Five climate protestors used a choice of evils defense and were nearly acquitted on criminal trespassing charges this week.
Five climate protestors used a "choice of evils" defense and were nearly acquitted on criminal trespassing charges this week. Rick Rappaport

A criminal trespassing case against five Portland climate activists ended in a hung jury on Thursday, meaning the case could be re-tried. But because of the way the defense’s case was argued, those climate activists are treating the jury’s split decision as a partial victory.

Last April, a small group of protestors associated with climate activism group Extinction Rebellion Portland blocked a railroad terminal used by Zenith Energy, a Canadian company that has been exporting crude oil through Portland. After the protestors camped out for a full day and planted a small garden to block the railway’s path, Portland police arrested 11 of them. Five of those arrested— Ken Ward, Michael Horner, Emily Carl, Jan Zuckerman, and Margaret Butler—were later charged with criminal trespassing in the first degree.

On Thursday, a Multnomah County Circuit Court jury declined to convict the five protestors, after failing to come to a consensus. Five out of the six jurors were in favor of acquittal—not because they believed the activists hadn’t trespassed, but because they did so in an attempt to protect the environment.

“The jury’s inability to convict the activists reflects the prevailing community consciousness, which is unlikely to punish climate defenders for acts of nonviolent resistance,” said defense attorney Lauren Regan in a media statement sent Thursday.

Regan, an attorney with the Civil Liberties Defense Center, used a defense known as a “choice of evils.” Regan essentially argued that because Zenith’s crude oil trains were contributing to global warming and posed an immediate environmental danger to Portland, trespassing to block the trains was a permissible action.

When giving the jury their instructions, Multnomah County Judge Heidi Moawad explained how the choice of evils defense could be used in their considerations:

“Conduct that would otherwise constitute an offense is otherwise justifiable and not criminal when: One, the defense’s conduct is necessary as an emergency measure to avoid an imminent injury; and, two, the threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of the defendants avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the law that makes criminal trespass in the first degree a crime.”

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This was one of the first uses of the choice of evils defense in relation to climate activism in a United States courtroom, according to the defense team. Climate activists are hopeful that the jury’s near-acquittal bodes well for using the line of defense in future cases.

“That a jury could not convict us of trespass… is a partial victory for common sense,” said Ward, one of the protestors, in a statement. “When citizens are told the truth about the climate crisis — which is the first of Extinction Rebellion’s demands — they take appropriate and responsible action, as our jury did, and we thank them.”

It’s now up to the Multnomah County District Attorney’s to decide whether they will pursue a new trial against the five activists or drop the charges. That will likely be decided in a hearing next week.