Cleveland v. Anchorage
In Cleveland v. Anchorage, 631 P.2d 1073 (Alaska 1981) the Alaska Supreme Court described the necessity defense as having three elements:
(1) the defendant's violation of the law must have been done to prevent a significant evil;
(2) there must have been no adequate alternative method to prevent this evil;
(3) the harm caused by the defendant's violation of the law must not have been disproportionate to the foreseeable harm that the defendant was trying to avoid.
The court explained that the defense is available:
"if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken; but the accused's belief will not suffice for the third element. An objective determination must be made as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them. "
In Cleveland v. Anchorage, anti-abortion protestors sought to raise a necessity defense after they were charged with criminal trespass for disrupting the operations of an abortion clinic by blocking the doorways and refusing to leave.
The supreme court found that the necessity defense was unavailable in this circumstance for several reasons.
First, the defense cannot be raised if the human harm sought to be avoided is a legal act, and abortion is lawful in Alaska.
Second, a protest aimed at political change does not generally present the type of emergency situation that entitles a defendant to a necessity defense.
In reaching this latter conclusion, the supreme court adopted the reasoning of the Hawaii Supreme Court in State v. Marley, 54 Haw. 450, 509 P.2d 1095 (Hawaii 1973).
In Marley, the defendants were charged with criminal trespass for entering the offices of Honeywell Corporation in an effort to stop what they believed were "war crimes" being committed by Honeywell. The protest was non-violent, but it disrupted normal business operations.
The supreme court found that two of the Hawaii Supreme Court's grounds for rejecting the necessity defense in Marley were applicable in Cleveland: (1) the defendants had other forms of non-criminal protest available "to enable them to dramatize, and hence hopefully terminate, conduct which they may view as harmful," and (2) the defendants' actions "'were not reasonably designed to actually prevent the threatened greater harm ... Under any possible set of hypotheses, defendants could foresee that their actions would fail to halt' the practices to which they objected." Cleveland, 631 P.2d at 1079 (quoting Marley, 509 P.2d at 1109).
In Cleveland, the defendants attempted to distinguish Marley, arguing that the alleged harm in Marley -- the manufacture of weapons for use in the Vietnam war -- "was spacially and temporally remote from the site of the trespass," while their protest halted abortions "scheduled in the very rooms they blocked, within minutes of the time of their entry." The supreme court found that this distinction was not determinative:
In both cases, it was obvious to the trespassers that their actions could not halt the alleged greater harm to which society had given its imprimatur, but rather that, at best, the harm could be only postponed for a brief interval, following which society's normal operations would reassert themselves. This was simply not the kind of emergency situation contemplated by the defense of necessity.
Further, in spite of appellants' protestations to the contrary, their acts, like the acts of the Marley defendants, are much more appropriately characterized as protesting with the intent to "dramatize, and hence hopefully terminate, conduct which they may view as harmful," than, as appellants' describe their own behavior, "directly intervening to avert an imminent threat to human life." Appellants' protest was, in fact, part of a nationwide protest that resulted in several similar arrests in other cities. Appellants appear to concede that if their actions are best described as a protest, the necessity defense would be unavailable. We think it manifest that it would be inappropriate to characterize these trespasses as anything other than a protest, and that appellants' argument of necessity must therefore be rejected. Id. at 1080 (quoting Marley, 509 P.2d at 1109).