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.Read more
Reflections from the Minnesota Valve Tuners Trial
The primary lesson reinforced by the Minnesota Valve Turners Trial is that with climate necessity defense trials, and other political trials, you never know what you’re going to get, and you have to be ready for anything.
I’ve attended quite a few trials that were almost necessity defense trials, or what we hoped could have been necessity defense trials, and there is always something standing in the way of the trial becoming what we wanted it to be. A week before the Minnesota trial, it seemed like it was the best hope yet to finally be a full necessity defense trial in front of a jury. The case had already been through two rounds of appeals, with the state superior court affirming that the defendants had the right to use the necessity defense. And this is important: those appeals court victories by the valve turners set a precedent in Minnesota that will help others use the necessity defense. This could be critical in the the line 3 pipeline battle that is now heating up.
But a few days before the trial started, the judge severely restricted what the defense could present as evidence and witnesses. All of the political science expert witnesses who could testify to the lack of legal alternatives, an essential element of the necessity defense, were stricken from the witness list. The witnesses with expertise on the efficacy of civil disobedience were also banned from testifying. And perhaps most importantly, the judge ruled the expert testimony about climate science was not allowed on the grounds that the reality and severity of climate change was “commonly understood and accepted knowledge.”
This threw a twist into the trial at the very earliest stages. The jury selection process is an opportunity to frame the narrative of the case for the jurors. The way questions are asked shapes the way people think about the issues. In a climate necessity defense case, the narrative should be about how we respond to very real and serious threats. But lead attorney Lauren Regan was put into a difficult position by the last minute restrictions on climate science testimony, so she made an unusual gamble.Read more
Necessity Defense Webcast
Last week Jay and Marla participated in a webcast that covered an overview of the climate necessity defense, a discussion of its uses for movement organizing, and an update on current cases. Kelsey Skaggs from the Climate Defense Project and Valve Turner Ben Joldersma also participated in the discussion. Thanks to Stand.Earth for hosting this important conversation.
Climate Disobedience Snapshot
There are a bunch of exciting things happening in the climate disobedience world that we want to hi-lite at the start of April.
Judge Approves #NoDAPL Activist Chase Iron Eyes’ Demand For Withheld Evidence
Read the full story from Indian Country Today
From the Lakota People's Law Project Facebook page: "Yesterday [April 4th], the Judge in Chase Iron Eyes' case upheld earlier rulings that law enforcement and private security contractors must comply with our discovery demands."
You can watch the legal update with Daniel Sheehan, hear from Chase Iron Eyes, and find a donate link to support the work here.
Cherri Foytlin Arrested Livestreaming Blockade of Bayou Bridge Pipeline
A long term resistance camp is thriving in Louisiana in the path of the Bayou Bridge Pipeline. L'eau Est La Vie Camp has been helping and instigating actions to thwart this 162 mile long crude oil pipeline. On April 5th, two teachers blockaded construction for over four hours.
In a surprise, however, police also arrested mother and organizer Cherri Foytlin, who is on the Indigenous Women's Council for the L’eau Est La Vie Camp. Cherri was livestreaming the blockade and the arrest had no obvious rationale. Organizers suspect that Cherri was deliberately targeted in an attempt to stall the work that she has been doing with L'eau Est La Vie
You can support L'eau Est La Vie Camp here: http://nobbp.org/
Judge in West Virginia Lends Support to Pipeline Construction Blockade
There are currently two high-flying actions happening in the woods of West Virginia in path of the Mountain Valley Pipeline, a major new fracked gas pipeline crossing from West Virginia to Virginia. Activists have been preventing the one time completion of a phase of tree-cutting along the pipeline corridor that was supposed to wrap up on March 31st when tree cutting must stop due to migratory bird nesting.
Tree sitters have been blockading tree cutting along the pipeline route near the Appalachian Trail for five weeks, and a second blockade was begun last week in the path of a construction access road. In a legal twist, the pipeline company asked Monroe County Circuit Court to issue an injunction against the tree sit and we rebuffed by judge Robert Irons who wrote in his opinion that the tree sitters “generally represent the interest of the public and the environment, such as the interest in protecting the waters underlying Peters Mountain, its flora and fauna, its view shed, the Appalachian Trail, and similar interests that will or may be destroyed."
This pipeline will be linked to the even larger Atlantic Coast Pipeline destined for North Carolina and points south. You can support the blockaders directly here: bit.ly/supportmvpresistance
Last Two Valve Turners Await Climate Necessity Trial in Minnesota
In 2016 five individuals closed emergency shut off valves on the pipelines carrying Canadian tar sands in to the US, shutting down 15% of the US daily oil supply. Three have already stood trial, and one, Michael Foster, is currently serving one year in prison in North Dakota for his shut down of the Keystone Pipeline.
