State v. Sahr

900098, 900165, 900166, Nos. Cr. and Dakota, of North The STATE Appellee, and Plaintiff Supreme North Dakota. Court of v. 7,May Sahr, SAHR, Harry Ann Marlene Russell Noah, Timothy Brian John

Mark Breidenbach,

Schmisek, M. Mat Nick Uchtman, Noah, Dennis W.

thew John Uchtman, Ranae Renee Gail

Charlene Breidenbach, Brensike, Joy Nyrie and Breidenbach, Defendants,

Ida Lorene

and Beneda,

Kathryn Ann Defendant Appellant.

and JAMESTOWN, Plaintiff

CITY OF Appellee,

and UCHTMAN, Defendant and

Dennis W. (Two Cases). Appellant Dakota, Plaintiff

STATE North Appellee, SAHR, Sahr, Harry Ann Marlene

Russell Noah, Timothy Brian

Mark John

Schmisek, Renee and Charlene Ucht

man, Appellants, Defendants and Breidenbach, Matthew John

Nick M. Uchtman,

Noah, Ranae Dennis W. Gail Beneda,

Brensike, Kathryn Nyrie Ann

Joy Breid and Ida Lorene Breidenbach

enbach, Defendants. Dakota, Plaintiff of North

STATE Appellee, Sahr, SAHR, Harry Marlene Ann

Russell Noah, Timothy Brian John

Mark Breidenbach,

Schmisek, M. Mat Nick Noah, Renee Charlene Ucht

thew John Brensike, Kathryn

man, Ranae Gail Breidenbach, Beneda, Nyrie Joy Ann Breidenbach, Defen

and Ida Lorene

dants, Uchtman, Defendant

Dennis W. Appellant. and December at 1988]

[November Lucy’s that Robert clinic on location [Dr. floor of the I the 2nd Jamestown Mall]. faith, reasonably, good and in believe my entering private that actions in on the property necessary of another were harm, being destruction of innocent human lives. Simonson, Mikal Honorable Stutsman County Judge, limited the admission of evi- will the general dence: “The Court allow testimony why as to beliefs and [his] [he] However, acted as did. the Courtroom [he] legislative hearing will not become a room pros on the and cons of abortion.” 6, 1990, jury April At his trial on Ucht- “pro-life” man testified that he was and murder, that “abortion believed and that murder, stop we need to do what we can to Larson, Joseph (argued), City F. II Asst. However, stop the holocaust.” the trial Jamestown, Atty., plaintiff appel- for and granted prosecutor’s court motion to lee, City of Jamestown. testimony strike when he Uchtman’s re- Monty (argued), Fargo, Mertz Grant for fused to submit to cross-examination. The appellants. defendants jury guilty found Uchtman criminal trespasses. The trial court sentenced MESCHKE, Justice. 10-day jail Uchtman to two concurrent sen- tences, year suspended for one of informal Sahr, Sahr, Harry Russell Ann Marlene probation pay condition that he a fine of Noah, Schmisek, Timothy Mark Brian John and costs of $100 $50. Uchtman, Beneda, Kathryn Ann Charlene appeal and Dennis W. Uchtman from con- Sahr, Harry Sahr, Russell Marlene Ann protest trespass victions Noah, Schmisek, Timothy Mark Brian John activities at abortion clinics in Jamestown Uchtman, Kathryn Beneda, Charlene Ann Fargo. The defendants contend that charged and Dennis W. were Uchtman each present should have been allowed to trespass with criminal in violation of NDCC evidence on the defense of blocking 12.1-22-03 for the entries to the justify their conduct. We affirm. Organization Fargo. Women’s Health Kathryn jury Beneda had a trial without a charged Dennis W. Uchtman was with Racek, before the Frank L. Honorable Cass City two violations of the ordinances of the Judge. Judge County Racek found her by trespassing of Jamestown on November guilty trespass, of criminal ordered her to 8, 1988, 12, 1988, and December in front of days jail days suspend- serve 30 with 29 Lucy’s Dr. Robert E. clinic on the 2nd floor year supervised probation, ed for one at the Jamestown Mall. After transfer to assessed costs One condition $35. trial, County jury Stutsman Court for Ucht- probation of Beneda’s directed that she is present man moved to be allowed to evi- “not to be within one block of the Women’s “bearing dence on the Organization” during probation. Health commonly known as ‘choice supporting of evils'.” Uchtman’s affidavit jury had Dennis W. Uchtman trial be- summarized beliefs: his Dawson, Georgia fore the Honorable Cass begins concep- County Judge. jury I believe that life found Uchtman

tion. I guilty trespass. had reasonable basis to believe of criminal The court personal $35, knowledge imposition abortions fined Uchtman deferred performed were to be year, placed on these dates sentence for one him on the defendants be restrict- duct? Could of Uchtman’s probation. One condition clinic he not to be on ed from access the abortion “is probation directed Orga- Health probation? Women’s premises of the for the 1 block thereof or within nization year period.”

