Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 940 F.2d 1536 (9th Cir. 1989)

NITED STATES of America, Plaintiff-Appellee,v.Judith ALLEN, Richard Ceisler, Robert O'Brien, VictoriaWard, Defendants-Appellants.

Nos. 90-10400, 90-10550 to 90-10552.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1991.Decided Aug. 5, 1991.

Before HUG, SCHROEDER and WIGGINS, Circuit Judges.


Judith Allen, Richard Ceisler, Robert O'Brien and Victoria Ward appeal their convictions, following a bench trial, for entering a military base for an unlawful purpose in violation of 18 U.S.C. § 1382. The defendants contend that the district court erred when it concluded that they had not proved that they were entitled to the necessity defense. We affirm.

The defendants were political protesters who were involved in an effort to prevent the use of stolen greyhound dogs in an experiment at Letterman Army Institute of Research ("Institute"). The Institute is located on the Presidio in San Francisco and was to be the site for an experiment scheduled to take place beginning the first week of September 1989. The experiment would have resulted in the destruction of the dogs.

From late July through August (1989), the defendants attempted to obtain information from military officials at the Institute. The information would have verified that the dogs were, in fact, stolen and that their use in the impending experiment was illegal. The defendants wrote letters and called officials at the Presidio as well as local and national political leaders in an effort to obtain the information and to publicize the illegal use of the dogs. The defendants also demonstrated outside the Presidio on numerous occasions.

On August 31, 1989, the defendants and other protesters gathered outside the Presidio to demonstrate. The four defendants entered the Presidio carrying placards and stood outside the Institute until they were arrested a short time later. The Institute subsequently released the serial numbers of the dogs, which eventually led to the release and return of the dogs to their owners.

On October 31, 1989, the defendants were each charged with one count of unlawful entry into a military installation in violation of 18 U.S.C. § 1382.1  The defendants presented the defense of necessity. After a one-day bench trial before District Judge Fern Smith, the defendants were found guilty and were each sentenced to probation and community service. Judge Smith found that the defendants could not prevail by asserting the necessity defense because they (1) failed to show that the entry into the Presidio led to the cessation of the research, and (2) did not pursue alternative legal options available, including seeking permission for the demonstration. The defendants timely appeal.

Appellants contend that the district court erred when it concluded that they were not entitled to the necessity defense because they failed to show that their acts resulted in the cessation of the research.2 

"A defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he/she was faced with a choice of evils and chose the lesser evil; (2) that he/she acted to prevent imminent harm; (3) that he/she reasonably anticipated a causal relation between the conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law." United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989), cert. denied, 111 S. Ct. 751 (1991) (citing United States v. Dorrell, 758 F.2d 427, 430-31 (9th Cir. 1985)). With respect to the third requirement, a defendant must show that " 'a direct causal relationship [was] reasonably anticipated to exist between the defender's action and the avoidance of harm.' " Dorrell, 758 F.2d at 433 (quoting United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972)).

The district court found that other alternative legal options were available to bring about the cessation of the tests on the dogs, such as seeking permission in writing to demonstrate or putting down the signs so they could meet with the commanding officer. We review this finding under the clearly erroneous test and sustain it.

Furthermore, we note that the defendants failed to demonstrate that a lawsuit against the Government was not a viable alternative. See Aguilar, 883 F.2d at 693. Thus, we affirm the district court's finding that the necessity defense was not available.

We also agree with the district court that there is no doubt as to the sincerity of defendants' aims and, indeed, that they may have contributed to a beneficial result. However, as the district court found, the defendants violated the law and have failed to demonstrate a valid necessity defense. Thus, the convictions must be affirmed.


SCHROEDER, Circuit Judge, concurring.

I concur in the result. Based upon this record, it is impossible to hold that defendants reasonably believed their demonstration would result in stopping the experimentation, much less that it was the only available means to stop it.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


18 U.S.C. § 1382 provides:

Whoever, within the jurisdiction of the United States, goes upon any military, naval or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation ... [s]hall be fined not more than $500 or imprisoned not more than six months, or both.

Further, regulations promulgated by the commanding officer of the Presidio provide: "Picketing, demonstrations, sit-ins, protest marches, political speeches and other acts of public persuasion ... are prohibited by Army regulation and will not be conducted on the Presidio of San Francisco without permission."


The defendants do not dispute that they committed the offense. They appeal only the ruling that they are not entitled to the defense of necessity