law. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). The choice of evils defense requires that a defendant (1) acts to avoid a greater harm, (2) reasonably believes that the particular action is necessary to avoid a specific and immediate harm, and (3) reasonably believes that the selected action is the least harmful alternative to avoid the harm, either actual or reasonably believed by the defendant to be certain to occur. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). This section reflects the Nebraska Legislature's policy that certain circumstances legally excuse conduct that would otherwise be criminal. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). The justification or "choice of evils" defense is unavailable in a prosecution for an offense, based on conduct as an expression of a defendant's moral belief or judgment, committed to prevent another's exercising a constitutional right or committed to deny another's constitutionally protected right. State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992). The justification or "choice of evils" defense operates to excuse conduct that would otherwise subject a person to criminal sanctions, but its availability and applicability require that a defendant's conduct be responsive to a legally recognized harm. State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992). The justification or choice of evils defense statute specifies that conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged and mandates that a legislative purpose to exclude the justification claimed not otherwise plainly appear. State v. Beal, 21 Neb. App. 939, 846 N.W.2d 282 (2014).