Minds of the Movement
An ICNC blog on the people and power of civil resistance
In 2012, actress and activist Daryl Hannah was arrested alongside East Texas farmer, Eleanor Fairchild while defending her farm from the Keystone XL tar sands pipeline. For many activists, nonviolent direct actions are the only remedy left in a country's system after the executive and legislative branches have failed to address the climate emergency. Source: Tar Sands Blockade Flickr account (CC by 2.0, unedited).
In 2017, 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.
Testifying in Court as an Expert on the Necessity Clause
When I testify in court as to the legitimacy of a defendant’s actions, I stress these points:
- The defendant knew that in the United States, our nonviolent interventions sometimes are the only remedy left in our system after the executive and legislative branches have failed to address the emergency. This situates the defendant as working within the system more than defying it and attempts to do what Hardy Merriman advised many years ago at a War Prevention Initiative talk: to reframe any negative image of civil resistance and to harness national values and norms in our favor.
- I use the classic save-the-baby example to illustrate the intent and legitimacy of the defendant’s nonviolent acts.
- I remind the judge and jury that the defendant knew a great deal about the emergency, that she had tried or observed others trying all other remedies available in our democracy, and that the defendant acted in an utterly altruistic fashion, not for personal aggrandizement in any way, and in fact, like Rosa Parks or Martin Luther King Jr.—willing to accept risks in order to help us all. I also stress that nonviolent civil resisters are not motivated by ego or hatred, but rather by compassion and love. Finally, I stress that nonviolent resisters are not interested in martyrdom but rather in helping fix the problem—climate chaos, nuclear dangers, caged babies, or any other imminent-danger social problem.
- I stress the valid history of civil resistance from colonial times to the present, with reminders that in fact the judicial branch of government has at times, prompted by cases of civil resistance, helped advance positive change and protections, from women’s rights, labor rights, and civil rights to Native American rights, LGTBQ rights, and more.
Legal Progress as a Priority for Environmental Justice Movements
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.
