1991 Appeals Court ruling left door open to necessity defense in cases of “direct” civil disobedience

US v. Schoon (1991), United States Court of Appeals, 9th Circuit:

On December 4, 1989, thirty people, including appellants, gained admittance to the IRS office in Tucson, where they chanted “keep America’s tax dollars out of El Salvador,” splashed simulated blood on the counters, walls, and carpeting, and generally obstructed the office’s operation. After a federal police officer ordered the group, on several occasions, to disperse or face arrest, appellants were arrested.

At a bench trial, appellants proffered testimony about conditions in El Salvador as the motivation for their conduct. They attempted to assert a necessity defense, essentially contending that their acts in protest of American involvement in El Salvador were necessary to avoid further bloodshed in that country. While finding appellants motivated solely by humanitarian concerns, the court nonetheless precluded the defense as a matter of law, relying on Ninth Circuit precedent.

In political necessity cases involving indirect civil disobedience against congressional acts, however, the act alone is unlikely to abate the evil precisely because the action is indirect.* Here, the IRS obstruction, or the refusal to comply with a federal officer’s order, are unlikely to abate the killings in El Salvador, or immediately change Congress’s policy; instead, it takes another volitional actor not controlled by the protestor to take a further step; Congress must change its mind.

* Obviously, the same may not be true of instances of direct civil disobedience. For example, if the evil to be abated was a particular shipment of weapons to El Salvador and the protestors hijacked the truck or destroyed those weapons, the precise evil would have been abated. Because our case does not involve direct civil disobedience, we do not address the applicability of the necessity defense to such incidents.

Just throwing out some ideas here. Let’s say that some group of protesters were to sabotage an arms shipment to Bahrain or Israel, they might want to mention this precedent.

I know it sounds crazy, but the necessity defense has worked before–at least at a state level court–in getting more than a dozen protesters acquitted of charges relating to the disruption of CIA recruitment operations at the University of Massachusetts.