United States v. Gregory D. Schoon, United States of America v. Raymond K. Kennon, Jr., United States of America v. Patricia Manning

939 F.2d 826 60 USLW 2155 UNITED STATES of America, Plaintiff-Appellee, v. Gregory D. SCHOON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond K. KENNON, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Patricia MANNING, Defendant-Appellant. Nos. 90-10167, 90-10210 and 90-10250. United States Court of Appeals, Ninth Circuit. Submitted May 13, 1991. * Decided July 29, 1991. Fredric F. Kay, Federal Public Defender, Harriette Levitt, Tucson, Ariz. for defendants-appellants. Roger L. Duncan, Asst. U.S. Atty., Tucson, Ariz. for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before FARRIS, BOOCHEVER and FERNANDEZ, Circuit Judges. BOOCHEVER, Circuit Judge: 1 Gregory Schoon, Raymond Kennon, Jr., and Patricia Manning appeal their convictions for obstructing activities of the Internal Revenue Service Office in Tucson, Arizona, and failing to comply with an order of a federal police officer. Both charges stem from their activities in protest of United States involvement in El Salvador. They claim the district court improperly denied them a necessity defense. Because we hold the necessity…

Gregory Schoon, Raymond Kennon, Jr., and Patricia Manning appeal their convictions for obstructing activities of the Internal Revenue Service Office in Tucson, Arizona, and failing to comply with an order of a federal police officer. Both charges stem from their activities in protest of United States involvement in El Salvador. They claim the district court improperly denied them a necessity defense. Because we hold the necessity defense inapplicable in cases like this, we affirm,

I.

On December 4, 1989, thirty people, including appellants, gained admittance to the IRS office in Tucson, where they chanted “keep America’s tax dollars out of El Salvador,” splashed simulated blood on the counters, walls, and carpeting, and generally obstructed the office’s operation. After a federal police officer ordered the group, on several occasions, to disperse or face arrest, appellants were arrested.

At a bench trial, appellants proffered testimony about conditions in El Salvador as the motivation for their conduct. They attempted to assert a necessity defense, essentially contending that their acts in protest of American involvement in El Salvador were necessary to avoid further bloodshed…

concurring:

I agree with much of what Judge Booc-hever says regarding the application of the necessity defense to this type of case.

I do not mean to be captious in questioning whether the necessity defense is grounded on pure utilitarianism, 1 but fundamentally, I am not so sure that this defense of justification should be grounded on utilitarian theory alone rather than on a concept of what is right and proper conduct under the circumstances. See, e.g., G. Fletcher, Rethinking Criminal Law, 759-875 (1978). Cf., J. Thomson, Rights, Restitution and Risk, 78-116 (1986) (some reflections on the trolley problem). At any rate this doubt would not prevent me from joining in Judge Boochever’s opinion.

I do, however, feel that the law of this circuit constrains me from saying that the necessity defense is not available in these kinds of cases. That law is canvassed in Judge Boochever’s opinion and need not be restated by me. Of course, Judge Booc-hever is exactly right about the outcome of this case. He is also probably right about the outcome of all other cases of this type in the future. Those who would think to use this defense should first think deeply about what Judge Boochever…