next 1 1. TRIAL SPEEDY that W. Uchtman contends Fargo Dennis moved other defendants deny present County to Court erred in they the Stutsman “be allowed limine bearing on motion to dismiss for violation in their defense his evidence Resolving or ‘choice such justification right speedy defense of his to trial. a defense, they support To their evils’.” an evaluation of four requires a claim delay, asked length delay, reasons for factors: right to a include, assertion of his would the defendant’s present evidence which to trial, speedy prejudice and defen to: not be limited Connery, v. N.W.2d dant. State fact that medical and scientific a. The Runck, (N.D.1989); 418 N.W.2d State begins conception. life at (N.D.1987). Although defendant “[a] testimony concerning the b. Medical right speedy trial waive the conception on and beginning of life trial,” prompt a failing to demand an human development of unborn 361, (N.D. Littlewind, 417 N.W.2d child. 1987), controlling. single no factor physiology of a c. The mechanics and 8, suction abortion. arrested on November Uchtman was 12, 1988, He again and on December 1988. film “The d. The Silent Scream” 6, delay through sonogram April tried on 1990. depicts the was sub- in a abortion. the arrest and trial was occurring events suction between 2, 1990, pretrial the March stantial. At evidence the e. As demonstrative dis- motion to conference when Uchtman’s hu- bodies of medically preserved unborn considered, no reasons for miss was man children. prosecu- other than the delay given, were testimo- f. The Defendants’ individual City “the doesn’t tor’s statement concerning ny knowledge their schedule trials.” understanding were to oc- that abortions alleged premises they on the cur right his asserted Arguably, Uchtman on, trespassed on or about Decem- have Judge Ha- speedy trial in two letters 29, 1989, and that their actions were ber Herseth, County Judge, Stutsman rold B. human life. necessary to loss of 14, 21, 1989, and December on November pretrial 1989, denied motion. After learned that Judge Dawson after Uchtman January for they filed a written offer of the evidence scheduled conference had been 4, presented, these de- asked would have In both letters Uchtman 1990. jury on a tried without earlier trial: “So arranging fendants were about Judge found stipulation my speedy public of facts. Dawson trial way that there a trespass, (Novem- guilty of criminal each of them arranged before this?” could be $35, imposed on each fine deferred 21, 1989); point we need “So at this ber year for imposition of each sentence one bring us required of about know what is probation. As a condition of unsupervised us public provided trial for speedy our was directed probation, each defendant (December 14,1989). by our Constitution.” present 5, himself within letters, “not January [or herself] on Shortly after these Organiza- Women’s Health block of the change of demanded a Uchtman probation. tion” assigned on Judge was judge. Simonson January 23, January 1990. On appeals in cases were consol- pretrial con- scheduled a Judge (1) Simonson questions: Was to submit three idated 2, 1990, for and trial for March ference speedy trial? W. denied Dennis Uchtman 21, 1990, February Ucht- April 1990. On present be allowed to defendants Should delay trial. man moved to dismiss their con- evidence of deniéd, Leidholm, 334 N.W.2d Uchtman was cuse.” State The motion was (N.D.1983). Report See Final April tried on the National Commission Reform of held the trial with assigned judge (1971). Leidholm Federal Criminal Laws has not promptness. Uchtman reasonable explained justification and excuse: delay prejudiced preceding shown how prod- A defense of is the prejudice sub- his defense. The absence of society’s uct of determination that claim. stantially speedy weakens his trial of certain circum- actual existence Runck, After consider- 418 N.W.2d proper and operate stances will to make factors, per- ing the relevant we are not be criminal legal what otherwise would was denied his suaded that Uchtman excuse, A defense of contrari- conduct. speedy to a trial. ly, legal proper make con- does not 2. DEFENSES NECESSITY ordinarily in duct which would result instead, openly liability; it rec- argue defendants that the trial ognizes criminality of the conduct preventing erred in them from courts it because the actor believed justification for their but excuses presenting evidence or, they actually that circumstances existed necessity, defenses of choose to them, “choice of evils” de his conduct when in describe their which would so, short, doing the defendants devel did not. In had the facts fenses. fact premises: be, op underlying supposed six he them to been as actor’s conduct would have been rights [They] have constitutional [1]. rather than excused. present a defense under the Four- teenth Amendment to the United 334 N.W.2d at 814-15. The broad notion of Constitution. States however, necessity, partic- is not one of the [2], Non-personhood of the Unborn justifications in ular authorized NDCC Ch. Does Not Preclude

under Roe v. Wade yet recognized by 12.1-05 and has not been Necessity Defense. ... this court. [3], Application Necessity Yet, premise, in defendants their sixth Usually Defense has Been to Circum- necessity argue that the defense is avail Prevented, in which the Evil stances necessity “The has able here. defense of Abortion, Like is Not Unlawful. deep in the common law.” its roots [following] Opin- Roe v. Wade and [4]. O’Brien, (Mo.App. 784 S.W.2d Private Individuals ions do not Prohibit self-defense, 1989). As Blackstone said of Non-Violently Attempting necessity: one variation of of Life From Prevent Loss Abortions. of a man are of Both the life and limbs Recognized North Dakota has

