Com. v. Averill

• Decision Date: 15 July 1981
• Citation: 12 Mass.App.Ct. 260,423 N.E.2d 6
• Parties: COMMONWEALTH v. Elizabeth AVERILL et al. 1
• Court: Appeals Court of Massachusetts

Page 6

423 N.E.2d 6

12 Mass.App.Ct. 260

COMMONWEALTH v. Elizabeth AVERILL et al. ¹

Appeals Court of Massachusetts, Plymouth.

Argued June 11, 1981.

Decided July 15, 1981.

Benjamin Hiller, Cambridge, for defendants.

Rosemary Ford, Asst. Dist. Atty., for the Commonwealth.

Before PERRETTA, ROSE and KASS, JJ.

KASS, Justice.

To charges of trespass (G.L. c. 266, § 120), the defendants raised the ancient (see the Book of Jonah, but contrast The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884)) defense of necessity. Shortly after the beginning of the fourth day of trial, a Superior Court judge ruled that the defense of necessity was "unavailable to the defendants in the circumstances of this case" and that the evidence of the defendants' "belief as to the dangers of nuclear energy is inadmissible."

On the basis of evidence received prior to that point in the proceedings, it was uncontested that on October 7, 1978, a Saturday, the defendants had been distributing leaflets which described hazards to health and life of nuclear generating facilities in general and the Boston Edison Company's Pilgrim nuclear plant in Plymouth in particular. This activity occurred within the boundaries of a private park, maintained as part of the nuclear facility complex, which Boston Edison kept open to the public during daylight hours. The defendants also carried placards with anti-nuclear messages and discussed the risks of nuclear power with any persons in the park who cared to listen. Particularly, they cautioned people fishing against eating anything caught from waters around the plant because, the defendants said, it might be hot with radioactivity. The chief security officer for Boston Edison announced the closing of the park at 6:00 P.M. and asked the defendants to leave when they made no move so to do. They declined, and the Boston Edison security officer called the Plymouth police department for assistance. Five or six Plymouth police officers arrived on the scene shortly after 6:00 P.M. The sergeant in charge of the Plymouth police detail warned the defendants they would be arrested if they did not honor Edison's request to leave the park, a request which had been repeated in his presence. The defendants sat on the ground and were arrested as, according to their testimony, they expected they would be.

What occurred that October 7 was an act of civil disobedience. Classically, the actors must accept the penalty for their violations of law, i. e., a jail sentence or whatever less draconian sanction the law imposes. ² Attempts to eliminate this disagreeable consequence of civil disobedience enjoy neither novelty nor a record of success. See United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970); United States v. Kroncke, 459 F.2d 697, 702-704 & nn. 8 & 9 (8th Cir. 1972); United States v. May, 622 F.2d 1000, 1008-1010 (9th Cir.), cert. denied sub nom. Phipps v. United States, --- U.S. ----, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980); State v. Dorsey, 118 N.H. 844, 395 A.2d 855 (1978), habeas corpus granted on other grounds sub nom. Tsoumas v. New Hampshire, 472 F.Supp. 1134 (D.N.H.1979). An essential element of the justification defenses, e. g., duress, necessity and aiding another, is that the actor reasonably anticipated a direct causal relationship between his act and the avoidance of harm. Commonwealth v. Robinson, --- Mass. ---, --- ^a, 415 N.E.2d 805 (1981); Commonwealth v. Thurber, --- Mass. ---, --- - --- ^b, 418 N.E.2d 1253 (1981); United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972). See Commonwealth v. Brooks, 99 Mass. 434, 436-437 (1868). For this reason the defense of necessity generally arises in emergency situations, when the threatened disaster is immediate. LaFave & Scott, Criminal Law § 50, at 387-388 (1972). See Commonwealth v. Thurber, supra at --- ^c 418 N.E.2d 1253. Compare Commonwealth v. Martin, 369 Mass. 640, 648-649, 341 N.E.2d 885 (1976), upon which the defendants mistakenly rely, in which it was held that the defendant was entitled to a jury instruction on a justification defense (coming to the aid of another) in the context of a prison affray. In that case, if the action was justified at all, it was justified by the heat of battle.

None of the defense witnesses (they were all defendants) who testified expected the trespass to have any immediate consequences in reducing the danger apprehended. Indeed, the park was fenced off from the nuclear facility itself and, so far as immediate messages were concerned, all persons, save for the defendants and the officers who came to arrest them, had left the park. The only impact they could hope to make on the general public was through the news of their arrest. However that might assist their cause in the long run, publicity designed to marshal public opinion could not extinguish an immediate peril, if there was one. The constitutional right to persuade is not without limitation as to time and place. See Commonwealth v. Egleson, 355...