The Washington State Court of Appeals, Division 3, recently denied a protesters claim that his trespass on a BNSF Railway Company mainline track was ‘necessary’ to end the transport of coal and end global warming. The decision, released on June 9, 2020, comes at a very relevant time as protesters occupy buildings, including Seattle City Hall.

“An act is justified if it by necessity is taken in a reasonable belief that the harm or evil to be prevented by the act is greater than the harm caused by violating the criminal statute.” State v. Aver, 109 Wn.2d 303 (1987).

What Does the Law Say?

To raise the defense of necessity, a defendant must show by a preponderance of the evidence the following:

  • The Defendant reasonably believed the commission of the crime was necessary to avoid or minimize harm;
  • The harm sought to be avoided was greater than the harm resulting from a violation of the law;
  • The threatened harm was not brought about by the defendant, and
  • No reasonable legal alternative existed.

Washington Courts have adopted the common law elements of the ‘necessity defense’ without legislative action. Presumably, the Washington Legislature could add elements to the ‘necessity defense’ beyond the common law or even abolish the defense.

Washington Law has never directly addressed whether a defendant succeeds by establishing that he/she believes there are no reasonable legal alternatives available.

The Defendant argued that his protest on the BNSF tracks, and subsequent arrest and charges for trespassing, were necessary because his previous actions ‘did not bring about legislative change.’ Is the belief there are no reasonable legal alternatives available objective or subjective?  The answers appears to be objective.

The Court held the Defendant, trespassing on the BNSF tracks to protest climate change, had reasonable legal alternatives to protest the use of railcars to transport coal and oil. Simply because these alternatives did not bring about legislative changes does not permit the Defendant to commit crimes or courts to ignore constitutional laws.

The Court disagreed with authorizing people to intentionally violate constitutional laws when protests and petitions are unsuccessful.

In light of recent protests, including the trespass by protesters in Seattle City Hall, our Althauser Rayan Abbarno attorneys will be watching these issues very closely.

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