New Clear Vision

Tim DeChristopher and the Defense of Necessity

by Jerry Elmer

Tim DeChristopher is the environmental and climate-change activist who was recently sentenced to two years in federal prison for an act of public, nonviolent civil disobedience.  On December 19, 2008, DeChristopher disrupted a federal auction in Utah of oil and gas drilling lease rights.  DeChristopher participated in the auction, openly and publicly, posing as a real bidder.  His high bids won rights to 14 separate parcels totaling 22,500 acres of land, for $1.8 million.  DeChristopher had no intention of paying; he had scooped the parcels as a means of making a dramatic public statement about the dangers of climate change. DeChristopher follows a long and noble tradition of civil disobedience that includes other practitioners such as Thoreau, Gandhi, and Martin Luther King, Jr.

At trial, DeChristopher attempted to present a defense based on the legal concept of “necessity.”  This, too, is a classic for people who commit civil disobedience.  Basically, the defense of necessity posits that a person had to violate a lesser law in order to avert a greater evil from occurring.  For example, no one would prosecute you for the crime of breaking and entering if you broke into a neighbor’s burning house to carry a sleeping infant to safety.  The defense of necessity says it is okay to break a small law (say, breaking and entering) in order to avoid a much greater evil (say, the death of the sleeping baby).

The prosecutor in the DeChristopher case, John Huber, argued that DeChristopher should not even be allowed to present the necessity defense because it would “encourage improper jury nullification.”  Black’s Law Dictionary defines jury nullification as:  “A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by the law is contrary to the jury’s sense of justice, morality, or fairness.”  Black’s Law Dictionary 936 (9th ed. 2009).

On a superficial level, Mr. Huber was right:  there is a connection between DeChristopher’s assertion of the defense of necessity and the broader concept of jury nullification.  But in a deeper and more important sense, Mr. Huber is profoundly mistaken.  The root of Mr. Huber’s error is grounded in the definition and meaning of nonviolent civil disobedience.

Defense of Necessity

The defense of necessity is a concept of venerable antiquity.  It was recognized at common law in England no later than 1551.  In Reniger v. Fogossa, 75 Eng. Rep. 1 (Ex. Ch. 1551), in order to avoid a dangerous storm at sea, the defendant, Fogossa, violated a statute in the way he docked his ship.  By the strict terms of the statute, Fogossa should have forfeited the goods on board.  Fogossa pled the defense of necessity and prevailed.  The court held: “[A] man may break the words of the law, and yet not break the law itself…. And therefore the words of the law … will yield and give way to some acts and things done against the words of the same laws, and that is, where the words of them are broken to avoid greater inconveniences, or through necessity.” Id. at 29.

This was a classic statement of the defense.

As a technical, legal matter, there are three elements that must be proved in order for the defense of necessity to be applicable.  These are:  (1) the actor has acted to avoid a grave harm, not of his own making; (2) there are not adequate legal means to avoid the harm; and (3) the harm sought to be avoided is greater than that committed.  Significantly, merely arguing the defense of necessity does not mean that a defendant gets off.  In order to be acquitted (by reason of necessity) the defendant must prove all three elements to the satisfaction of the factfinder (either jury or judge).  One of the things that was outrageous in the DeChristopher case is that Judge Dee Benson did not even permit DeChristopher to present the defense.

There are lots of U.S. cases in which the defense of necessity has been used.  One early case was The William Gray, 29 F. Cas. 1300 (C.C.D.N.Y. 1810).  In that case, an American ship en route from Virginia to Boston instead sailed to the Caribbean island of Antigua in criminal violation of an embargo.  The drastic change of route was necessitated by “storms, tempests, stress of weather and necessity.”  Id. at 1301.  The defendants pleaded that their illegal action was “necessary for the preservation of life.”  Id. at 1302.  They were convicted in the trial court, but the conviction was reversed on appeal based on the defense of necessity.  The defendants had provided to the court lots of examples in which the defense of necessity had been recognized and approved by earlier courts.  The appellate court, in reversing the convictions of the defendants said:  “The cases which have been produced by the [defendants] are as strong and as conclusive as perhaps were ever submitted to a court in support of an proposition of law.”  Id. at 1302.

