State v. Warshow

Barney, GJ.

The defendants were part of a group of demonstrators that travelled to Vernon, Vermont, to protest at the main gate of a nuclear power plant known as Vermont Yankee. The plant had been shut down for repairs and refueling, and these protestors had joined a rally designed to prevent workers from gaining access to the plant and placing it on-line.

They were requested to leave the private premises of the power plant by representatives of Vermont Yankee and officers of the law. The defendants were among those who refused, and they were arrested and charged with unlawful trespass.

The issue with which this appeal of their convictions is concerned relates to a doctrine referred to as the defense of necessity. At trial the defendants sought to present evidence relating to the hazards of nuclear power plant operation which, they argued, would establish that defense. After hearing the defendants’ offer of proof the trial court excluded the proffered evidence and refused to grant compulsory process for the witnesses required to present the defense. The jury instruction requested on the issue of necessity *24was also refused, and properly preserved for appellate review.

In ruling below, the trial court determined that the defense was not available. It is on this basis that we must test the issue.

The defense of necessity is one that partakes of the classic defense of “confession and avoidance.” It admits the criminal act, but claims justification. It has a counterpart in civil litigation, recognized in Vermont in the case of Ploof v. Putnam, 81 Vt. 471, 71 A. 188 (1908).

The doctrine is one of specific application insofar as it is a defense to criminal behavior. This is clear because if the qualifications for the defense of necessity are not closely delineated, the definition of criminal activity becomes uncertain and even whimsical. The difficulty arises when words of general and broad qualification are used to describe the special scope of this defense.

In the various definitions and examples recited as incorporating the concept of necessity, certain fundamental requirements stand out:

(1) there must be a situation of emergency arising without fault on the part of the actor concerned;

(2) this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;

(3) this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and

(4) the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.

See W. LaFave & A. Scott, Handbook on Criminal Law § 50 (1972).

It is the defendants’ position that they made a sufficient offer of proof to establish the elements of the necessity defense to raise a jury question. The trial court rejected this contention on the ground, among others, that the offer did not sufficiently demonstrate the existence of an emergency or imminent danger.

*25This ruling was sound, considering the offer. The defendants wished to subpoena witnesses to testify to the dangers of nuclear accidents and the effect of low-level radiation. It was conceded that there had been no serious accident at Vermont Yankee, but defendants contended that the consequences could be so serious that the mere possibility should suffice. This is not the law.

There is no doubt that the defendants wished to call attention to the dangers of low-level radiation, nuclear waste, and nuclear accident. But low-level radiation and nuclear waste are not the types of imminent danger classified as an emergency sufficient to justify criminal activity. To be imminent, a danger must be, or must reasonably appear to be, threatening to occur immediately, near at hand, and impending. State v. Huett, 340 Mo. 934, 950, 104 S.W.2d 252, 262 (1937). We do not understand the defendants to have taken the position in their offer of proof that the hazards of low-level radiation and nuclear waste buildup are immediate in nature. On the contrary, they cite long-range risks and dangers that do not presently threaten health and safety. Where the hazards are long term, the danger is not imminent, because the defendants have time to exercise options other than breaking the law. W. LaFave & A. Scott, supra, at 388.

Nor does the specter of nuclear accident as presented by these defendants fulfill the imminent and compelling harm element of the defense. The offer does not take the position that they acted to prevent an impending accident. Rather, they claimed that they acted to foreclose the “chance” or “possibility” of accident. This defense cannot lightly be allowed to justify acts taken to foreclose speculative and uncertain dangers. Its application must be limited to acts directed to the prevention of harm that is reasonably certain to occur. See State v. Dorsey, 118 N.H. 844, 846, 395 A.2d 855, 857 (1978) (the common law defense did not deal with nonimminent or debatable harms). Therefore the offer fails to satisfy the imminent danger element. The facts offered would not have established the defense.

These acts may be a method of making public statements about nuclear power and its dangers, but they are not a legal *26basis for invoking the defense of necessity. Nor can the defendants’ sincerity of purpose excuse the criminal nature of their acts.

Since the offered evidence was insufficient to support any possible defense of necessity, we need not reach any of the other issues raised by this appeal, including the effect of declared legislative policy. See State v. Dorsey, supra.

Judgment affirmed.