by Tom HastingsFebruary 11, 2020
In 2016, James Hansen, revered NASA Goddard Space Center climatologist and official who announced publicly in 1988, “Global warming has arrived,” stood next to me outside a North Dakota courtroom. The trial of Michael Foster, one of the five climate activists who became known as the Valve Turners, was happening on the other side of the door.
I was there as a court-certified expert in civil disobedience and the necessity defense as a U.S. tradition, and Dr. Hansen was there as arguably the world's premier expert on climate chaos. We were both on the witness list as Michael Foster faced up to 26 years in prison for “criminal trespass and criminal mischief, conspiracy to commit criminal mischief and reckless endangerment”—for having caused perhaps $5 in property damage (cutting a padlock) and turning off the tar sands oil pipeline for a little while.
However, the judge had agreed to the prosecution’s motion to exclude all of Mr. Foster’s expert witnesses. So, the jurors never got to hear from the reigning world expert on climate emergency, nor any expert testimony on the legitimacy and long U.S. history of nonviolent civil resistance. In the end, the judge sentenced Foster to three years in prison, of which two were suspended and served on supervised probation.
The “necessity defense”—indeed, rarely permitted in civil disobedience cases and even more rarely successful in them—is simply the idea that a good law can be broken for a good reason.
The iconic example is: You are walking past a fenced-in house with a No Trespassing sign posted. You see flames through the window and a crying baby in another window with smoke in the background. You enter the gate, rush to the door, break a glass panel and enter, run up the stairs, grab the baby, and rescue her. An overzealous cop arrests you for trespassing because he believes it’s his sworn duty, but even he testifies in court that the house was on fire. The judge dismisses the charges or, if it goes to a jury, it acquits based on your successful claim that the harm you caused by trespass and property damage was infinitely less than the virtually certain harm of the baby perishing in the fire had you not intervened.
When I testify in court as to the legitimacy of a defendant’s actions, I stress these points:
As a Plowshares resister, I twice dismantled portions of a thermonuclear command facility and went on felony trials for each. As a supporter of many other Plowshares resisters in the past decades, I always felt that the movement’s efforts were insufficient. We only recruited a handful of attorneys and expert witnesses, never focusing enough on achieving victories in court, perhaps because it was such a religiously oriented movement in general.
The climate chaos resistance movement is different, I am happy to report, with a stable of attorneys working hard in every conceivable fashion to make legal progress toward intervention in our worsening global emergency. The Climate Defense Project leads in this regard and I have been privileged to work with them. Other attorneys who heard about my work contact me to assist in various courtrooms. I always connect everyone I can because this is how, in my view, teams of experts are built and can be deployed more readily. This is how, even though the system is asymmetrically stacked against justice when the necessity defense is attempted, an occasional important victory can be won.
A year after Michael Foster’s trial and inevitable conviction in North Dakota, I was in northern Washington state to testify on behalf of a brave young climate chaos resister. And there was Foster, recently released from prison, despite a failed appeal of his convictions. Even North Dakota wouldn’t sentence this gentle, nonviolent resister to more than a few months of actual prison time. But Michael was still understandably determined to be a part of making legal progress and supporting other nonviolent resisters.
This is tough work, risky work. I hope we see a rise in the number of attorneys who specialize in this corpus of law and more witnesses certified to testify as to the efficacy and validity of the necessity defense.