Valve turners Emily Johnston and Annette Klapstein are awaiting trial in Minnesota for shutting down two of Enbridge corporation's pipelines there. Their judge has OK'd the use of a necessity defense in their case, and are prepared to launch the climate trial we had hoped to have in West Roxbury, with witnesses including Dr. James Hansen and Bill McKibben.
Their trial date still hangs in limbo, as the prosecution appealed the granting of the necessity defense. The appeals court heard oral arguments on necessity in mid-February, but the judge has not yet issued a ruling. This could well be the #ClimateTrial of the century that we have been waiting for if the necessity defense is allowed to proceed. This would be the first necessity defense allowed to the valve turners, and the first in over two years since the Delta 5 trial in Washington state.
You can find out more at shutitdown.today.
Coal Train Blockader Set to Stand Trial in Spokane
Rev. George Taylor and others blockaded the tracks of the BNSF railroad that carries coal and oil west, part of the building movement in Spokane to combat the fossil-fuel-by-rail corridor that runs through the center of their city. A grassroots effort has been rising in Spokane, which resulted in the city passing new bylaws which affirmed local self-determination over their environment, and as part of that effort to halt this fossil fuel corridor, a campaign of climate disobedience was begun.
The judge in Taylor's case, supported by our partners at the Climate Defense Project, has granted the use of the necessity defense. The case was set for trial for April April 23rd. Now the state prosecutor has appealed the judge's necessity decision, and Taylor's day in court is uncertain. We at the Climate Disobedience Center are lending trial organizing support to this effort.
Judge Rules Defendants' Actions "Necessary" to Prevent Greater Harm in West Roxbury #ClimateTrial
On March 27th, 13 defendants went into Boston’s West Roxbury District courthouse to answer charges related to their arrests as part of a sustained campaign to block construction on the West Roxbury Lateral Pipeline that included 198 arrests from October 2015 through September 2016. Although the prosecutor moved to reduce the charges from misdemeanor criminal offenses to civil infractions — the equivalent of a parking ticket, Judge Mary Ann Driscoll allowed each defendant testify briefly on the necessity of their actions.
The defendants collectively presented a powerful and comprehensive argument for why it was necessary to engage in civil disobedience to stop the imminent local and global harms of this fracked gas pipeline. Following their testimony, the judge ruled that the defendants’ actions were necessary in order prevent a greater harm.
While defendants were still denied a jury trial and the possibility of a full necessity defense, this was the first time that defendants were acquitted by a judge based on climate necessity.
Listen to the official court audio here (includes defendant testimony and Judge Driscoll's ruling). Watch and share video statements from supporters, defendants and National Lawyers Guild attorney, Josh Raisler-Cohn via Facebook or Twitter.
The Climate Disobedience Center's Marla Marcum was a lead organizer with Resist the Pipeline in West Roxbury for the duration of this campaign. CDC's Tim DeChristopher was one of the 13 defendants, and CDC provided organizing and other support to prepare for trial. Shout out to our partners at the Massachusetts Chapter of the National Lawyers Guild represented all 198 defendants from October 2015 through March 2018. Climate Defense Project provided invaluable support related to preparations for a necessity defense, and our friends from 198 Methods joined us during the trial to manage media coordination.
Climate Necessity Defense Approved By Minnesota Judge In Tar Sands "Valve Turners" Case
One year after Emily Johnston and Annette Klapstein entered a valve site to manually shut down the flow of oil in two Enbridge tar sands pipelines near Leonard, Minnesota, District Court judge Robert Tiffany granted a motion brought by the “Valve Turners” and two supporters to present a necessity defense at trial.
The case is the result of coordinated “Shut It Down” actions to halt the flow of all tar sands pipelines in the country on October 11, 2106. Johnston and Klapstein shutting off the flow of Enbridge Corporation’s pipelines 4 and 67 near Leonard, Minnesota, while fellow activists manually engaged the emergency valves on pipelines in Washington, North Dakota, and Montana. Documentary filmmaker Steve Liptay and support person Ben Joldersma were also arrested in the Minnesota action, and they join Valve Turners Johnston and Klapstein in this landmark effort to present a climate necessity defense.
