State v. Rein, s. C8-90-2435

• Decision Date: 19 November 1991
• Docket Number: Nos. C8-90-2435,C9-90-2573,s. C8-90-2435
• Citation: 477 N.W.2d 716
• Parties: STATE of Minnesota, Respondent, v. Kathleen M. REIN, et al. (C8-90-2435), Tammy Dvorak, et al. (C9-90-2573), Appellants.
• Court: Minnesota Court of Appeals

Page 716

477 N.W.2d 716

STATE of Minnesota, Respondent, v. Kathleen M. REIN, et al. (C8-90-2435), Tammy Dvorak, et al. (C9-90-2573), Appellants.

Nos. C8-90-2435, C9-90-2573.

Court of Appeals of Minnesota.

Nov. 19, 1991.

Review Denied Jan. 30, 1992.

Syllabus by the Court

1. The defense of necessity is not available to defeat a trespass charge where appellant's actions were not effectively designed to prevent the harm and legal alternatives to trespass were available.

2. On accusations of trespass, appellants assert a claim of right defense based on Minnesota's private arrest statute. However, we need not articulate limits to private arrest powers where there was no evidence private arrests were made or attempted.

3. Whether or not constituting a legal defense, accused persons are entitled to fully explain to the jury their motives, beliefs or intentions in doing the act charged as criminal. This right is not unreasonably limited by suppression of evidence proposed to prove the worthiness of specific motives already described to the jury.

Hubert H. Humphrey, III, Atty. Gen., Jane A. McPeak, St. Paul City Atty., Ivars P. Krievans, Asst. City Atty., Virginia D. Palmer, Deputy City Atty., Criminal Div., St. Paul, for respondent.

Thomas W. Krauel, White Bear Lake, for Kathleen M. Rein, et al.

John D. Hagen, Jr., Minneapolis, for Tammy Dvorak, et al.

Considered and decided by KLAPHAKE, P.J., and RANDALL and CRIPPEN, JJ.

OPINION

CRIPPEN, Judge.

FACTS

On June 22, 1990, between 100 and 150 people gathered at a Planned Parenthood Clinic to protest abortion. Most of these people picketed on the sidewalk in front of the clinic. However, 40 people were arrested for trespass when they blocked the front entrance to the clinic. Four more people were arrested later for obstructing legal process when they stood in front of the rear entrance of the building while police escorted a Planned Parenthood physician into the building.

Appellants pleaded not guilty and were tried before a jury. In pre-trial motion proceedings the trial court was asked to exclude evidence offered to establish a necessity defense or a claim of right defense. The court refused this motion and elected to decide admissibility of evidence as the trial progressed. During trial, the court limited evidence on the two defenses. The trial court also refused to instruct the jury on necessity or claim of right.

All appellants were found guilty and were given sentences ranging between 15 days (suspended) and 60 days (45 days suspended). Appellants were also ordered to pay fines of $50.00 to $400.00. All sentences were stayed by the court of appeals pending this appeal. Appellants challenge their misdemeanor convictions for trespass and obstruction of legal process.

ISSUES

1. Were appellants erroneously denied the opportunity to establish their necessity defense?

2. Were appellants erroneously denied the opportunity to prove the merits of their claim of right to enter upon Planned Parenthood Clinic property?

3. Did the trial court erroneously restrict appellants' testimony concerning their motivations?

ANALYSIS

1.

Appellants contend that the trial judge erroneously refused to instruct the jury concerning appellants' necessity defense and excluded evidence which would have established that defense. Before trial, the court excluded a photograph appellants labeled as a picture of aborted babies in a clinic dumpster. The court also excluded the testimony of a physician who would have testified regarding different stages of fetal development and that abortion kills a human being. The court also prevented appellants from showing a movie entitled "The Silent Scream" to the jury. All evidence was excluded on the grounds that it was irrelevant to the charge or defense.

A necessity defense defeats a criminal charge

if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant's breach of the law.

United States v. Seward, 687 F.2d 1270, 1275 (10th Cir.1982) (quoting State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973)), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983). In addition, the defense exists only if (1) there is no legal alternative to breaking the law, (2) the harm to be prevented is imminent, and (3) there is a direct, causal connection between breaking the law and preventing the harm. Seward, 687 F.2d at 1270.