And the defense of necessity was by no means been limited to cases of unexpected storms at sea.  United States v. Ashton, 24 F. Cas. 873 (C.C.D. Mass. 1834) involved a case in which a mutiny at sea was deemed necessary because a ship was unseaworthy.  State v. Jackson, 71 N.H. 552, 53 A. 1021 (1902) involved a parent withdrawing his daughter from school  due to daughter’s severe ill health, despite law compelling mandatory school attendance.

Nor has the use of the defense of necessity been limited to the remote past; the defense is alive and well in contemporary times.  In modern times, the defense of necessity has been invoked by criminal defendants most frequently in the case of demonstrators committing public, nonviolent civil disobedience for reasons of deeply held religious, moral, or ethical principles — just like Tim DeChristopher.

Some of these case are reported.  In People of the State of New York v. Gray, 150 Misc.2d 852, 571 N.Y.S.2d 851 (1991), environmental protesters were charged with disorderly conduct when they blocked a lane of traffic on the Queensboro Bridge in New York City to protest the opening of that lane, which had previously been reserved for bicycles and pedestrians, to vehicular traffic.  The defense of necessity was presented, and the defendants were acquitted.  In upholding the acquittals, the court reviewed the history and elements of the necessity defense and went on to conclude that “when the necessity defense is actually submitted to the trier of fact in such cases [of civil disobedience], defendants have usually been acquitted.”  150 Misc.2d at 854, 571 N.Y.S.2d at 853.

Many other instances of the contemporary use of the defense of necessity in cases of public, nonviolent civil disobedience are found in unreported cases.  In Colorado v. Bock, PL-174/68 (Colo. Mun. Ct. June 25, 1986), the defendants occupied Denver office of Senator William Armstrong to protest U.S. policy in Central America; they presented a necessity defense, and the jury acquitted them.  In Illinois v. Fish, PL-329/74 (Ill. Cir. Ct. May 17, 1988), the defendants were arrested for protesting U.S. policy in Central America policy at an Army Reserve Training Center; they presented a necessity defense, and the jury acquitted them.  In Illinois v. Jarka, PL123/66 (Ill. Cir. Ct. April 15, 1985), the defendants were arrested protesting U.S. involvement in Central America at the Great Lakes Naval Base; they presented a necessity defense, and the jury acquitted them.  In Massachusetts v. Schaeffer-Duffy, PL-426/78 (Mass. Dist. Ct. Nov. 1, 1989), the defendants were arrested committing civil disobedience at a nuclear weapons facility; they presented a necessity defense, and the jury acquitted them.  In Michigan v. Heyer, PL-48/64 (Mich. Dist. Ct. April 9, 1984) , the defendants blocked access to cruise missile factory; they presented a necessity defense, and the jury acquitted them.  In Chicago v. Streeter, PL 121/66 (Ill. Mun. Ct. May 17, 1985), the defendants were arrested for trespass at a South African consulate; they presented a necessity defense, and the jury acquitted them. In Washington v. Bass, PL-219/73 (Wash. Dist. Ct. Nov. 9, 1987), the defendants were arrested conducting a sit in at state Capitol in support of South Africa divestment legislation; they presented a necessity defense, and the jury acquitted them.  In Washington v. Heller, PL-151/69 (Wash. Mun. Ct. Aug. 7, 1985), the defendants were arrested for trespass while protesting against apartheid; they presented a necessity defense permitted, and the jury acquitted them.  In Massachusetts v. Carter, PL-187-72 (Mass. Dist. Ct., April 15, 1987), the defendants were arrested for disorderly conduct while protesting against CIA policies; they presented a necessity defense, and the jury acquitted them.  (The named defendant in this last case was Amy Carter, President Carter’s daughter, to whom I had previously given training in nonviolent civil disobedience.)

Jury Nullification

Like the defense of necessity, jury nullification is sometimes used by protesters who were arrested for civil disobedience.  But jury nullification is different in one salient way from claiming the defense of necessity.

All of us learned about jury nullification in our seventh grade civics class when we studied the case of John Peter Zenger.  In colonial America, Zenger was arrested by the British colonial authorities and charged with seditious libel for publishing scathing criticisms of British colonial rule in general and of New York’s governor in particular.  Zenger was represented by Andrew Hamilton, who urged the jury to acquit Zenger despite his obvious guilt.  Hamilton urged the jury to “see with their eyes, to hear with their own ears, and to make use of the their consciences and understandings.”  The jury acquitted Zenger, and freedom of the press in America was born.

