Courting justice...

Necessity defense

By Tom H. Hastings

We do not belong to those who shrink back for we know the tragic truth of history. When oppressed people shrink back they will always be forgotten and destroyed.

--Reverend William Barber II[1]

This essay is meant to help those who are especially interested in the court proceedings of nonviolent resisters[2]. This includes nonviolent resisters, their lawyers, and those experts in strategic nonviolent civil resistance who may be asked to provide expert testimony validating the use of the necessity defense for resisters. 

In general, the necessity defense is known as an affirmative defense, a narrative that contextualizes and validates the otherwise apparently illegal actions of the nonviolent resisters. The classic example is the passerby who sees the house on fire, the child at the window screaming for help, and who decides instantly to break into the burning house to save the youngster. That bystander committed trespass, destruction of property (the door), and possibly other offenses under various local or state laws and ordinances, but if an overzealous police officer arrests the intervening passerby and the prosecutor seeks conviction, a good lawyer will offer the necessity defense to secure a verdict of not guilty because the jury would consider “competing harms” and conclude the trespass and breaking and entering were relatively minor harms when placed against the danger to the child’s life.

In the context of the law as experienced in the US Civil Rights movement, Dr. King wrote that they were sometimes breaking a good law for a good reason and sometimes they were breaking a bad law. When that bad law institutionalizes racism, the Civil Rights movement meant to overturn that bad law. Sometimes that good law is protecting poor public policy that results in very harmful poverty or places noncombatants in danger of becoming war victims. Increasingly, a strand of thinking by legal experts is coming to the conclusion that the legal professionals should not be neutral but rather should be advocates for the environment, lending more skills and expertise to civil, criminal, and lawmaking efforts to protect our environmental commons.[3]

As to the requirements of employing the necessity defense[4], one is that a prosecutor will fight it, possibly with a pretrial motion to exclude it, usually on the grounds of salience; that is, the prosecutor will claim, often successfully, that the questions of guilt or no guilt are unrelated to all the myriad issues the defense wishes to bring to the court’s attention, such as morals, stifling poverty, racial hatred, military dominance of our government, or global climate chaos. The prosecutor will normally urge the judge to direct the defense to the germane issue: did the defendant do the actions that resulted in legal charges or not? Most often the judge will rule for the prosecution and exclude the necessity defense, thus rendering the courtroom a more or less sterile environment excluding most of the truth required to have an honest examination and a fair trial. 

The Poor Peoples Campaign, for example, offers nonviolent resistance to poverty, militarism, racism and environmental injustice. Experts in those areas are required to present the necessity defense, as well as at least one expert in nonviolent resistance. In many cases excluding the necessity defense simply makes a travesty out of the legal system and clearly favors the perpetrators of poverty, racism, militarism and what many refer to as actual eco-terrorism, that is, the corporations profiting from our massive consumption of fossil fuels. How can we begin to turn this around? Climate chaos resisters, for instance, wryly observe that former US Vice-President and 2007 Nobel Laureate Al Gore declared in September 2008 that, “If you’re a young person looking at the future of this planet, and looking at what is being done right now, and not done, I believe we have reached the stage where it is time for civil disobedience.”[5]

One piece of this attempt is dealing with one of the questions the defense lawyers must answer, which is, Did the defendant have any reasonable expectation of success when she violated the law in her attempt to change policies she claimed are harming others? In order to do so, the defense lawyer will often employ expert witnesses, first to establish that there is in fact imminent danger but it’s a remediable or at least mitigatable problem.

The clear distinction between lawful protest and resistance resulting in arrest needs emphasis; nonviolent campaigns that do not involve acts of actual resistance are not contemplated here. They are almost always precursors to resistance, both for collectives and for individuals, which should be emphasized, of course, in court testimony by defendants themselves, a catalog of their legal activities that helped produce a condition of lack of perceived effective alternatives to nonviolent resistance, or a justifiable sense that, at the least, nonviolent resistance needed to be added to the prongs of a campaign’s multipronged approach to addressing the announced goal.

