Spokane climate activist can argue he was forced into trespassing train protest, Supreme Court rules

A Spokane climate activist charged with trespassing during an oil train protest earned a legal victory from the Washington Supreme Court that could make it easier for other protesters to defend themselves in court.

George Taylor faces two criminal misdemeanors following his arrest on BNSF Railway property in September 2016. At his trial, Taylor wants to argue to jurors that his actions were his only recourse to fight climate change, a legal theory known as the “necessity defense.” The Spokane County Prosecutor’s Office had successfully argued to appellate courts that Taylor could have achieved his goal through other means.

In a unanimous decision last month, the Washington Supreme Court ruled Taylor should be able to put his argument before a jury.

“While there are always alternatives in the abstract, an alternative that has repeatedly failed when attempted is not a reasonable alternative,” Justice Susan Owens wrote in the opinion, delivered July 15.

Alex Marquardt, staff attorney with the nonprofit Climate Defense Project that filed a brief supporting Taylor in the case, said it’s the first instance he knows of in which a state supreme court has affirmed the use of the necessity defense when someone is conducting a political protest.

“There have been many instances, both successful and unsuccessful, of people trying to use necessity defenses,” he said. “But there are very few appellate decisions that rule on it either way.”

In the United States, a necessity defense has been attempted at trial nearly 30 times in cases involving climate activists, according to the Climate Defense Project. None have been successful.

Along with Taylor’s case, the necessity defense has been used in seven other cases in Washington, according to the nonprofit. Those cases included activists attempting to turn off the Kinder Morgan tar sands pipeline in Mount Vernon, activists blocking transportation of fracking materials from the Port of Olympia and other activists using various methods to block the BNSF Railway, similar to Taylor.

Although some judges have allowed the use of a necessity defense, all were still convicted.

Before using a necessity defense, a judge has to allow it, meaning a defendant must first prove to the judge that they faced serious danger and that their actions were necessary to avoid or minimize that danger. They also have to prove that there are no other alternatives to avoid the harm.

If a court allows the defense, the defendant can use it in front of a jury.

The justices were swayed by evidence of Taylor’s long record of activism that he argued had been ineffectual, noting that he’d written letters to politicians and the newspaper, testified in support of measures before the Spokane City Council to limit the passage of coal and oil trains through downtown and participated in other protests. They also rejected the argument made by a lower court that there “are always reasonable alternatives to disobeying constitutional laws.”

“Imagine the hypothetical hiker who breaks into a cabin to survive a snowstorm,” Owens wrote. “The trespass law they violated is constitutional. Would we deny this individual the necessity defense because he had some chance of surviving outside or could have lobbied for an exemption to the statute for snowstorms at some earlier point in time?”

The Spokane County Prosecutor’s Office had argued that allowing Taylor to make an argument he had to break the law in order to force action on a political question would open the floodgates for jury nullification, when jurors render a not guilty verdict even if they’re convinced beyond a reasonable doubt the person committed the crime.

“We have abortion clinics, we have gun shops, we have pot shops, we have election offices and courthouses, we have a Capitol building, all of which can now be interfered with in the lawful running of their operations if somebody can stand up and say, for the last 40 years, I’ve tried to turn Roe v. Wade in this country,” Stephanie Richards, a Spokane deputy prosecutor, told justices at oral argument in February.

Marquardt said the opinion doesn’t necessitate that a jury find Taylor innocent, only that he be allowed to raise the defense when brought to trial.

“Ultimately it’s the jury that gets to decide,” he said. “That does allow for some kind of community control over these sorts of questions.”

Taylor’s district court case in Spokane was placed on hold pending the outcome of the appeal, which was first lodged in 2018. A new court date hasn’t been set, and Spokane County Prosecutor Larry Haskell did not immediately return a request for comment Friday on the case and the status of the trial.

S-R reporter Laurel Demkovich contributed to this report.