State Of Washington v. Abigail C. Brockway ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 76242-7-1 consolidated with
) No. 76243-5
Respondent, ) No. 76244-3 U)O.
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) No. 76245-1 c:a 7i
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v. ) 111
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N.)
ABIGAIL C. BROCKWAY, MICHAEL E.) DIVISION ONE 1,0 -r11—
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LAPOINTE, PATRICK A. MAZZA,and ) Sa•
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JACKIE W. MINCHEW, ) UNPUBLISHED OPINION 12:
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Appellants. ) FILED: May 29,2018 tt3 C
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MANN,A.C.J. —Abigail Brockway, Michael LaPointe, Jackie Minchew, and
Patrick Mazza appeal their misdemeanor convictions for second degree trespass
after they entered a railroad yard to protest coal and oil trains and raise
awareness of climate change. The defendants argue on appeal that the trial
court erred in failing to instruct the jury on their claim for a necessity defense and
that the court violated their constitutional rights to present a defense. Because
the trial court did not abuse its discretion in refusing to provide the requested
instruction and did not violate the defendants' rights to present a defense, we
affirm.
No. 76242-7-1/2
FACTS
The Trespass
Early on September 2, 2014, Brockway, LaPointe, Minchew, Mazza, and
Elizabeth Spoerri entered Burlington Northern Santa Fe's Delta Yard, a railroad
yard in Everett, without permission. Inside, they erected a large metal tripod over
a grade crossing and chained themselves to it. Brockway sat at the top of the
tripod, twenty feet off the ground, and the other four sat on the ground in chairs
chained to the tripod's legs. They blocked the tracks to protest the coal and oil
trains and raise awareness for railroad workers' safety and climate change. They
were peaceful and civil. Eventually, the tripod was dismantled and they were
arrested.
The State charged the five defendants with one count of obstructing or
delaying a train in violation of RCW 81.48.020 and one count of second degree
trespass in violation of RCW 9A.52.080, both misdemeanor offenses. The cases
were consolidated for trial in Snohomish County District Court.
Before trial, the defendants requested the trial court instruct the jury on the
affirmative defense of necessity and for leave to call experts in support of the
affirmative defense. The defendant's motion recognized the burden for asserting
a necessity defense as recognized in Washington Pattern Jury Instruction
(WP1C) 18.02:
Necessity is a defense to a charge of (fill in crime) if
(1)the defendant reasonably believed the commission of the crime
was necessary to avoid or minimize a harm; and
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(2) harm sought to be avoided was greater than the harm
resulting from a violation of the law; and the
(3)the threatened harm was not brought about by the
defendant; and
(4) no reasonable legal alternative existed.
The defendant has the burden of proving this defense by a
preponderance of the evidence. Preponderance of the evidence
means that you must be persuaded, considering all the evidence in
the case, that it is more probably true than not true. If you find that
the defendant has established this defense, it will be your duty to
return a verdict of not guilty[as to this charge].
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
18.02, at 292(4th ed. 2016)(WP1C).
In a lengthy written decision, the trial court denied the defendants' motion
concluding that the necessity defense was not available as a matter of law. The
next day, however, the trial court reconsidered its decision and allowed the
defendants to put on expert testimony in support of the necessity defense.
Trial Testimony Supporting a Necessity Defense
The defendants offered evidence at trial supporting the defense. Mazza
testified first. He testified that he had worked on finding solutions to climate
change since 1998. He has written books and articles, worked on legislative
campaigns and bills to reduce carbon in the atmosphere, and created programs
for the adoption of alternative fuels. Despite his efforts, he believed that the
political response to climate change was inadequate. In his opinion, the only way
forward was to use civil disobedience to "start reviving our democracy" to create
"a political response equal to the challenge of climate change." His goal was to
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inspire citizens to "walk into their[C]ongressman's office and say,'We are going
to stay here until we hear from—we want to talk to you, Congressman, to find out
what are you going to do about this.'" He admitted that legal protests were also
effective.
