McMillan v. City of Jackson

• Decision Date: 23 October 1997
• Docket Number: No. 95-CA-01092-SCT,95-CA-01092-SCT
• Citation: 701 So.2d 1105
• Parties: Beverly McMILLAN v. CITY OF JACKSON.
• Court: Mississippi Supreme Court

Page 1105

701 So.2d 1105

Beverly McMILLAN v. CITY OF JACKSON.

No. 95-CA-01092-SCT.

Supreme Court of Mississippi.

Oct. 23, 1997.

Stephen M. Crampton, Tupelo, for Appellant.

Mark E. McLeod, Jackson, for Appellee.

Before SULLIVAN, P.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

¶1 Today, we are asked to determine whether the necessity defense is effective against the charge of trespass on the premises of an abortion clinic where the allegation is that the trespasser claims no knowledge of a specific impending act of legal harm to a person. We answer in the negative. Abortions can be lawful medical procedures, therefore, the requisite legal harm does not exist to justify criminal trespass. Thus, we affirm the decision of the circuit court.

I.

¶2 On July 17, 1993, Beverly McMillan participated in an abortion protest at the Mississippi Women's Medical Clinic in Jackson Mississippi. McMillan was charged with trespass on the premises pursuant to Miss.Code Ann. § 97-17-97 (1994). On February 18, 1994, before the County Court of the First Judicial District of Hinds County, counsel representing McMillan stipulated that McMillan's conduct did conform to the elements of trespass, but that her actions were justified under the defense of necessity. Counsel outlined the offer of proof that would be submitted in support of the contention that the appellant's actions were within the necessity defense. The issue of whether McMillan could present the necessity defense was certified by the trial judge to the Supreme Court on interlocutory appeal. On June 9, 1994, the petition for interlocutory appeal was denied.

¶3 On February 10, 1995, the parties again appeared before the County Court of Hinds County where the defendant sought to stipulate and clarify that the defendant did have a defense of justification. Judge C.A. Henley indicated that the entire February 18, 1994, transcript which included the defendant's offer of proof was entered in the record. On April 18, 1995, however, a final judgment was rendered which stated that Beverly McMillan was guilty of trespass. A notice of appeal was filed to the Circuit Court of the Seventh District, Hinds County on April 19, 1995.

¶4 The circuit court issued an opinion and order on September 21, 1995, affirming the conviction for the criminal offense of trespass. An appeal was filed to this Court on September 26, 1995.

II.

¶5 The appellant does not quarrel with the issue of whether the law was violated. According to the record, an affidavit was submitted by the City of Jackson, Mississippi, which charged Beverly McMillan with wilful and unlawful trespass on the property of the Mississippi Women's Medical Clinic. Miss.Code Ann. § 97-17-97 (1994). ¹ While she did break the law, the basic thrust of McMillan's argument is that in light of her knowledge, experience and training as an obstetrician/gynecologist, her conduct was justified to prevent the killing of viable preborn children.

¶6 In support of McMillan's application of the necessity defense, she indicates that the necessity defense is a widely accepted defense that has found favor in Mississippi jurisprudence. We have applied the defense of necessity to justify the use of deadly force in matters of self defense. Calhoun v. State, 526 So.2d 531 (Miss.1988) (circuit court ¶7 The Kansas Supreme Court has noted that courts have invoked several different rationales in rejecting application of the defense in circumstances similar to the present case. "The majority of courts reason that because abortion is a lawful, constitutionally protected act, it is not a legally recognized harm which can justify illegal conduct." City of Wichita v. Tilson, 253 Kan. 285, 855 P.2d 911, 915 (1993). Likewise in Hill v. State, 688 So.2d 901 (Fla.1996), a defendant was charged with first degree murder after killing an abortion clinic physician and volunteer. The defendant sought to present the necessity defense at trial but the State filed a motion in limine to preclude Hill from presenting the defense. Id. at 902. The court noted that in every appellate court found to have considered the issue, the defendants were precluded as a matter of law from asserting necessity or justification as a defense to trespass violations committed in protest of abortions. Id. at 905-06 & n. 5 (citing numerous cases from other jurisdictions). Accordingly, the court found that "... as a matter of law, legal abortion is not a recognized harm and cannot be used to invoke the necessity defense." Id. at 906.

