dissenting.
When the defendant in a criminal case raises the affirmative defense of necessity, one of the elements the defendant must prove is that the defendant had “no adequate alternative” to breaking the law. Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981). To determine whether a defendant had an “adequate alternative” to breaking the law, one must ask two questions. First, would a reasonable person in the defendant’s position have perceived that an alternative course of action was available? Second, if an alternative course of action was available, was that alternative course “adequate”?
The majority opinion treats both of these questions as issues of fact that should be determined by the jury. However, Alaska law on this subject (indeed, case law from around the country) shows that this second question — the “adequacy” of a particular available alternative — is a question of law for the court. This is because “adequacy” is a legal conclusion.
A defendant who raises the defense of necessity may have had several alternative courses of action open to them. To call one or more of these alternatives “adequate” means that the law requires a person in the defendant’s position to pursue that alternative rather than break the law. Courts — and Alaska courts in particular — have consistently treated the “adequacy” of particular alternatives as a question of law. That is, while the trier of fact decides whether a particular alternative course of action was in fact available to the defendant, and whether a reasonable person in the defendant’s position would have perceived that this alternative was available, the court decides whether the un-pursued alternative course of action was legally “adequate”.
In the present case, it was undisputed that Seibold knew that he had alternative courses *785of action. The trial judge denied Seibold’s request for a jury instruction on the defense of necessity because the judge ruled that two of these alternatives were “adequate” — that is, Seibold was legally obligated to pursue these alternatives rather than violate the law by destroying his neighbors’ property.
It was .the trial judge’s proper role to decide this issue of law. And, because I conclude that the trial judge reached the correct legal conclusion, I would affirm Sei-bold’s conviction.
Facts of the case
Following a collision between their two vehicles, Dean Seibold and Paul Knopp became involved in an altercation at the Knopp residence. The men’s wives also became involved: Patty Seibold arrived in a separate vehicle, and Lau're Knopp came out of the house. Laure Knopp was carrying a camcorder in her hands, and she had a 9 mm pistol in a holster.
Seibold grabbed the pistol and took control of it. In addition, one of the Seibolds contacted the State Troopers by radio and summoned theta to the scene. The two couples separated and stood beside their respective vehicles. While everyone was waiting for the troopers to arrive, Seibold used a crowbar and then a rock to destroy the pistol. Patty Seibold then left the scene in her vehicle. After the troopers arrived and investigated the occurrence, Seibold was charged with third-degree criminal mischief for his act of destroying the Knopps’ handgun.
At his trial, Seibold testified that he destroyed the pistol because he thought “it was necessary to just .destroy the usefulness of the gun”, that it was “critical at that time to render [the gun] unusable”. Seibold was asked why he didn’t give the pistol to his wife, who was leaving in her separate vehicle. Seibold answered that this was not an option because “Patty doesn’t like guns”. Seibold was also asked why he didn’t simply lock the weapon in his truck. Seibold answered that he “didn’t want to have anything to do with [the pistol], I didn’t consider that an option. It didn’t cross my mind.”
At the end of the trial, Seibold asked Superior Court Judge pro tem Charles R. Pengilly to instruct the jury on the defense of necessity. Judge Pengilly, however, ruled that the evidence did not justify an instruction on necessity. The judge stated:
[T]here is simply no evidence to justify a conclusion that [Seibold’s] belief that the gun had to be destroyed was a reasonable [belief]. There were certainly several adequate alternatives_ Among [these alternatives were] the option of giving the pistol to Mrs. Seibold for safekeeping ... [or] the pistol could simply have been put in[to] the cab of [Seibold’s] pickup. There was no indication that the Knopps were in any way making a move towards retrieving the pistol.... [T]here is no evidence [to support] ... an objectively reasonable belief [that the pistol had to be destroyed]. So there will be no necessity instruction as to the damage to the [pistol].
