A district court may preclude a necessity defense where the evidence, as described in defendant's offer of proof, is insufficient as a matter of law to support the proffered defense. To invoke the necessity defense, defendants colorably must have shown that: (1) they were faced with a choice of evils and chose the lesser evil, (2) they acted to prevent imminent harm, (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted, and (4) they had no legal alternatives to violating the law.
On December 4, 1989, thirty people, including appellants, gained admittance to the IRS office in Tucson, Arizona, where they chanted "keep America's tax dollars out of El Salvador," splashed simulated blood on the counters, walls, and carpeting, and generally obstructed the office's operation. After a federal police officer ordered the group, on several occasions, to disperse or face arrest, appellants were arrested. At a bench trial, appellants proffered testimony about conditions in El Salvador as the motivation for their conduct. They attempted to assert a necessity defense, essentially contending that their acts in protest of American involvement in El Salvador were necessary to avoid further bloodshed in that country. While finding appellants motivated solely by humanitarian concerns, the court nonetheless precluded the defense as a matter of law, relying on Ninth Circuit precedent.
Is the defense of necessity available in indirect civil disobedience cases?
In reviewing appellant protesters' claim, the district court denied the necessity defense on the grounds that the requisite immediacy was lacking, the actions taken would not abate the alleged evil, and other legal alternatives existed. The Court of Appeals agreed, asserting that to forgive a crime taken to avert a lesser harm would fail to maximize social utility, the cost of the crime would outweigh the harm averted by its commission, and criminal acts could not be condoned to thwart threats that were yet to be imminent or for which there were legal alternatives to abate the harm. The court asserted that there was no evidence that the procedure by which an El Salvador policy was adopted was in any way improper nor that appellants were prevented from participating in the democratic processes through which a policy was chosen. The court found that the El Salvador policy was not in itself a legally cognizable harm, so the harm resulting from criminal action taken to secure its repeal outweighed any benefit because such indirect protest was unlikely to immediately change congressional policy. The judgment was affirmed and the necessity defense was held inapplicable in indirect civil disobedience.