State v. Olsen
99 Wis. 2d 572, 1980 Wisc. App. LEXIS 3251, 299 N.W.2d 632 (1980)
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Rule of Law:
The common law defense of necessity, as codified in Wisconsin to require the "pressure of natural physical forces," is generally unavailable to justify acts of civil disobedience that protest government or industry actions, as such actions do not constitute natural physical forces and are matters of public policy preempted by government regulation.
Facts:
- The Dairyland Power Cooperative operates a nuclear power plant near Genoa in Vernon County.
- The defendant, a member of the Coulee Region Energy Coalition (CREC), views the development of nuclear power as unsafe.
- Dairyland Power Cooperative planned to ship eight spent nuclear fuel rods to Illinois for temporary storage, requiring eight separate truckloads because a defective cask could only hold one rod.
- After the first rod was shipped on March 27, 1979, the defendant and other CREC members learned of the defective cask and decided to demonstrate against further shipments.
- The defendant arrived at the power plant between 8:00 and 9:00 p.m. on March 28, 1979, and loading of a cask onto a truck was completed by 4:15 a.m. on March 29.
- As Sheriff Banta began to escort the truck out of the plant's fenced area, the defendant and three other demonstrators formed a line blocking the road.
- When the sheriff asked them to move, the demonstrators, including the defendant, did not comply and were arrested.
Procedural Posture:
- The defendant was charged with disorderly conduct in violation of Wis. Stat. § 947.01.
- The trial court found the defendant guilty of disorderly conduct.
- The defendant filed a motion for post-conviction relief, which the trial court denied.
- The defendant appealed the order denying post-conviction relief to the Court of Appeals of Wisconsin (defendant is appellant, State is appellee).
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Issue:
Does the common law defense of necessity, requiring "pressure of natural physical forces," apply to a defendant who commits disorderly conduct by blocking a road to protest the shipment of spent nuclear fuel, which the defendant believes to be unsafe?
Opinions:
Majority - Dykman, J.
No, the common law defense of necessity does not apply to a defendant who blocks a road to protest the shipment of spent nuclear fuel, as such actions are not caused by "pressure of natural physical forces" as required by Wisconsin statute. The court held that Wisconsin's necessity defense, codified in § 939.47, Stats., explicitly limits its application to acts committed under the "pressure of natural physical forces," providing examples such as storms, fires, and privations. The court reasoned that the actions of a private industry in shipping spent nuclear fuel, although involving a natural element, do not constitute a natural physical force, but rather a controlled act subject to government regulation. To permit the defense in such a case would allow individuals to disrupt government and bypass accepted democratic processes whenever they disagreed with a political decision or perceived danger, a result the court deemed impermissible. Furthermore, the court found that the defendant failed to establish the other elements of the necessity defense: a reasonable belief that the act would prevent harm, the absence of alternative legal means, and the imminence of the harm. The court also rejected the defendant's claims of self-defense and defense of others, noting that these defenses are typically restricted to crimes involving the use of force, and the defendant explicitly emphasized that no force was used. Finally, the court dismissed challenges to jury unanimity due to the defendant's failure to object to instructions at trial, and rejected the argument that the disorderly conduct statute was unconstitutionally overbroad, citing controlling precedent from the Wisconsin Supreme Court and federal courts.
Analysis:
This case significantly limits the application of the necessity defense in Wisconsin, particularly concerning acts of civil disobedience. By strictly interpreting the statutory requirement of "pressure of natural physical forces," the court makes it clear that protests against industrial or governmental policies, even when motivated by sincere concerns for public safety, cannot generally invoke this defense. This ruling reinforces the judiciary's stance that political and societal changes should be sought through established democratic means rather than through criminal acts. The decision creates a high bar for future defendants attempting to use necessity in contexts not involving direct, uncontrollable natural calamities, thereby channeling dissent into legal avenues and upholding governmental authority in regulated areas.