Minchew testified that he had met with Congresswomen and
Congressmen about climate change, but was disappointed by their responses.
He had run for elected office to advance his climate-centric positions, but was
unsuccessful. He believed that his trespass was "absolutely" necessary.
LaPointe testified that he had been politically active since he was 18 years
old; he had organized factory workers, supported unions, and participated in
demonstrations for years. To fight climate change, he demonstrated, wrote
letters, contacted elected officials, attended political meetings, and spoke with
other citizens. He was currently running for political office on a climate-centric
campaign and believed that he could combat climate change if he was elected.
He also testified that the coffeehouse he owned served as a gathering space for
people to discuss issues, and organize themselves to combat climate change.
LaPointe "felt very convinced that[trespassing] was necessary."
Spoerri described her history of activism with climate change. After
growing concerned that too few people knew about climate change, she decided
to engage in civil disobedience in order to "let people know that this state is on
the brink of becoming a carbon corridor."
Brockway testified that she had written letters to her elected
representatives, testified before the Department of Ecology, and collected
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signatures on petitions for various climate-action movements. She testified that
even while she was at the top of the tripod in the Delta Yard she was "petitioning
the government.... for a moratorium on fossil fuel projects." Her goal in
trespassing was "to have a fossil fuel moratorium—to have [Governor Inslee]
reject all new fossil fuel structured projects" and to protest oil and coal trains.
While she believed trespassing was necessary, she also planned to continue
attending public hearings and writing letters supporting her positions.
Erik De Place, the policy director at the Sightline Institute, a research
center based in Seattle, testified about the dangers of transporting fossil fuels by
rail. He also testified that the "traditional means in raising awareness about this
Issue" were "not very effective" and that the government's response was
"woefully lacking." DePlace admitted, however, that he had no scientific or
statistical evidence that illegal protests are more effective at getting the word out
about climate change than legal protests.
Dr. Richard Gammon,a retired professor of chemistry and oceanography
from the University of Washington, also testified. Dr. Gammon explained how
fossil fuel emissions affect the climate. In his view, international climate
agreements and action at the federal, state, and local levels are needed to
address climate change. He also gave examples of what people can do to raise
awareness about climate change: institute a carbon tax, make homes energy
efficient, buy carbon offsets, drive and fly less, and inform other people. He
admitted that he had "no scientific data" about whether illegal protests are more
effective than legal ones in combating climate change.
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Dr. Frank James, a physician and a health officer for San Juan County,
testified about the dangers oil trains pose to public health. He cited a scientific
study that showed illegal action was more effective than legal action in changing
policy.
District Court's Ruling
At the conclusion of testimony, the defendants asked that the trial court
Instruct the jury on the affirmative defense of necessity based on WPIC 18.02.
The trial court found that the defendants had demonstrated the first three
elements of the necessity defense:(1)that they reasonably believed their actions
were necessary to avoid or minimize a harm,(2)that the harm they sought to
avoid was greater than the harm resulting from their trespass, and (3)that the
threatened harm was not brought on by the defendants; indeed, the trial court
noted that the "defendants have been far from the problem and more about the
solution to the problems facing the planet." The trial court decided not to give the
requested instruction, however, because the defendants had failed to establish
the fourth element—that there was no reasonable legal alternative to their
actions:
The evidence presented from the defendants fails to establish that
there was no reasonable legal alternative to their acts of September
2 and no objective reasonable trier of fact could find that no
reasonable legal alternative existed.
Therefore the court finds that WPIC 18.02 will not be given to the
jury. The necessity defense is not available to the defendants in
this case.
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No. 76242-7-1/7
The jury acquitted all of the defendants of obstructing a train, but it found
them all guilty of trespass.
Brockway, LaPointe, Mazza, and Minchew appealed the district court's
ruling to the superior court. The superior court affirmed the ruling. It ruled that:
1. The trial court, in its role as evidentiary gatekeeper, did not
abuse its discretion in declining to instruct the jury on the necessity
defense via the defendants' proposed jury instruction WPIC 18.02.
