Tag Archives: Necessity Defense

Appeals Court Allows ‘Necessity Defense’ for Pipeline Protesters in Minnesota

Climate activists Emily Johnston and Annette Klapstein shut down Enbridge’s tar sands pipelines 4 and 67 in Minnesota on Oct. 11, 2016. Climate Direct Action

Enbridge pipeline protesters claim threat of climate change made civil disobedience necessary

The Minnesota Court of Appeals ruled on Monday that four anti-pipeline activists facing criminal charges have a legit case to argue the “necessity defense” in court.

According to EcoWatch, the so-called “Valve Turners” Emily Johnston and Annette Klapstein were charged after shutting off the emergency valves on a pair of tar sands pipelines owned by Enbridge Energy.

The pipelines targeted were Enbridge line 4 and 67 in Leonard, Minnesota.

Johnston and Klapstein, and the two defendants who filmed them in October 2016, argue their actions to stop the flow of the polluting bitumen from Canadian tar sands fields to the U.S. were justified due to the threat of climate change and had no legal alternatives. They plan to call expert witnesses who will back them up.

Prosecutors had challenged the decision to allow the “necessity defense” arguing its inclusion would confuse a jury and be less likely to result in a conviction, but the Court ruled 2-1 against them. The state can ask the Supreme Court to take up the issue.

While District Judge Robert Tiffany allowed the necessity defense, he also warned in a ruling in October that the four must clear a high legal bar to succeed.

Another hurdle is that the jury will come from a sparsely populated county where Enbridge is a major employer and the largest property taxpayer.

Johnston and Klapstein face felony charges of criminal damage to critical public service facilities and other counts.

Attorneys expect the judge to set trial dates for sometime this summer in Clearwater County.

The necessity defense has worked for climate activists before.

Last month, a Massachusetts judge found 13 activists who were arrested for sitting in holes dug for a pipeline to block construction “not responsible by reason of necessity” because the action was taken to avoid serious climate damage.

Oil Pipeline Opponent Uses ‘Necessity Defense’ — What Is It?

Sioux Tribal member and Standing Rock activist Chase Iron Eyes speaks to a packed crowd in the Lawrence A. Bertolini Center at Santa Rosa Junior College April 3. – James Wyatt

An American Indian activist and former U.S. congressional candidate in North Dakota accused of inciting a riot during protests against the Dakota Access oil pipeline says he’ll seek to present a “necessity defense” — justifying a crime by arguing it prevented a greater harm.

Chase Iron Eyes has pleaded not guilty to inciting a riot and criminal trespassing. He could face more than five years in prison if convicted at trial in February. The pipeline has since begun carrying oil from North Dakota through South Dakota and Iowa to Illinois.

Pipeline protesters who try the necessity defense typically argue that the greater harm is climate change. Iron Eyes, a member of the Standing Rock Sioux tribe, says he hopes to show that civil disobedience was his only option to resist a pipeline’s incursion on his ancestral lands. The prosecutor in the case didn’t respond to a request for comment. A judge will hear arguments Nov. 3.


People who use it are trying to show the harm they caused is justified because a greater harm was avoided as a result.

It dates to the late 1800s in England, when two sailors were charged with murder after they stayed alive by killing and eating a third sailor marooned with them in a lifeboat.


The U.S. Supreme Court has said it’s an “open question” whether federal courts have the authority to recognize a necessity defense not provided by law, according to North Dakota District Court Judge Laurie Fontaine.

Whether the defense is permitted by law in state courts varies, according to University of Mississippi law professor Michael Hoffheimer.

The main argument against the defense is that it gives people who don’t like a particular law the chance to break it and then argue it was excusable.

The main argument in its favor is that there might be special circumstances in which there is a justifiable reason for breaking a law.


It is used most frequently in criminal cases — such as drunk driving and marijuana use — in which people argue that what they did was necessary to prevent some greater harm.

In one such case, the Minnesota Supreme Court in 2014 ruled against a woman who challenged the revocation of her driver’s license after she drove while intoxicated to escape her abusive husband.

Defense attorneys also have tried the necessity defense when people illegally use marijuana, arguing that it was needed to treat a health problem. A 1976 District of Columbia court decision in favor of a person suffering from glaucoma was the first in the country to recognize the defense in a marijuana case, according to the National Organization for the Reform of Marijuana Laws.

The defense also has been used through the years by abortion clinic protesters. In a high-profile case in 2009, a judge ruled against its use in the trial of Scott Roeder, who confessed to killing an abortion-providing doctor in Kansas but argued it was necessary to save unborn children.

It was first attempted in a U.S. environmental case in 2009 when a climate change activist cited necessity in Utah. Alice Cherry, co-founder of the Climate Defense Project, said it has been used in similar cases in Washington state, New York, Montana, North Dakota and Minnesota. The Climate Defense Project even offers an educational guide on using the defense and says this area of the law is “developing rapidly.”

With pipeline protests, demonstrators often point to climate change and environmental damage as the greater harms. Oil pipelines carry fossil fuels, including oil, which release gases that trap heat and contribute to climate change, they argue.

Iron Eyes’ arguments are more complex. He cites an “imminent threat” to his tribe’s water supply because the Dakota Access pipeline goes beneath the Lake Oahe reservoir on the Missouri River, from which the tribe draws its drinking water. He also contends there was an effort by industry, private security and public law enforcement to conduct “an anti-terrorist campaign against Native Americans.”


Legal experts agree the necessity defense is a long shot.