[5]. value, high in the estimation of the such in Chap- can be a Defense Justification pardons even England, law of ter 12.1-05 of the N.D.C.C. (in if homicide committed se defendendo Necessity The “Choice of Evils” or self-defense), preserve [6]. order Apply Defense to Defendants’ Should man, by a them. whatever is done For Actions in this Case. member, is looked save either life or necessity upon upon highest as done premises, separate- We conclude that these compulsion. together, justify criminal ly or do not tres- pass to interfere with abortions. Blackstone, I *130. See Commentaries Blackstone, true, IV *28 It is as the defendants advance in also Commentaries (“... highly just equitable it is that a premise, their fifth that North Dakota rec- acts ognizes can be a defense man should be excused for those through force prosecution. in a criminal NDCC Ch. 12.1— which are done unavoidable compulsion.”). “That certain kinds Chapter 12.1-05 “is almost com- necessity would plete adoption Proposed public of Ch. 6 of the will excuse what law, long dealing otherwise a breach of the has Federal Code with [New Criminal] recognized principle.” VIII W. involving justification and ex- been defenses Law English necessity example, self-de- History A kinds Holdsworth, —for well established become 1973). fense —have During medie- (2nd Impression conduct that would other- justification for liability came to period, criminal val criminal, agree- is less there wise be rea. Id. a mens at 433. based recognizing other kinds of necessi- ment on coercion, ne- compulsion, and defenses ty as defenses.1 that, ultimately on the fact cessity “rest rea mens circumstances, imput- no de- General statements Id. equivalent 443. “The modern have been formulated a number of able.” fense illustrations, usually by For ways, defense of statute. the common-law 35.05;2 see New ‘competing York Penal Law Model of evils’ or ‘choice § the so-called Robinson, Crimi- 3.02;3 2 P. Criminal Wharton’s Penal Code doctrine.” § harms’ Law (1984).4 nal 1978). With his (14th Law § ed. Some 88 at 413 § Defenses 2. New York 3. Section 3.02 of den defense fendant.” es crime conduct so alized (choice accused’s offense O'Brien; er formulation of Necessity bility provisions gency Justification through reason of a situation occasioned such or ty rest this relating either in spect ute the claimed such and not criminal when: use of otherwise constitute clearly outweigh the necessary charged; prevented established, dards of the court shall rule as cases or to another § Unless otherwise 2. Such conduct is (a)the private 124(b) defining the offense in issue. The necessi- injury sought morality charged, subdivision is offered upon production conduct is gravity to its arising applies, Conduct ^[******] measure justifiability Model physical no fault of the to the defense 2 P. evils, intelligence that the accused is harm or evil is an affirmative defense. its to avoid a at 47 Penal Law 35.05 frames injury considerations of this article application urgency facts and circumstances constitute that, Generally: thereunder. Whenever Robinson, or so that the seriousness general application defense in this Penal Code necessity) the Model Penal Code the law that the actor believes justifies an is reduced. for the defense of force, (1984). justifiable, provided to be according to advisability of avoid of such conduct of limited an harm or evil to himself § a matter of law whether desirability sought necessary as an emer- to a conduct which would actor, prevented than avoiding Criminal Law defining is about to occur Choice of offense an imminent defense. morality, When the defining pertaining justification accused’s by particular always 3.01. by to be avoided and which is of way: defense: ordinary or guilty is the sought such the offense or with of by lesser evils defendant, on the the desira- Evils. justifiable justifiable developed "The bur- would, if evidence avoiding may not the stat- ensuing State v. only class Defens- that: statute, anoth- public gener- injury under to be stan- de- re- by by 4.In conduct fessor Robinson defense another The justification fication claimed the offense inal. An ambulance appear. It gent prosecution lessness forded "choice dealing without the grave haps raid shelter. A go may ed as follows: he has not caused legal system must have better operation in all out reference sions. Mountain climbers refuge may one-half American letter of with such have caused the harm suffices Under this a choice of harms or evils or therefore (b) (c) (2) explicitly his treatise on criminal Comment offense, violated general justification be violated in violate a the best illustration When the actor was reckless or justifications: neither distress justified by lesser evils ain Cargo may legislative bringing by of evils” or with the particular or for problems section, given establish this Section is unavailable relies house or negligence, requisite prescription to alleviate provides defense, his the Code nor other law to this formulation curfew in order to reach in an to cases spread way: formulates a preserve druggist may dispense a exculpated. any about the conduct, does not otherwise purpose to specific pursuing property defense, necessity: prohibitions, a net harm or "necessity” lost in emergency. while than to refer justifying culpability. offense for which reck- may pass a traffic of a fire. A jettisoned jurisdictions. may appropriate exceptions or evil of the rationale the vessel. recognized of the structure and the defenses this kind. situation the defendant situation law the case sometimes may general necessity exclude the contemplated storm ways suspected justification circumstances, appraising defenses, or an embar- framed with- be may A principle or defenses only speed evil and is of developed illustrates generally. destroyed may requiring involved; in about It is An alien inherent may defining general dealing be stat- plainly an air called provi- negli- crim- justi- light. limit drug in a may take Pro- per- the be, af- by formulation, opines particular arising class of cases thereun- Professor Robinson der. justi- only legally recognized interests fy responsive criminal conduct. proposed Comment 608 said: § proposition “This section affirms the that a phrase “legally protected interest” punished man is not to be as a criminal if interpreted broadly to include ... is to be prohibited his conduct averted harm more community all interests that the is will than it caused. This is sometimes called specifi recognize and that are not the ‘choice of rule.” The evils’ Comment cally recognition by legal sys denied “Proposed also said: section 608 embodies

tem.4 ‘necessity.’ doctrine of It makes punish persons no sense to who have acted harm, great if they to avoid even have 4- Surprisingly, explicitly no statute excludes ‘broken a law’ to do I Working so.” Pa- triggering conditions threats to interests specifically rejected by law. But there can be pers the National Commission on Re- arose, little doubt that if the courts situation Federal Criminal Laws form of recognize justified would refuse to use of (1970). The National Commission eventual- legally protection repudiated force in inter ly recommended a narrower codification of ground presumed legislative ests on the tent, in preferable it would seem to make justifications and excuses without an ex- only legal clear from the outset threats to plicit necessity-defense formulation. ly-recognized trigger interests can explained The National response. why Commission (Justification): in its Comment to § Robinson, Defenses, P. Criminal Law partial attempt This codification is not an 124(b), p. 47. While the other formula- to freeze the rules as now exist. It tions are not as clear as Professor Robin- explicit therefore be desirable to be point, son’s posits on this each formulation statutory that the definition of these evil, harm, some limits to the kind of or preclude rules is not judi- intended to the injury that will criminal conduct to development justifications. cial of other avoid. example, For the so-called “choice of ev- Study a New Federal Draft of rule, i.e., emergency ils” measures (1970) Criminal was the Code forerunner greater injury may justified, avoid be of the draft criminal code from which our Chapter has not been in included on North Dakota criminal code was drawn. that, applica- the view while its intended Study proposed Draft another formula- extremely tion would be in rare cases tion of the defense: actually prosecuted, even the best of 608. Conduct Which Avoids Greater § (see statutory formulations N.Y.Pen.L. Harm. 35.10) potential is a source of unwar- § justified necessary Conduct is if it is cases, difficulty ordinary ranted in partic- appropriate and clearly to avoid harm ularly adoption in the context of the greater than the harm might re- provi- the broad mistake of fact and law sult from such conduct and the situation Codification, in sions found the Code. as developed through fault no of the actor. opposed case-by-case prosecutive dis- justifiability of such cretion, regarded premature. as On may conduct not rest considerations hand, the other some Commissioners be- pertaining only morality to the and advis- penal seriously lieve that a code is defi- ability penal defining statute the if explicitly recognize cient it does not offense, general in application is, either its greater that avoidance of if harm not respect or with application duty, to its to a privilege at least a of the citizen. (a) constituting necessary pro- Lesser Evils. Conduct when and to the extent of- justified interest, tect or the fense if: further (1) (b) any legally-protected unjustifi- interest is that avoids a harm or evil or furthers threatened, ably opportunity legal or an interest than harm or evil further presented; such an by interest is caused actor’s conduct. (2) conduct, Robinson, 124(a), engages the actor constitut- 2 P. Criminal Law Defenses offense, pp. (1984). 45-46 constitutional 14-02.1-01. Those NDCC Commis- Report the National Final Supreme the United States Criminal limits set Federal On sion Reform of (1971). Legislature Wade, 410 Our 93 S.Ct. at 43 Roe v. U.S. Court. Laws the Nation- complete[ly],” (1973), “almost holds that the adopted, 35 L.Ed.2d chapter justifications al guaranteed by Commission’s right privacy United code enacting our criminal excuses wom- encompasses a States Constitution Leidholm, 334 N.W.2d at in 1973. preg- to terminate a an’s decision whether Thus, legislative history of the while the may not interfere nancy, and that the State in our justification defenses development of decision the first trimester with that not Ch. 12.1-05 “is shows that NDCC state pregnancy. Planned Parenthood develop- judicial preclude intended to Danforth, 428 U.S. Missouri Central it is clear that justifications,” of other ment (1976), 49 L.Ed.2d holds S.Ct. judi- not code does license our criminal give not may woman’s State any individ- cial extension parents, parties, or or other third spouse “necessity.” conception ualized to interfere with woman’s result, we need we conclude that As a to have an abortion since decision of the ne- precise scope not determine right. See also Webster itself lacks cessity available this state. Services, 492 U.S. Reproductive Health view, trespass- our the defendants’ S.Ct. L.Ed.2d es abor- at medical clinics (Chief Rehnquist, plurality, Justice rea- justified any be under tions modify and narrow Roe and suc- “would de- sonable formulation ceeding at 3058. Justice cases.” 109 S.Ct. fense. Blackmun, justices, con- writing for three evil, harm, injury sought today, curring dissenting, says: “For avoided, sought interest be or the least, .to undis- the law of abortion stands at of a crime promoted, by the commission Thus, 3079). preven- turbed.” 109 S.Ct. legally cognizable must legally recognized not a of abortion is tion dis necessity. most cases civil “[I]n interest, legally not a an abortion is will be a lesser evils defense obedience injury. cognizable long This is because as barred. policies being protested have been laws or legally cognizable element of a they are evi lawfully adopted, conclusive necessity defense has been injury for the community’s is of the view the dence repeatedly in decisions on other identified Robinson, De 2 P. Criminal Law sue.” protest attempts to abortions criminal 124(d)(1), in the at 52. Abortion Clowes, § Or. v. 310 medical clinics. State fenses pregnancy legally not a first trimester of is 686, 789, (1990)(Because “ter 801 P.2d 797 harm, therefore, and, preven recognized legal, nontor- pregnancies are mination of legally recognized is of abortion not tion activity, their occurrence cannot tious ... ” promote.5 to interest private injury’ and “defen ‘public or be a asserting the from are foreclosed dants Act, NDCC Ch. The Abortion Control evils.”); of of choice State v. 14-02.1, defense regulates abor- authorizes and (“In short, O’Brien, the at 192 784 S.W.2d chapter to purpose of this is “The tions. cannot necessity asserted here of life defense protect human and maternal unborn sought to be harm utilized when the present limits.” be within constitutional health well, reasons, only morality advisability (or, per- to the 5. There be other Scott, involved.”); Sub- 1 LaFave ways expressing rea- statute’ haps, son), the same other (1986) Law, 5.4(5), p. 638 why § stantive Criminal are not entitled these defendants however, See, (“If, open him a third alter- necessity examples, there is pursue defense. native, 88, Law, (“In be harm than will p. will cause less 414 order which Criminal Wharton’s law, violating being by he is not caused prevent from used this doctrine law."), disobedience, including cita- killing, violating footnote 54 mercy or the justify civil seeking legal crusader, commonly existing alternatives of tions about of a personal cause situation, the use necessity rather than con- of defendant’s resolutions provided that the ‘may pertain- conduct. criminal not rest considerations duct 192 prevented the evil is a “not conduct where remains constitutional

