In United States v. Crittendon, 883 F.2d 326 (4th Cir. 1989), the Court of Appeals for the Fourth Circuit decided a case similar to that at bar in the context of 18 U.S.C. § 922(g), the federal equivalent to Code § 18.2-308.2.
The Fourth Circuit has not specifically decided that the defense of necessity can apply to a charged violation of 18 U.S.C. § 922(g) or similar statutes. See Crittendon, 883 F.2d 326; United States v. Holt, 79 F.3d 14, 16 (4th Cir. 1995) (presented with the question of whether justification is a defense to a charge of violating 18 U.S.C. § 13 (assimilating Virginia Code § 53.1-203(4)), which makes it a felony for a prisoner to "make, procure, secrete or have in his possession a knife, instrument, tool or other thing not authorized by the superintendent or sheriff which is capable of causing death or bodily injury").
However, other federal circuit courts of appeal have specifically ruled that the common law defense of necessity can apply to a violation of the federal felon with a gun statute. See United States v. Gant, 691 F.2d 1159 (5th Cir. 1982).
Crittendon, a convicted felon had been shot and thereafter received death threats over the telephone.
He subsequently armed himself with a pistol for self-protection from the perceived threat and was charged with violating 18 U.S.C. § 922(g).
The trial court accepted Crittendon's claim that he possessed the gun for self-defense and not a nefarious purpose.
Nonetheless, there was no evidence showing he was in any imminent danger when he was arrested for possession of the firearm.
His conviction under 18 U.S.C. § 922(g) was affirmed on the following basis:
Crittendon's claim of entitlement to an instruction on the defense fails because the evidence does not support a conclusion that he was under a present or imminent threat of death or injury.
While his fear of another attack may have been rational and might have been his real motivation for carrying a revolver, generalized fears will not support the defense of justification. See United States v. Harper, 802 F.2d 115 (5th Cir. 1986) (convicted felon who purchased hand gun for protection after repeated robberies of his store not entitled to justification instruction because he was not in imminent danger).
Instead, the defendant must show that a real and specific threat existed at the time of the unlawful possession. 883 F.2d at 330.