UNITED STATES OF AMERICA v. WILLIAM J. BICHSEL, et al.
CASE NO. CR13-5357-CVB
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
October 17, 2013
Mary Alice Theiler, Chief United States Magistrate Judge
ORDER RE: DEFENSES OF NECESSITY AND JUSTIFICATION
ORDER
This mаtter relates to defendants’ March 4, 2013 arrest and citation for entry upon a military installation for a purpose prohibited by law or regulation, in violation of
Defendants filed a trial brief reflecting their intent to seek defenses of necessity and justification under international law. (Dkt. 18.) The Court construes this filing as a motiоn to
Defendants assert that nuclear warheads are illegal under international and national law, including treaties signed by the United States, and argue that the Supremacy Clause of the United States Constitutiоn requires this Court to allow them to present a defense under international law. They maintain a moral responsibility to begin disarmament and make the danger of nuclear weapons known. Defendants also seek tо present a necessity defense, arguing it is now allowed given a new understanding of “imminent harm” as addressed in Department of Justice guidelines, and as supported by recent decisions of the United States Supreme Court. Dеfendants point to the changing opinions of various military, political, and religious leaders as to nuclеar weapons, and cite a study as supporting their reasonable belief as to a direct causal relationship between their actions and averting harm.
Defendants fail to provide any support for а defense based on international law. In fact, this argument, in a case involving some of the same defendants named in the current matter, has been rejected by the Ninth Circuit Court of Appeals. United States v. Kelly, 676 F.3d 912, 917 n.2 (9th Cir. 2012) (rejecting contention that district court improperly excluded international law defense: “Because the Hague Convention does not supersede the statutes criminalizing appellants’ conduct, there was no ‘international lаw defense’ for the jury to consider.“)
Defendants likewise fail to provide any basis for allowing a defense of necessity. A court may preclude a defense of necessity where “‘the evidence, as described in the defendant‘s offer of proof, is insufficient as a matter of law to support the proffered defеnse.‘” United States v. Schoon, 971 F.2d 193, 195 (9th Cir. 1992) (quoting United States v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985)). To invoke the necessity defense, defendants must make a colorable showing 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 relationship between their conduct and the harm to be averted; and (4) they had no legal alternatives to violating the law.” Id. (citing United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989)).
As conceded by defendants, federаl courts have consistently precluded political protesters, including nuclear weapon activists, from utilizing a necessity defense. See, e.g., United States v. Kelly, No. CR10-5586-BHS, 2010 U.S. Dist. LEXIS 123514 at *7 (W.D. Wash. Nov. 22, 2010) (“In political protest cases, as is the case herе, the Ninth Circuit consistently upholds the exclusion of the necessity defense.“) (citing Dorrell, 758 F.2d at 431-434, and United states v. May, 622 F.2d 1000 (9th Cir. 1980)). Indeed, in Kelly, this Court concluded the defendants failed to set forth the elements of a necessity defense in similar circumstances:
. . . Defendants enterеd the Bangor Naval base, admittedly to symbolically disarm Trident warheads. Defendants, like those in May, have not established evidence that could support a reasonable belief that such action would result in the [elimination of the] Trident program, alter the United States defense strategy, or have cause[d] any reduction in the risk of nuclear war. Defendants have not established the existence of imminent harm at the time they attemрted to symbolically disarm nuclear weapons kept at the Bangor base. Defendants also have not established that legal alternatives were not available to them.
2010 U.S. Dist. LEXIS 123514 at *7-8.
Defendants fail to support their contention that the understanding of a showing of imminent harm in a necessity defense has changed. Indeed, the doсuments and case law relied
Defendants, in sum, fail to set forth a colorable showing of the elements required for a necessity defense. A defense of necessity is not apрropriate given the lack of the requisite immediacy of harm, the fact that defendants cannot be said to have reasonably anticipated their actions would result in furthering their cause of nuclear disarmаment, and because other legal alternatives existed – including defendants’ ability to conduct their protest behind the blue enforcement line.
The Court finds no basis for a defense either under international law or based on necessity. Accordingly, defendants’ construed motion to permit testimony (Dkt. 18) is DENIED.
DATED this 17th day of October 2013.
Mary Alice Theiler
Chief United States Magistrate Judge