The law of necessity
Under AS 11.81.320(a), the common-law defense of “necessity” is available as an affirmative defense in all criminal prosecutions unless the legislature has plainly indicated an intent to prohibit this defense to someone in the defendant’s situation. The rationale of the necessity defense is founded on public policy: “[T]he law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 5.4, Vol. 1, p. 629.
In Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981), the Alaska Supreme Court described this defense as having three elements: (1) the defendant’s violation of the law must have been doné to prevent a significant evil, (2) there must have been no adequate alternative method to prevent this evil, and (3) the harm caused by the defendant’s violation of the law must not have been disproportionate to the foreseeable harm that the defendant was trying to avoid. Cleveland ’s description of these three elements is deceptively simple; the three enumerated *786components of the defense actually present a mix of questions of fact and questions of law.
As can be inferred from the wording of Judge Pengilly’s ruling, Seibold’s ease hinges on the second element of the necessity defense. Was there no adequate alternative to Seibold’s act of destroying the pistol?
In Cleveland, addressing this second element of the defense, the supreme court stated that a defendant must prove that they acted reasonably. That is, the defendant must prove that they reasonably believed, when they violated the law, that there was no adequate alternative means to forestall the threatened harm. Cleveland, 681 P.2d at 1078.
Cleveland states that the reasonableness of the defendant’s belief is to be assessed from the viewpoint of a reasonable person in the defendant’s position. Id. Judge Coats’s majority opinion interprets this statement from Cleveland as meaning that the defendant’s belief about the existence (or non-existence) of an adequate alternative is simply a question of fact, a question to be resolved by the jury. This is not wholly accurate.
Say, for instance, that a man walks out of his house carrying a number of envelopes that he intends to mail, and also a prescription that he intends to fill. He drives to his local mailbox and, distractedly, he shoves the prescription through the mail slot along with the envelopes. Realizing his error, he then uses a crowbar to break open the mailbox and retrieve his prescription. Can he assert the defense of necessity if he is prosecuted for damaging government property?
To decide whether there was an adequate alternative path of action available to the defendant, one must of course look to the facts. How essential was it that the man procure the medicine? Could he have asked a postal employee to open the mailbox and retrieve the prescription for him? Or could the man have obtained a replacement prescription from his doctor’s office? How long would this have taken, and how quickly did he need the medicine? These are all questions of fact.
However, once the facts are established, a question of law still remains. Assume that the evidence shows that a reasonable person in the defendant’s position would have known that the defendant’s medical condition was not life-threatening; without the medicine, the man would be in significant pain, but he would still be able to pursue his normal activities. Assume also that the evidence shows that a reasonable person in the defendant’s position would have known that the defendant could obtain a replacement prescription, but not until the next morning. Under these facts, is waiting until the next morning an “adequate alternative” to breaking into the mailbox?
This is a question of law for the court. Professors LaFave and Scott discuss this issue:
The defense of necessity applies when the defendant is faced with [the] choice of two evils[.] ... If, however, there is open to him a third alternative, which will cause less harm than will be caused by violating the law, he is not justified in violating the law.... [For instance, a] starving man is not justified in stealing from a grocery if he can obtain food by presenting himself at a soup kitchen. A prisoner subjected to inhuman treatment by his jailors is not justified in breaking prison if he can bring about an improvement in his conditions by other means [ie., through administrative or judicial channels].
LaFave & Scott, swpra, § 5.4(d)(5), pp. 638-39.
Obviously, the existence of alternative courses of action involves questions of fact. For instance, was there a soup kitchen available to the starving man? Or was the prison inmate being subjected to such severe mistreatment that he might not survive to seek relief through official channels?
However, assuming that the facts show that an alternative was available (and that a reasonable person in the defendant’s position would have perceived the alternative), the next question is a legal one: was that alternative “adequate”, in the sense that the law requires a person in the defendant’s position to pursue that alternative rather than break the law?
