Posts
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.”
[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
[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.
No comments:
Post a Comment