Jury nullification is predicated upon the common law jury’s power to acquit an obviously guilty defendant when the jury concludes that the law at issue is immoral.  Jack Weinstein, Considering Jury Nullification: When May and Should a Jury Reflect the Law To Do Justice? 30 Amer. Crim. L. Rev. 239, 244 (1993).  The Zenger example is a stirring tale (especially when retold by seventh grade civics teachers), but jury nullification has a darker side, too.

Take the case of Emmett Till.  Till was a 14-year-old black youth who was brutally murdered in Mississippi in August 1955 for allegedly whistling at a white woman.  Two white men, J. W. Millam and Roy Bryant, were charged with the murder. The jury was all white.  The evidence against the two defendants was overwhelming, but the defense lawyer made an openly racist appeal to the jury for nullification, telling jurors that “every last Anglo-Saxon one of you has the courage to free these men.”  Millam and Bryant were acquitted.  A few weeks later, the defendants bragged to a magazine reporter about their guilt.  The Tallahatchie County all-white jury that acquitted Millam and Bryant were practicing classic jury nullification:  the defendants were obviously guilty, but the white jurors thought it would be wrong to convict these good white men who had merely taught a black youth a salutary lesson.

Collie Leroy Wilkins, a Ku Klux Klan member, is universally known to be the murderer who shot civil rights worker Viola Liuzzo in 1965 at the time of Selma-to-Montgomery march.  It took an all-white jury less than two hours to acquit Wilkins of Liuzzo’s  murder.  Jury nullification.  Tom Coleman murdered civil rights worker Jonathan Daniel in Alabama in 1965; Coleman was acquitted by an all-white jury.  Jury nullification.

Progressive activists argue that jury nullification is a good thing because it permits a jury to act as the conscience of the community, and as a bulwark against governmental tyranny.  See, e.g., United States v. Datcher, 830 F. Supp. 411, 413 (M.D. Tenn. 1993).  But it is undeniable that some of the worst crimes during the civil rights era went wholly unpunished because of jury nullification.

Where we progressives tout jury nullification because we see in it juries acting as “the conscience of the community,” others see “jury lawlessness.”  Roscoe Pound, Law in Books and Law in Action, 44 Amer. L. Rev. 12, 18 (1910).  When nine of my friends (six priests, two nuns, and one long-haired hippie) poured blood on Dow Chemical files in Washington, D.C. on March 21, 1970, as an anti-Vietnam-war protest, they sought permission to have their jury instructed on nullification.  (Dow Chemical manufactured the napalm that the United States used in Vietnam.)  Judge John Pratt denied the request.  (I was in the courtroom when this happened.)  When the matter was appealed, the Circuit Court agreed with Judge Pratt:

“This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy…. 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.  Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.” (United States v. Dougherty, et al., 473 F.2d 1113, 1133-34 (D.C. Cir. 1972))

Even progressives might acknowledge some queasiness over the double-edged nature of jury nullification:  John Peter Zenger, but the cold-blooded racist murderers of Emmett Till, as well.

Necessity, Nullification, Civil Disobedience, and Tim DeChristopher

John Huber, the prosecutor in the DeChristopher case, was correct in a certain superficial way when he conflated the defense of necessity with jury nullification.  The superficial way in which Mr. Huber was correct is this:  in both cases juries can vote against a narrow, crabbed interpretation of a specific law in order to free defendants who obviously committed the “crimes” with which they are charged.  A jury may call this “necessity” (the anti-nuclear or anti-apartheid demonstrator was trying to avert a greater evil) or “nullification” (the jury acts as the conscience of the community by electing not to convict the anti-nuclear or anti-apartheid demonstrator of trespass) but the result is the same:  the politically motivated actor is acquitted in the teeth of overwhelming evidence against her.

But there is a much more important way in which Mr. Huber is deeply and profoundly wrong.  In order to see why, let’s look at the definition of civil disobedience.  Basically, in order to be “civil disobedience” an action must conform to several norms.  One of these is that civil disobedience is always nonviolent; no one else can be harmed or injured in the act.  Another is that civil disobedience always done openly and publicly; those committing civil disobedience are always willing to accept the legal and other consequences of their actions. See “Civil Disobedience” in 1 Encyclopedia of World Peace, 298 (Oxford University Press, 2008) (entry by Jerry Elmer).

