November 24th, 2017

Is breaking down a door in a house you do not own to save a child from a fire legal? Of course. Committing a minor crime, breaking down a door, to save a life falls under the necessity defense.

The defense of necessity is available where the defendant acted under the reasonable belief that committing his offense would prevent a greater evil or harm from occurring. For example:

Christopher lives in a town that sits right on the edge of the Hundred Acre Woods. At the end of a hot and dry summer some brush in the woods catches fire and a forest fire quickly develops and spreads. The fire is quickly heading toward the town and Christopher believes that if he burns the row of houses directly on the edge of the forest he will create a fire wall which will then protect the rest of the town. If Christopher does, in fact, burn some of the houses under the reasonable belief that it will protect the rest of the town from the forest fire, he will be able to use the defense of necessity if he is charged with arson.

There are, however, several requirements that must be met in order for the defendant to use necessity as a defense.

1. The defendant must reasonably believe that an actual threat exists. Therefore, in order to use the defense, Christopher must reasonably believe that the forest fire will destroy all or part of the town. Please note that as long as this belief is reasonable, he will be able to use the defense even if the forest fire never actually approaches the town.

2. The defendant must reasonably believe that the threat he is trying to prevent is greater than the damage that will result from his actions. Therefore, Christopher will be able to use the necessity defense if he reasonably believes that burning some of the houses at the edge of the forest is a lesser evil than allowing the entire town to burn.

3. The threatened harm that the defendant is trying to prevent with his actions must be imminent.

4. The defendant can only use the necessity defense if there was no other, less harmful way to avoid the threatened danger. In the above example, Christopher will only be able to use the necessity defense if burning a few of the houses was the least harmful way to protect the town.

5. The defendant will only be able to use the defense if the defendant himself was not at fault in creating the situation that made it necessary to commit his crime. In other words, if Christopher himself had been responsible for the forest fire, he would not be able to use necessity as a defense to burning those houses.

So, does the continued avoidance for any responsibility, in fact the obfuscation of that responsibility, by fossil fuel corporations for our global crisis of climate change/global warming justify invoking this defense?

Emily Johnston, a poet and co-founder of 350Seattle, says: Yes. She is betting the next 20 years of her life on that conviction. She faces trial starting 11 December on felony charges for shutting the emergency valve on the Enbridge tar sands pipeline in Leonard, Minnesota.

Johnston, writing in I shut down an oil pipeline—because climate change is a ticking bomb for The Guardian, explains why she has taken this risk:

A little over a year ago, four friends and I shut down all five pipelines carrying tar sands crude oil into the United States by using emergency shut-off valves. As recent months have made clear, climate change is not only an imminent threat; it is an existing catastrophe. It’s going to get worse, and tar sands oil—the dirtiest oil on Earth—is one of the reasons.

We did this very, very carefully—after talking to pipeline engineers, and doing our own research. Before we touched a thing, we called the pipeline companies twice to warn them, and let them turn off the pipelines themselves if they thought that was better; all of them did so.

We knew we were at risk for years in prison. But the nation needs to wake up now to what’s coming our way if we don’t reduce emissions boldly and fast; business as usual is now genocidal.

In shutting off the pipelines, we hoped to be part of that wake-up, to put ourselves in legal jeopardy in order to state dramatically and unambiguously that normal methods of political action and protest are simply not working with anywhere near the speed that we need them to.

One major hope of ours was to set legal precedent by using the “necessity defense” and bringing in expert witnesses to testify that because of the egregious nature of tar sands crude and the urgency of the climate crisis, we’d actually been acting in accordance with higher laws.

Appealing to higher laws is a risky strategy, but one that Johnston, and her co-defendant Annette Klapstein have decided is worth the potential outcome. Make no mistake. A not-guilty verdict in this case will be a devastating blow to the fossil-fuel industry and their bought-and-paid-for climate change/global warming deniers.

This is a game changer.

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