Com. v. Brugmann

• Decision Date: 01 April 1982
• Citation: 433 N.E.2d 457,13 Mass. App. Ct. 373
• Parties: COMMONWEALTH v. Jeb E. BRUGMANN et al. 1
• Court: Appeals Court of Massachusetts

Page 457

433 N.E.2d 457

13 Mass.App.Ct. 373

COMMONWEALTH v.Jeb E. BRUGMANN et al.¹

Appeals Court of Massachusetts, Franklin.

Argued Feb. 16, 1982.

Decided April 1, 1982.

Thomas Lesser, Conway (William C. Newman, Northampton, with him), for defendants.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

John F. Sherman, III, Westboro, for Yankee Atomic Electric Co., amicus curiae, submitted a brief.

Before ARMSTRONG, GREANEY and SMITH, JJ.

GREANEY, Justice.

The defendants were convicted of criminal trespass under G.L. c. 266, § 120, for occupying a restricted area at a nuclear power plant.The question presented is whether the trial judge erred in ruling that the defenses of necessity, self-defense and defense of others were not available at their trial.We hold that the ruling was correct and affirm the convictions.

On June 2, 1979, twenty-one persons, including the eleven defendants, walked past a barrier and sat down against the main gate by a fence at the Yankee Atomic Electric Company nuclear power plant in Rowe.The protestors apparently knew, and the plant superintendent later testified, that a regulation of the United States Nuclear Regulation Commission(NRC) requires the plant to shut down if unauthorized people remain within twenty feet of its fence for any significant length of time.When the plant superintendent advised the defendants that they would have to move, they refused.A State police officer also requested that they leave the area.When they refused the officer's request, they were arrested and charged with trespass.

Prior to trial, the defendants advised the judge that they had occupied the area near the fence, and sought to force the plant to shut down, because of the hazards it presented to people in the vicinity.The defendants also expressed a belief that their action was justified under that branch of the necessity doctrine known as the "competing harms" defense, ² or as action taken in defense of themselves or others.In response to a Commonwealth motion for a pretrial ruling on the availability of the defenses, the judge, after an offer of proof and argument by the defendants(who appeared pro se) ruled that the defenses were not available.Subsequently, the judge allowed a voir dire, at which he heard the testimony of two experts offered by the defendants.At the conclusion of the voir dire, however, he excluded their testimony, apparently ruling that the evidence was insufficient as matter of law to raise the defenses stated.³We summarize the relevant evidence offered by the defendants.

Dr. Ernest J. Sternglass is a qualified expert on the effects of nuclear radiation.He testified that on the day of the trespasses, radiation was escaping from the Rowe plant and was appearing in the area around the plant at levels which equaled or exceeded that of fallout from the testing of nuclear weapons.He stated that radiation at these levels caused an increased incidence of cancer and also significantly heightened mortality.He also testified that the plant's operating reports for 1977 and 1978 revealed failures of the fuel cladding around the uranium in the reactor, of the steam tubing, and of the radiation monitoring system, all of which led to serious radiation leakage, at levels exceeding those permitted under standards established by the United States Environmental Protection Agency.He further stated that part of this radiation escaped in the form of strontium 90, which settles into the soil and water.Finally, he indicated that people who consume fish, animals, milk, water, vegetables or other produce contaminated by strontium 90 are exposed to possible damage of the bone marrow and white blood cells, and an increased risk of leukemia, infant mortality and congenital defects.

Dr. Rosalie Bertell, a qualified cancer research scientist, testified that the plant's annual reports indicated that radiation was being released in levels sufficiently high to pollute the air, water and food in the Rowe area.She testified that on the day of the alleged trespasses, people breathing the air, drinking the water, or eating the food around Yankee Atomic were receiving a potentially harmful dosage of radiation.She also testified that it was impossible for anyone living near the plant to test the level of his radiation intake, or to prevent that intake.

