IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 77044-6-I
Respondent, ) ) DIVISION ONE v.
KENNETH A. WARD, ) PUBLISHED OPINION ) Petitioner. ) FILED: April 8, 2019
MANN, A.C.J. — Washington recognizes a common law necessity defense. The
defense may be raised when a defendant demonstrates that they reasonably believed
the commission of the crime was necessary to avoid or minimize a 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.
Kenneth Ward appeals his conviction for burglary in the second degree after he
broke into a Kinder Morgan pipeline facility and turned off a valve, which stopped the
flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties. Ward
intended to protest the continued use of tar sands oil, which he contends significantly No. 77044-6-1/2
contributes to climate change, and the inaction by governments to meaningfully address
the crisis of climate change. Ward argues that he was deprived of his Sixth Amendment
right to present his only defense—necessity—after the trial court granted the State’s
motion in limine excluding all testimony and evidence of necessity.1 We agree and
reverse.
Kinder Morgan transports tar sands oil from Canada into the United States by
pipeline. On October II, 2016, Kinder Morgan was notified by telephone that persons
“would be closing a valve, one of our main line valves in the Mount Vernon area within
the next 15 minutes.” Following the call, Ward cut off a padlock and entered the Kinder
Morgan pipeline facility off of Peterson Road in Burlington. Ward then closed a valve on
the Trans-Mountain pipeline and placed sunflowers on the valve. At the same time,
other protesters closed similar valves in North Dakota, Montana, and Minnesota.
Collectively, the protests temporarily stopped the flow of Canadian tar sands oil from
entering into the United States.
Ward was arrested at the pipeline facility and charged with burglary in the second
degree, criminal sabotage, and criminal trespass in the second degree. Ward admitted
his conduct but argued that his actions were protected under a necessity defense. The
trial court granted the State’s pretrial motion in limine to preclude all witnesses and
evidence offered in support of Ward’s necessity defense.
1 Ward also argues that the trial court erred in refusing to instruct the jury on a necessity defense. Because we conclude that the trial court violated Ward’s constitutional right to present a defense, we reverse and remand for a new trial. Therefore, we do not address whether the trial court also erred in rejecting Ward’s jury instruction. -2- No. 77044-6-1/3
Ward’s first trial ended with a hung jury. The State then recharged Ward with
burglary in the second degree and criminal sabotage. Ward moved for reconsideration
of the trial court’s order granting the State’s motion in limine. In support of his motion,
Ward offered argument, the curriculum vitae for eight proposed expert witnesses, and
voluminous scientific evidence documenting the impacts of climate change, that climate
change is primarily caused by greenhouse gas emissions resulting from human activity,
and the contribution of burning tar sands oil. The trial court denied Ward’s motion for
reconsideration and excluded all testimony and evidence in support of Ward’s necessity
defense. A second jury found Ward guilty of burglary but were unable to return a verdict
on criminal sabotage. Ward appeals.
Ward argues that the trial court denied his constitutional right to present a
defense by granting the State’s motion in limine striking all testimony and evidence of
necessity. We agree.
We review a claim of a denial of Sixth Amendment rights de novo. State v.
Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010); State v. Lizarraqa, 191 Wn. App.
530, 551, 364 P.3d 810 (2015). Since Ward argued that his Sixth Amendment right to
present a defense has been violated, we review his claim de novo.2
The Sixth Amendment to the United States Constitution and article 1, sections 21
and 22 of the Washington Constitution guarantee a defendant the right to trial by jury
2 This is in sharp contrast with the abuse of discretion standard for reviewing a trial court’s refusal to give a jury instruction. If, for example, the trial court here had allowed Ward to introduce evidence supporting his necessity defense, but then refused, based on that evidence, to instruct the jury on necessity, we would review for abuse of discretion. State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002). -3- No. 77044-6-1/4
and to defend against criminal allegations. State v. Darden, 145 Wn.2d 612, 620, 41
P.3d 1189 (2002). “The right of an accused in a criminal trial to due process is, in
essence, the right to a fair opportunity to defend against the State’s accusations.”
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038 35 L. Ed. 2d 297 (1973). “A
defendant’s right to an opportunity to be heard in his defense, including the rights to
examine witnesses against him and to offer testimony, is basic in our system of
jurisprudence.” Jones, 168 Wn.2d at 720.
The fundamental due process right to present a defense is the right to offer testimony and compel the attendance of a witness. ‘[un plain terms the right to present a defense [is] the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.’
Lizarraqa, 191 Wn. App. at 552 (quoting Taylorv. Illinois, 484 U.S. 400, 410, 108 S. Ct.
646,98 L. Ed. 2d 798 (1988)).
