## Facts

- A group of anti-nuclear demonstrators, including John Warshow, gathered at the main gate of the Vermont Yankee nuclear power plant in Vernon, Vermont.
- The plant was shut down for repairs and refueling and was about to be returned to operation.
- The protest was intended to impede workers’ access to the plant.
- The demonstrators remained on private property after being asked by plant representatives and law enforcement to leave.
- After refusing to leave, defendants were arrested and charged with unlawful trespass under Vt. Stat. Ann. tit. 13, § 3705.
- At trial, defendants asserted the common-law defense of necessity, offering evidence about alleged dangers of nuclear power (radiation exposure, waste accumulation, and risk of accidents).
- The trial court excluded the proffered nuclear-hazard evidence, declined to compel the requested defense witnesses, and refused to instruct the jury on necessity on the ground the defense was unavailable as a matter of law.

## Issues

1. Whether the common-law necessity defense is legally available to defendants charged with unlawful trespass arising from planned civil disobedience aimed at preventing operation of a nuclear power plant.
2. Whether defendants’ proffer was sufficient to require admission of necessity-related evidence, compulsory process for witnesses, and a jury instruction on necessity.

## Decision

- The Vermont Supreme Court affirmed the convictions.
- The court held the necessity defense was unavailable on these facts because the claimed harms were not an imminent emergency and lawful alternatives existed.
- The court upheld the trial court’s exclusion of necessity evidence, refusal to compel witnesses, and refusal to instruct the jury on necessity because the proffer could not satisfy the doctrine’s elements as a matter of law.

## Legal Principles

- Criminal necessity is a “confession and avoidance” defense: the defendant admits the act but claims justification.
- Necessity requires proof of four conditions:
  - An emergency arising without fault of the actor.
  - The emergency is so imminent and compelling that harm is reasonably expected.
  - No reasonable opportunity exists to avoid the injury without committing the criminal act.
  - The threatened injury is sufficiently serious to outweigh the criminal wrong.
- Necessity does not justify criminal conduct undertaken to prevent speculative, uncertain, or long-range harms, particularly where the defendant has reasonable lawful means to address the concern.
- Courts may treat policy disagreements with legislatively and administratively regulated activity as outside the proper scope of necessity in a criminal trespass prosecution.

## Conclusion

The court left the trespass convictions intact, ruling that antinuclear civil disobedience at a private facility could not be justified by necessity because the asserted risks were not legally imminent, defendants had reasonable lawful alternatives, and the proffer failed as a matter of law to meet the doctrine’s strict requirements.


State v. Warshow, 138 Vt. 22, 410 A.2d 1000 (Vt. 1979)