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State v. Warshow

Citation. 138 Vt. 22,410 A.2d 1000, 1979 Vt.
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Brief Fact Summary.

Appellants argued that the defense of necessity enabled them to enter a nuclear power plant property and protest without committing the crime of trespass.

Synopsis of Rule of Law.

This defense cannot be allowed to justify acts taken to foreclose speculative and uncertain dangers.


Appellants were part of a group of protestors that traveled to protest the repairs of a nuclear power plant. When they refused to leave the premises, they were arrested and charged with trespass. Appellants argued that their actions were necessary as the hazards of the operation of the power plant necessitated their actions. The trial court ruled that use of the defense of necessity was unavailable to Appellants.


Whether Appellants can successfully assert a defense of necessity in the present situation.


Appellants’ conduct does not rise to a level of necessity.
There must be a situation of emergency arising without fault of the actor; the emergency must be imminent and compelling as to raise a reasonable expectation of harm; this emergency must present no reasonable opportunity to avoid injury without a criminal act; and the injury impending from the emergency must be of sufficient seriousness to out-measure the criminal wrong.

This defense cannot be allowed to justify acts taken to foreclose speculative and uncertain dangers.


The concurrence disagreed with the reasoning employed by the majority. Specifically that the legislature had already determined that the benefits of the nuclear policy outweighed the dangers associated with its’ use. To allow Appellants to assert this defense would be to overrule a legislative mandate.


The dissent argued that Appellants had presented all the elements of a necessity and thus should be afforded the opportunity of presenting the defense.


The Court ruled that although there existed a possibility of a meltdown or nuclear accident, these were just possibilities and not imminent threats. Rather, Appellants were attempting to make political statements and not acting out of necessity.

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