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Herb Rothschild Jr.: The necessity defense

On Sept. 4, the Washington State Supreme Court upheld an earlier state appeals court ruling that overturned Ken Ward’s conviction for burglary for closing a valve on Kinder Morgan’s TransMountain pipeline in October 2016. The pipeline transports Canadian tar sands oil to refineries in Washington’s Skagit County. The appeals court voided Ward’s conviction because the trial judge didn’t allow Ward’s lawyers to present to the jury what’s called in law a necessity defense.

The court rulings in Washington followed similar rulings in Minnesota on behalf of Emily Johnston and Annette Klapstein, who turned valves on other pipelines in a coordinated action with Ward, Michael Foster in North Dakota, and Leonard Higgins in Montana.

Ward will now get a new trial, which he welcomed. “I’ve said all along that I relish the chance to put the facts about climate catastrophe before a jury in Skagit County. I think that any reasonable group of citizens will agree that actions like the ‘valve-turners’ are necessary if we’re to have any hope of avoiding the worst, given the stranglehold that the fossil fuel industry has on politics, and the speed of collapse.” Rather than give a Minnesota jury that chance, prosecutors dropped their charges against Johnston and Klapstein.

The necessity defense is an important legal tool of social change. It allows a jury to exercise its judgment about whether, in a particular case, justice is better served by not basing its verdict solely on whether the defendants broke the law they are charged with, but also on their motive. Prosecutors and trial judges don’t like to allow juries such discretion.

Readers my age may remember when the Berrigan brothers and seven other opponents of the Vietnam war burned draft records in the Selective Service office in Catonsville, Maryland, in 1968. Their convictions were appealed on the ground that they hadn’t been allowed to present the necessity defense at trial. But the U.S. Fourth Circuit Court of Appeals rejected that appeal, writing, “To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

Although our experience lends no support whatsoever to this fear of chaos, it is one reason our federal courts consistently refuse to admit the necessity defense in civil disobedience cases. Another may be that when state courts have allowed it, juries frequently sided with the defendants. They have done so in actions related to nuclear power plants, nuclear weapons, the wars in Central America in the 1980s, apartheid in South Africa, abortion, and dispensing clean needles to addicts without a license.

An argument federal judges have often used when disallowing the necessity defense is that the U.S. is a democracy, and so the people’s representatives can change the laws or policies at issue. That despite defendants’ submission of evidence that they had tried mightily to pursue change by appealing to elected officials. Federal judges won’t acknowledge how unresponsive to majority opinion officeholders can be when concentrations of power, such as fossil fuel companies, defense contractors, or the NRA, oppose changes that would serve vital public interests.

Here’s a takeaway from this column for those planning direct action to save the planet: choose sites under state, not federal, jurisdiction.

Herb Rothschild’s column appears in the Ashland Tidings every Saturday.