It's only normal for people to become excited when there is a fire. When excited people hamper firefighting efforts or threaten to put themselves or others at risk, however, problems can arise. This is what happened in the case of State v. Lawson, 2008-Ohio-1311, C.A. Case No. 22155, Court of Appeals of Ohio, Second Appellate District (2008).

Stewart Lawson was the pastor of the Eternal Crown Church in Jackson Township, Ohio. He had a residence at the church, which he was sharing with his daughter and her three children.

On April 25, 2006, Lawson drove his oldest grandchild to school and then went shopping with a friend. In the meantime, Lawson's daughter took her two younger children to the bus stop and then prepared to strip and rewax the floors at the church.

Between 9 and 9:15 a.m., Lawson received the first of two telephone calls from his daughter on his cell phone, telling him that she saw smoke in the garage and coming from under the eaves of the church. Lawson instructed her to hang up and call 911. She said that she would call him back, and about five or six minutes later telephoned to report that she had called 911 and told the authorities that the church was on fire. At that point, her telephone went dead due to a low battery.

Lawson asked his friend to take him to the church. The friend later described Lawson's demeanor while en route as becoming hysterical, generally unresponsive and a little delusional. He said that Lawson was concerned greatly for his daughter's safety, and believed that she might go back into the building to retrieve her children's belongings.

By the time Lawson arrived at the church, several fire departments were on the scene, as were at least two law enforcement officers in marked cruisers assisting with traffic and crowd control. Lawson got out of his friend's van before it was even fully parked, saying, “[She's] up there,” and, “I gotta get to [her].”

At this point, the trial testimony diverged. Fire Chief Tom Wallace, who was in charge of water shuttle, testified that Lawson asked him about his daughter and that he told Lawson that she was fine, that he had talked with her, and that she was standing by a chief's pickup truck. He further testified that he told Lawson his daughter's location no less than three times. Wallace also testified that he told Lawson that he needed information from him concerning whether there were any chemicals in the garage or other items that might pose a danger to the firefighters. Wallace testified that Lawson did not respond to these questions, but instead turned away from him and said, “I've got to get my guns.” When Lawson walked away, Wallace asked law enforcement officers to stop him.

According to Det. Eli Winkler and Sgt. John Schade, Lawson first walked past Schade, who told hold him twice to stop. Lawson continued walking and went past Winkler, who likewise told him twice to stop. The law enforcement officers testified that Lawson turned around, looked Winkler in the eye, and then started running toward the church. Winkler caught up with Lawson and placed him in a bear hug. According to Winkler, Lawson said that he had to check on his daughter and get his guns. Lawson then broke free from Winkler, and subsequently was subdued by both Winkler and Schade. The officers testified that Lawson wrestled on the ground with them and called them “communist pigs.” The officers eventually placed Lawson in a squad car. Shortly thereafter, he collapsed, had a seizure and was transported to a hospital by paramedics.

Lawson's version of the day's events was significantly different. He recalled approaching a firefighter, later identified as Wallace, as soon as he arrived on the scene, telling him that his daughter was at the church, and asking him to get her. He further testified that he asked two or three times for someone to contact his daughter, but everyone was busy and no one took the time to radio for her. He denied that Wallace told him that his daughter was fine. He said that he looked at all of the people in the crowd and asked if anyone had seen her, but no one knew where she was. He said that he then heard a loud boom, heard someone say that the gas line had ruptured, and began to walk toward the fire trucks near the church. As he did so, he was tackled from behind by one of the law enforcement officers as if in a football game.

Lawson was charged with misconduct at an emergency, which provides that no person shall knowingly “… fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer's duties at the scene of or in connection with a fire, accident, disaster, riot or emergency of any kind.” At trial, the jury found Lawson guilty of this charge, but not guilty of the aggravating factor of creating a risk of physical harm to persons or property by this misconduct. The trial court sentenced Lawson to serve 30 days in jail and pay a $250 fine, plus court costs; it then suspended all of the jail time and $200 of the fine on the condition that Lawson have no violations of law for one year thereafter and that he receive treatment.

At the trial, Lawson had requested the court to instruct the jury on the affirmative defenses of necessity and duress. An affirmative defense must be proven by the defendant and, if successful, is an absolute defense against conviction. The trial court denied this request, and it is from this ruling only that Lawson appealed.

The appellate court began by reviewing the distinction between a defense based on duress and one based on necessity. It pointed out that to establish the defense of duress, the defendant must demonstrate that he was compelled to commit the crime under threat, by another person, of imminent death or serious bodily injury. Although the actor must subjectively believe that he is being threatened with imminent death or serious bodily harm if he does not commit the crime, that belief must be objectively reasonable based on the evidence.

The court distinguished this defense from one based on necessity, where the defendant must establish:

1. A harm due to the pressure of a physical or natural force, rather than a human force;

2. The harm sought to be avoided was greater than, or at least equal to, that sought to be prevented by the law defining the offense charged;

3. The actor reasonably believed at the moment that his act was necessary and was designed to avoid the greater harm;

4. The actor was without fault in bringing about the situation; and

5. The threatened harm was imminent, leaving no alternative by which to avoid the greater harm.

The court then examined the defendant's claim that the jury should have been instructed on the affirmative defense of duress. It held that none of the evidence supported a conclusion that any person compelled Lawton to disobey an order of a police officer. Although his fear that his daughter may have been in the burning building was precipitated by his knowledge that she planned to be there all day to work on the floor and by her disconnected telephone call, Lawson was not forced by any other person to commit the offense. Therefore, he was not entitled to a jury instruction on duress.

Next, the court considered whether Lawson was entitled to a jury instruction on the defense of necessity. The harm that Lawson apparently had sought to avoid was the loss of his daughter's life in the fire. The court held, however, that the evidence did not support the conclusion that Lawson reasonably believed that his actions were necessary to save his daughter. Even accepting Lawson's assertion that he believed his daughter was in the burning building and was in imminent danger, the evidence was undisputed that numerous firefighters were at the scene battling the fire.

The court said, “Stated simply, numerous firefighters who were trained to fight the fire were on the scene and doing their jobs when Lawson attempted to approach. Lawson could not have reasonably believed that disobeying the officers' orders to stop was necessary to save his daughter from the fire. A reasonable response would have been for Lawson to stop and express his concerns to the officers.”

The court went on to say that to the extent that Lawson's actions were motivated by a desire for information about his daughter rather than a desire to save her, the defense of necessity was not appropriate. Quoting the court, “The need for peace of mind does not trump the need for officers to maintain control over the scene of an emergency.” The court concluded by saying that although it sympathized with Lawson's desire to find his daughter, he was not entitled to jury instructions on the affirmative defenses of necessity and duress.

This case points out that:

• It's always a good idea to have law enforcement officers available at emergency scenes for crowd control.
• When adequate personnel are available, detail someone to deal with family members and provide them with updates.
• Laws vary by state regarding fire department authority at emergency scenes. Find out how far your authority extends.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation.