Valve-Turner Conviction Gets Overturned, Breathing New Life Into “Necessity Defense”

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A Washington state appeals court threw out the conviction of “valve-turner” Ken Ward, ruling “the trial court erred in preventing Ward from introducing evidence in support of his necessity defense,” thereby violating his constitutional rights. 

Ward was one of five activist extremists who launched a coordinated effort to stop the flow of oil from Canada into the U.S. by breaking into the pipeline valve stations in four different states and closing emergency shut-off valves.

During Ward’s trial, the State argued that Ward had failed to meet the four criteria required to invoke the necessity defense. Specifically:

  • the 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.

The appeals court disagreed, arguing that any challenge to the necessity defense “requires the trial court and appellate courts to interpret the evidence most favorably for the defendant.” (Emphasis added.)

 “In this light,” the court wrote, “we review Ward’s offer of proof as to each element of the necessity defense.” And, boy, did they ever.

Following is how the appeals court interpreted Ward’s case for 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.

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.”

“Whether his beliefs were reasonable,” the court added, “was a question for the jury, not the trial court, to decide.”

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 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.”

(It’s interesting to note that, based on the court’s determination that Ward “offered sufficient evidence to show that the harms of global climate change were greater than the harm of breaking into Kinder Morgan’s property,” activists appear free to undertake actions far greater than shutting down pipelines, as long as they don’t exceed “the harms of global climate change.”)

C.      Whether the harms of global climate change [were] brought about by Ward was not an issue in this case.

D.      Ward also offered sufficient evidence to create a question of fact on whether there were reasonable legal alternatives.

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 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.

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.

It is now up to the State to determine if they will refile the charges against Ward, thereby granting him the right to present the necessity defense—which the “Keep It in the Ground” activists have called “the Holy Grail of climate activism”—to a jury.