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Court of Appeals for the Ninth Circuit • 1991

United States v. Schoon

971 F.2d 193

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Takeaway

In short, this case holds that necessity cannot justify illegal acts of indirect political protest aimed at changing a lawful government policy.

Background

On December 4, 1989, about thirty protesters entered an Internal Revenue Service office in Tucson to protest United States involvement in El Salvador. They chanted, “keep America’s tax dollars out of El Salvador,” threw simulated blood on office surfaces, and obstructed the office’s operations. A federal police officer repeatedly ordered the group to disperse; Schoon, Kennon, and Manning did not comply and were arrested.

At their bench trial, the defendants offered evidence about violence in El Salvador. They sought to establish that obstructing the IRS office was necessary to prevent further bloodshed caused by American policy. The district court found that they acted from genuine humanitarian motives, but excluded the necessity defense as a matter of law under Ninth Circuit precedent. The defendants appealed their resulting convictions for obstructing IRS activities and failing to obey a federal officer’s order.

Issues

Issue #1

Whether a district court may exclude a necessity defense before trial when the defendant’s proffer cannot legally establish the defense’s required elements.

Holding

Yes. A court may preclude the defense if the proffered evidence is deficient as a matter of law on any one of its required elements; the appellate court reviews that decision de novo.

Reasoning

A defendant invoking necessity must make a colorable showing that the defendant chose the lesser of two evils, acted to prevent imminent harm, reasonably expected a direct causal connection between the illegal act and the harm to be avoided, and lacked legal alternatives. These requirements are conjunctive, so failure on any element defeats the defense.

The district court had concluded that the asserted harm was not sufficiently immediate, that the defendants’ conduct would not abate it, and that lawful alternatives remained available. Although the Ninth Circuit could have affirmed on those case-specific grounds, it addressed the more fundamental question whether necessity is available at all for this form of protest.

Issue #2

Whether the necessity defense is available to defendants charged for indirect civil disobedience undertaken to protest a lawful governmental policy.

Holding

No. The necessity defense is categorically unavailable for indirect civil disobedience aimed at changing a validly enacted law or governmental policy.

Reasoning

The court distinguished direct from indirect civil disobedience. Direct civil disobedience challenges the very law being enforced or blocks its application in a specific situation to prevent a concrete harm. Indirect civil disobedience, by contrast, violates a separate law primarily to dramatize opposition to a policy or mobilize public opinion. The IRS protest was indirect because the defendants did not challenge the laws prohibiting obstruction or disobeying a federal officer.

Necessity is a justification designed to permit a criminal act when it averts a greater, concrete harm—for example, escaping a burning prison or destroying property to stop a fire. Its utilitarian premise is that the illegal act itself produces a social benefit greater than the cost of enforcing the criminal law.

Indirect political protest cannot satisfy the balance-of-harms requirement. Its immediate target is the continued existence of a lawful policy, but a constitutionally valid law or policy is not itself a legally cognizable harm. Generalized injuries allegedly resulting from that policy are also too abstract to support necessity; allowing protesters to treat their own political and moral judgments as legal justification would undermine democratic decisionmaking and the rule of law.

Indirect civil disobedience also lacks the necessary direct causal relationship. Obstructing an IRS office could not itself end killings in El Salvador or alter congressional policy. Any policy change would depend on a further voluntary decision by Congress or another governmental actor beyond the protesters’ control.

Finally, legal alternatives are not exhausted when the claimed harm can be addressed through legislative action. Lawful political activity, including petitioning and lobbying Congress, remains an alternative even if the protesters believe it is unlikely to succeed. In this setting, the possibility of congressional reconsideration is sufficient to defeat the no-legal-alternative element.

A categorical rule also avoids requiring courts to evaluate political judgments committed to Congress and the Executive, prevents protesters from using criminal trials as forums for political debate, and preserves the necessity doctrine for its traditional emergency circumstances. The court therefore affirmed the exclusion of the defendants’ necessity evidence and their convictions.

Concurrences

Judge Fernandez

Reasoning

Judge Fernandez agreed that the convictions should be affirmed and that, under existing Ninth Circuit law, these defendants could not establish necessity. He also agreed that future protesters should understand that the defense will almost certainly fail in comparable cases.

He questioned the majority’s description of necessity as grounded solely in utilitarianism. In his view, the justification might instead rest partly on a broader account of conduct that is right and proper under the circumstances, rather than exclusively on a calculation of social utility.

More importantly, Judge Fernandez believed circuit precedent did not permit the court to declare necessity categorically unavailable in every indirect-civil-disobedience case. He would follow the prior cases’ element-by-element approach, which leads to the same result here, rather than adopt the majority’s per se exclusion rule.