Part of what many nonviolent resisters are attempting to do is what researchers term “public pedagogy,”[6]i.e., using the drama of their resistance action to help educate the voting, purchasing, consuming public about the immediacy and severity of the problem. The “public curriculum” of nonviolent resistance, studied via discourse theory, can be a powerful augmentation to the outreach efforts of advocates for better policies to eliminate poverty, militarism, racism, and environmental injustice. Judges and juries are helped by understanding this, and indeed become a component of exactly this. Or, as author activist Bill McKibben noted in Scientific American, “When 1,253 people got arrested in front of the White House, almost no one in the country had heard of this Keystone thing outside of Nebraska and a few other places along the pipeline route.”[7]

Other social movement researchers have termed civil resistance as “participatory democracy,” and have highlighted the frame proffered by movement spokespeople as risking arrest in response to “an emergency.”[8]

The history of presenting a necessity defense is long. From Rosa Parks to draft board raids to nuclear power plant construction to nuclear disarmament to migrant rights to gay rights to women’s right to vote and to a much longer list of such actions, campaigns, and movements that included nonviolent civil resistance, the necessity defense is demonstrably salient and often highlighted further when its proffer is denied[9]. This is how society itself becomes a “fully informed jury.”

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[1] Barber (p. 25)

[2] This essay does not contemplate the spurious arguments that violent or armed resistance is on equal legal footing with nonviolent resistance, e.g., http://www.motherjones.com/politics/2017/09/cliven-bundys-lawyer-compares-his-armed-resistance-to-selma-marchers/

[3] Tom Lininger, Green Ethics for Lawyers, 57 B.C.L. Rev. 61 (2016), h p://lawdigitalcommons.bc.edu/bclr/vol57/iss1/3

[4]http://www.climatedisobedience.org/necessitydefense

[5]Temperature Gauge. (2009). Earth Island Journal, 23(4), 14.

[6]McGregor, Callum (2015). Direct climate action as public pedagogy: The cultural politics of the Camp for Climate Action. Environmental Politics, 24(3), 343-362. doi:10.1080/09644016.2015.1008230

[7] Bill McKibben: Actions speak louder than words. (2012). Bulletin of the Atomic Scientists, 68(2), 1-8. doi:10.1177/0096340212438383

[8] Evans, Geoff (2010). A Rising Tide: Linking local and global climate justice. Journal of Australian Political Economy,(66), 199-221.

[9]http://law.justia.com/cases/federal/appellate-courts/F2/741/1031/90708/

Talking to police

Police liaison work

Many activities potentially fall under the rubric of police liaison work. Some campaigns use none, or some, or all of these components. 

·      Reaching out to police or other armed agents of the state to inform them that an event will occur.

·      Negotiating with armed agents of the state.

·      Requesting police presence.

·      Requesting police not be armed.

·      Requesting police not be present.

·      Requesting police escort.

·      Requesting police protection.

·      Defining the roles and Code of Nonviolent Conduct of the movement, the resisters, the participants, and the peace team so police are informed.

There are reasons, in general, to do one or more of these activities, and at times those reasons vary with local or state history, quality of relationships, presence of violent counter-demonstrators, or other concerns. 

It is crucial to establish several factors to the police if there is liaison work:

·      All participants in the campaign comport themselves in adherence to the Code of Nonviolent Conduct agreed upon by the movement. Anyone not doing so is not a part of the campaign.

·      The peace team will attempt to de-escalate all conflict that is violent or threatens to become violent. This includes police violence to anyone. While we do not do so physically, we will make all other attempts that seem reasonably possible. 

·      No one in the campaign, including the peace team, will inform to the police on unlawful actions that may occur by any party in the course of the event. The peace team is not a part of the police, not agents of the police, not the “eyes and ears” of the police, only an internal team working to preserve public safety in general and the nonviolent image of the movement in particular.

At times the role of police liaison is given over, with guidelines, to the peace team. It is not advisable to have off-the-record communications with any armed agents of the state; movement leadership must be given reports of all salient elements of any communications with police. Ideally, all participants should know germane particulars of any caveats or expectations about police in advance of any action.

