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, 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.
Can the defense of necessity apply in cases where the existence of an indirect civil disobedience is present?
A final reason the necessity defense does not apply to these indirect civil disobedience cases is that legal alternatives will never be deemed exhausted when the harm can be mitigated by congressional action. As noted above, the harm indirect civil disobedience aims to prevent is the continued existence of a law or policy. Because congressional action can always mitigate this "harm," lawful political activity to spur such action will always be a legal alternative. On the other hand, we cannot say that this legal alternative will always exist in cases of direct civil disobedience, where protestors act to avert a concrete harm flowing from the operation of the targeted law or policy. Thus, the court affirmed the judgment of the district court because necessity could never be proven in a case of indirect civil disobedience. The necessity defense was not intended as justification for illegal acts taken in indirect political protest. The policy against which appellant protesters struggled was not in itself a legally cognizable harm.