A climate necessity defense offers a jury a novel scenario: the defendants freely admit to taking the actions for which they have been charged. Instead of seeking to plant doubt in the minds of jurors, the defense provides context for the action, calling expert witnesses to offer testimony about the urgency of the climate crisis, the imminent danger posed by tar sands pipelines, and the historic role of civil disobedience in transforming unjust systems.Read more
FOR IMMEDIATE RELEASE: JUDGE DENIES CLIMATE ACTIVIST’S NECESSITY DEFENSE, RESTRICTING RIGHT TO DEFEND PROTEST AT TRIAL
FOR IMMEDIATE RELEASE
MAY 10, 2017
Climate Defence Project
Climate Disobedience Center
Mount Vernon, WA — A Washington state judge has ruled that Ken Ward, a climate activist who who helped to temporarily block the flow of tar sands oil from Canada to the United States in an October protest, cannot present the climate necessity defense at his trial scheduled to begin on May 22. The decision — which limits Mr. Ward’s constitutional right to defend himself in court — bars Mr. Ward from from arguing to a jury that his actions were necessary, and prohibits him from calling expert witnesses to testify about the ongoing harms of climate change and the need for grassroots civil disobedience to impel policy change.Read more
Press Release: Jury in Delta 5 Climate Case Splits Decision, Shares Sympathy With Protesters
For Immediate Release: Jury in Delta 5 Climate Case Splits Decision, Shares Sympathy With Protesters
Contact Ahmed Gaya 773-960-2587, [email protected]
January 15, 2016
Lynnwood, WA - The historic case of the 'Delta 5' train blockaders has ended with a conviction on one of the two charges. After four days of testimony from the defendants and their expert witness a Jury found the defendants not guilty of impeding the movement of a train, but guilty of trespass in the second degree.
Immediately following the verdict three of the jurors gathered in the halls of the courthouse to talk with the defendants, their legal team, and supporters. In a heartfelt conversation the jurors expressed their support for the defendants, told their lawyers they would have acquitted on all charges were necessity instructions given, agreed to work with the Climate Disobedience Center to improve further cases and signed up to attend a lobbying day on oil-trains with defendant Abby Brockway.
"The fact that the full testimony on climate and oil trains was allowed, and the jury acquitted us of blocking an oil train makes this a historic trial. Two of the jurors said they are ready to join us lobbying at the state house, I'd call that a success," said defendant Abby Brockway.
Despite the compelling testimony, the judge instructed the jury to limit their deliberations only to the question of finding whether there were violations of trespass and train laws.
"This judge refused to introduce our defense because of lack of precedent. It set me to thinking of all the bold judges who broke with precedent and advanced the cause of justice in the process, The necessity defense is something that needs a new precedent.” said Jackie Minchew of the Delta 5.
Jurors told the defendants and their lawyers that they were moved by the testimony on the climate crisis and oil train threats and that they would find ways to take action on both issues. “Welcome to the movement,” defendant Mike Lapointe told jurors as he and Brockway embraced them.
Four of the five defendants were sentenced to $550 in fines and fees and a two year probation. Mike Lapointe had his fines suspended due to his financial circumstances. The terms of their probation are that they have no further criminal violations and have no contact with BNSF property.
In 2014, Motivated by the alarming science of climate change, and by concern for the safety of those living in Washington's fossil fuel corridors, the five local activists had blockaded a train used to transport explosive Bakkan crude oil in Everett on September 2, 2014.
"The Delta 5 knew that they had to step outside of business as usual to take climate action commensurate with the crisis. The fact that Judge Howard stayed within his strict legalism and declined to take a risk of conscience reinforces how important it is for citizens to take bold moral actions. It is clear from the comments of the jurors that this was a transformational moment," said climate activist Tim DeChristopher. DeChristopher, a founder of the Climate Disobedience Center, had his own trial and conviction after disrupting a federal oil and gas auction in Utah in 2008.
Defendants are now available for comment to the media.
Contact Ahmed Gaya, 773-960-2587, [email protected]
Video of the defendants and jurors talking available here .
More videos of jurors and defendants and courtroom footage being uploaded, contact Ahmed Gaya
VERDICT: Delta 5 defendants found not guilty obstruction, guilty of trespass. Receive no jail time.
UPDATED: Read trial verdict press release here.
JURORS celebrate the Delta 5 in an unprecedented climate trial!
THE VERDICT: The defendants were found not guilty on obstruction of train charges, guilty of trespass. The judge issued 90 days suspended (no jail time) and minor fines for each defendant, except LaPointe, who gets no fine.
This verdict is via Tim DeChristopher's live tweeting from court.
For background on the case see Delta 5 posts on this site and the Delta 5 trial site. For media inquiries please contact Mara Marcum.
Jury finds all defendants not guilty of obstruction, guilty of trespass. #Delta5— Tim DeChristopher (@dechristopher) January 15, 2016
Delta 5 Media Hits
As the trial of Abby Brockway, Mike Lapointe, Patrick Mazza, Jackie Minchew, and Liz Spoerri unfolds over the next week we'll be posting media updates here.
The Guardian - A crime justified by climate change? Activists caught in legal showdown.
Click below for a full list of media hits.Read more