There are advantages and disadvantages to such liaison work. Some disadvantages: 

·      Movement members who have legitimate distrust or fear of police may transfer some of that distrust and alienation to the campaign.

·      Police may interfere with plans that otherwise would have been doable and successful. 

·      Police may incorrectly regard the peace team as their agents.

Some advantages:

·      If better communications result in higher credibility a more relaxed police presence, brutality and interference may be mitigated or eliminated.

·      If police feel they are not going to be attacked by anyone associated with the movement, and if there is no property destruction or unpermitted road/transit blockage, they may be gradually eased further and further back.

·      If not immediately, at some point the campaign may be able to negotiate specifics such as no profiling, no dogs, no riot gear, no rough treatment, no interference in assembly and other harsh or unhelpful police practices.

Photo: Portland Peace Team interposes between Patriot Prayer Proud Boys and Antifa at the request of Portland area refugees. 

Peace teams

Peace teams

When nonviolent civil resisters intentionally confront a bad law--or a good law for a good reason--they know that part of what they are doing is part of what they are doing is stepping forward having prepared themselves for provocations. They want the public to see that they mean it when they claim to be nonviolent. They want their opponents to believe it when they, the challengers and resisters, assert their nonviolence and confront a social wrong in favor of a social good.

Their opponents or the targeted group usually have a legal right to use violence to enforce the law. Adversaries often know that they have put the resisters in a very hard dilemma. If the resisters back down, the opponents win public approval. If the resisters are violent--even in justifiable self-defense--the spin from the official channels will use that violent self-defense as an excuse, in turn, for the violence that the opponent actually started. Carefully selected moments of any violent self-defense will be featured again and again in news media as evidence that the challenger movement is composed of liars, and they are not nonviolent at all. Of course if the challengers never claimed to be nonviolent in the first place that is the easiest of all to defeat, as the record clearly shows again and again. 

The wider public will usually dismiss any nonviolent resistance if it turns to violence, especially if the civil resisters need to change public opinion on the issue in order to succeed. If the public is widely in support of the policy change, or protection of policy, which the civil resisters are advocating, the amount and nature of violence on the part of the resistance campaign is more negotiable. But especially in the early stages of the mobilization, when much of the public often holds a status-quo-ante opinion, the ranks of the resistance need to prove their innocence, because the wider public will reject it on the flimsiest of evidence, or suspicion. Even angry expressions on the faces of nonviolent resisters will be used to justify almost all measures against them. 

When a movement materializes with marches or processions in the streets, or even golds a public hearing or other public gathering, who will help the participants to offer the sort of behavior that will enhance the image of the movement and its purposes? Campaign and movements frequently have specially trained peacekeepers to help de-escalate conflict. They often focus on campaign participants who might be rightfully escalated by counter-demonstrators. The peacekeepers, sometimes called monitors or vibeswatchers, help to defend the image of the campaign to the broader public by reducing or eliminating the incidences of aggressively reactive or enraged behavior by movement participants. 

Is this fair? Of course not. If everything were fair we would not need to struggle in the first place. It is simply reality. We either work with reality or accept that what we are doing may be only for our own satisfaction, that we are not agents of social change, but rather we want to make ourselves feel good as self-justifying and often self-righteous, sometimes self-described "radicals." It is a bit like trying to fix the broken sewage system by denouncing the broken pipe in an arrogant memo. Some of us may instead choose to head down into the sewage to try to fix that broken pipe. We will suffer for it, but at least we have a good chance of fixing it if we have also managed to bring the right tools and materials. We accept the reality and are determined to work with it, even though it's totally unfair. We want tangible change.

This reality means we must be willing to suffer violence without returning it. This reality means we must recruit far more numbers to join our ranks if we want the change to succeed. Peace teams lower the barriers to recruitment by helping the campaign members prepare to avoid outbursts that will alienate the public, if and when media broadcasts show images of masked thugs throwing stones or full soda cans at cops. Those “radicals” with masks can reduce recruitment by making the civil resisters look dangerous.  Agents provocateurs engage in exactly that sort of provocation in order to harm movements. Peace teams can mitigate that threat. 