avoided [abortion] one, harm act. It is the lack activity and the incurred unlawful” a lawful ly protected law.”); evil, Peo [trespass] legally cognizable is in violation rather than of a 663, 538 N.Y. 142 Misc.2d ple Crowley, v. under Non-personhood “The of the Unborn (Just.Ct.1989) (“In 146, 149-151 Wade,” S.2d precludes use of the Roe v. by case, injury very activity labelled an con- justify defense to criminal sought prevented has Defendants and interfering with duct abortions. by the New legal protection afforded been legally protected fact that abortions by Supreme Legislature and York makes the defense unavailable regard to ... least with Court [A]t here. disrupt arising attempts cases premise, The defendants’ fourth that Roe pa- procedures that are within medical apply not v. and similar decisions do Wade law, rameters abortion, individual efforts to law.”); must fail as a matter of Cleveland roundly rejected: has been Anchorage, 631 P.2d Municipality Moreover, argument defendants’ that the 1981) (Alaska (“Abortion 1073, ... 1079 applicable decision in Roe is not here state, appellants in this not unlawful the Four- because that case relies on principles, appel- concede. Given Amendment, prohibits teenth ac- alleged argument lants’ must fail since States, individuals, by tions did not arise sought harm to be avoided argument ignores without merit. The was not unlaw from a natural source and convictions did the fact that defendants’ 101, ful.”); Stiso, People Ill.App.3d 48 not arise from the violation of the consti- 687, 689, 1209, 1211 Ill.Dec. 416 N.E.2d women, rights pregnant tutional (1981)(“[T]he very activity inju labelled rather, were the result of defendants’ ry by sought defendants and [abortion] legal pro trespass. prevented has been afforded acts of criminal Supreme tection United States Krizka, 142, People v. 48 Ill.Dec. at Court.”); Krizka, People Ill.App.3d join rejection. N.E.2d at 37. We in that Ill.Dec. 416 N.E.2d Also, agree Supreme we with the Alaska (“Under Roe, an abortion reasoning: Court’s pregnancy legally first trimester of is not a legislature delegate If the a “veto cannot therefore, injury, recognizable defen power” patient’s parent spouse, to the trespass justified by dants’ was not reason Mis- Planned Parenthood Central sum, necessity.”). claim of necessi Danforth, souri v. 428 U.S. 96 S.Ct. ty cannot be used to a crime that (1976), L.Ed.2d we think it simply person’s interferes with another delegate unlikely that a state court could activity.6 to lawful power” strangers, such a “veto go premises We back to the first three in such an manner. exercised obtrusive by advanced defendants: their constitution- Municipality Anchorage, Cleveland v. of defense; rights present al a “The Non- interfer- 631 P.2d at 1080 n. 15. It is this Unborn;” and the occa- perSonhood of the rights engage persons’ ence with other application sional legally protected in acts that makes the prevent a “not unlawful” evil. To be trespasses unjustifia- defendants’ criminal operative, legally cogni- a defense must be ble. explained, the evil zable. As we have O’Brien, in The court State v. justify which the defendants use to their “every abortion, pointed at out that S.W.2d is a a constitutional- conduct which the defense of court has considered ly protected act. It does not matter that reasons, defense, rejected necessity has for various as advanced defendants, trespass-abortion pro- used to it when asserted have been Crowley, availability People 142 Misc.2d express tion. See 6. We no view on the trespasser (Just.Ct.1989). defense when a seeks 538 N.Y.S.2d 151 n. 3 prevent performance of an unlawful abor- setting the condi- not has broad discretion defendants have ceedings.” These probation. opinion in tions any reported appellate identified al- have been protesters abortion upheld have been Distance restrictions justi- necessity defense to to use the lowed See, protest e.g., cases. United other none. fy trespass, a and we find (9th Lowe, Cir.1981); 654 F.2d 562 States legally cogniza- not A abortion is a lawful (Minn. Friberg, 421 N.W.2d 376 harm, evil, injury justifying criminal ble Lowe, upheld In the court App.1988). conclude, trespass clinic. We at medical probation prohibiting condition Trident- law, necessity de- that the as matter protesters weapons-system coming from defendants. is not available fense of a submarine within feet naval base: imprisonment Given alternatives PROBATION CONDITIONS greater upon or some other restriction movements, speech, appellants’ and asso- tri The defendants contend ciation, limit is reasonable. the 250-foot Fargo their al courts in the cases abused protest great prevent It is not so as to all conditioning probation upon a discretion in activity; law yet allows enforcement go not within probationers restriction that zone in which to detect officials a buffer Organiza one of the Women’s Health block discourage probation violations and re- tion, abortion clinic. trespass- peat offenses before would-be may impose A condi- sentencing court the fence. ers probation. 12.1-32-07. tions on NDCC Friberg, F.2d at 568. the court says: 2 of that statute Subsection probation prohibiting upheld condition de- probation must The conditions of be such trespass charges fendants convicted of in its deems rea- the court discretion coming within 500 feet the Planned from sonably necessary to ensure that the de- Paul, Parenthood Clinic in St. Minnesota: law-abiding fendant will lead a life or prohibi- imposition of a 500-foot assist the defendant do so. The court reason- premises tion from the clinic’s provide explicit shall as an condition able, great not enforceable and is so probation every that the defendant not Though protest activity. all peri- commit another offense prohibits probationers the restriction probation od for which the remains sub- 500 feet of this approaching from within ject to revocation. clinic, prevent pro- not the limitation does 12.1-32-07(2). statutory NDCC condi protesting any at other bationers Saavedra, tions are not exclusive. State v. attending meetings or distribut- clinics or (N.D.1987); 406 N.W.2d Per State v. is reason- ing leaflets. restriction bix, (N.D.1983). only 331 N.W.2d “The ably prior to the offense tai- related statutory imposition on the limitation protests by these lored to deter future probation conditions of is that such condi Given the appellants at clinic.... ‘reasonably necessary en tions must be or some imprisonment alternatives sure lead law- defendant will upon appellants’ ” other restriction him abiding life or to do so.’ Id. at assist association, movements, speech, and free- the same as “[Probation limitation is reasonable. 500-foot “properly dom.” Id. 18. Probationers specific restriction 421 N.W.2d at 380. A subject to limitations from which ordi- designed during crime to inhibit another nary free.” v. persons are United States clearly reason- protest demonstrations is Consuelo-Gonzalez, 259, (9th 521 F.2d 265 “ able. Cir.1975). responsibility ‘The court has a help probationers from com- probationer’s Prohibiting regulate activities to ing in one block of the Women’s his rehabilitation and at the same time within year one as a con- guard against Organization Health continued behav- ” Perbix, 18, to assist- probation of is well-suited ior.’ v. 331 N.W.2d at dition law-abiding Schlosser, during life quoting 202 them to lead State v. N.W.2d 136, (N.D.1972). prohibit A time. The condition does not sentencing 139 court protest activity. enduring compromise

