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Rescue

law escape prisoner lopez

The crime of forcibly and knowingly freeing another from arrest, imprisonment, or legal custody.

In ADMIRALTY AND MARITIME LAW, the taking back of property seized as prize from the possession of the captors by the party who originally lost it.

At COMMON LAW, the crime of rescue involved illegally freeing a prisoner. From the nineteenth century onward, such crimes became romanticized in the popular entertainment of Westerns and crime dramas, where prisoners were freed from jail by their criminal associates. Today, this form of rescue is an offense under federal law. Some states treat it as a common-law offense, whereas others define it under statute. In a different legal sense, rescue under admiralty and maritime law means the taking back of goods that have been captured at sea.

The crime of rescue has four elements. First, the arrest of a prisoner must be lawful. Second, the prisoner must be in actual custody, that is, in the personal custody of an officer or in a prison or jail. Third, at common law and under some statutes, the rescue must be forcibly made. Fourth, the prisoner must actually escape. At common law, the person guilty of rescue is guilty of the same grade of offense, whether felony or misdemeanor, as the person who is rescued.

Under federal law, rescue of a prisoner held in federal custody is a felony. As defined by 18 U.S.C.A. § 752 (1994), rescue is the crime of instigating or assisting escape from lawful custody. The law takes its punishment provisions from the federal statute (18 U.S.C.A. § 751 [1994]) that makes it unlawful for a prisoner to escape from a place of confinement: conviction carries fines of up to $5,000 and imprisonment of up to five years for the rescue of an adult, and equivalent fines and imprisonment of up to a year for the rescue of a minor. Thus, like the common-law definition, the same punishment applies to a person aiding an escape as that given to the person escaping.

Criminal cases involving rescue can be dramatic. In the 1933 case of Merrill v. State, 42 Ariz. 341, 26 P. 2d 110, Herbert Merrill appealed his conviction for attempting to rescue Albert De Raey from the Maricopa County, Arizona, jail. On January 10, 1933, Merrill brought acid to the jail at De Raey's request so that De Raey could use it to cut through the bars on his jail cell. Merrill was subsequently convicted of attempting to rescue under section 4537 of Arizona's Revised Code of 1928. On appeal, however, the appellate court reversed the conviction: it found that although Merrill had apparently assisted in an escape attempt, he had not forcibly attempted to effect a rescue. Thus he had been improperly charged, the conviction could not stand, and the case was sent back to the lower court.

In 1989 a California case raised the issue of when rescue is defensible. On November 5, 1986, Ronald J. McIntosh landed a helicopter on the grounds of the Federal Correctional Institution at Pleasanton, California, and then flew off with his girlfriend, Samantha D. Lopez, who was being held as a prisoner there. McIntosh was later convicted of aiding Lopez's escape and two other felonies; Lopez was convicted of escape. In a joint appeal, they alleged that their offenses were necessary to save Lopez's life because she had been threatened by prison officials and was in immediate danger (United States v. Lopez, 885 F. 2d 1428 [9th C.C.A. 1989]). In fact, such a defense—called a necessity defense—can excuse the otherwise criminal act of escape. The appeal alleged that the trial court had improperly instructed the jury as to the availability of this defense to both defendants. However, in upholding their convictions, the appellate court found that the trial judge committed no error in the instructions with respect to Lopez, and only a HARMLESS ERROR where McIntosh was concerned.

Under admiralty and maritime law, rescue has another definition entirely. It means recovering goods that have been forcibly taken by one vessel from another. The property in question is referred to as a prize, and its rescue may be effected by reclaiming the property with force or by escaping. Generally, such actions occur when two belligerent powers clash, either in a limited dispute or at war.

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