John Lewis beaten by Alabama state troopers on Bloody Sunday, 7 March 1965, generating massive participation, which boosted passage of the 1965 Voting Rights Act

We prove that we mean it when we say we are nonviolent when the peace team can separate the violent actors from the larger movement. We can achieve a number of things with that ongoing proof, including but not limited to: 

·        keeping the public discourse focused on our issue rather than on our behavior.

·        gaining public sympathy, however grudging, if police, soldiers, National Guard, or counterdemonstrators act violently toward us. 

·        gaining the trust of law enforcement, and usually reducing the level of violence against us, by reducing both the fear of us and imposing “backfire”[1](see Glossary at end for meaning) costs upon them.

·        lowering the barriers to recruitment so that those who do agree with us see that we would not commit violence that excuses and provokes a violent crackdown, and, so, our numbers generally rise.

·        allowing sympathetic mainstream news media to change their frames through which they view us and to show us in a better and better light.

Hence peace teams to help us to create, cultivate, and defend our reliance on nonviolence.

How do peace teams operate?

·        They never argue, debate, nor do they insult or demean anyone.[2]

·        They work in teams of 2-6 unit members and keep track of all of them throughout any event.

·        They focus first on bystander intervention if violence breaks out or seems imminent.

·        They focus on de-escalation of all conflict, worrying primarily about the behavior of the campaign participants. 

·        They establish themselves as listeners, affirm all parties’ humanity, and seek to take belligerents out of play by separating them from their targets, what mental health workers call redirection. 

·        They tend to use the CLARA method, Center, Listen, Affirm, Respond, Add. First they center themselves, then listen, then affirm the basic respect for all, then if possible respond by asking follow up questions, then, at times, add information that can help the belligerent person contextualize the identity or personhood of the target.

·        They are nonpartisan for the entire event, neither carrying signs nor clapping, nor singing or chanting. 

This nonviolent safekeeping force can often prevent the image of a campaign slip into alienating categorization by defusing or redirecting destructive behaviors that might otherwise be associated with the coalition. 

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[1]“Nonviolence turned violent attacks on their head, using them to gain the moral high ground.”¾Barber (p. 119). All violence backfires.

[2]Hunter, Daniel & Lakey, George (2004). Opening space for democracy: Third party nonviolent intervention, curriculum and trainer’s manual. Philadelphia, PA: Training for Change.

Violent flank threat and inoculation

Nonviolent discipline & inoculating against violent flanks

The researchers showed people a video of a ‘moderate’ anti-Trump protest, in which protesters held signs and chanted, as well as a news report about an ‘extreme’ protest, in which protestors caused a traffic jam and blocked Trump supporters from reaching a Trump rally. People shown the extreme anti-Trump protests actually supported Trump more—an effect that occurred, to varying degrees, among liberals and conservatives alike.[1]

--Olga Khazan, The psychology of effective protest

When the people come together in a demonstration of our political force—then those in power fight back. Their resistance is our confirmation that we are gaining ground. When they stop laughing and start fighting, you can be sure they are worried that you are winning.

--Reverend Barber[2]

A long line of conflict analysts from Carl von Clausewitz down to Jonathan Schell have understood that only when resilience is lost is there a moral defeat that permanentizes a loss and truly ends a struggle.[3]

Nonviolent discipline is the strongest bulwark against that moral defeat. It is strengthened in many ways, including by education, training, and drills. This is what Reverend Lawson achieved in the Civil Rights movement by his workshops, resulting in students who were highly disciplined and able to not only remain strong and calm even when abused, but were resilient and returned after insults, came back after beatings, engaged further after arrest and jailing, and avoided moral defeat until they achieved all of the announced goals.

It was by no means inevitable that the Indian struggle would be nonviolent, and there are strong indications that in the absence of Gandhi’s alternative grand strategy the terrorists would probably have carried the day.

--Gene Sharp[4]

From tossing a brick through the plate glass window to throwing bottles at cops or “punching a Nazi,” violent flanks have been harming movements for a long time. The results are predictable; they are disastrous for campaigns. As with all movement decisions, your first filter inquiry toward a decision is How will this affect recruitment? After all, numbers of participants remain the greatest predictor of success or failure of any social movement. 