all similar offenses should not his “[T]he dispute” right speedy agree clashes of beliefs in this fractious to a trial. I with the “physical in place entirely majority opinion need not take that after Uchtman de People 5, change judge January confrontations at the front line.” v. manded a of on pro- 1990, These Crowley, newly assigned judge 538 N.Y.S.2d held the meetings, dispatch. bationers can still attend distrib- trial with due But that does not leaflets, ute or demonstrate elsewhere.7 explain delay or excuse the that occurred prior to the time of the demand. Presum light, considering the alternative ably, only legitimate reason for con incarceration, impo- of we conclude that the cluding that Uchtman was not denied his probation restricting sition of a condition right speedy trial is that the time probationers’ access to Women’s trial, speedy between the demand for a Organization Health is reasonable and does 21, 1989, November and the actual time of unduly probationers’ liberty. restrain trial, 6, 1990, April was not exces Friberg, 421 N.W.2d at 380. We con- See when, time, period sive Ucht- clude that the trial courts did not abuse man a change judge. demanded Be conditioning pro- their discretion in so prompt cause the demand for a trial was bation of these defendants. earlier, reluctantly not made I concur that right speedy Uchtman’s to a trial was not 4. CONCLUSION unconstitutionally denied. State Wun City of Jamestown moved for attor- derlich, (N.D.1983). 338 N.W.2d 658 ney NDRAppP fees under contending appeals that Dennis W. Uchtman’s from I write also to mark the distinction be- judgments of conviction Stutsman right protest, protected by tween the County are frivolous. The motion is de- First Amendment to the United States Con- nied. stitution, Johnson, e.g., Texas U.S. (1989); S.Ct. L.Ed.2d 342 judgments of conviction and the sen- City Schoppert, Bismarck v. tences are affirmed. (N.D.1991), N.W.2d 808 and a violation of exercising right. the law in Neverthe- ERICKSTAD, C.J., and LEVINE and less it would naive pro- to believe that GIERKE, JJ., concur. legal protec- tests activities “afforded WALLE, Justice, concurring VANDE conflict, tion” such the Viet Nam nucle- specially. etc., power, traditionally recognized ar I concur the result reached Amendment, exercises of the First did not majority opinion. separately I write ex- occasionally violate some statute or ordi- press certain concerns arise there- protests. Many nance in those deci- from. Supreme sions of the United States Court delay trial, upholding Dennis Uchtman’s the First Amendment November/December, April protest charge from 1988 to involved that some crimi- charge violating city on a ordi- nal statute or ordinance had been violated. nances, inordinately long. Johnson, E.g., The fact supra, Texas and cases persons there were a number tried for cited therein. Supreme (E.D.Va.1989). recently F.Supp.