To succeed, the defendant generally has to persuade the judge or jury that they had no legal alternative to breaking the law. They also must prove they were trying to prevent some imminent harm, and there must be a direct connection between their breaking the law and preventing the harm. Finally, they must prove that breaking the law is less harmful than what would have happened.


Not often.

In a Minnesota case, Judge Robert Tiffany is allowing four pipeline protesters to use the defense, but he also said they must clear a high legal bar. Tiffany said the defense applies “only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.” That case is still pending.

A judge in Spokane, Washington, is allowing a 77-year-old Lutheran pastor to use a necessity defense in his upcoming trial stemming from a climate change protest last year. The Rev. George Taylor stood on railroad tracks to protest coal and oil trains that pass through Spokane and their contribution to climate change.

Judges in recent pipeline protest trials in North Dakota, Montana and Washington state have rejected the defense. The Montana judge said he didn’t want to put U.S. energy policy on trial, and the North Dakota judge said a reasonable person couldn’t conclude a direct cause and effect between the defendant’s pipeline protest and climate change.

The Montana case is pending. In the Washington and North Dakota cases, the protesters on trial were allowed to tell jurors of their “state of mind” during the offense, but in both cases were still convicted. In the Washington case, the protester received probation and said he was “heartened, knowing that we are bringing these arguments into the jury system.”

Associated Press


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Civil Disobedience Often Leads To Jail. But Now, Protesters Can Explain Themselves


Above Photo: Activists blockaded an oil train like this one in Minnesota. A judge will let the jury consider why they did it. Photograph: Tom Wallace/AP

By Tim DeChristopher, www.theguardian.com, Jan 14th, 2016

In a historic ruling, several environmental campaigners will be able to argue at criminal trial that their political motives are a defense to their illegal acts.

Note: The necessity defense is an old defense but it has been blocked in most courts in the US, essentially taking away the jury’s right to consider all the facts in the case. Good to see this breakthrough in Washington State. Last year we tried a necessity defense in Cove Point with activists arrested for trespass as part of a campaign to stop the building of a fracked gas export terminal but the judge immediately stopped us from proceeding. See Twenty Cove Point Activist Move Calvert County Court.

I first ran across the necessity defense in my work on medical marijuana. Medical marijuana patients were able to use the defense in two states and the District of Columbia. People who were suffering severe and chronic illness were successful in their defense. The first case involved Robert Randall in Washington, DC — a key leader in the medical marijuana movement who had glaucoma and went on to become the first patient to legally get a prescription for marijuana. He won that when after his acquittal he sued the federal government in a civil case for denying him much needed medicine. The government settled the case and agreed to provide him marijuana. They tried to silence him as part of the settlement — we’ll give it to you but don’t tell anyone. Randall refused and he and his partner, Alice O’Leary-Randall, went on to lead the medical marijuana movement in the 70s and 80s.

In the face of governmental failure in addressing climate change, the climate movement has seen a dramatic increase of civil disobedience. The threat of jail is real to activists who use these tactics – as I learned first hand. But now activists now have a powerful form of defense: necessity.

For the very first time, US climate activists have been able to argue the necessity defense – which argues that so-called criminal acts were committed out of necessity – to a jury. The Delta 5, who blockaded an oil train at the Delta rail yard near Seattle in September of 2014, have been been allowed to use the defense in a historic climate change civil disobedience trial being heard this week. They said they acted to prevent the greater harm of climate change and oil train explosions.

Like all civil disobedience, this new wave of climate disobedience is an inherent critique of the moral authority of government. The necessity defense is an opportunity to elaborate that implicit critique into a fully developed legal argument for the responsibility of citizen action in the face of governmental failure.

In addition to gaining the permission to openly argue the necessity defense, the Delta 5 defendants have so far been winning the crucial legal maneuvers in the courtroom. The trial started with several motions from the prosecution to limit how the defense could present “sympathetic” evidence or anything related to their backgrounds. These motions were denied.

The judge has shown himself to be committed to a fully open trial of all the factors that would drive people to risk their bodies to stop fossil fuel expansion. This kind of openness is distressingly rare for civil disobedience cases in American courts. Why this particular judge, Anthony Howard, is breaking ranks in this climate trial is unknown, but I suspect it may have something to do with the fact that he is young enough that he will still be alive in 2050.

This willingness to weigh deep questions of justice in the courtroom is already paying off with a thought-provoking trial. The jury selection developed into an insightful conversation about civic engagement, protest and how to express one’s disagreement with the government.

This work of arousing consciences is an essential feature of good civil disobedience. Just by participating in the selection process, 60 potential jurors were pushed into a thoughtful discussion about the role of protest and challenging unjust power.

One of the critical dynamics that emerged in the jurors’ discussion on the first day was the difference between protest that uses force to intimidate compared to protest that uses one’s own vulnerability to awaken a community. The Delta 5 clearly fall into the latter category, but the prosecution used references to the Ku Klux Klan and abortion clinic bombers to suggest that the activists were relying on intimidation. This crucial dynamic will probably continue to be developed as the trial progresses.

But even as the state tries to paint the defendants as nefarious, the activists are establishing their moral advantage. The prosecution can tell by the media attention and standing-room-only crowd that these activists have power, but like most government officials, this prosecutor seems to only understand coercive power.

As he tries to put them in a box into which they don’t fit, the principled position of the activists demonstrates the potential of power rooted in love rather than force. The activists bring a vision of justice that shames the mere legalism of the state.

Around the globe climate movements are trying to build power. Some of those are trying to build power based on an old model from a dying empire. Here, in the trial of the Delta 5, the climate movement is building a new kind of power, grounded in interdependency and wielded through vulnerability. Our rapidly evolving and unstable world demands no less.