With this definition in mind, the differences between what Emmett Till’s killers did and what Tim DeChristopher did are too obvious to belabor.  The actions of Emmett Till’s killers were clearly not nonviolent; Tim DeChristopher’s actions were nonviolent.  Racist Ku Klux Klan murderers never acted openly; they acted clandestinely and always tried to get away with their heinous acts (and often succeeded).  Tim DeChristopher acted openly and publicly in the classic tradition of nonviolent civil disobedience.  He never denied his actions; he only sought to explain why he had been motivated to act as he did — basically, for the good of humanity.

John Huber’s invocation of the dark underside of jury nullification in the case of Tim DeChristopher does a disservice to the truth.  While we progressives would make an unfortunate mistake if we did not recognize the double-edged nature of jury nullification, it is easy to state a general principle concerning both jury nullification and an assertion of the defense of necessity.  In fact, the general principle is sufficiently simple that it can be stated in a single sentence:  Those involved in classic civil disobedience (that is, actions that are both nonviolent and public) should always be able to plead jury nullification and/or necessity; those involved in vicious, clandestine crimes of violence, including murder, should never have that option.

When John Huber elides over that crucial difference, he misses a central point.

One more point needs to be made.  What was outrageous in Tim DeChristopher’s case is that Judge Benson did not even allow DeChristopher to present to the jury the defense of necessity.  This has, sadly, become all too common in both federal and state courtrooms in the United States:  defendants charged with public, nonviolent civil disobedience are barred from presenting the defense of necessity and/or from telling the jury that there is such a thing as jury nullification.  The problems with not allowing a criminal defendant to present his defense are both legal and ethical.

As a purely legal matter, not allowing DeChristopher (or any defendant) to present his or her defense abridges the defendant’s constitutional rights.  Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’  California v. Trombetta, 476 U.S., at 485 . . . .”).  In Crane, a unanimous U.S. Supreme Court, speaking through Justice O’Connor, explained that the right of a criminal defendant to present a complete defense may be rooted in the Due Process Clause of the Fourteenth Amendment and/or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment.  The Court went on: “We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard.  In re Oliver, 333 U.S. 257, 273 (1948); Grannis v. Odean, 234 U.S. 385, 394 (1914).”  Crane, 476 U.S. at 690.  Not allowing a defendant to advance the defense of necessity or to speak of jury nullification abridges the constitutionally guaranteed right to present a complete defense.

The ethical dimension is obvious.  In October 1968 my friend Bill Kunstler attempted to argue nullification to the jury in the trial of the Catonsville 9.  These were the Catholic priests, brother, nun, and lay people who had burned draft files at Local Board 33 in Catonsville, Maryland, using homemade napalm they had manufactured themselves from a recipe in a Green Beret manual.  Judge Roszel C. Thompsen interrupted Bill’s closing argument to the jury just as Bill was quoting Andrew Hamilton in the Zenger case:  Bill was urging the jury “to see with your own eyes, to hear with your own ears, and to make use of your consciences.”  Bill wrote afterward:

“Because Andrew Hamilton was permitted by even a most despotic colonial judge to appeal to the conscience of the jury, his client was acquitted and the great principle of freedom of the press became one of our most cherished traditions.  Because Judge Thompsen, a sensitive and warm-hearted man, would not allow defense counsel to do the very same thing, the Catonsville defendants were inevitably convicted and a magnificent opportunity to let a supposed cross-section of at least one American community pass upon one of the central issues of our time [the war in Vietnam] was lost forever.”

What Tim DeChristopher was saying in Utah was that climate change is one of the central issues of our time.  And because Judge Benson prohibited DeChristopher from even making his argument to the jury, a magnificent opportunity to let a cross-section of the community pass upon that central issue was lost.

Jerry Elmer is an attorney in Providence, Rhode Island.  He was a Vietnam-era draft resister, and was the only convicted felon in his graduating class at Harvard Law School.  He is the author of Felon For Peace (Vanderbilt University Press, 2005), which was published in Vietnam as “Toi Pham Vi Hoa Bing” (The Gioi, 2005); this was the first book by a U.S. peace activist ever published in Vietnam.