State v. Warshow

138 Vt. 22, 410 A.2d 1000 (1979)



In the various definitions and examples recited as incorporating the concept of necessity, certain fundamental requirements stand out: (1) there must be a situation of emergency arising without fault on the part of the actor concerned; (2) this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting; (3) this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and (4) the injury impending from the emergency must be of sufficient seriousness to out-measure the criminal wrong.


Defendants were part of a group of demonstrators that protested at a nuclear power plant in Vermont. Their demonstration was designed to prevent workers from gaining access to the plant, which at the time was shut down for want of repairs and refuelling. The defendants were arrested for unlawful trespass after they refused to leave the private premises of the power plant. Defendants posited the defense of necessity brought by the hazards of nuclear power plant operation, which the trial court refused.


Whether the defense of necessity is available in a situation involving the hazards of nuclear power plant operation.




The defense of necessity required an imminent emergency that presented no reasonable opportunity to avoid the injury without doing the criminal act. The defense also required that the injury from the emergency out-measured the criminal wrong. The court held that defendants failed to establish an emergency of an imminent nature. The court found that the low-level radiation and nuclear waste that defendants were protesting was not the type of imminent danger classified as an emergency sufficient to justify criminal activity. In addition, because the long-range risks and dangers cited by defendants did not presently threaten health and safety, the court found that the danger was not imminent. The court also found that the spectre of nuclear accident did not fulfill the imminent and compelling harm element of this defense.

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