Citation. 22 Ill.971 F.2d 193 (9th Cir. 1991)
Brief Fact Summary. The Appellants appeal their convictions for interfering with activities of the Internal Revenue Service (IRS) Office in Arizona and for failing to comply with an order of a federal police officer. The charges arose from their protest activities based on the United States’ involvement in El Salvador. Their appeal stems from the District Court’s denial of a necessity defense.
Synopsis of Rule of Law. The defense of necessity is inapplicable to cases involving indirect civil disobedience.
Held. No. The decision of the lower court is affirmed. Judge Boochever delivered the opinion of the court.
Indirect civil disobedience differs from civil disobedience in that it involves the violation or interference with a law or government policy that is not, itself, the object of protest. This case involves civil disobedience because the protestors were not challenging the laws under which they were charged. The recognized purpose of acts of indirect civil disobedience is to bring about a change in the law or governmental policy by swaying public opinion through symbolism.
Necessity is a utilitarian defense, which justifies criminal acts taken to avoid a greater harm. For example, prisoners escaping from a burning jail could use the defense of necessity. In order to invoke this defense, the accused must show that (1) they were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal link between their conduct and the harm to be avoided and (4) they had no legal alternatives to violating the law.
The most immediate harm this type of protest focuses on is the existence of a law or policy. However, the mere existence of a law or policy does not constitute a legally verifiable harm. Thus, if there is no recognizable harm to prevent, the detriment resulting from criminal action taken to repeal the law or policy outweighs any benefit of the action. In addition, where indirect civil disobedience against congressional acts occurs, the action by itself is not likely to counter the evil because the action is indirect. Finally, the necessity defense does not apply here because congressional action can always mitigate the harm. As a result, lawful political activity to persuade congressional change is always a legal alternative.
Discussion. Indirect protests of congressional policies can never meet all of the requirements under the necessity doctrine. Therefore, the necessity defense is not available in such cases.