Rob McKenna: Personal views and political frustration don’t excuse the criminal blockade of a train

One of the fundamental principles of civil disobedience, from Thoreau to Gandhi to Dr. Martin Luther King, is: do the crime, be prepared to do the time. It’s a time-honored tradition seen by protesters as the cost of bringing broader attention to their cause. But some activists are asking courts in Spokane and elsewhere to ignore this principle. If they succeed, they not only will undermine the rule of law, they will cause grave risk by encouraging others to commit illegal acts that put themselves and others in danger.

Environmental activists who have been charged for disruptive and potentially life-threatening protests have convinced some judges, in our state and in Minnesota, to allow them to present the so-called “necessity defense.” This rarely available criminal defense excuses law breaking when necessary to avoid an obvious and imminent greater harm. For instance, trespassing on private property to escape a vicious dog could be deemed “necessary.”

Activists now want to use this defense to put on show trials over their concerns about climate change. The activists contend they had “no choice” but to block freight trains and shut off pipeline valves to prevent the movement of crude oil in an effort to stop global warming. They aim to turn trespassing and property damage trials into political displays.

This tactic has come to Spokane. Last October, Judge Debra Hayes decided to allow George Taylor, one of several protesters who blocked a BNSF freight train carrying crude oil, to present a necessity defense to the jury in his criminal trespass case.

There’s a lot wrong with allowing this defense in Mr. Taylor’s case, beginning with the simple fact that stopping a train for 30 minutes could have no possible impact on climate change. Moreover, our criminal courts are not the place to address major public policy concerns, our legislatures are. As the 9th Circuit Court of Appeals ruled in another case, involving a man who splashed fake blood on an IRS office to protest U.S. policy in El Salvador: “The law should not excuse criminal activity intended to express the protester’s disagreement with positions reached by the lawmaking branches of the government.”

Indeed, protesters who take illegal and hazardous actions to score political points deserve no such protection. Their actions have nothing but a symbolic connection to the harm they hope to prevent and they cannot honestly contend they have exhausted all legal avenues to accomplish their goals. As Mr. Taylor put it to reporters in 2017: “We can’t wait for ballot measures or until environmental leaders can devise better policies.”

There are good reasons the federal courts have rejected the necessity defense for symbolic protests. Consider a world where anyone can attempt to impose their policy preference on the rest of us by breaking laws enacted to protect all of us. Forcing a freight train loaded with oil to an emergency stop is hardly a riskless or inexpensive proposition. It increases the odds that the train could derail, spilling its contents on the ground or worse, injuring the crew and innocent bystanders. Allowing this type of defense to go forward only encourages further reckless acts.

Any protester who is truly committed to civil disobedience understands the stakes: do the crime, do the time. Even better, use the democratic process to achieve your goals instead of putting others at risk through your symbolic acts. Turning a criminal trial into a climate trial guarantees nothing more than an expensive and futile sideshow.