This right is not absolute. “The defendant’s right to present a defense is subject
to established rules of procedure and evidence.” Lizarraqa, 191 Wn. App. at 533
(internal citation omitted). A defendant does not have a constitutional right to present
irrelevant evidence. Jones, 168 Wn.2d at 720. “[I]f relevant, the burden is on the State
to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding
process at trial.” Darden, 145 Wn.2d at 622. “The State’s interest in excluding
prejudicial evidence must also be balanced against the defendant’s need for the
information sought, and only if the State’s interest outweighs the defendant’s need can
otherwise relevant information be withheld.” Darden, 145 Wn.2d at 622.
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Below, the trial court prohibited Ward from presenting evidence or witnesses on
the necessity defense. If Ward submitted a sufficient quantum of evidence to show that
he would likely be able to meet each element of the necessity defense, then the trial
court’s exclusion of evidence in support of his sole defense violated Ward’s
constitutional rights.
III.
“[A]n 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, 311, 745 P.2d 470 (1987). Necessity
is available when “the pressure of circumstances cause the accused to take unlawful
action to avoid a harm which social policy deems greater than the harm resulting from a
violation of the law. . . [but not where] a legal alternative is available to the accused.”
State v. Gallecios, 73 Wn. App. 644, 651, 871 P.2d 621 (1994) (citing State v. Diana, 24
Wn. App. 908, 913-14, 604 P.2d 1312 (1979)).
To successfully raise the necessity defense the defendant must prove, by a
preponderance of the evidence, that: (1) they 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 resu’ting from a violation of the law, (3) the
threatened harm was not brought about by the defendant, and (4) no reasonable legal
alternative existed. Galleqos, 73 Wn. App. at 650; ~ also 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INsTRucTIONS: CRIMINAL 18.02, at 292 (4th ed. 2016)
(WPIC).
-5- No. 77044-6-1/6
The State argues that Ward’s offer of proof failed to establish the elements of the
necessity defense. A challenge to the sufficiency of evidence “admits the truth thereof
and all inferences that can reasonably be drawn therefrom.” State v. Cole, 74 Wn. App.
571, 578, 874 P.2d 878 (1994). “It requires the trial court and appellate courts to
interpret the evidence most favorably for the defendant.” Cole, 74 Wn. App. at 578-79.
In this light, we review Ward’s offer of proof as to each element of the necessity
defense.
A.
Ward presented sufficient evidence that he reasonably believed the crimes he
committed were necessary to minimize the harms that he perceived. Ward’s offer of
proof included evidence of how past acts of civil disobedience have been successful,
evidence of previous climate activism campaigns, and evidence of his own personal
successes in effectuating change through civil disobedience. Specifically, Ward offered
evidence that he has been working with environmental issues for more than 40 years
but that the majority of his efforts failed to achieve effective results. Ward asserted that
because of these failures he “came to understand that the issue of climate change
would require other than incremental change” and that “direct action was necessary to
accomplish these goals.” Ward offered three experts—Eric de Place, Bill McKibben,
and Martin Gilens—who were prepared to testify as to the efficacy of civil disobedience
and how such actions have become necessary in the climate movement. Ward argued
that to decide whether his actions were “reasonably calculated to be effective in averting
the imminent harm of climate change requires [the] expert testimony and evidence” that
-6- No. 77044-6-1/7
he was prepared to present to the jury, and that whether his beliefs were reasonable
was a question for the jury, not the trial court, to decide.
The State argues that it was unreasonable for Ward to believe that the
commission of this crime was necessary to avoid or minimize harm. The State asserts,
first, that all Ward did was temporarily inconvenience Kinder Morgan’s employees so it
was unreasonable to think that his actions would actually avoid or minimize the broader
harms associated with climate change. And second, that because Ward had legal
alternatives available it was unreasonable for him to believe that his actions were
necessary to avoid or minimize harm.
Whether Ward’s beliefs were reasonable was a question for the jury. ~ State
v. Negrin, 37 Wn. App. 516, 524, 681 P.2d 516 (1984) (“It is the province of the jury to
determine such issues” as whether the defendant acted with reasonable grounds.). And
further, Ward did not have to prove that the harm he sought to avoid or minimize was
actually avoided or minimized but instead that the reason he broke the law was in an
attempt to avoid or minimize harm. GalleQos, 73 Wn. App. at 650 (describing the
second prong as “the harm sought to be avoided [, not the harm actually avoided,] was greater than the harm resulting from a violation of the law.”). Ward’s past successes in
effectuating change through civil disobedience in conjunction with the proposed expert
witnesses and testimony about Ward’s beliefs were sufficient evidence to persuade a
fair minded, rational juror that Ward’s beliefs were reasonable.
