State v. Warshow
410 A.2d 1000 (1979)
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Rule of Law:
The common law defense of necessity requires a showing of an imminent danger that is threatening to occur immediately. The defense is not available for criminal acts committed to prevent speculative, long-term, or debatable harms.
Facts:
- A group of demonstrators, including the defendants, traveled to the Vermont Yankee nuclear power plant to protest.
- The plant had been shut down for repairs and refueling and was scheduled to be brought back online.
- The protestors' goal was to prevent workers from gaining access to the plant and restarting it.
- The defendants believed the plant's operation posed dangers from low-level radiation, nuclear waste, and the potential for a catastrophic accident.
- At the time of the protest, there had been no serious accident at the Vermont Yankee facility.
- Representatives of Vermont Yankee and law enforcement officers requested that the demonstrators leave the private premises of the power plant.
- The defendants were among those who refused to leave the property.
Procedural Posture:
- The defendants were arrested and charged with unlawful trespass.
- At trial in the court of first instance, the defendants sought to present evidence to support the defense of necessity.
- The trial court heard the defendants' offer of proof and ruled that the evidence was inadmissible, precluding the necessity defense.
- The trial court refused the defendants' request for a jury instruction on the necessity defense.
- The defendants were convicted of unlawful trespass following a jury trial.
- The defendants appealed their convictions to the state's highest court.
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Issue:
Does the necessity defense apply to a charge of criminal trespass when the defendants acted to prevent speculative, long-term dangers associated with the operation of a nuclear power plant, rather than an immediate and impending harm?
Opinions:
Majority - Barney, GJ.
No, the necessity defense does not apply because the defendants failed to demonstrate an imminent danger. The defense requires a situation of emergency that is so imminent and compelling as to raise a reasonable expectation of immediate harm. The dangers cited by the defendants—low-level radiation, nuclear waste, and the mere 'chance' or 'possibility' of an accident—are long-term, speculative, and not immediate. To be 'imminent,' a danger must be threatening to occur immediately and be near at hand. Since the proffered evidence did not establish an imminent danger, but rather long-range risks, the defendants had time to exercise lawful options, and the trial court properly excluded the defense.
Dissenting - Billings, J.
Yes, the necessity defense should have been presented to the jury because the defendants' offer of proof was sufficient to raise a question on all elements of the defense. The majority improperly weighed the credibility of the proffered evidence rather than assessing its sufficiency. The defendants offered to present expert testimony about specific defects in the plant's cooling system that could result in a meltdown within seconds of startup, constituting an imminent danger. It is the jury's role, not the court's, to determine the reasonableness and credibility of the defendants' belief in an imminent danger after hearing the evidence. The trial court therefore erred by prematurely excluding this entire line of defense.
Concurring - Hill, J.
No, the necessity defense does not apply, but for a different reason: the defense is precluded by legislative policy. The issue of whether the defense is available at all must be decided before analyzing its elements. The state and federal legislatures have enacted comprehensive regulatory schemes for nuclear power, implicitly making a policy choice that its benefits outweigh its dangers. Allowing a jury to apply the necessity defense would permit them to second-guess and redetermine public policy questions already decided by the legislative branch. Therefore, the defense is unavailable in this context, regardless of whether the defendants could prove an imminent danger.
Analysis:
This case significantly narrows the application of the necessity defense, particularly in the context of civil disobedience against government-sanctioned activities. The majority's holding establishes that generalized, long-term, or statistical risks, even if potentially catastrophic, do not satisfy the strict 'imminence' requirement. The concurrence introduces the powerful alternative theory of legislative preclusion, suggesting that where a legislature has regulated a field, the common law necessity defense may be unavailable to challenge that policy choice. This precedent makes it substantially more difficult for defendants to justify criminal acts based on harms associated with complex, regulated industries or broad social policies.
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