Vermont ICE protestors use 'necessity defense'

Published: Dec. 28, 2018 at 12:29 PM EST
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Should criminal action be forgiven if it's done for the greater good? That's the case nine disorderly conduct defendants are making following a summer protest against President Donald Trump's immigration policy.

"I would absolutely do this all again," said Rachel Siegel, who along with he 14-year-old daughter was arrested in late July. They were among a group of people that blocked a road outside a Williston U.S. Customs and Immigration Enforcement facility. "It's important in the great tradition of civil disobedience to follow our higher moral code and that sometimes it's contrary to the law of our government."

Siegel and eight co-defendants are making the case that their action was necessary. Defense attorney Robert Appel says they were looking to counter the president's policy of separating migrant children from their families and the necessity defense is valid. "A subset of the 150 people decided to bring more attention to their concerns about the welfare of these children and their families. To me, that is not only imminent harm, but serious, immediate, irreparable harm," Appel said.

The state disagrees. Chittenden County Deputy State's Attorney Kelton Olney says they're missing a key requirement of the defense -- showing that some harm was prevented by the criminal action. He's asking the judge to keep the jury from hearing about immigration policy altogether. "A jury would have a hard time separating and focusing on just the elements of the charges alleged and not being side-tracked by what are very hot button topics," Olney said.

Appel says his clients are raising awareness to help limit harm. "By drawing attention to the issues that my clients risked arrest and prosecution to accomplish, it raises the level of consciousness of the general population," he said.

Siegel's daughter saw her case dismissed in family court. She says they had hoped to fight that case in the public eye, too. "We tried to actually get it moved to criminal court, which probably no mother has ever said in their life," Siegel said.

The necessity defense is typically rejected by courts, but it did succeed in the 1984 case of "The Winooski 44." A group of protesters occupied the late Sen. Robert Stafford's Winooski office to protest American involvement in Nicaragua. All 26 defendants were acquitted of trespassing charges.

Both sides now wait for the judge's ruling. The case is set to go to trial on January 14.