Andrews v. People

800 P.2d 607, 14 Brief Times Rptr. 1502, 3 A.L.R. 5th 1066, 1990 Colo. LEXIS 753, 1990 WL 174925

• Court: Supreme Court of Colorado
• Decided: November 13, 1990
• Docket: 89SC545
• Status: Published

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

The defendant-petitioners were tried and convicted by a jury in the Jefferson County Court of obstructing a roadway without a legal privilege to do so, and of disobeying the request of a peace officer to move to prevent the obstruction of the roadway in violation of sections 18 — 9—107(l)(a) & (b), 8B C.R.S. (1986). An appeal was taken to the Jefferson County District Court, which affirmed the convictions. We granted cer-tiorari to determine whether the trial court erred in ruling that the defendants’ offer of proof was insufficient as a matter of law to provide the necessary foundation for invoking the choice of evils defense. We affirm.

I

On August 9, 1987, several hundred people blocked the roadway to the east entrance of the Rocky Flats nuclear weapons plant in Jefferson County. The protest was intended to halt the manufacture of plutonium triggers by preventing the entry of workers and materials into the federal facility. The ultimate goal of the protest was to close down the Rocky Flats facility and force its conversion to a non-nuclear civilian use.

The defendants were charged and pled not guilty to violating sections 18-9-107(1)(a) & (b). Prior to trial, the defendants jointly served notice of their intent to employ the choice of evils defense set forth in section 18-1-702, 8B C.R.S. (1986). The choice of evils defense was created by statute and may only be invoked when an offer of proof is made that establishes the requisite statutory foundation.

The defendants’ offer of proof consisted of fifteen affidavits from experts in the fields of sociology, international law, public health, and nuclear weapons production.¹ Defense counsel advised the court that the affiants were willing to testify as expert witnesses at trial. The trial court ruled that the offer of proof was insufficient as a matter of law to establish the statutory foundation required for the choice of evils defense.

At trial, the defendants did not deny they were obstructing traffic and disobeyed the request of the State Patrol officers to move. The jury found all the defendants guilty of obstructing a highway or other passage area, and convicted most of the defendants of disobeying a reasonable request of a peace officer. The sentences imposed ranged from four to sixteen hours of community service, and fines of $40 to $100.

On appeal, the district court affirmed the trial court’s decision on the defendants’ failure to lay a proper foundation for the choice of evils defense. We agree.

II

Section 18-1-702, 8B (1986), defines and limits the choice of evils defense:

(1) [Cjonduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur ... and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

(2) ... When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

(Emphasis added.)

The statutory codification of the choice of evils defense has its roots in the common law doctrine of necessity. People v. Strock, 623 P.2d 42, 44 (Colo.1981); People v. Robertson, 36 Colo.App. 367, 543 P.2d 533 (1975).² The choice of evils defense thus does not arise from a “choice” of several courses of action, but rather is based on a real emergency involving specific and imminent grave injury that presents the defendant with no alternatives other than the one taken.³ Strock, 623 P.2d at 44; Robertson, 36 Colo.App, at 367, 543 P.2d at 533; see also United States v. Dorrell, 758 F.2d 427, 431 (9th Cir.1985); United States v. Seward, 687 F.2d 1270, 1275-76 (10th Cir.1982).

In Colorado, the choice of evils defense has been upheld as an affirmative defense to prison escapes when the inmate faced a choice between escape and imminent death or homosexual rape. See Strock, 623 P.2d at 42; People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979). We have narrowly construed the statute and have required that threats of murder or homosexual rape must be specific with imminent threats of injury to the inmate that provide no reasonable alternative under the circumstances but escape. People v. McKnight, 626 P.2d 678, 681 (Colo.1981).⁴

Ill

Before a defendant can present a choice of evils defense to the jury, section 18-1-702 requires that the trial court make an initial determination of whether the allegations of facts by the defendant, if proved, would constitute legal justification for the prohibited conduct. People v. Dover, 790 P.2d 834, 836 (Colo.1990); Strock, 623 P.2d at 46; United States v. Cullen, 454 F.2d 386, 390 (7th Cir.1971).

A

The choice of evils statute requires that the defendant establish that the crime committed was necessary to prevent an imminent injury. A sufficient offer of proof must therefore establish: (1) all other potentially viable and reasonable alternative actions were pursued, or shown to be futile,⁵ (2) the action taken had a direct causal connection with the harm sought to be prevented, and that the action taken would bring about the abatement of the harm,⁶ and, (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur.⁷

The defendants claim that they had previously sought to stop production at the Rocky Flats facility by public demonstrations and lobbying, and that the use of conventional methods of demonstration and protest had been inadequate. Neither the offer of proof nor the fifteen supporting affidavits contain facts that, if proved, would show the defendants tried other potentially viable and reasonable alternatives,⁸ or that any other alternatives would be futile.⁹ Dover, 790 P.2d at 836; McKnight, 626 P.2d at 681; Strock, 623 P.2d at 44; Dorrell, 758 F.2d at 431 (mere impatience with the political process does not constitute necessity); Seward, 687 F.2d at 1275 (if courses of action, other than criminal trespass, are available, then no necessity exists); In re Weller, 164 Cal. App.3d 44, 210 Cal.Rptr. 130 (1985) (proof of unsuccessful political participation by defendants is not sufficient to demonstrate that all alternatives have been exhausted).

