State v. Warshow

The Facts

Defendants traveled to Vermont to protect at the main gate of a nuclear power plant.  Their intent was to prevent workers from gaining access to the plant.  When requested to leave the private property, they refused and were arrested.

Procedural History

At trial, defendants asserted defense of necessity on the grounds that the hazards of the plant created a situation such that it was necessary for them to undertake their actions.  The defense was rejected by the court and is the basis for appeal.

The Issue

Whether defendants’ created a position sufficient to establish enough proof for the elements of necessity defense to raise a jury question.

The Holding

No, upheld.  Defendants sought to call nuclear experts who would testify that the radiation emanating from the plant created such hazardous conditions to constitute an emergency.  However, there had been no serious accidents at the plant.  “… low-level radiation and nuclear waste are not the types for imminent danger classified as an emergency sufficient to justify criminal activity.”  “To be imminent, a danger must be, or must reasonably appear to be, threatening to occur immediately, near at hand, and impending.”  Defendants cite long-range risks of low-level radiation; these are not imminent threats.  The specter of an actual nuclear accident does not create an imminent danger because it has not yet occurred, nor is it impending.  The element of imminent danger required to raise the necessity defense, therefore, is absent.


The sole issue to be raised is whether the defense of necessity should have been raised.  The public policy reasoning behind necessity defense is that there are circumstances where it would be unjust to apply a criminal charge for a particular action.  In so doing, the jury, not the judge, should balance competing values.


The court is not the decider of “imminent danger” elements.  That is a question for the jury.  Moreover, the court has taken it upon itself to weigh the credibility of the testimony and evidence presented by defendants; which is specifically something reserved for the jury.  The reactor, at the time of the protest, was just down; but defendants specifically stated that they felt its restart date was a particular date of imminent danger because there was a threat of meltdown upon restart.  This statement is sufficient to constitute the element of imminent danger required for the necessity defense.


Economic necessity has never been a legitimate defense to a criminal charge.  For example, this would allow the act of larceny due to economic necessity.

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