United States v. Schoon

United States Court of Appeals, Ninth Circuit
F.2d 193 (1991)

ELI5:

Rule of Law:

The common law defense of necessity is unavailable as a matter of law in cases of indirect civil disobedience, where an individual violates a law that is not, itself, the object of protest in order to challenge a government policy.

Facts:

Gregory Schoon, Raymond Kennon, Jr., and Patricia Manning sought to protest United States involvement in El Salvador.
On December 4, 1989, Schoon, Kennon, Manning, and approximately 27 other individuals entered an Internal Revenue Service (IRS) office in Tucson, Arizona.
Inside the office, the protestors chanted slogans such as “keep America’s tax dollars out of El Salvador.”
The protestors splashed simulated blood on the counters, walls, and carpeting within the office.
These actions obstructed the normal operations of the IRS office.
A federal police officer repeatedly ordered the group to disperse.
Schoon, Kennon, and Manning refused to comply with the officer's order.

Procedural Posture:

Gregory Schoon, Raymond Kennon, Jr., and Patricia Manning were charged with obstructing activities of the Internal Revenue Service and failing to comply with an order of a federal police officer.
At a bench trial in the U.S. District Court, the defendants proffered testimony to assert a necessity defense.
The district court precluded the necessity defense as a matter of law.
The defendants were convicted on both charges.
The defendants (appellants) appealed their convictions to the United States Court of Appeals for the Ninth Circuit, challenging the district court's exclusion of the necessity defense.

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Issue:

Is the common law defense of necessity available as a justification for criminal acts of indirect civil disobedience committed to protest a government policy?

Opinions:

Majority - Judge Boochever

No. The necessity defense is inapplicable as a matter of law to cases involving indirect civil disobedience. The court distinguishes between direct civil disobedience (violating the specific law being protested, such as lunch counter sit-ins) and indirect civil disobedience (violating a law not being protested to draw attention to a different policy). The court holds that three of the four required elements of the necessity defense can never be satisfied in cases of indirect civil disobedience. First, the 'balance of harms' element fails because the mere existence of a validly enacted constitutional law or policy does not constitute a legally cognizable harm. Second, the 'causal relationship' element fails because the criminal act (e.g., obstructing an IRS office) has no direct power to abate the alleged greater harm (e.g., U.S. foreign policy); it requires the intervening action of another party, such as Congress. Third, the 'lack of legal alternatives' element fails because, in a democratic society, the ability to engage in lawful political activity to persuade Congress to change a policy is always considered an available legal alternative, regardless of its perceived futility.

Concurring - Judge Fernandez

I concur in the result that the defendants cannot use the necessity defense, but I would not create a per se rule that the defense is entirely unavailable in all indirect civil disobedience cases. While agreeing with the outcome, I express hesitation about the majority's broad categorical exclusion. I feel constrained by prior circuit precedent which analyzed the elements of the defense on a case-by-case basis rather than foreclosing it entirely. The proper approach is to find that the elements are not met in this specific case, as prior cases have done, rather than establishing a new, categorical rule. Thus, I concur only in the judgment affirming the convictions, not in the majority's broader reasoning that creates an absolute bar to the defense in all such cases.

Analysis:

This decision establishes a significant, bright-line rule within the Ninth Circuit that forecloses the use of the necessity defense for protestors engaged in indirect civil disobedience. By creating a per se rule of inapplicability, the court prevents defendants from using the courtroom as a forum to debate the merits of unrelated government policies. This streamlines future prosecutions of protestors by eliminating the need for courts to conduct a fact-intensive inquiry into the four elements of the necessity defense in this context, signaling that legal avenues for political change must be exhausted before resorting to illegal acts.

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