                erred because it refused to grant instruction that self defense may be applicable to a third party   Also, we have acknowledged that the defense of necessity may justify escape from custody.  Corley v. State, 536 So.2d 1314 (Miss.1988) (although the Court affirmed the defendant's conviction, it outlined how the defense of necessity could be applied lawfully).  Moreover, the defense of necessity has been used to justify leaving the scene of an accident.  Knight v. State, 601 So.2d 403 (Miss.1992).  The application of the necessity defense in these cases share the finding of a reasonable belief that imminent danger of death or serious bodily harm induced the criminal conduct.  These cases are distinguishable from the circumstances that led to McMillan's trespass because she had no knowledge that a specific harm was imminent to justify her unlawful action
                

¶8 In Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981), the defendants were charged with violation of an Anchorage city criminal trespass ordinance after they handcuffed themselves to an abortion clinic and were physically removed from the clinic. The defendants asserted the necessity defense as a justification for their action. The defendants argued before the Alaska Supreme Court that "... in attempting to prevent the performance of abortions at the Alaska Clinic, they acted in the reasonable belief that their actions were necessary to protect human life from imminent peril." Id. at 1077. That court disagreed and affirmed the convictions. The court noted that the defense of necessity has three essential elements: (1) the act charged must have been done to prevent a significant evil; (2) there must have been no adequate alternative; and (3) the harm caused must not have been disproportionate to the harm avoided. Id. at 1078. The court found that the harm sought to be avoided, namely the abortions that the defendants sought to prevent, was not unlawful and thus did not fall within the defense. Id. at 1079.

¶9 Utilizing the same basic test, along with the requirement in our case law that the threatened harm be specific and imminent, we conclude that the instant appeal cannot succeed. McMillan argues that her offer of proof would have shown that her trespass on the premises of the abortion clinic was within the reach of the necessity defense because there was imminent danger to human life and no legal alternative existed at the time the criminal statute was violated. However, the offer of proof which McMillan discussed before the County Court of Hinds County on February 18, 1994, provides no direct evidence or circumstantial evidence sufficient to justify McMillan's actions under the necessity defense. McMillan's claim that 22nd-week abortions are routinely conducted at the clinic, at best, amounts to no more than her suspicion that illegal abortions were being conducted at the clinic. Besides McMillan's own suspicions, the offer of proof includes nothing which proves that any illegal harm was afoot at the clinic. Even if illegal abortions were routinely taking place at the clinic, there is nothing which establishes that an illegal abortion was underway at the time of McMillan's trespass.

¶10 The United States Supreme Court has indicated that from and after the end of the first trimester of pregnancy, a state may regulate the abortion procedure to preserve and protect the life of the mother. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). However, simply because an abortion occurs in the second trimester does not mean that the abortion is illegal. Thus, we conclude that the necessity defense does not apply in this case because McMillan does not suggest evidence that she was attempting to prevent a specific and imminent legal harm. ²

¶11 According to McMillan, "[i]t was reasonable, as well, based on the past experiences in Jackson, Mississippi, to believe that the harm to those preborn children was imminent and that no reasonable legal alternatives were available to save those children then and there." McMillan claims to be very experienced and familiar with the routine at the abortion clinic. If this is true, McMillan could have sought an injunction to prevent any unlawful action at the clinic in advance of the date McMillan was compelled to trespass. Clearly, this would have been a better alternative than violating the law.

¶12 Finally, the Cleveland Court found that the harm caused by the trespass into the clinic was foreseeably substantial in comparison to the harm sought to be avoided. Cleveland, 631 P.2d at 1081. The record does not indicate the specific circumstances surrounding McMillan's trespass on the Mississippi Women's Medical Clinic; however, it is foreseeable that impermissible trespass on premises where medical procedures are performed may be problematic for medical providers and patients who are providing lawful services. McMillan claims that her presence at abortion clinics has often caused women to reexamine their decision and decide against abortion. It is foreseeable, however, that McMillan's trespass might have the opposite effect causing a difficult event in the life of a woman to become worse. Thus, given that no legal harm was shown to be imminent, the harm caused by McMillan could have been disproportionate to the harm sought to be avoided.

¶13 McMillan strongly argues that this Court's holding in O'Bryant v. State, 530 So.2d 129 (...