*787This distinction was recognized by the Alaska Supreme Court in Nelson v. State, 597 P.2d 977 (Alaska 1979). In Nelson, the defendant drove his vehicle off the Steese Highway and down a side road, where it became stuck in a marsh about 250 feet off the highway. After ah hour’s unsuccessful labor trying to free his vehicle, Nelson had a friend drive him to a nearby Highway Department maintenance yard. There, Nelson stole two Department vehicles (a dump truck and a front-end loader) and used them to free his vehicle. Both of the government vehicles sustained considerable damage in the process. Nelson was prosecuted for joyriding and for reckless destruction of personal property (under the former criminal code). Nelson, 597 P.2d at 977-78.
Nelson raised the defense of necessity, and the trial judge did instruct the jury on this defense. Nelson was, nevertheless, convicted. On appeal, Nelson argued that the necessity instruction given by the trial judge was flawed. The supreme court, however, held that Nelson had not been entitled to a necessity instruction in the first place. The court ruled that Nelson failed to present a prima facie claim of necessity because he had had adequate alternatives to breaking the law.
The supreme court agreed with Nelson “that the necessity defense is available if a person acted in the reasonable belief that an emergency existed and that there were no alternatives available!,] even if that belief was mistaken.” Nelson, 597 P.2d at 979. Read by itself, this passage makes it sound as if the availability of adequate alternatives were a pure question of fact, an issue to be decided by the jury. However, the remainder of the Nelson opinion makes it clear that the court was saying something a little different.
The supreme court ultimately ruled that Nelson had not been entitled to any instruction on necessity because
it [cannot] be said that Nelson had no lawful alternatives in his situation. The record shows that[,] during the time Nelson was trying to free [his] vehicle!,] people stopped on several different occasions and offered their services in the form of physical assistance, rides, or offers to telephone [the] state troopers or a tow truck.
Nelson, 597 P.2d at 980. The supreme court clearly did not think that the adequacy of these alternatives was a question of fact to be decided by the jury at Nelson’s trial. -The court simply held (as a matter of law) that these possibilities were adequate lawful alternatives to breaking the law.
If there had been some factual dispute as to whether these alternatives were truly available to Nelson, that would have been an issue for the jury. Similarly,' if the evidence undisputedly showed that these alternatives were available, but there was some dispute as to whether a reasonable person in Nelson’s position would have perceived the availability of these alternatives, that too would have been an issue for the jury. But the evidence was undisputed that Nelson knew these alternatives were available. That left only one question: whether these alternatives were “adequate” — whether the availability of these alternatives precluded any claim of necessity. The supreme court treated this last question as an issue of law. The court held that the offers of help from passing motorists constituted adequate lawful alternatives to Nelson’s decision to violate the law. Since it was undisputed that Nelson was aware of these offers of help, he was not entitled to a necessity instruction.
The existence of an adequate alternative course of action makes a difference in several areas of the criminal law. Sometimes the legislature enacts rules for deciding the adequacy of the defendant’s alternative. For example, with regard to self-defense (a defense that is based on much the same policies as the defense of necessity), the Alaska Legislature has adopted rules regarding the alternative of safe retreat. In most circumstances, a person who is threatened with imminent deadly attack, and who might otherwise be entitled to use deadly force in self-defense, must take advantage of an opportunity to retreat with safety. However, the legislature has declared that an opportunity to retreat with safety can be disregarded— that is, safe retreat is not an “adequate” alternative — if the attack occurs on the person’s property, or if the person under attack *788is a police officer engaged in his or her duties. See AS 11.81.335(b).
With the defense of necessity, the Alaska Legislature purposely chose a different path: the rules governing the defense of necessity would be developed by the courts under their power to declare the common law.1 As this court explained in Wells v. State, 687 P.2d 346 (Alaska App.1984), the drafters of Alaska’s criminal code
declin[ed] to adopt a detailed statutory formulation [of the necessity defense]. Instead, the necessity defense was incorporated into the Revised [Criminal] Code “to the extent permitted by common law” [subject to] the qualifications described in subsections (1) and (2) [of AS 11.81.320(a) ].