B.
Ward also offered sufficient evidence to show that the harms of global climate
change were greater than the harm of breaking into Kinder Morgan’s property. Ward
-7- No. 77044-6-118
asserted that the extent of the harm resulting from his actions were the loss of a few
locks and the temporary inconvenience to Kinder Morgan’s employees. Compared to
this, Ward introduced “voluminous scientific evidence of the harms of climate change.”
This evidence included information establishing climate change is real and detrimentally
effecting Washington, and that tar sands oil poses a specifically acute threat to our
environment. Further, Ward offered to present testimony from climate scientists, Drs.
James Hansen, Richard Gammon, and Celia Bitz, supporting his defense.
C.
Whether the harms of global climate change was brought about by Ward was not
an issue in this case. Nevertheless, Ward proffered evidence and expert testimony
establishing the harms associated with global climate change and the root causes of
global climate change.
D.
Ward also offered sufficient evidence to create a question of fact on whether
there were reasonable legal alternatives. Ward argued that the window for action on
climate change has narrowed to the point that immediate, emergency action is
necessary. Ward offered evidence of his more than 40 years being involved in various
environmental movements, the numerous attempts he has made to address climate
change, and how most of those efforts have failed. Ward additionally offered proposed
testimony by pipeline industry expert Eric de Place, professor and climate campaigner
Bill McKibben, and professor of political science Martin Gilens, to the effect that the
fossil fuel industry’s influence over political institutions renders traditional legal avenues
unreasonable as a means of addressing the climate emergency.
-8- No. 77044-6-1/9
State v. Parker, 127 Wn. App. 352, 353, 111 P.3d 1152 (2005), discussed the
“no reasonable alternative” element. Parker was charged with felon in possession of a
gun. Parker claimed that he carried the gun because he had been shot the previous
July and his assailants were still at large. Division Two of this court held that in order to
show he had no reasonable alternative, Parker has to demonstrate “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 Wn. App. at 355.
Here, in contrast with Parker, Ward offered evidence that he had tried the
alternatives and they were unsuccessful. Whether Ward’s evidence was sufficient to
establish that his history of failed attempts to address climate change revealed the
futility of supposed reasonable alternatives was a question for the jury. Viewed in the
light most favorable to Ward, and admitting the truth of his evidence and all reasonable
inferences therefrom, Ward’s offer of proof created a question for the jury. Cole, 74 Wn.
App. at 578-79.
Because Ward met his initial burden of showing that he would likely be able to
submit a sufficient quantum of evidence on each element of necessity to make it a jury
question whether he established that element beyond a reasonable doubt, the trial court
violated his constitutional right by granting the State’s motion in limine.
IV.
The State argues that the necessity defense is unavailable when the real
purpose is to advertise a political debate. We agree with the State that if Ward’s true
intent was to induce jury nullification, then the trial court would not have erred in
-9- No. 77044-6-1/10
prohibiting Ward’s evidence. Therefore, in order to determine if the trial court erred we
must also determine what Ward’s purpose was in offering his evidence.
“Jury nullification occurs in a trial when a jury acquits a defendant, even though
the members of the jury believe the defendant to be guilty of the charges.” State v.
Nichols, 185Wn. App. 298, 301, 341 P.3d 1013 (2014). Butthe jury’s power of
nullification does not stem from any legal right. State v. Brown, 130 Wn. App. 767, 771,
124 P.3d 663 (2005). Rather, the power of nullification is rooted in courts’ unwillingness
to inquire into deliberations because jurors can agree to acquit on virtually any basis
without court knowledge. See State v. Elmore, 155 Wn.2d 758, 771, 773-74, 123 P.3d
72 (2005). Nevertheless, Washington courts have concluded that a trial court does not
err by instructing the jury that it has a duty to convict, rather than that it may convict, if it
finds all of the elements of the crime charged beyond a reasonable doubt. See, ~
State v. Meggyesy, 90 Wn. App. 693, 958 P.2d 319 (1998), abrogated on other
grounds, State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005).
A trial court does not abuse its discretion if it prohibits a party from introducing
evidence solely intended to induce jury nullification. If here, for example, Ward’s actions
were purely symbolic—if they had no ability to actually avoid or minimize the harms he
perceived—then his proffered evidence would have been aimed not at proving
necessity but instead at inducing jury nullification. In such a situation, the trial court
would not have erred in prohibiting such evidence. If, however, Ward’s actions were not
purely symbolic—if they had some ability to actually avoid or minimize his perceived
harms—then the evidence he offered would not have been aimed at inducing jury
nullification and the trial court would have erred in prohibiting it. When civil
-10- No. 77044-6-Ill I
disobedience and the necessity defense intersect, it is the intent of the protester, not the
effectiveness of the protest, that is of the utmost relevance.