Your campaign can inoculate itself against these damages. Here is a punchlist for your consideration: 

1.   Decide firmly on a nonviolent code of conduct and publicize it relentlessly. That code is optimal if it says: Each event should be nonviolent and nonviolent conduct is expected of all participants, including no physical violence even in self-defense, no weapons, no screaming, no throwing, no disrespectful gestures, no masks,[5]no expressions of hate, no property damage.

2.   Develop a nonviolent safekeeping force to help your own people maintain nonviolent discipline. They may wear armbands of a chosen color, bright caps, or special vests so that they can be easily seen.

3.   Hold frequent preparation sessions for the nonviolent security team, for anyone contemplating civil resistance, and for general participants in street actions.

4.   Establish relationships with the security apparatus of the state—police, soldiers, or any armed agents who may be present at your events. Make it clear to them that you are not their agents in any way and that you are trained to handle most situations so they should stay back.

5.   Outreach to violent flanks with respect and an expectation of their reciprocal respect for you. Explain to them that you are putting in a great deal of work and organizing effort to pull off the event you want, and they are welcome if they can comport themselves in line with your coalitional code of conduct. Let them know you will never denounce them unless they violate your code of conduct while involved in your event, and that if they do, they will be publicly denounced, but you will also respect their organizing and never interfere with their independent events. Acknowledge that if the oppressor visits your town, that time and place belong to everyone and your people will maintain nonviolent discipline under all circumstances. Be aware that the violent flank will be where most or all of the agents provocateursare, whether they are actual police or a part of the “rat system” (convicted or charged with crimes and can earn reduced consequences for their infiltration work to push a group toward violence).[6]

6.   Make outreach [clearer than using the word as verb?] and continually engage with media outlets to create and defend the image of your campaign or movement as nonviolent, intentionally, even in the face of repressive brutality. Follow up any reportage that smears violent flank activity onto your nonviolent movement or uses ambiguous phrasing such as “the demonstration turned violent.” Remind reporters to factcheck and refer them to the media packets you send them, which clearly state the nonviolent nature of your association, coalition, campaign, or movement.

“Upheaval after upheaval has reminded us that modern man is traveling along a road called hate, in a journey that will bring us to destruction and damnation.”

Reverend Martin Luther King, Jr.[7]

Stress openness and transparency. At every turn, avoid the creation of a “security culture” that casts suspicion on your fellow movement members. Having clandestine actions should only be reserved for the most extreme circumstances (as for example in hiding Jews in attics in Nazi Germany, helping slaves escape on the Underground Railroad, dismantling your own country’s WMD). Seeming stealthy is corrosive and invites repression; it also can besmirch the reputation of your movement. 

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[1]Khazan, Olga (24 February 2017). The psychology of effective protest. The Atlantic. 

 https://www.theatlantic.com/science/archive/2017/02/the-psychology-of-effective-protest/517749/

[2] Barber (p. 65)

[3] Schell, Jonathan (2003). The unconquerable world: Power, nonviolence, and the will of the people.New York, NY: Metropolitan Books.

[4] Sharp, Gene (1973). The politics of nonviolent action: Part one: power and struggle. Boston, MA: Porter Sargent (p. 85).

[5] As a footnote only, rare exceptions are certainly in order for those who are undocumented and fearful of ICE (although they might be wiser to make a clear choice between publicly accountable or completely discreet), or for some whose religion might require face covering (e.g., some Muslim women and some Jain men).

[6] Do not be concerned about potential infiltrators who are there to spy on you. Who cares? As A. J. Muste told them 100 years ago in a speech to a hall of union members the night before a strike and demonstration, “I know agents of the owners are amongst us tonight. I expect you to do your duty and report to the police and the owners that we are strictly nonviolent.” Only be worried about those who advocate violence, even in “self-defense.” 

[7] King, Jr., Martin Luther (1957). “Loving your enemies.” Sermon written in jail for nonviolent civil disobedience in Montgomery bus boycott.