2. This court agrees with the defendants' position that there is no
statutory or legal bar in presenting such a defense to a criminal
trespass charge.
3. However, the trial court was correct in evaluating the totality of
the evidence, including the volume of expert testimony, and
concluding that there was insufficient evidence of the fourth prong
of WPIC 18.02 to allow the jury to consider the defense. The fourth
prong of WPIC 18.02 requires a defendant to prove by a
preponderance of the evidence that "no reasonable legal alternative
existed?
Brockway, LaPointe, Mazza, and Minchew (collectively Brockway) moved
for discretionary review, which we granted.'
ANALYSIS
Necessity Defense
Brockway, LaPointe, Mazza, and Minchew argue first that the trial court
erred by refusing to instruct the jury on the affirmative defense of necessity. We
disagree.
Each side in a case is entitled to instructions that support its theory of the
case, but only if evidence supports the theory. State v. Benn, 120 Wash. 2d 631,
I See Ruling on Discretionary Review of April 11, 2017.
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654,845 P.2d 289. A trial court's refusal to give a jury instruction, if based on a
factual determination, is reviewed for abuse of discretion. State v. Read, 147
Wash. 2d 238, 243, 53 P.3d 26(2002). A court abuses its discretion when its
decision is based on untenable grounds or for untenable reasons. The appellant
bears the burden to demonstrate the trial court abused its discretion. State v.
Williams, 137 Wash. App. 736, 743, 154 P.3d 322(2007).
Washington recognizes the common law defense of necessity. A
necessity defense is "available when circumstances cause the accused to take
unlawful action in order to avoid a greater injury." State v. Jeffrey, 77 Wn. APP.
222, 224,889 P.2d 956(1995). The necessity defense is not available, however,
where "the compelling circumstances have been brought about by the accused
or where a legal alternative is available to the accused." State v. Diana, 24 Wn.
App. 908, 912-13, 604 P.2d 1312(1979).
To establish the necessity defense,"the defendant must prove by a
preponderance of the evidence that(1) he or she reasonably believed the
commission of the crime was necessary to avoid or minimize a harm,(2)the
harm sought to be avoided was greater than the harm resulting from a violation
of the law, and (3) no legal alternative existed." State v. Gallegos,73 Wn. App.
644,651, 871 P.2d 621 (1994)(citing Diana, 24 Wash. App. at 916). The final
element at issue in this appeal is whether a legal alternative existed.
1. Availability of Defense in Civil Disobedience Actions
As a preliminary matter, the State argues that under State v. Aver, 109
Wash. 2d 303, 745 P.2d 479(1987), the necessity defense is not available to a
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defendant engaged in civil disobedience, including attempts to block a train in
protest, as a matter of law. We disagree.
In Aver, our Supreme Court held that RCW 81.48.020, a statute
prohibiting a person from willfully obstructing a train lawfully operated," was not
unconstitutionally vague and that the trial court did not abuse its discretion by
refusing to give the necessity defense. 109 Wash. 2d at 308. In Aver, the
defendants obstructed a train that they believed was carrying nuclear warheads
to a naval submarine base. 109 Wash. 2d at 305. On appeal, they argued that
RCW 81.48.020 was unconstitutionally vague. They also argued that the trial
court abused its discretion by refusing to give the necessity defense. Aver, 109
Wash. 2d at 311-12. The Supreme Court upheld RCW 81.48.020 and found that
the "necessity defense[was] not supported by the record in this case." Aver, 109
Wash. 2d at 311.
Aver does not support the State's position. It does not stand for the
proposition that a defendant cannot request the necessity defense when blocking
a train or that, as a matter of law, the necessity defense is unavailable to
defendants who were engaged in civil disobedience. Aver 109 Wash. 2d at 311-12.
The defense may be available where the evidence supports all necessary
elements.
