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Washington court rebukes judge for allowing `necessity defense’ in climate trespass

By Daniel Fisher | Nov 28, 2018

SPOKANE, WASH. (Legal Newsline) – An appeals court in Washington state has reversed a trial judge’s decision to allow an environmental protester to present a “necessity defense” against criminal trespass charges over blockading a coal train he said was contributing to global warming.

In a four-page decision, Spokane County Superior Court Judge Harold D. Clarke III granted prosecutors’ request to prevent Rev. George Taylor from presenting the defense at a trial over a protest by groups called Veterans for Peace and Raging Grannies.

The group of protesters in October 2016 had blocked a Burlington Northern Santa Fe freight train carrying coal in Spokane, Wash., to prevent the earth from warming up. 

Washington law allows a necessity defense, but only if the defendant can show he had no “reasonable legal alternative,” the judge wrote in an opinion dated Nov. 15 but released yesterday. Taylor tried to interpret “reasonable” as his own subjective idea of an effective way to change climate policy, Clarke wrote, but whether the defendant thinks an alternative is effective isn’t important.

“In the case at hand the Defendant submits his own belief that because the political process is not currently offering the results he wants, then it’s not effective,” the judge wrote. “This belies the nature of a political system.”

In January, Spokane County District Judge Debra Hayes said Taylor would be allowed to present NASA scientists and other experts at trial to try and prove the threat of global warming is so great that he was forced to block the train. Taylor’s protest, and Judge Hayes’ decision, generated widespread coverage as climate activists predicted the necessity defense could prove a powerful tool for changing public policy as did civil disobedience in the civil-rights era. 

An important difference between civil disobedience and the necessity defense is that protesters in the civil rights era frequently were convicted and sentenced to jail for breaking what they believed to be unjust laws. They used those sentences as a powerful message for change. Protesters using the necessity defense are mostly breaking criminal trespass laws and destroying property, and instead of seeking to change those laws they are trying to avoid conviction in the first place.

Under Washington law, prosecutors were allowed to challenge Judge Hayes’ ruling at the next highest court. Judge Clarke granted the state’s request, saying if Taylor presented a necessity defense and was acquitted the prohibition against double jeopardy would prevent the state from appealing. The judge erred by allowing Taylor to present what would in effect an indictment of the political system.

“It is a system of rapid change at times and of no change at other times, either of which can be deemed good or bad, depending upon your political point of view,” he wrote. “The question before the Court should not be one subjective belief as to the actions of the political system, rather it should be whether one has access to the political process. The evidence in this case is that Mr. Taylor understands and has accessed the political process.”

The Washington Court of Appeals in May ruled against another group of protesters known as the Delta 5, who tried to present a necessity defense in their criminal trial. The judge allowed them to present witnesses but decided they hadn’t proved a key element of the defense, that they had no reasonable alternative to blockading trains. The jury convicted them of trespass. The appeals court upheld the convictions but said the necessity defense may be available to some protesters, but not if they are merely arguing the political process has failed them.

A judge in Minnesota last year allowed defendants in the so-called “Valve Turners” case to claim necessity when they used bolt cutters to break into pipeline facilities and turn valves to prevent the flow of Canadian tar sands crude across five states. Before the defendants were able to present their scientific evidence, however, the judge threw out the charges against them, saying the prosecution failed to show they had damaged the pipelines.

A Boston judge allowed protesters who blockaded a ship carrying 40,000 tons of coal in 2013 to present a necessity defense. But before trial in 2014, District Attorney Sam Sutter -- who boasted on Twitter he would attend a climate-change protest march in New York -- dropped the most serious charges and allowed them to plead guilty to civil infractions and pay $4,000 in fines.

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