The defense of necessity was not available to these appellants. Appellants enjoyed legal remedies without committing a trespass. Appellants had access to the state legislature, courts, and law enforcement organizations. See Sigma Reproductive Health Center v. State, 297 Md. 660, 688-89, 467 A.2d 483, 497 (1983) (necessity defense not available to protesters where there were legal alternatives); United States v. Cullen, 454 F.2d 386, 392 (7th Cir.1971) (observing danger in permitting high purpose to license illegal behavior). In addition, while the protesters may have delayed abortions, conduct they believed much more dangerous than their own, there is no evidence abortions were actually prevented by the trespass. Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078-80 (Alaska 1981) (necessity defense rejected because harm could be protested through noncriminal means, and defendant's actions were not designed to prevent the perceived harm).

We also observe that the necessity defense claimed by appellants was principally premised on their aim to stop abortions generally, including those permitted by law. This theory of necessity is especially flawed because it involves no cognizable harm to be avoided. The courts do not recognize harm in a practice specifically condoned by law. United States v. Schoon, 939 F.2d 826, 829 (9th Cir.1991). Moreover, Schoon may have even greater impact. Arguably, appellants committed trespass to protest the lawfulness of abortions, constituting an act of indirect civil disobedience. Id. at 828 (contrasting direct civil disobedience, where the law being broken is the object of the protest). The Schoon court determined as a matter of law that the necessity defense is unavailable regarding acts of indirect civil disobedience. Id.

The trial court did not err either in excluding evidence meant to establish a necessity defense or in refusing to instruct the jury concerning this defense.

2.

Appellants next contend the trial court erred in excluding evidence which would have established a claim of right. Specifically, appellants argue that it was error to exclude: testimony of a Planned Parenthood official that counselors do not have degrees related to counseling; testimony of a counseling expert regarding what topics should properly be included in abortion counseling; and the deposition of a Planned Parenthood physician who said he did not talk to his patients prior to performing abortions. Appellants further contend they were entitled to instructions on laws governing the conduct of Planned Parenthood staff.

Under Minnesota law, a person is guilty of misdemeanor trespass if the person intentionally

trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor.

Minn.Stat. Sec. 609.605, subd. 1(b)(3) (1990). Appellants admit they were on the premises of Planned Parenthood and that they refused to depart when officials of Planned Parenthood, the lawful possessor, demanded they leave.

Appellants' claim of right argument is premised on the private arrest statute, Minn.Stat. Sec. 629.37 (1990). ¹ They claim this statute gives them a claim of right to enter the property for the purposes of exercising their citizen's arrest rights. See State v. Brechon, 352 N.W.2d 745 (Minn.1984) (defendant may offer evidence that he has a property right such as owner, tenant, lessee, licensee or invitee); State v. Hoyt, 304 N.W.2d 884 (Minn.1981) (statute may give person licensee status). Appellants contend they enjoyed the right to make a private arrest for violation of Minn.Stat. Sec. 145.412, subd. 1(4) (1990) (performance of abortion without prior explanation of its effects).

Appellants' interpretation of the citizen's arrest right is expansive. They argue that the right is absolute, unencumbered by any requirement to show necessity. Neither party has produced for the court any authority to support appellants' interpretation of private arrest powers. We observe that appellants' construction of private arrest authority uniquely threatens the privacy of others, especially when it involves forceful entry into a private building. Private arrest powers likely cannot supersede public law enforcement activity absent extraordinary circumstances.

We discover, however, that we need not precisely articulate limits on private arrest powers. After carefully exploring the record, we find the issue is not presented on the facts of this case. No evidence indicates appellants made a citizen's arrest or at any time attempted to do so. Moreover, entry to make a citizen's arrest requires informing the offender of the intent to make an arrest, and no such action occurred here. Minn.Stat. Sec. 629.38 (1990); State v. Tapia, 468 N.W.2d 342, 344 (Minn.App.1991), pet. for rev. denied (Minn. May 23, 1991).

One appellant testified the group was assembled to make private arrests. This was not borne out by words or deeds during the trespass activity. The record shows that the protesters attempted to give a police lieutenant several papers including a reproduction of the private arrest statute. This demonstrated that appellants were aware of the private arrest statute but not that they were engaged in arrest activity. There is evidence that the protesters informed police there were felonies occurring inside the building, however, they asked police to investigate. There is evidence that protesters asked police to make citizen's arrests. There is evidence that the protesters...