The Necessity of the Necessity Defense
Posted
By Amanda Schemkes On March 14, 2016 @ 12:57 am
Last
May, I watched the news reports about the girl who attached herself to the
anchor chain of Shell’s Arctic Challenger as it sat in the Bellingham
Bay—preparing to head to the Arctic to be part of Shell’s plan to drill for oil
there, and to surely cause horrific destruction to the fragile ecosystem of the
Arctic and magnify the impacts of climate change, including endangering
indigenous people in the area. On the first day of news reports, it appeared as
though this was an act of civil disobedience in the trend of the
kayactivism that had seemed to take over the waters of the Northwest as people
opposed Shell’s blatant exacerbation of climate destruction. On the second
day of news reports, it became clear that this was more than just a media
stunt. I continued to watch news reports as she remained until a third
day—63 hours—before she climbed down from the Arctic Challenger. In those few
days, Chiara D’Angelo held on to the Arctic Challenger because she
believed that her action was doing more than just creating a news story; she
believed that her body stood between Shell and moving closer to the
Arctic.
Many months later, Chiara asked
the Civil Liberties
Defense Center to represent her in fighting back against a
civil penalty of $20,000 from the Coast Guard, and her story laid the
foundation for us to be able to present a climate necessity defense before a
Coast Guard Hearing Officer. In order to establish a necessity defense in
the Ninth Circuit necessity defense (also called “choice of evils” or
“justification” defenses) a party must demonstrate: (1) they were faced with
a choice of evils and chose the lesser evil; (2) they acted to prevent
imminent harm; (3) they reasonably anticipated a direct causal relationship between
their conduct and the harm to be averted; and (4) they had no legal
alternatives to violating the law. United States v. Schoon, 971 F.2d 193
(9th Cir. Cal. 1992).
Normally
a necessity defense works like this:
Step
1. Activist client provides some science and argument about why their
action was a necessity. Use the standards we have provided above, link them
to science and policy that upholds your position. Provide attorney with
documentation. Bonus points if you can provide attorney with the name of a local
leading scientist who might talk to attorney and/or testify on your behalf
(pro bono). You are also welcome to have your lawyer call a CLDC lawyer to talk
about the necessity defense.
Step
2. Criminal defense attorney files a “Notice” that you are going to assert
a necessity defense to a jury of your peers—this normally has to be filed at
least 30 days before your trial date, so bring this issue up early and be
clear about your desire to use the defense.
Step
3. Normally the State will file an objection to your intended use of the
necessity defense, and then a pretrial hearing is held in front of the judge.
This is sort of like a pre-test. You must put on all your evidence and
witness testimony to establish the 4 prongs of the defense (set forth above).
Then the Judge rules whether you met that test or not. If the Judge does
not believe you met the test, they rule against you and deny you the ability to
put on a necessity defense in front of the jury. If they rule in your
favor, which has only happened once in CLDC’s time of defending over 2000
activists, then you are allowed to repeat the hearing you just had
(calling witnesses, etc.) in front of a jury.
Step
4. At the conclusion of all your evidence and testimony, the jury is
provided with a jury instruction about how to apply the necessity defense to
your case. Your lawyer is allowed to argue that you were faced with a
choice of evils, such as: climate disaster that will cause untold suffering and
devastation versus trespassing onto Shell property. Lawyer argues that you
acted (e.g. climbed onto an anchor) to prevent an imminent harm (oils spills
and destruction of the Arctic in order to provide grotesque profit to
Royal Dutch Shell), and that your action would have averted that harm. Lawyer
then argues that you had no legal alternative to breaking the law.
Step
5. The jurors deliberate and come back into the courtroom with a verdict.
The verdict will be read and will say something like, “We find you not guilty
of trespassing in the 2nd degree.” That means you won. You won’t
necessarily know it was because of the necessity defense. You’ll just know that
you won and were not convicted of a crime as a result of your act of
resistance.
In
Chiara’s case, there was an interesting twist to deal with: because the US
Coast Guard took jurisdiction of the area where Chiara was arrested, instead
of having a public court hearing in a civilian court with its rules and
laws, we were required to have a hearing before a US Coast Guard Hearing
Officer, with rules dictated by the Coast Guard (a branch of the military
that is within the Department of Homeland Security) and no response before the
hearing about whether the Hearing Officer would actually consider the
necessity defense.
We still
await the decision of the Coast Guard Hearing Officer, but the victory of
asserting a necessity defense based on the devastating impact of climate
change has already empowered many more climate activists at this point.
About two years ago, the CLDC developed a model template of a climate necessity
defense for movement activists. It includes case law, argument, and a
signed declaration from Dr. James Hanson (we share this freely with eligible
lawyers and activist clients). A climate necessity defense has yet to be
fully successful in the courts, but asserting the defense has become a tactic
that can be used to help activists to feel empowered in challenging
charges, to garner national media attention for campaigns, and to push courts
further into the uncomfortable position of having to weigh corporate
interests against the fate of life on this planet. While activists need to
recognize that we can’t look to the courts to save the planet—as
the government and corporations are intertwined as the State that’s
killing the planet for the sake of power and greed—when activists are taking
risks that bring them before a court, it’s nice to have a mixture of tools
to use to fight back and hopefully reduce the impact that large fines and
prison sentences can have on both individuals and communities.
The necessity brief also argues
that climate change is already impacting the health of humans around the world,
the survival of species and ecosystems, destructive weather patterns and
forest fires, and promises more devastation to come. Our actions to stop the
State from continuing this destructive path into a dim future already
need to be taken out of necessity, whether courts recognize that or not, and we
must keep pushing that urgency. Asserting a necessity defense should be
but one reminder that we are faced with a choice of evils, we must act to
prevent imminent harm, we should act in ways that have a direct impact
on the forces destroying the earth, and we need to explore all
alternatives to letting the State continue to profit off of climate change. Assert
your rights, we’ve got your back.
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"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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