I got an email today from an outfit called Kent Com LLC, which states in part that:
I've been fascinated by the necessity defense since I read Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise
Under Minnesota law:
A necessity defense defeats a criminal charge
if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant's breach of the law.
United States v. Seward, 687 F.2d 1270, 1275 (10th Cir.1982) (quoting State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973)), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983). In addition, the defense exists only if (1) there is no legal alternative to breaking the law, (2) the harm to be prevented is imminent, and (3) there is a direct, causal connection between breaking the law and preventing the harm. Seward, 687 F.2d at 1270.
State v. Rein, 477 N.W.2d 716, 717 (Minn. Ct. App. 1991).
The necessity defense has often been urged in civil disobedience cases, but only rarely successfully. See Nadia N. Sawicki, The Hollow Promise of Freedom of Conscience, 33 Cardozo L. Rev. 1389, 1420 (2012) ("In cases of civil disobedience, defendants are rarely able to satisfy the four prongs of the narrow necessity defense....").
In a case in which defendants raised the defense of necessity to justify trespassing on property of an abortion clinic, for example, the court pointed out that:
We also observe that the necessity defense claimed by appellants was principally premised on their aim to stop abortions generally, including those permitted by law. This theory of necessity is especially flawed because it involves no cognizable harm to be avoided. The courts do not recognize harm in a practice specifically condoned by law. United States v. Schoon, 939 F.2d 826, 829 (9th Cir.1991). Moreover, Schoon may have even greater impact. Arguably, appellants committed trespass to protest the lawfulness of abortions, constituting an act of indirect civil disobedience. Id. at 828 (contrasting direct civil disobedience, where the law being broken is the object of the protest). The Schoon court determined as a matter of law that the necessity defense is unavailable regarding acts of indirect civil disobedience.
State v. Rein, 477 N.W.2d 716, 718 (Minn. Ct. App. 1991). Might one not argue that the defendant valve turners committed their offense so as to protest the lawfulness of transporting and using fossil fuels? If so, does not Minnesota law preclude the necessity defense?
Similarly, a Minnesota court has also stated that:
Applying the analysis of Rein to this case, we conclude Wicklund is not entitled to the necessity defense. First, like the defendants in Rein, Wicklund had legal remedies without committing a trespass. Wicklund had access to the state legislature, courts, and law enforcement organizations. The necessity defense is not available to protestors where there are other legal remedies. Id.
State v. Wicklund, No. C8-96-620, 1997 WL 30857, at *1 (Minn. Ct. App. Jan. 28, 1997).
This prong of the defense has been a particular problem for civil disobedience criminals claiming necessity made them do it. See, e.g., U.S. v. Maxwell, 254 F.3d 21, 29 (1st Cir. 2001) (“Without exception, the decided cases teach that a defendant's legal alternatives will rarely, if ever, be deemed exhausted when the harm of which he complains can be palliated by political action.”); U.S. v. Quilty, 741 F.2d 1031, 1033 (7th Cir. 1984) (“There are thousands of opportunities for the propagation of the anti-nuclear message: in the nation's electoral process; by speech on public streets, in parks, in auditoriums, in churches and lecture halls; and by the release of information to the media, to name only a few.”).
U.S. v. Dorrell, 758 F.2d 427, 431 (9th Cir. 1985), seems especially apt here, because the court explained plainly that protestors cannot create "necessity" through their own impatience with the "less visible and more time-consuming [lawful] alternatives," which is precisely what seems to have happened here.
As one (seemingly pro-civil disobedience) commentator summed up the majority view:
Courts have frequently denied the necessity defense in civil disobedience cases on grounds that legal alternatives were available to the protestors instead of violating the law, even if such efforts might well be futile. The U.S. Supreme Court gave a classic statement of this factor in holding that if there is “a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, *140 the [necessity] defense will fail.” Lower courts have seized upon this language as an automatic ground for excluding the defense in civil disobedience cases.
The courts have consistently said that activists are free to participate in the political process, distribute literature, make speeches, petition legislators, express their disagreement with government policy in electronic and print media, and so on.For example, “[t]here are thousands of opportunities for the propagation of the anti-nuclear message: in the nation's electoral process; by speech on public streets, in parks, in auditoriums, in churches and lecture halls; and by the release of information to the media, to name only a few.”
Sometimes courts will simply refer to the notion that the defendants had “legal alternatives,” but usually courts hold that this factor requires a showing that there were no reasonable legal alternatives.Courts have been unsympathetic to the argument that legal processes to redress grievances are inadequate or ineffective.The general attitude of courts in such cases is something like the following: You still had legal alternatives available; you could have continued to petition public officials to mitigate the harm with which you are concerned and engaged in other lawful political activity to induce a change in law or policy; you could have instituted litigation against the relevant political agency in an effort to show that the agency is violating international law or violating its own regulations, and have sought adjudication of your concerns in that manner.
John Alan Cohan, Civil Disobedience and the Necessity Defense, 6 Pierce L. Rev. 111, 139–40 (2007).
Like the defendants in Rein and these other decisions, the valve turners had "had access to the state legislature, courts, and law enforcement organizations," among other legal options. There being legal remedies available, necessity is not allowed.
As I understand Minnesota law, I thus fail to see why a judge would have allowed this defense. But an answer emerges when we go back to the email:
What we have here, I suspect, is a judge who wants to go down in the history books. Or, a judge who -- like former Judge Richard Posner, doesn't care what the law says.
Anyway, back to Wicklund, which provides yet more grounds on which the
Second, as in Rein, there is no evidence demonstrating that animal research was actually prevented by the trespass. Third, because animal research is permitted by law, there is no cognizable harm to be avoided. The theory of necessity is “especially flawed” when there is no cognizable harm to be avoided. Id.
State v. Wicklund, No. C8-96-620, 1997 WL 30857, at *1 (Minn. Ct. App. Jan. 28, 1997). Because transporting fossil fuel is permitted by law, there was no cognizable harm to be avoided, and the necessity defense should be disallowed.
Further, Wicklund's act constitutes indirect civil disobedience, and therefore, as a matter of law, the necessity defense is not available to him. See id. (determining when the necessity defense is unavailable). Consequently, we conclude the district court did not err in not allowing Wicklund to introduce evidence on the necessity defense.
In contrast, I think the climate change court did.
In any case, I will be following this case with great interest.
PS: Buy the book!
