Commonwealth v. Brugmann
1982 Mass. App. LEXIS 1265, 433 N.E.2d 457, 13 Mass. App. Ct. 373 (1982)
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Rule of Law:
The defense of necessity (competing harms) in a criminal trespass case is not available if the defendant had effective legal alternatives to address the alleged danger, even if the danger was clear and imminent.
Facts:
- On June 2, 1979, twenty-one persons, including the eleven defendants, walked past a barrier and sat down against the main gate by a fence at the Yankee Atomic Electric Company nuclear power plant in Rowe.
- The defendants knew that a regulation of the United States Nuclear Regulatory Commission (NRC) required the plant to shut down if unauthorized people remained within twenty feet of its fence for any significant length of time.
- The plant superintendent and a State police officer separately requested that the defendants leave the area, but they refused.
- Dr. Ernest J. Sternglass and Dr. Rosalie Bertell, experts offered by the defendants, testified that on the day of the trespasses, radiation was escaping from the Rowe plant at levels causing increased incidence of cancer, heightened mortality, and contaminating the surrounding air, water, and food.
- The defendants had previously filed petitions, lobbied Congress, written letters to the NRC, and brought concerns about the plant's alleged hazards to the attention of the plant superintendent, and an associated antinuclear organization had filed a 'show cause suit' against the plant in 1974.
Procedural Posture:
- The defendants were arrested and charged with criminal trespass under G. L. c. 266, § 120.
- Prior to trial, the defendants informed the trial judge of their intent to raise defenses of necessity, self-defense, and defense of others.
- The Commonwealth filed a motion for a pretrial ruling on the availability of these defenses.
- The trial judge, after an offer of proof and argument, ruled that the defenses were not available.
- The judge then allowed a voir dire (a hearing to determine admissibility of evidence), where he heard testimony from two experts offered by the defendants.
- At the conclusion of the voir dire, the judge excluded the experts' testimony, ruling that the evidence was insufficient as a matter of law to raise the stated defenses.
- The defendants were convicted of criminal trespass in the trial court.
- The defendants appealed their convictions to the Supreme Judicial Court of Massachusetts.
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Issue:
Does the defense of necessity (competing harms), self-defense, or defense of others apply to a criminal trespass committed at a nuclear power plant when the defendants allege imminent danger but have not exhausted available legal alternatives?
Opinions:
Majority - Greaney, J.
No, the defenses of necessity (competing harms), self-defense, and defense of others do not apply to the criminal trespass committed at the nuclear power plant because the defendants failed to demonstrate the absence of effective legal alternatives. The court recognized that the 'competing harms' defense could potentially be applicable in certain circumstances, requiring (1) a clear and imminent danger, (2) a reasonable expectation that the action would be effective in abating the danger, (3) no legal alternative, and (4) no legislative preclusion of the defense. While the expert testimony suggested the first two elements might be satisfied, the defendants failed to demonstrate the third element: the lack of effective legal alternatives. The court identified two clear legal avenues: initiating action with the Nuclear Regulatory Commission (NRC) under 10 C.F.R. § 2.206(a), which allows for immediate action like plant shutdown in emergencies; and initiating action with the Massachusetts Department of Environmental Quality Engineering (DEQE) or bringing a private action in Superior Court under G. L. c. 111, § 142A. The defendants did not show that they had pursued these remedies or that such pursuit would have been futile, deeming a general reference to a prior 'show cause suit' insufficient. The court also found the defenses of self-defense and defense of others inapplicable, as these are reserved for situations involving actual assaults and batteries requiring an immediate need to resort to force, and are not meant for civil disobedience when other remedies are available.
Analysis:
This case significantly limits the applicability of the necessity defense in environmental protest cases, particularly those involving complex, regulated industries. By strictly interpreting the 'no legal alternative' element, the court imposes a high burden on defendants to exhaust all administrative and judicial remedies before resorting to unlawful acts. The ruling reinforces the principle that criminal acts, even if motivated by perceived public safety concerns, are generally not justified if the legal system provides established avenues for redress. This approach serves to deter 'direct action' protests where comprehensive regulatory frameworks exist, encouraging activists to work within official channels, or risk conviction without a viable defense.
