One person commented on my last blog, stating that Tim could never have proved all  the elements of the Necessity Defense. I disagree and will explain below. The important thing to remember, however, is Tim didn’t have to convince the judge that he could prove each element. What Tim needed to show was that one reasonable juror could be persuaded that he had proved the elements of the defense.  This has to do with the issue  of “standard of proof.”

It is a big deal in our legal system to prevent a jury from even hearing a defense. Criminal defendants have numerous  constitutional rights to present their defenses.

Thus, we need to remember that, in order for Judge Benson to prevent Tim from bringing an affirmative defense, he has to decide that no reasonable juror (not jury) could possibly believe that Tm’s case meet the elements of the necessity defense.  It only takes one juror to stop a guilty verdict if she or he believes the defense evidence.  And, when deciding if a defendant is entitled to present a defense, the Judge must assume the facts the defendant relies on can be proven.

With this in mind, let’s review the elements of the Necessity Defense, showing what Tim’s defense team argued.

There was a choice of evils and the defendant chose the lesser evil:

The “evil” Tim chose was to sign a federal government form swearing he was a “bona fide bidder,” and then to make bids on BLM leases he never intended to buy. The greater evils Tim was seeking to combat were the Government’s violation of its own laws and regulations,  the exacerbation of climate change that would occur from extracting fossil fuels from these lands, including the serious injury climate change causes humans, and the destruction of irreplaceable natural and cultural resources.

Now one could argue that placing false bids forced the government to cancel the auction, which cost time and money, and thus wasn’t a lesser evil. A reasonable juror could disagree and believe that climate change, the government’s violation of its own laws, and the destruction of irreplaceable resources were greater evils. And when you add the fact that the auction was subsequently determined to be illegal before the prosecution brought its Motion in Limine, it is a strong argument. During the trial, the prosecution kept talking about how much the land was worth, as if Tim had stolen $1,8 million dollars from the government, but that land is still there, still controlled by the BLM. It wasn’t removed the planet. He didn’t steal anything.

The Harm Tim sought to prevent was imminent

What does “imminent” mean in this context? Although it is a word with an everyday meaning, what is at issue here is defining imminence as a legal term of art. And because it is a crucial legal concept, lawyers and judges argue about what it means and how to apply it. Here, we need to remember our standard of proof: Could one reasonable juror find that the harm Tim sought to prevent was imminent?

The standard, common meaning of the word “imminent” is frequently used to describe an event which is proximate in time, or about to happen immediately. As we will see, legal doctrine allows a broader understanding of this term.  For example “imminent” can be used to describes the nature of a threat ( as in genuine, not  hypothetical), rather than the temporal proximity of the threat. When given this valence, something is “imminent” if it is understood to describe a present threat of a harm, which may come to fruition in the future.

The environmental havoc caused by climate change or global warming is presently occurring and poses catastrophic threats to our future that are fairly characterized as imminent. In a case brought by several cities against six large fossil-fuel burning power plants to enjoin them from (order them to stop) contributing to global warming, the Court of Appeals for the 2nd Circuit found that global warming or climate change is sufficiently imminent, (certain to occur in the future). Because it is imminent, they ruled, the Plaintiffs could continue with their lawsuit. Connecticut v. American Elec. Power Co. Inc. It is important to remember that this was a different type of case (determining Article II standing for a nuisance action, for the lawyers out there), but it is a Court of Appeals defining what “imminent” means in relation to climate change.

In another case right here in our jurisdiction, the Court of Appeals for the 10th Circuit ruled that the imminence standard could be relaxed in cases where crimes are “victimless.”  United States v. Patton, 451 F.3d 615, 637 (10th Cir. 2006). Also the Model Penal Code (a recommended criminal code written by legal experts, sometimes adopted by states and often cited as persuasive but not binding by judges in criminal cases), removes the imminence requirement completely from the Necessity Defense.

Using the definitions of “imminent” described above, one reasonable juror could decide that any of the following harms were imminent in Tim’s case: climate change, government violation of its own laws, and/or the destruction of irreplaceable natural and cultural assets.

Tim could still have shown that the harm he sought to prevent was imminent in the narrowest definition of that term. Tim could have testified at trial that he acted to stop the immediate harm the Bush Administration was causing by breaking its own regulations and laws and rushing the leases through in an effort to get the land in the hands of the oil and gas companies before the new administration and Congress took control. He had a list of expert witnesses to explain the government’s violation of its own laws, regulations and/or policies. And Tim also had experts lined up to explain the harms posed by the government’s actions, which were not limited to the harms inherent in government corruption, but also, constituted present threats of very serious environmental harms to our planet. Could a reasonable juror have believed this testimony and found it to be persuasive?  I think so.

In my next post, I will explain Tim’s arguments that satisfied the final two elements of the Necessity Defense: causation and absence of legal alternatives.  As I will continue to explain, Judge Benson could have allowed Tim to present his defense of Necessity, but chose not to.  He is not alone among federal court judges. Over the past twenty years or so, the federal courts have created a policy that forbids the use of necessity in political protest cases. This is a political decision, not a legal one.

Rebecca Hall is a professor of Law and History, as well as a life-long activist