7. The United States Court The Court of agreed injunction against affirmed, to review an abortion Appeals holding that the activities of protestors "intentionally trespass” who at clinics protestors “in furtherance of their beliefs purpose blocking for the access to medical persuasion had crossed the line from into coer services for abortions. district court en- operated deny rights cion and the exercise of on, joined protestors "trespassing Rescue, protected by Operation law.” N.O.W. v. blockading, impeding obstructing or access to (4th Cir.1990). February 914 F.2d On clinics, egress from” listed but refused on 25, 1991, Supreme the United States Court grounds enjoin First Amendment to other activi- certiorari, granted Bray sub nom. v. Alexandria "intimidate, ties that tend to harass or disturb —Clinic, -, Women’sHealth U.S. 111 S.Ct. patients potential plaintiffs.” Orga- or National (1991). 112 L.Ed.2d 1176 Rescue, Operation Women v. nization for trespass. Although there is prohibiting protests that through such It been has as the records to what oc- have been confusion activities “legal” otherwise prin- proceedings the involved curred at various contrary to constitutional shown cases, appears that several it for example, until Brown v. Board ciples. For Education, part defendants were able to U.S. 74 S.Ct. the most the of L.Ed. 873 decided, (1954), Plessy so, they was albeit not to extent desired. do 16 S.Ct. little that the Ferguson, U.S. There is doubt fact-finders (1896), and or- legalized statutes L.Ed. 256 knew the reason for the and understood “separate providing but dinances for action of the defendants. accommodations, schools, public equal” con- majority opinion I understand etc., For those of the different races. "necessity” cerning the defense to be nar- remember, enough was us to Brown old Leidholm, application. row in its years public accompanied by several (N.D.1983), concerned 334 N.W.2d 811 was and, demonstrations, probably, convic- most (see 12.1-05-03), with self-defense NDCC protesters trespass. Tradi- tions of and excuse un- and defense been tionally, defendants who have 12.1, chapter We discussed the der NDCC. violating ordi- charged with statutes and generally of excuse and observed: have, least, permitted to at the been nances not make “A defense of excuse ... does belief in the demonstrate in court their proper ordinarily conduct which ordinance which illegality of the statute or instead, liability; result in criminal would they charged violating. with have been recognizes criminality of the openly protected respected method That is a the actor conduct but excuses it because unjust precept challenging illegal and actually that circumstances exist- believed Here, however, we are one of the law. when in ed which would his conduct step from those situations. The removed Leidholm, they fact did not.” State v. not been convicted of vio- defendants have N.W.2d 814-15. lating they allege to statute which be a person pointed out that a who be- We Rather, attempt in their unconstitutional. necessary he is the force uses lieves prohibit actions which believe be justi- harm is prevent imminent unlawful evil, violating they have been convicted of is using force if his belief a fied in such prohibiting trespass. ordinances if, belief; hand, correct other necessarily agree I that the defen- do not reasonably incorrectly person be- acquitted on dants could not have been a necessary, that the force he uses lieves conclude, “necessity” as does defense. To is excused. We concluded his use of force evil, injury majority, that the harm or whether under our law not decisive cog- sought legally avoided “must be correct, person’s beliefs are but rather necessity” nizable to thereby they are reasonable and whether policies laws long “because as as the or justified. or excused being lawfully protested have been adopted, they are conclusive evidence applied Although precepts certain community’s on the issue” accords view may apply to circumstances in Leidholm government than infallibility more edicts to those with which we con- similar willing to I would so even I am do. today, I do not understand cerned other “judicial development of restrict the specific instruction the nature Leid- in this State. It is justifications” Rather, from the requested. was holm citizens, minority they be a whether us, in before those cases which records object to the “communi- majority, jury as well as those which were tried history our ty’s view” on an issue and moved, not, prior were defendants pro- replete in which such with instances trial, opinions evidence of as to to introduce directly or served either tests have begins, methods of when life abortion “community view.” catalyst to reform support their other matters would necessary that their actions were explain position were entitled to