The [Criminal Code Revision] Subcom-mission concluded ... that “it is more appropriate to leave this issue to the judiciary[.] [T]he rarity of the defense and the imponderables of the particulars of specific cases convinces us that the courts can better define and apply this defense than can be done through legislation.”
Wells, 687 P.2d at 349. (The internal quotations in this passage are from the Alaska Criminal Code Revision, Tentative Draft (1977), Part II, pp. 48-49.)
In other words, when the issue of necessity is raised in a criminal trial, the courts are charged with two duties. The first duty is to fulfill the courts’ normal role of ensuring that the parties have a fair opportunity to litigate all the legal issues properly raised, in the case. But the second duty is different: with regard to the defense of necessity, the legislature has directed the courts to act as. lawgivers and not just referees. It is the duty of the courts to declare the law of necessity — to define the scope and the limits of the defense through the process of deciding individual cases.2
While such a role is unusual for courts, it is not without precedent. Both the Alaska Supreme Court and this court have exercised our common-law authority to define the scope and the elements of various criminal law defenses. For instance, in Miller v. State, 462 P.2d 421, 426 (Alaska 1969), the supreme court held that a person may not use force to resist an unlawful but peaceable arrest. The supreme court ruled that it was “not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court.” Id. at 427. In other words, unless the arresting officer uses excessive force to make the arrest, the arrestee’s alternative of seeking legal redress is, by law, an “adequate” alternative (even though it is conceivable that, if the issue were tried to a jury, some juries might disagree).
This court reached a similar result in Jurco v. State, 825 P.2d 909, 914-15 (Alaska App.1992); we held that a person is not entitled to use force to resist an official seizure of their property, even if the person reasonably believes that the seizure is illegal. Again, seeking redress in the courts is, by law, an “adequate” alternative — even though reasonable people on the jury might disagree.
Turning to cases that directly involve the defense of necessity, the Alaska Supreme Court ruled in Cleveland that abortion protesters can not rely on the doctrine of necessity to justify trespass at medical clinics or other conduct that physically impedes the performance of abortions. The court essentially held that, given the fact that abortion is legal, the protesters’ alternatives of political *789agitation and public debate on the issue of abortion must be deemed “adequate”, and actual disruption of abortions can not be justified by the doctrine of necessity, even when the protesters’ motive is to prevent the imminent performance of abortions. Cleveland, 631 P.2d at 1078-1081.
The supreme court obviously viewed its ruling in Cleveland as the resolution of a question of law — the announcement of a rule that would be applied in future cases, regardless of the particular facts. In other words, it is not for juries to decide in individual cases whether political agitation is an “adequate” alternative for protesters who want to stop abortions. That issue has been resolved by defining the scope of the necessity defense — as a matter of law.
Courts in other jurisdictions have reached the same conclusion: the “adequacy” of a factually available alternative course of action is a question of law for the courts, not a question of fact for the jury. For instance, in State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the court upheld the trespass convictions of anti-war protesters against the contention that their actions were needed to help stop unjustified killing. The court held that, as a matter of law, other lawful forms of protest constituted an “adequate” alternative to the anti-war protesters’ act of trespass, and thus the protesters could not rely on the doctrine of necessity:
Where there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law. Other forms of noncriminal protest were and are available to [the] defendants to enable them to dramatize, and hence hopefully terminate, conduct which they may view [as] harmful.
Marley, 509 P.2d at 1109 (citations omitted).
Accord, United States v. Seward, 687 F.2d 1270, 1275-76 (10th Cir.1982) (necessity defense not available to protesters at a nuclear power plant site); United States v. Cassidy, 616 F.2d 101 (4th Cir.1979) (even assuming that the United States’ possession of nuclear weapons was illegal, the necessity defense was not available to protesters who damaged government property at the Pentagon).
