THE NECESSITY DEFENSE:

A REPORT

 By Thomas Lumpkin

Civil disobedience acts of conscience have, in the measure of their truthfulness, an inherent power that in no way depends upon the various judgments made by judges and juries. Nevertheless, on a number of occasions in recent years nuclear resisters and protesters of U.S. Central American policy have claimed a legal justification for their acts. Most often they have presented their cases as clear and obvious applications of what is known in U.S. civil law as the defense of necessity or duress. In response, some judges have simply refused the claim. In several instances, however, a defense of necessity was allowed in theory, but in fact a judge or jury imposed so narrow an interpretation on its meaning that it was inapplicable to the acts of resistance. In a very few cases the necessity defense has been the basis for sane and heartening judicial statements and decisions of acquittal. It is my pleasure to report one such in­stance of my own experience.

On December 28, 1984, a commemoration of the Holy Innocents feast was held at the headquarters of the Williams International Cor­poration in Walled Lake, Michigan. Williams International is re­sponsible for the small fanjet engines that are an essential component of modem U.S. cruise missiles. During the service Dan Lagrou was arrested for pouring his blood upon the company’s fence and charged with malicious destruction. Marietta Jaeger and I were among four arrested and charged with trespassing. Upon our arraignment at the 52nd District Court in Walled Lake, the three of us chose to have “not guilty” pleas entered. We were set for trial on March 22, 1985, before Judge Martin Boyle, one of the court’s three judges. None of us requested lawyers, preferring to make our own defense.

Initially we had asked for a jury trial. By having a jury Dan and Marietta hoped their testimonies would educate and convert (in the best sense of both words) seven more people to the realities of the cruise missile and their local corporation’s involvement with it. I was inclined to make a legal case for our innocence using the necessity defense.

In the weeks preceding our trial, I realized that only one of the half dozen previous Williams International civil disobedience cases had come before Judge Boyle, and it had been a jury trial. Judge Boyle remained the only one of the three district court judges who had not yet ruled himself on the actions at Williams on the basis of the necessity defense. I thought we should give him the opportunity. Dan and Marietta agreed and we collectively changed our request for a jury trial to a bench trial about a week before our scheduled court date.

My understanding of the necessity defense is that the defendants must show, first, there is a situation posing a serious and imminent danger to life and limb; second, they believe their act of breaking civil law is a necessary and effective remedy to that situation; and third, they were compelled, or under duress, to so act.

To substantiate the first requirement, we called upon two expert witnesses, a physicist at the University of Michigan and a political scientist at Wayne State University. Professor Daniel Axelrod from the University of Michigan testified on the nature of modern-day cruise missiles, the critical role of Williams International in their development, and the role of the cruise missile in U.S. nuclear strat­egy. Professor Maurice Waters from Wayne State testified on the particularly destabilizing impact of the cruise on arms control.

Our argument for the second requirement was a historical and so­ciological one, and we made it ourselves. (We had sought expert witnesses in these areas but none were available on our short notice.) We claimed no reasonable and effective remedy exists to the present and imminent danger posed by the cruise missile that does not include acts of civil disobedience. We argued that, historically, no significant social change in our nation’s past had occurred without elements of civil disobedience (e.g., the right of workers to organize, of women and blacks to vote, the curtailment of the Vietnam draft). Sociolog­ically, we argued that public opinion has an impact on U.S. public policy, and civil disobedience has been a sociologically significant component in determining public opinion.

To substantiate compulsion, each of us simply explained the mo­tives that led us to civil disobedience. We spoke of moral rather than physical compulsion. We were not physically compelled to go to Williams (i.e., we acted in full and free command of our faculties) but, because of who we were and what we knew, we (to use Daniel Berrigan’s phrase) could not not do what we did.

At the trial’s conclusion, Judge Boyle began by taking up Dan’s charge of malicious destruction. He focused on the “malicious” re­quirement of the law and found himself convinced that no malicious intent existed.

His testimony is clear and convincing that he did not act out of malice. He may have acted wrongfully. He certainly acted willfully but in the eyes of the law he did not act maliciously. We can’t go beyond the language of the statute, and the court would have to find Mr. Lagrou not guilty for that reason.

Turning to the trespass charges against Marietta and myself, he said:

Now with respect to the other two, answers are not so easy. Again, there’s no question they trespassed. . . . The prosecutor suggests that there’s some inconsistency in their conduct as to suggest they did not act under duress and that their. . . testimony from the witness stand [does] not support that conclusion either. Well, of course, the defense of duress is not often used in this context. . . But in the commentary of the standard jury instructions it’s stated that there’s a meagerness of case law on this subject . . . so just because it’s never been applied to a circumstance such as this doesn’t mean that it can’t be.

Judge Boyle went on to respond to our arguments:

Now the defenses listed in the jury instructions provide first that the threat­ening conduct must have been sufficient to create in the mind of a responsible person the fear of death or serious bodily harm. . . . I don’t think anybody would deny the risk of nuclear annihilation exists. It’s been expressed by the President of the United States, and politicians talk about it more than they act upon it, and one has to be almost totally ignorant not to be aware of it. . . . It’s not unreasonable to believe that Ms. Jaeger and Mr. Lumpkin have a reasonable fear of death. Now they didn’t express that so much for themselves. They expressed it for the children . . . for society, but . . . the fear of death for society, it seems to me, would justify a defense of duress a whole lot quicker than the fear of death for an individual.

And they must have committed the act to avoid the threatened harm. Perhaps that’s the most difficult standard to establish in this circumstance because, as the prosecutor’s questions suggest, how futile must their action be when one or two persons stand against the kind of power we’re talking about. . . . But these defendants are of a mind that political persuasion, while it may be helpful, is not going to be effective. They cite experiences in the history of this country, and we’re all familiar with them, and they’re not only of recent history. They run through the course of our history, and sometimes the defendants of yesterday are the heroes of today. . . Can two people stop the nuclear arms race? Probably not, but they suggest that they do this in the hope that others will join them. There can’t be any question that if enough people take their side, the nuclear arms race is going to end. . . . There are some who say that there is absolutely no prospect of the administration or the Congress to bring this matter to a successful con­clusion and that the track record proves it and that the only possibility, however remote, the only possibility of survival lies in protest. If people believe that, who can say they are wrong? These people in my opinion believe that, and I don’t judge anyone else who goes out there and enters upon the property until I’ve heard them explain themselves.

By now it was clear Marietta and I were also going to be acquitted.

Judge Boyle made a few more observations before concluding with his verdict:

And I don’t propose to respond to the suggestion that such a defense cannot be accepted if we arc to have any control in society. Do we have any control in society now when we have fifty thousand nuclear arms?

How is Williams to operate if their property is not protected? Well

if we have to surround our nuclear weapons plants with military personnel, that’s the price we’ll have to pay for nuclear arms. If we have to turn the military against the people, that’s the price we’ll have to pay . . . if enough people feel like Ms. Jaeger and Mr. Lumpkin.

These people have acted in good faith. They’ve acted out of compul­sion. . While what they do presents a problem for the order of society, it does not constitute a criminal offense. I accept their defense and find each of them not guilty.

Needless to say, it was a great feeling to be acquitted (for once!). Yet it must be obvious that the necessity defense (and certainly “not guilty” verdicts) is incidental rather than essential to the work of civil resistance. Our trial appearances are just one part of a witness that begins with the act of civil disobedience itself and often extends into jail and/or prison time, with various kinds of support work carried on throughout. The necessity defense is simply one way to be con­sidered within the entire spectrum of ways to witness in court.