2. Sufficiency of Evidence to Support Instruction
In this case, however, we agree with the trial court that the defendants
failed to demonstrate the final element of the necessity defense—that no
reasonable legal alternatives existed. The defendants' own testimony
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acknowledged multiple legal alternatives available to support their efforts to draw
attention to the global climate change and the impacts of rail shipping of fossil
fuels.2 Indeed, defendant's counsel conceded during argument that"one can go
ad infinitum on reasonable alternatives." The testimony offered by defendants
recognized that there is a legal alternative to the illegal action: using the
democratic process to effect change. Because the defendants failed to offer
sufficient evidence of no reasonable legal alternative, the trial court did not abuse
its discretion in refusing to provide the instruction. State v. Werner, 170 Wash. 2d
333, 336-37 241 P.3d 410(2010).
The defendants argue that the trial court adopted an unduly limited
construction of the phrase "reasonable legal alternative" and that "reasonable"
must mean more than available, but actually effective. The defendants argue
that State v. Parker's interpretation of the phrase "no reasonable alternative"
supports their position. 127 Wash. App. 352, 355, 110 P.3d 1152(2005). In
Parker, Division Two of this court affirmed the trial court's refusal to give the
necessity defense in a trial for the unlawful possession of a firearm where the
defendant failed "to show 'that he had actually tried the alternative or had no time
to try it, or that a history of futile attempts revealed the illusionary benefits of the
alternative.'" Parker, 127 Wash. App. at 355 (quoting U.S. v. Hamer,802 F.2d 115,
118 (1986)).
2 See,Lg., Clerk's Papers(CP)at 555-56(Brockway testifying that her goal in
trespassing was to have Governor Inslee impose a fossil fuel moratorium and reject all new fossil
fuel projects).
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Even if this statement from Parker is correct, it does not support the
defendants' argument. Here, like Parker, while the defendants were frustrated
with the political response to climate change, they all believed that the ultimate
solution was political and were intent on continuing political activities. Here, after
listening to the testimony, the trial court found that "[t]he evidence presented from
the defendants fails to establish that there was no reasonable legal alternative to
their acts of September 2 and no objective reasonable trier of fact could find that
no reasonable legal alternative existed."
In conclusion, we hold that while the necessity defense may be available
In actions involving civil disobedience, because the defendants here failed to
demonstrate that there were no reasonable legal means available other than an
illegal trespass, the court did not abuse its discretion by refusing to instruct the
jury on the affirmative defense of necessity.
Right to Present a Defense
The defendants next argue that their right to present a defense was
violated because the trial judge allowed the defendants to present evidence of
the necessity defense but then refused to instruct the jury on the defense. We
disagree.
The right to a fair trial includes the right to present a defense. The Sixth
and Fourteenth Amendments of the United States Constitution, and article I,
section 21 of the Washington Constitution, guarantee the right to trial by jury and
to defend against the State's allegations. These guarantees provide criminal
defendants a meaningful opportunity to present a complete defense, a
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fundamental element of due process. Chambers v. Mississippi, 410 U.S. 284,
294,93 S. Ct. 1038, 35 L. Ed. 2d 297(1973); State v. Burn,87 Wn.2d 175, 181,
550 P.2d 507(1976). "We review a claim of a denial of Sixth Amendment rights
de novo." State v. Jones, 168 Wash. 2d 713, 719, 230 P.3d 576(2010).
The trial court did not deny Brockway her right to present a defense. A
defendant is only entitled to an instruction on the defendant's theory of the case if
there is evidence to support that theory. Werner, 170 Wash. 2d at 336-37.
Although the defendants presented evidence supporting the first three elements
of the necessity defense, they failed to present sufficient evidence to
demonstrate that there was no reasonable legal alternative to accomplish their
goal. Where an affirmative defense, including necessity, consists of several
elements and the testimony supporting one element of the defense is lacking,
there is no right to present the defense. U.S. v. Bailey, 444 U.S. 394, 415-16,
100 S. Ct. 624,62 L. Ed. 2d 575(1980). Accordingly, refusing to give the
defense did not violate Brockway's right to present a defense.
We affirm.
S ate 4se.ir.
WE CONCUR:
eaxiI. 3ecke IR4.
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