A few thoughts on the necessity defense

As with any tactic for responding to the climate crisis, the use of the necessity defense in civil disobedience trials is subject to misinformation from a variety of sources. Regardless of the intentions of those sources of misinformation, part of our job is to routinely reiterate the facts and clarify where we stand. There is of course a lot of grey area on this, since “The Law” is not a hard and fast code, but rather a constantly evolving context of countless power struggles. So with that in mind, let’s look at some of the misinformation floating around the web recently.

**The necessity defense requires a person to turn themselves in to law enforcement immediately.**


The standards for judicial approval of using the necessity defense vary a little by state and federal courts, but generally there are 3 basic standards that must be met:

  1. There was an imminent harm which the defendant acted to avert, and which constituted a greater harm than the defendant’s actions. In other words, the defendant chose the lesser of two evils.
  2. The defendant had a reasonable expectation that their actions would avert the harm.
  3. There were no legal alternatives that could have reasonably averted the harm.

Some courts have additional requirements about the defendant proving that they did not initiate the imminent harm in question, but it is not legally necessary for defendants to turn themselves in to the cops. In most cases activists are arrested by the police, but that’s generally because the point was to do a public direct action, and it’s hard to tell a public story when you run and hide.

Using the necessity defense generally requires acknowledging one’s actions, but that absolutely does not mean that a defendant admits to committing a crime. That’s the whole point of what “defense” means. If there is a legal justification for one’s actions, it’s not legally a crime. In some cases, a defendant’s actions may not even meet the technical standards of a crime, so the necessity defense “overlaps” with a technical defense. For example, in the Minnesota valve turner case, the activists using the necessity defense were charged with “damaging a pipeline,” but there was no actual damage to the pipeline that occurred.

More importantly, there are two critical things to keep in mind. First, the formal use of the necessity defense in any specific case is always up to the discretion of a specific judge. It’s all open to argument and interpretation. Second, activists can still essentially argue the necessity defense, both in the courtroom and in the court of public opinion, even when a judge refuses to give necessity defense instructions to a jury. Cases like the repeated failure to convict Ken Ward for the valve turner action in Washington demonstrate the potential to effectively use the necessity defense even when a judge officially denies it. Juries can always make whatever ruling they want for whatever reason they want, and their acquittals can never be overturned.

**The use of the necessity defense asserts that the law is righteous and just.**


This one is not only legally counterfactual, it flies in the face of the lived experience of pretty much every attempted use of the necessity defense. The use of the necessity defense is a way of drawing attention to the fact that the law is a tool of those in power, wielded to uphold the status quo. Generally, civil disobedience implies that the law, or a specific use of the law, is unjust. Many legal experts describe the necessity defense as a way of putting the government and the law itself on trial.

In particular, the requirement for a defendant to prove that there were no legal alternatives to their direct action is an opportunity to prove just how corrupt our legal system is. In recent necessity defense trials, this requirement has led to expert and defendant testimony on the evils of corporate personhood, the influence of money in politics, the corruption of the regulatory system, and the failures of the court system.

In every closing argument of these trials that I’ve ever witnessed, defendants and defense attorneys have spoken powerfully about the history of how the law has often been on the wrong side of justice. They remind both jurors and the public audience that laws in the past have upheld things that we now think of as morally reprehensible, and it was only by people breaking those laws that society became more just. In addition to educating jurors and the public about the specific target of the protest, a necessity defense is always an opportunity to educate people about the nature of the law as an imperfect and often unjust tool which we have the responsibility to challenge and change.

In my own experience, and that of many of the activists I’ve worked with, one of the side benefits of a civil disobedience trial is that it exposes people to how unjust the law really is. I have seen several predominantly white communities, without much of their own direct experience with the legal system, react with outrage when they learn how the legal system really works after paying attention to an activist trial. This awakening creates opportunities for intersectional movement building and solidarity with the communities of color that are more frequently subjected to the abuses of the legal system.

The Big Picture

Ultimately, the necessity defense is a tactic in the larger strategy of civil disobedience as a tool for cultural, political, and economic transformation. First and foremost, we engage in direct action to defend our communities from harm. Because the law is a tool of those in power, many of those actions to defend our communities happen to be illegal. The ethos of civil disobedience invites us to look at all our actions as an opportunity to tell a story that can push us toward the cultural and systemic transformations we need. So when we end up in a court system after a direct action, the necessity defense is a way of using that courtroom as a platform for telling the story of why we have a responsibility to act for the common good when our government acts irresponsibly. We initially acted because it was necessary, so why would we not speak that truth at every opportunity?

But as we always say, remember that the necessity defense is not a strategy for avoiding consequences to our actions. It can tell a powerful public story, but it generally loses in the courtroom. When we engage in civil disobedience, we do so because we are willing to go to prison in order to defend our communities. The tactic of the necessity defense shouldn’t change that personal choice. Prison is much, much harder for some people than others, and race and gender identity are big factors in that spectrum of difficulty. There are a million kinds of work that need to be done, and if this strategy is not for you, that’s fine. Find your work and do it. Just please try to do it without lying about other activists and undermining their efforts.

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  • Tim DeChristopher
    published this page in Blog 2019-10-14 15:47:06 -0400