The defendants death of unborn children. the law why they violated to the court introduction of evi- the motions for When denied, par- appears that no were it

dence In the Interest of Joshua There- requested. McMULLEN, instruction was ticular a Minor. directly do cases us fore these before NERMYR, on Behalf of Marie justification and ex- the issues of concern Trustee Ad Litem and Guardian Leidholm, defenses in the sense cuse as McMULLEN, minor, Appellee, Joshua with the extent to rather are concerned required permit trial which the court support those evidence adduced DEPARTMENT NORTH DAKOTA OF given consider trial court defenses. SERVICES, acting through HUMAN determining quantity latitude able GRAND FORKS SOCIAL COUNTY E.g., to be introduced. evidence SERVICES, Appellant. (N.D. 1985). The Biby, 366 N.W.2d 460 No. Civ. are concerned not with Leidholm defenses evidence but with quantity Dakota. Supreme Court North the defendants. reasonable belief of 7,May argu- in their The defendants concede requires that the ments elements, first of

four basic voluntarily act “and

the defendant must objective, subjective, than

with an rather avoiding greater in the

belief Thus the defenses this case

harm.” justification and excuse as de-

were not predicated on but were

scribed Leidholm is evil premise abortion trespassing causes severe

the act of less than does Unless the de-

harm abortion.

fendants can convince the United States validity posi- of their

Supreme Court of the

tion, Wade, 410 U.S. 93 S.Ct. Roe (1973), effectively pre- 35 L.Ed.2d 147 concluding that abortion is a

vents us harm, notwithstanding the Su- need not

preme Court’s statements life begins when belief

decide begins concep- life

the defendants that

tion.

Case Details

Case Name: State v. Sahr

Court Name: North Dakota Supreme Court

Date Published: May 7, 1991

Citation: 470 N.W.2d 185

Docket Number: Cr. 900098, 900165, 900166, 900173 and 900174

Court Abbreviation: N.D.