In Schnabel v. State, 663 P.2d 960 (Alaska App.1983), this court employed similar reasoning when we rejected a miner’s assertion that his decision to cross a salmon stream with heavy equipment was justified by “necessity”. The normal summer road to the mine was closed, and the only way to deliver the equipment to the site was to cross a salmon stream. The bridge across the stream was too narrow to accommodate the heavy equipment, so Schnabel drove the equipment through the stream. Id. at 961-62. The trial judge refused Schnabel’s request to instruct the jury on the defense of necessity, and this court upheld the trial judge’s decision. This court ruled that Schnabel could not claim “necessity” because Alaska law gave him an adequate alternative: the law allowed Schnabel to seek a waiver of the normal prohibition against using wheeled vehicles in a salmon stream, and also granted him administrative (and ultimately judicial) review if his waiver application was denied.
It is important to note that Schnabel’s administrative remedies were deemed “adequate” even though there was no guarantee that Schnabel would ultimately be granted what he desired — permission to cross the stream. We stated that Schnabel’s administrative remedies were adequate because they “provided a forum for weighing and balancing the loss or damage to Schnabel from not crossing the stream against potential damage to the fish in the stream should he be permitted to cross — the precise determination that is in issue whenever.the defense of necessity is raised.” Schnabel, 663 P.2d at 966. In other words, because an administrative procedure existed wherein Schnabel could argue that his personal interests outweighed the normal prohibition against crossing the salmon stream with wheeled vehicles, this court held that Schnabel had no right to litigate this question to the jury at his criminal trial — that, Schnabel “failed to satisfy the ‘some evidence’ test as a matter of law”. Id.
Although cloaked in the language of the “some evidence” test, this court’s ruling amounted-to a decision of a point of law, a decision limiting the scope of the necessity defense. No matter how compelling Schnabel’s particular need to cross the stream *790might have been, and no matter how reasonable his actions might have appeared in hindsight, he was not entitled to a jury instruction on the defense of necessity, and he was not entitled to have the jury determine the reasonableness of his actions. Schnabel holds that, as a matter of law, people in Schnabel’s situation must pursue administrative remedies rather than violate the law.
This court issued a similar ruling in Wells v. State, supra, a case involving a prisoner who escaped from prison and raised the defense of necessity. Wells offered two justifications for his escape.
First, Wells asserted that prison officials were ignoring his medical and psychological needs. Apparently because prisoners can seek administrative (and, ultimately, judicial) review of decisions made by corrections officials regarding their medical care, this court held that Wells’s “evidence [of purported medical neglect] was insufficient as a matter of law to raise a necessity defense”. Wells, 687 P.2d at 350-51. This was a decision defining and limiting the defense of necessity. This court in effect held that, no matter how well-founded Wells’s complaints of medical neglect might have been, he was not entitled to raise them at his criminal trial as justification for his escape.
Wells’s second purported justification for escaping was his claim that he faced a danger of physical injury at the hands of fellow inmates who were angered because Wells had revealed their intention to commit theft. This court held that “this evidence [of possible attack] would have been sufficient to [raise] the [defense] of necessity if there had been some evidence suggesting that Wells tried unsuccessfully to obtain protection within the institution ”. Id. at 351. Again, in other words, this court ruled that, regardless of how well-founded Wells’s fear of attack might have been, the defense of necessity was not available to him — as a matter of law — because he failed to pursue administrative remedies.
Similar reasoning was applied in Gerlach v. State, 699 P.2d 358 (Alaska App.1985), a case in which a parent claimed that her act of custodial interference was justified by necessity. This court ruled that, even if Gerlach legitimately and reasonably feared that her estranged husband was neglecting and/or physically mistreating their child, she could not raise the defense of necessity because “Gerlach, like [the defendant in Schnabel ], had ready remedies at law.... She was involved in an ongoing custody dispute and was represented by counsel.... Her failure to avail herself of [legal remedies] precludes her reliance on a necessity defense.” Gerlach, 699 P.2d at 362.
