US v. Schoon

• Decision Date: 29 July 1991
• Docket Number: 90-10210,No. 90-10167,90-10250.,90-10167
• Citation: 971 F.2d 193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory D. SCHOON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond K. KENNON, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Patricia MANNING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

971 F.2d 193

UNITED STATES of America, Plaintiff-Appellee, v. Gregory D. SCHOON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Raymond K. KENNON, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Patricia MANNING, Defendant-Appellant.

Nos. 90-10167, 90-10210, 90-10250.

United States Court of Appeals, Ninth Circuit.

Submitted May 13, 1991^*.

Decided July 29, 1991.

As Amended August 4, 1992.

COPYRIGHT MATERIAL OMITTED

Fredric F. Kay, Federal Public Defender, Harriette Levitt, Tucson, Ariz., for defendant-appellant.

Roger L. Duncan, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before: FARRIS, BOOCHEVER, and FERNANDEZ, Circuit Judges.

BOOCHEVER, Circuit Judge:

Gregory Schoon, Raymond Kennon, Jr., and Patricia Manning appeal their convictions for obstructing activities of the Internal Revenue Service Office in Tucson, Arizona, and failing to comply with an order of a federal police officer. Both charges stem from their activities in protest of United States involvement in El Salvador. They claim the district court improperly denied them a necessity defense. Because we hold the necessity defense inapplicable in cases like this, we affirm.

I.

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. The sole issue on appeal is the propriety of the court's exclusion of a necessity defense as a matter of law.

II.

A district court may preclude a necessity defense where "the evidence, as described in the defendant's offer of proof, is insufficient as a matter of law to support the proffered defense." United States v. Dorrell, 758 F.2d 427, 430 (9th Cir.1985). To invoke the necessity defense, therefore, the 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. United States v. Aguilar, 883 F.2d 662, 693 (9th Cir.1989), cert. denied, ___ U.S. ___, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991). We review de novo the district court's decision to bar a necessity defense. Id. at 692.

The district court denied the necessity defense on the grounds that (1) the requisite immediacy was lacking; (2) the actions taken would not abate the evil; and (3) other legal alternatives existed. Because the threshold test for admissibility of a necessity defense is a conjunctive one, a court may preclude invocation of the defense if "proof is deficient with regard to any of the four elements." Id. at 693.

While we could affirm substantially on those grounds relied upon by the district court, we find a deeper, systemic reason for the complete absence of federal case law recognizing a necessity defense in an indirect civil disobedience case. As used in this opinion, "civil disobedience" is the wilful violation of a law, undertaken for the purpose of social or political protest. Cf. Webster's Third New International Dictionary 413 (unabridged, 1976) ("refusal to obey the demands or commands of the government" to force government concessions). Indirect civil disobedience involves violating a law or interfering with a government policy that is not, itself, the object of protest. Direct civil disobedience, on the other hand, involves protesting the existence of a law by breaking that law or by preventing the execution of that law in a specific instance in which a particularized harm would otherwise follow. See Note, Applying the Necessity Defense to Civil Disobedience Cases, 64 N.Y.U.L.Rev. 79, 79-80 & n. 5 (1989). This case involves indirect civil disobedience because these protestors were not challenging the laws under which they were charged. In contrast, the civil rights lunch counter sit-ins, for example, constituted direct civil disobedience because the protestors were challenging the rule that prevented them from sitting at lunch counters. Similarly, if a city council passed an ordinance requiring immediate infusion of a suspected carcinogen into the drinking water, physically blocking the delivery of the substance would constitute direct civil disobedience: protestors would be preventing the execution of a law in a specific instance in which a particularized harm — contamination of the water supply — would otherwise follow.

While our prior cases consistently have found the elements of the necessity defense lacking in cases involving indirect civil disobedience, see, e.g., Dorrell, 758 F.2d at 431-34; United States v. Lowe, 654 F.2d 562, 567 (9th Cir.1981); United States v. May, 622 F.2d 1000, 1008-10 (9th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980), we have never addressed specifically whether the defense is available in cases of indirect civil disobedience. Indeed, some other courts have appeared doubtful. See, e.g., United States v. Seward, 687 F.2d 1270, 1276 (10th Cir. 1982) ("Necessity is obviously not a defense to charges arising from a typical protest."), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983); United States v. Kroncke, 459 F.2d 697, 701 (8th Cir.1972) ("None of the cases even suggests that the defense of necessity would be permitted where the actor's purpose is to effect a change in governmental policies which, according to the actor, may in turn result in a future saving of lives."). Today, we conclude, for the reasons stated below, that the necessity defense is inapplicable to cases involving indirect civil disobedience.

III.

Necessity is, essentially, a utilitarian defense. See Note, The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience, 39 Stan.L.Rev. 1173, 1174 (1987). It therefore justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime. See, e.g., Dorrell, 758 F.2d at 432 (recognizing that "the policy underlying the necessity defense is the promotion of greater values at the expense of lesser values") (citation omitted). Pursuant to the defense, prisoners could escape a burning prison, see, e.g., Baender v. Barnett, 255 U.S. 224, 226, 41 S.Ct. 271, 272, 65 L.Ed. 597 (1921); a person lost in the woods could steal food from a cabin to survive, see Posner, An Economic Theory of the Criminal Law, 85 Colum.L.Rev. 1193, 1205 (1985); an embargo could be violated because adverse weather conditions necessitated sale of the cargo at a foreign port, see The William Gray, 29 F.Cas. 1300, 1302 (C.C.D.N.Y. 1810); a crew could mutiny where their ship was thought to be unseaworthy, see United States v. Ashton, 24 F.Cas. 873, 874 (C.C.D.Mass. 1834); and property could be destroyed to prevent the spread of fire, see, e.g., Surocco v. Geary, 3 Cal. 69, 74 (1853).

What all the traditional necessity cases have in common is that the commission of the "crime" averted the occurrence of an even greater "harm." In some sense, the necessity defense allows us to act as individual legislatures, amending a particular criminal provision or crafting a one-time exception to it, subject to court review, when a real legislature would formally do the same under those circumstances. For example, by allowing prisoners who escape a burning jail to claim the justification of necessity, we assume the lawmaker, confronting this problem, would have allowed for an exception to the law proscribing prison escapes.

Because the necessity doctrine is utilitarian, however, strict requirements contain its exercise so as to prevent nonbeneficial criminal conduct. For example, "`if the criminal act cannot abate the threatened harm, society receives no benefit from the criminal conduct.'" Applying the Necessity Defense, 64 N.Y.U.L.Rev. at 102 (quoting United States v. Gant, 691 F.2d 1159, 1164 (5th Cir.1982)). Similarly, to forgive a crime taken to avert a lesser harm would fail to maximize social utility. The cost of the crime would outweigh the harm averted by its commission. Likewise, criminal acts cannot be condoned to thwart threats, yet to be imminent, or those for which there are legal alternatives to abate the harm.

Analysis of three of the necessity defense's four elements leads us to the conclusion that necessity can never be proved in a case of indirect civil disobedience. We do not rely upon the imminent harm prong of the defense because we believe there can be indirect civil disobedience cases in which the protested harm is imminent.

A.

I. Balance of Harms

It is axiomatic that, if the thing to be averted is not a harm at all, the balance of harms necessarily would disfavor any criminal action. Indirect civil disobedience seeks first and foremost to bring about the repeal of a law or a change of governmental policy, attempting to mobilize public opinion through typically symbolic action. These protestors violate a law, not because it is unconstitutional or otherwise improper, but because doing so calls public attention to their objectives. Thus, the most...