The defendants claim the demonstration did affect public attitudes, and resulted in basic policy changes being made with regard to the continued maintenance and operation of the Rocky Flats facility. The defendants did not, however, allege facts that, if proved, would establish that the protest brought about the termination or prevention of the harm they were protesting. Dorrell, 758 F.2d at 433 (vandalism of military base not sufficient to lead to the termination of the MX missile program); United States v. May, 622 F.2d 1000, 1008 (9th Cir.1980) (illegal entry onto naval base not sufficient to eliminate the Trident missile program); United States v. Simpson, 460 F.2d 515, 518 (9th Cir.1972) (burning the file room of local draft board not sufficient to end the Vietnam War); Commonwealth v. Averill, 12 Mass.App. 260, 423 N.E.2d 6, 7-8 (1981) (publicity of defendant’s arrest not sufficient to abate an immediate peril).¹⁰

Finally, the defendants assert that the evils presented by the Rocky Flats facility in terms of the threat to the environment and in terms of enhancing the risk of nuclear war were imminent in the context of the magnitude and nature of the evil. Although the defendants’ affidavits articulate the radiation hazards and the dangers of nuclear war associated with the operation of Rocky Flats, these dangers are long-term and speculative, and thus insufficient to demonstrate that a specific, definite, and imminent injury is about to occur as required by section 18-1-702. Handy, 603 P.2d at 943; People v. Trujillo, 41 Colo. App. 223, 225, 586 P.2d 235, 237 (1978); Robertson, 36 Colo.App. at 369, 543 P.2d at 535 (generalized fear of injury is not sufficient); May, 622 F.2d at 1009 (harm must be direct and to the defendant; a possible future harm to members of the society is not sufficient).

The judgment of the district court is affirmed.

QUINN, J., dissents.

1 . The following persons provided affidavits supporting the offer of proof: Elise Boulding, Adjunct Professor of Sociology at the University of Colorado at Boulder; George A. Johnson, practicing attorney; Carl J. Johnson, former Director of the Jefferson County Department of Health; Arthur Kinoy, Professor of Law at Rutgers University School of Law; Robert C. Al-dridge, Aerospace Engineer with a nuclear weapons design background; Joseph Goldfield, Engineering Consultant in the fields of energy conservation, environmental engineering, air pollution control and industrial hygiene engineering; Francis A. Boyle, Professor of Law at the University of Illinois; Walter L. Gerash, practicing attorney; John Candler Cobb, Professor Emeritus of Preventive Medicine and Community Health at the University of Colorado Health Sciences Center; Howard Zinn, Professor of Political Science at Boston University; Daniel Ellsberg, lecturer, writer, and political activist; Richard Anderson Falk, Professor of International Law and Practice at Princeton University; Paul Wehr, Associate Professor and Chair of Sociology, University of Colorado at Boulder; Ved P. Nanda, Professor of Law and Director of the International Legal Studies Program at the University of Denver College of Law; Haywood Burns, Dean of the City University of New York School of Law at Queens College.

2 . The Colorado statute was derived from section 3.02 of the Model Penal Code and section 65.-00(2) of the New York Penal Code. Illustrations of the intended application of the choice of evils defense include blasting buildings to prevent a major fire from spreading, appropriating foodstuffs in time of famine, or forcibly restraining a person infected with a highly contagious and dangerous disease. Comment to § 40-1-801, 3 C.R.S. (1971 Supp.).

3 . No state has enacted legislation that makes the choice of evils defense available as a justification for behavior that attempts to bring about social and political change outside the democratic governmental process. A Pennsylvania appellate court did permit the use of the choice of evils defense for civil disobedience in two cases, but the Pennsylvania Supreme Court reversed the court of appeals in both cases. Commonwealth v. Berrigan, 325 Pa.Super. 242, 472 A.2d 1099 (1984), rev’d 509 Pa. 118, 501 A.2d 226 (1985); Commonwealth v. Capitolo, 324 Pa.Super. 61, 471 A.2d 462 (1984), rev’d, 508 Pa. 372, 498 A.2d 806 (1985).

4 . The inmate must also effect the escape without violence, and must immediately report to the proper authorities when he reaches a position of safety. People v. McKnight, 626 P.2d at 681.

5 . Dover, 790 P.2d at 836; Strock, 623 P.2d at 44; Dorrell, 758 F.2d at 431; Seward, 687 F.2d at 1275; State v. Marley, 54 Haw. 450, 509 P.2d 1095, 1109 (1973).

6 . Dorrell, 758 F.2d at 430; United States v. May, 622 F.2d 1000, 1008 (9th Cir.) cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980); United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972).

7 . Handy, 603 P.2d at 943; People v. Trujillo, 41 Colo.App. 223, 225, 586 P.2d 235, 237 (1978); Robertson, 36 Colo.App. at 369, 543 P.2d at 535. Colorado is one of the few states to require that the measure taken to avoid the imminent injury must be an emergency measure. This demonstrates the General Assembly’s intent to narrow the application of the choice of evils defense.

8 . In fact, the supporting affidavits state in numerous places, "There are conventional means available to citizens of the State of Colorado and of the United States to protest and attempt to change environmental hazards and other evils, ...” The affidavits then proceed to list numerous alternatives.

9 . An offer of proof is also insufficient if it merely alleges other persons have attempted to pursue reasonable alternatives, or that the action taken was a more effective alternative. Dorrell, 758 F.2d at 431; Seward, 687 F.2d at 1275.

10 . The offer of proof and affidavits also fail to distinguish between the effect of criminal actions and the effect of legal actions taken by the protestors and other parties. The demonstration consisted not only of protestors who blocked the roadway, but also of protestors who engaged in only legal activity. The offer of proof and the affidavits address the effectiveness of the demonstration as a whole and thus can not adequately lay the foundation that it was the criminal element of the protest which precipitated the claimed effects.