Here, in order to determine the intent behind Ward’s actions, we must first
determine what specific harm his protest was intended to avoid. If Ward was protesting
global warming as a whole, then the impact of his action would be so infinitesimal that
we would be unable to conclude anything other than that his actions were symbolic in
nature. If, however, Ward was protesting more than climate change as a whole—if the
harm he was attempting to alleviate was, for example, the danger of Canadian tar sands
oil specifically or the danger that global warming poses to Washington—then we could
conclude that his actions were actually intended to have an impact on the harm that he
sought to avoid.
Below, Ward phrased the harm that he sought to avoid as more than just global
climate change. Ward asserted that the harm he was attempting to avoid was threefold:
(1) global climate change, generally, has the potential to destroy our way of life, (2)
Canadian tar sands oil is a uniquely potent contributor to climate change, and (3) the
localized impacts of climate change on Washington has the potential to be debilitating.
Ward argued that “tar sands oil represent[s] an elevated level of risk to global
climate[,]” and that he felt he needed to act “in order to stop the advance of global
warming, encompassing both current and projected warming in Washington state,
ocean acidification, and impacts on local ecosystems and residents.” Further, Ward
argued that his “temporary shut-down of tar sands oil flowing through the Trans
Mountain Pipeline certainly minimized the harm flowing from that quantum’s contribution
—11— No. 77044-6-1/12
to climate change. . . and from the use of tar sands in particular.” Ward also introduced
exhibits about the danger that sea level rise poses to Washington.
Based on the specific harms that Ward asserted he was trying to avoid, his
actions were not merely symbolic. The protesters’ intent was to physically stop the flow
of Canadian tar sands oil into the United States. Because one of the specific harm
Ward asserted was that Canadian tar sands oil is a particularly potent contributor to
climate change, the protest was not a purely symbolic act. It was a direct way of
preventing a uniquely potent contributor to climate change from entering the United
States.3
Because the harms that Ward asserted he was trying to alleviate were more than
just climate change, generally, but also included both the specific dangers of Canadian
tar sands oil and the impacts of sea level rise on Washington, Ward’s actions were not
intended to be merely symbolic in nature. As such, the evidence he planned to
introduce was not solely aimed at inducing jury nullification and the trial court erred in
preventing Ward from introducing evidence in support of his necessity defense.
V.
The violation of a defendant’s constitutional right is presumed to be prejudicial,
but may be harmless “if we are convinced beyond a reasonable doubt that any
reasonable jury would have reached the same result without the error.” Jones, 168
Wn.2d at 724. “Such a determination is made from an examination of the record from
~ And this type of action appears to be somewhat of Ward’s forte. In the past, Ward has physically placed himself in the way of what he perceived as serious threats to the environment, such as a coal transport ship, in an effort to stop those threats from causing harm.
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which it must affirmatively appear the error is harmless.” State v. Stephens, 93 Wn.2d
186, 191, 607 P.2d 304 (1980).
The closest question in this matter is whether Ward admitted that he had
available reasonable legal alternatives. If he did, it would indicate that the trial court’s
error was harmless. The State points to Ward’s testimony at trial concerning his legal
alternatives.
[Plaintiff’s counsel]: What was your intent in shutting off that safety value on the 11th? [Ward]: To stop the flow of tar sands oil running through that pipeline. [Plaintiff’s counsel]: Why were you attempting to do that? [Ward]: I was attempting to take the most effective measure that I could think of to address this problem to avoid cataclysmic climate change. [Plaintiff’s counsel]: Did you believe that there was anything left to do that may have been legal that could have addressed the issue?
[Ward]: I think that there are legal steps that can be taken, and I continue to take those. But I think that alone they are insufficient. [Plaintiff’s counsel]: What are the other steps that you continue to participate in? [Ward]: Well, I’m engaged in efforts in my own state, which has been quite successful. The City of Portland has just announced a plan to shift to 100 percent renewable energy, and I supported that. I am engaged in general public education. And I am increasingly looking at ways to support candidates for office who endorse a significant plan of action on climate change.
When viewed in its entirety, Ward’s testimony indicates that Ward was
addressing the ineffectiveness of his alternatives and was not admitting that he had
reasonable legal alternatives available to him. Moreover, if the jury was allowed to hear
Ward’s testimony in conjunction with the excluded expert testimony, it could well have
concluded that Ward’s available legal alternatives were futile. The error was not
harmless.
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We reverse and remand.
IL’ C~T
WE CONCUR:
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