Civil Disobedience and the Law—The Necessity Defense

 

I.  You be the Judge—A Case and a Question

 

A. The Case

·        Following a case of civil disobedience in 1989 from arrest, to court case, to sentencing, to appeal.

·        Examining the attempt to use the necessity defense in the trial US v. Bernick, 1990.

·        The necessity defense argues that the defendants broke the law in order to avoid a greater harm.

·        This defense not accepted in US v. Bernick.  Defendants guilty.

·        Three of the defendants appealed to the Federal Ninth Circuit Court of Appeals, including one named Gregory Schoon.

·        The final decision, US v. Schoon, not only ruled against the protesters but also ruled that the necessity defense could never be used in similar cases.

 

B.  The Question

 

Was the Ninth Circuit Court correct in its decision to outlaw the necessity defense in all cases of indirect civil disobedience?

 

II. Civil Disobedience in America

 

A. Defining Civil Disobedience

A public, nonviolent, and conscientious act contrary to law usually done with the intent to bring about a change in the policies or laws of the government (John Rawls). 

 

Another definition:  The refusal to obey civil laws that are regarded as unjust, usually by employing methods of passive/non-violent resistance.

 

 

B.  Two kinds of civil disobedience

·        DIRECT civil disobedience—disobeying an unjust law.

·        INDIRECT civil disobedience, where the law that is broken—such as blocking public access—is not the direct target of the protest. 

Example:  Henry David Thoreau

 

C.  Historical Cases of Civil Disobedience

·        Disobeying the Stamp Acts

·        Disobeying the Fugitive Slave Act

·        Use of sit down strikes

·        Civil Rights Movement

·        Use of protest to end the Vietnam War

 

D. Contemporary examples

 

E.  A Clear Distinction?

·        Lunch counter protestors said they were attacking unfair laws; police charged them with disturbing the peace

·        Birmingham marchers in 1963 did not have permission for their demonstrations.   They argued they were opposing a racist system; the police arrested them for parading without a permit.

 

III.  An Act of Civil Disobedience in Tucson, 1989

 

A.  The Background—Civil War in El Salvador

·        Civil War in El Salvador, 1980-1992 

o       Government against left wing rebels, FMLN.

·        Part of Cold War

o       Nicaraguan revolution, 1979, spread fear about spread of communism in Central America.

o       US supported El Salvadoran government, trained military leaders

o       Gave about 5 billion dollars in military aid.

·        Very bloody conflict 

o       Some 75,000 deaths, including four US nuns and two US military advisors.

·        Estimated one fifth of population fled the country

 

 

B.  The Spark—the 1989 Murder of Jesuit Priests in El Salvador

·        In 1989, rebels began an assault against the capital, San Salvador

·        Government began reprisals against suspected allies of left, including priests at the University of Central America

·        Catholic Church in general considered a potential ally of the left

o       Arch Bishop Oscar Romero assassinated in 1980

·        Six priests, one cook, and her fifteen year old daughter gunned down at the university

·        Initiated protests across the US

·        Video clip, Enemies of War

 

C.  The Demonstration, December 4 1989

·        150 people marched on the IRS office, protesting use of tax dollars to support war in El Salvador

·        This time 30 people occupied the office, staging a “die in”

·        Lay on the ground evoking the images of dead people, reading statements, spreading fake blood

·        Specifically addressed the priests’ murders

·        Came with reporters to publicize their cause

·        19 people arrested

·        Charged with obstructing a public building, failure to disperse

 

D.  Protest as performance

·        Playing for an audience

o       The people in the IRS building

o       Newspaper readers

o       Future investigators

·        Aiming for a trial

o       A chance to win their day in court

o       Create a permanent record

o       By trying to use the necessity defense, hoped to turn attention from their actions to the actions of the US government.

 

IV.  The Necessity Defense and Civil Disobedience

 

A.  What is it? A possible defense strategy

·        A legal argument that justifies conduct that appears to be a crime, but isn’t under certain circumstances.

·        Based on the premise that individuals are not to blame if they act to prevent a greater harm.

·        Initially applied to cases involving forces of nature.

·        Evolved into a defense in which the actor had to make a choice between evils.

 

B. Use in civil disobedience cases

·        During the Vietnam War era, defendants in the US began trying to use the necessity defense in protest trials.

o       The harm caused by the war was greater than the harm caused by their actions.

·        Has been invoked in cases involving foreign policy, environmental issues.

 

C.  One Successful Case.

In 1981, some two thousand demonstrators in the

environmental group Abalone Alliance blockaded Diablo

Canyon Nuclear Power Plant. 

          

D.  Evoking the Necessity Defense in Tucson