Protesters gather outside federal immigration offices in Williston last July. File photo by Terry J. Allen
BURLINGTON — A group of protesters who were arrested after blocking traffic in Williston to call attention to the Trump administration’s family separation policy last summer will not be allowed to argue to a jury that their actions were necessary to prevent a greater evil, a judge has ruled.
Judge Martin A. Maley ruled Jan. 24 that he would not allow the group to use the so-called “necessity defense,” an unorthodox legal maneuver that allows the defendants to say that their actions were justified in order to avert greater harm.
More than 100 people attended the July 28 protest outside of the Immigration and Customs Enforcement agency tip center on Williston’s Harvest Lane. Nine of the 11 adults who were arrested are seeking criminal trial by jury, while two accepted entrance into a court diversion program.
The protesters are facing disorderly conduct charges, which carry a penalty of 60 days in jail and/or a $500 fine.
Maley ruled that a reasonable juror would not find the requirements of the necessity defense were met.
These requirements stipulate that there must be an emergency situation; that the emergency must be so imminent as to raise a reasonable expectation of harm for the defendant or those they were protecting; that there must be no reasonable way to avoid the injury without doing the criminal act; and that the injury caused by the emergency must outmeasure the criminal action.
Maley found that a reasonable juror could decide that the family separation policy was an emergency situation, and that the emergency was imminent as to raise a reasonable expectation of harm for those the defendants were protecting.
But he found that the defendants did not meet the third requirement, which mandates that there had to have been no reasonable way to avoid doing the criminal act.
“Defendants failed to allege that they reasonably believed that sitting in the road would lead to a discontinuation of the family separation policy,” Maley wrote.
The attorney for the defendants, Robert Appel, had argued that the horrors of the family separation policy were so severe that the protesters felt they had no option other than to block the traffic outside of the ICE tip center.
Attorney Robert Appel. File photo by Cory Dawson/VTDigger
Zoe Newman, deputy state’s attorney, argued that the defendants would not be able to prove that they reasonably believed their actions would lead to the end of the family separation policy.
She also argued that the defendants would not be able to prove that there was any imminent emergency which would lead to harm for the defendant.
The “necessity defense” has succeeded in a high-profile Vermont case before. In 1984, 26 protesters who had occupied the Winooski office of Republican Sen. Robert Stafford to protest U.S. involvement in Central America successfully used the defense to be acquitted of the trespassing charges against them.
Maley also granted a motion by the state to exclude evidence related to White House immigration policies and ICE actions.
Appel has filed a motion asking Maley’s order to be referred to the Vermont Supreme Court for review. He wrote in that motion that the order precluded the defendants from using the defense of their choice and from testifying on their motivation for their actions.
Read the story on VTDigger here: Protesters blocked from using ‘necessity defense’ to fight charges.