Applying the law to the facts of Seibold’s case
Seibold asserted that he destroyed the Knopps’ pistol to prevent the possibility that the Knopps would attack him, regain possession of the pistol, and then use the weapon against him or his wife. Obviously, a threatened harm to the Seibolds’ life or physical safety could easily outweigh the Knopps’ property interest in the pistol. The question, however, is whether Seibold had any adequate alternatives to destroying the pistol.
As Judge Pengilly noted in his ruling, “[t]here was no indication that the Knopps were in any way making a move towards retrieving the pistol.” Under those circumstances, Judge Pengilly ruled, Seibold had at least two adequate alternatives to destroying the pistol. One option was to give the pistol to his wife for safekeeping. (She was getting ready to leave in her separate vehicle.) Another option was to lock the pistol inside the cab of Seibold’s pickup until the troopers arrived. (The troopers had been summoned and were en route.)
As explained above, Seibold was asked about these alternative courses of action when he testified at trial. With respect to the first alternative (giving the pistol to his departing wife), Seibold said that he did not do this because his wife “doesn’t like guns”. With respect to the second alternative (locking the pistol in his truck), Seibold said that he “didn’t want to have anything to do with [the pistol]”. He added that he “didn’t consider that an option”.
Under these facts, it is essentially undisputed that a reasonable person in Seibold’s position would have understood that these *791alternative courses of action were available to him. Thus, Seibold’s case is legally equivalent to the case the Alaska Supreme Court confronted in Nelson—the case of the truck owner whose vehicle became stuck in marshy ground and who waved aside offers of help from passing motorists, deciding instead to help, himself to some heavy equipment from a nearby Highway Department maintenance yard.
In both Seibold’s and Nelson’s cases, the evidence clearly showed that the defendants had alternatives to breaking the law. The issue was whether those available alternatives were “adequate” — whether the law required the defendant to pursue those alternatives rather than break the law. The supreme court in Nelson treated this issue as a question of law, and Judge Pen-gilly acted properly when he did the same.
Because the adequacy of Seibold’s alternatives is an issue of law, on appeal this court must assess rife novo the adequacy of the available alternatives. I reach the same conclusion as Judge Pengilly: Seibold’s alternatives were “adequate”.
Seibold asserted that he did not give the pistol to his departing wife because his wife was not comfortable with guns. I would hold that the Knopps’ interest in having their property returned to them outweighed the possibility that Seibold’s wife might be discomforted by a brief possession of a firearm in her vehicle. Seibold asserted that he did not lock the pistol in the cab of his truck because he “didn’t want to have anything to do with [it]”. Again, I would hold that the Knopps’ interest in having their property returned to them outweighed Seibold’s desire to be done with the pistol, his desire not to concern himself with the weapon any more.
Because Judge Pengilly properly treated the adequacy of Seibold’s alternatives as a question of law, and because I conclude that Judge Pengilly correctly resolved that question of law, I would affirm Judge Pengilly’s refusal to instruct the jury on the defense of necessity, and I would therefore affirm Sei-bold’s conviction.
STEWART, J., not participating.. "[T]he common law is dynamic, not static; ... it reflects the evolution of law through court decisions.... [I]n the absence of statute, it is [an] appellate court’s duty to explicate the common law which will apply unless and until the Alaska legislature acts to modify it.” Wells v. State, 687 P.2d 346, 348-49 (Alaska App.1984).
. Federal courts recognize the same principle. See United States v. Schoon, 971 F.2d 193, 196-97 (9th Cir.1991):
In some sense, the necessity defense allows [courts] to act as individual legislatures, amending a particular criminal provision or crafting a one-time exception to it, subject to court review, when a real legislature would formally do the same thing under those circumstances. For example, by allowing prisoners who escape a burning jail to claim the justification of necessity, we assume [that] the lawmaker, confronting this problem, would have allowed for [such] an exception to the law proscribing prison escapes.