The defendants indicated in their memorandum that they had filed petitions across the country "on behalf of safe energy and an end to nuclear pollution," that they had lobbied in Congress towards similar ends, that they had written letters to the NRC regarding the hazards of nuclear power, and that they had brought their concerns about the alleged antiquated design and obsolete safety features of Yankee Atomic to the attention of the plant superintendent.Their memorandum also referred to "a show cause suit against Yankee Rowe in 1974, asking that the plant be shut down," filed by an antinuclear organization with which the defendants are associated.The memorandum further stated that such organizations "have been frustrated in their efforts to rectify the existing harms of commercial nuclear power ... through legislative channels."⁴

1.Competing harms.In essence, the "competing harms" defense ⁵ exonerates one who commits a crime under the "pressure of circumstances" if the harm that would have resulted from compliance with the law significantly exceeds the harm actually resulting from the defendant's violation of the law.At its root is an appreciation that there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value which makes it inappropriate and unjust to apply the usual criminal rule.See generally, LaFave & Scott, Criminal Law§ 50(1972); Arnolds & Garland, "The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil,"65 J.Crim.L. & Criminology 289, 291-296 (1974).

"We have long recognized that compulsion may negate criminal purpose."Commonwealth v. Thurber, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 880, 882, 418 N.E.2d 1253(prison escape), citingCommonwealth v. Elwell, 2 Met. 190, 192(1840).We have recently considered the defense of "necessity" in connection with another group of criminal trespasses at a nuclear power plant.In that case, we concluded that the defense did not apply because the facts failed to show either the existence of an immediate danger or any reasonable expectation that the acts of trespass would have any "immediate consequences" in reducing such a danger.Commonwealth v. Averill, --- Mass.App. ---, ---, Mass.App.Adv.Sh. (1981) 1383, 1385, 423 N.E.2d 6.There, however, we dealt with an informational protest on the general dangers of nuclear power, whereas here we deal with a protest directed at bringing an immediate end to what was, in the opinion of the defendants' experts, an emergency situation.For that reason, we agree with the defendants that Averill is different both in fact and in law from the present situation.Moreover, apart from that case and the Thurbercase, supra, the "competing harms" defense does not appear to have any analogue in Massachusetts statutes or case law.Thus, until now, we have not directly considered the application of this defense in the present context.

The defense has been asserted in cases involving trespasses at nuclear plants in other jurisdictions, but singularly without success.In State v. Dorsey, 118 N.H. 844, 395 N.E.2d 855(1978), the defense (recognized by New Hampshire statute) was rejected on facts similar to those in Averill, on the ground that it "(does) not deal with nonimminent or debatable harms; nor (does) it deal with activities that the legislative branch of government (has) expressly sanctioned and found not to be harms."Id. at 846, 395 N.E.2d 855.For New Hampshire cases following Dorsey, seeState v. Koski, 120 N.H. 112, 114-115, 411 A.2d 122(1980);State v. Weitzman, 121 N.H. 83, 88-89, 427 A.2d 3(1981).In State v. Warshow, 138 Vt. 22, 410 A.2d 1000(1979), the defense was held inapplicable to a trespass committed during a protest directed at low level radiation, nuclear waste, and the possibility of a nuclear accident, on the ground that "the hazards are long term, (and) the danger is not imminent."⁶Id. at 25, 410 A.2d 1000.SeeAntinuclear Demonstrations and the Necessity Defense: State v. Warshow, 5 Vt.L.Rev. 103(1980).The same result has been reached in other cases involving trespasses at nuclear power plants.SeeUnited States v. Best, 476 F.Supp. 34, 42-49(D.Colo.1979);State v. Greene, 5 Kan.App.2d 698, 700-702, 623 P.2d 933(1981);State v. Kee, 398 A.2d 384, 385-386(Me.1979);People v. Chachere, 104 Misc.2d 521, 522-526, 428 N.Y.S.2d 781(1980).See alsoState v. Marley, 54 Hawaii 450, 471-473, 509 P.2d 1095(1973)(trespass at plant manufacturing antipersonnel weapons);State v. Olsen, 99 Wis.2d 572, 574-579, 299 N.W.2d 632(1980)(disorderly conduct in blocking shipment of spent nuclear fuel).

From these cases and the other authorities cited, it is apparent that the application of the defense is limited to the following circumstances: (1)the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2)the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in abating the danger; and (4)the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.Assuming, without deciding, that we would recognize and apply the defense in an appropriate case, we examine the defendants' showing here in light of the elements stated above.

2.The defense in these cases.The question of necessity is fairly raised "only if there is evidence that would warrant a reasonable doubt whether the (trespass) was justified" as a...