Appeal Seeks To Establish Right to Trespass on Clinic Property To Stop Involuntary Abortions

TMLC ^ | 2-12-2003 | staff

[Catspaw]

Second, if you had some "necessity" then you actually could trespass even in a private home.

Try to do that in about 99% of any freeper home & you'd have a loaded weapon of some sort pointed at a significant part of your body.

However, I would like to see your legal cite for that "necessity" defense.

[Notwithstanding]

Well, its sort of what anyone knows by instinct as a member of the human family - and the common law has traditionally recognized it and still does in many jurisdictions, and in some jurisidictions it is even codified (written into law by the legislature):

If you have reason to know of a person on private property who needs to be rescued (or a fire that needs to be quenched, or some other emergency occuring on private property, etc.) then you can go on to the private property and trespass while not be liable for the trespass.

[Brookhaven]

I don't think this case fits the argument because he didn't know specificly that anyone was being forced to have an abortion.

If he knew specificly that someone was being forced or coerses (sp?) to have an abortion (like a parent telling their daughter they would kick her out onto the street if she didn't have an abortion) then I think he might have some grounds for his defense.

Of course, since the law is rigged to prevent anyone getting close to someone that is planning an abortion to find out why, it will be hard to track down those cases where a woman is being forced to have an abortion.

[Brookhaven]

So if you "have reason to believe" something is wrong, you can trespass?

Could this be established statisticly? If a study found that 10% of women that had abortions felt they were force or coerced into doing so, then it would be reasonable to assume that on any given day at any large abortion center at least one women was being forced.

[Notwithstanding]

http://216.239.37.100/search?q=cache:sXTnqKZ-o9YC:www.fed-soc.org/Publications/practicegroupnewsletters/environmentallaw/el010106.htm+necessity+defense+trespass&hl=en&ie=UTF-8

[Notwithstanding]

This is G o o g l e's cache of http://www.fed-soc.org/Publications/practicegroupnewsletters/environmentallaw/el010106.htm.
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	Statutory Codification of Common Law Property Rights - A Mistake
	Erick Kaardal* State legislative property rights advocates, beware! Imagine your state's landowners without any recourse against ordinary trespassers such as hunters. First, peace officers would stop responding to landowner complaints about trespassers. Second, trespassers, understanding their new position vis-a-vis landowners, would begin entering more and more private land. Soon, the ownership of private land would no longer offer the peace and solitude it once did. So much for the American dream. This hypothetical scenario is well on its way to being realized in Minnesota. The main culprit in bringing it about: state statutory preemption of common law property rights. The Minnesota State Legislature has codified the rights of landowners and trespassers; and the trespassers won! Before we analyze the state trespassing statutes we should remind ourselves of the virtually perfect common law rules relating to trespass developed through hundreds of years of judging by American, and their predecessor English, judges. First, a person who enters private land without title or an interest entitling him to do so is a trespasser. Second, a person is not a trespasser, even though he otherwise would be, if it is necessary for him to enter the private land out of necessity to save life or property. The benefits of these rules are obvious. First, in almost all cases, certainty exists for landowner and trespasser. Unless a necessity exists, entry is a trespass. If a trespass occurs, the landowner calls the peace officer. Case closed. Second, and most importantly, private property is the foundation of liberty. Without laws and governments enforcing private property rights, we cannot be free. Minnesota statutes have changed all that. In Minnesota, the state legislature permits entry onto non-agricultural private land without prior permission unless the land is properly posted. Minn. State. §97B.001 states in part that, A person may not enter for outdoor recreational purposes any [non-agricultural] land that is posted . . . without first obtaining permission of the owner, occupant, or lessee. [Emphasis added] The result of the statute is that the virtually perfect common law rules of property rights are preempted. Now a person can enter someone else's property without permission. In a true and realistic sense, the statute violates this nation's common law property rights tradition and the natural law by granting individuals the "right" to trespass. The problem with any attempt to codify common law property rights is evident in Minnesota's example. A straightforward syllogism will explain. First, landowners cannot possibly have a better set of legal rules than traditional common law rules regarding trespass. Second, any legislative reform relating to common law trespass will preempt the common law by either reducing the initial property rights landowners have or by modifying the necessity defense. The conclusion of the syllogism is landowners will never be better off with any statutory codification of their common law property rights. The syllogism made is defensible. The two common law rules respect private property in the right proportion, moderation. The necessity defense offers the judge an opportunity to avoid an absurd result by a straight application of the general common law rule of prohibiting trespass. Examples would be an entry, that would otherwise be a trespass, which saves a boy's life or a herd of cattle. No reasonable landowner could object to this narrow exception to his otherwise absolute right to exclude. Codification of common law property rights invariably leads to preemption of common law property rights. How can it be avoided? The issue, all of a sudden, becomes one of statutory interpretation, not common law precedent. Further, the statutes themselves may expressly, as in Minnesota's example, attempt to take common law property rights of landowners away. The conclusions of this article are not obvious, particularly in the context of the liberal judges that dominate many state court systems like Minnesota's. The first reaction of a state legislator and property rights advocate to a liberal judicial decision, for example, expanding the necessity defense, will be "Let's pass a statute and restrict the latitude of the state judge to expand the necessity defense." So the statute is passed defining the necessity defense and it may restrict the liberal judge next time (but probably not), but it may also prevent a conservative judge from obtaining a just result. The state legislator just can't do any better than doing nothing and leaving the common law alone, even if the court system is dominated by liberal judges. Of course, the discussion here must be distinguished from state legislative initiatives to interpret the Constitutional principle of just compensation for takings by physical appropriation and by regulation. Those efforts are different than the ones discussed here. Any statute which assists landowners in realizing his Constitutional rights to just compensation for a government taking is a noble effort; whereas codifying common law property rights is a mistake. So what is left to do in this area of common law property rights for our state legislative and property rights advocating friends? First, consider running for Governor so you can appoint good common law judges. Alternatively, enlist someone else of our persuasion to run. The judges to appoint are ones who would perform well according to the 19th century American common law tradition without any additional training. Second, if being Governor is not in the cards, you should attempt to initiate, by legislation, mandatory remedial property rights training for your state's judges. If some judges are by law required to take diversity training, why not a course in private property rights - the foundation of our liberty? Ensure that the instructors cover the basic common law. Third, develop a strategy to assist wronged landowners in bringing their cases to court so your state can develop a sophisticated body of case law concerning property rights. Fourth, join the Federalist Society Environmental Law and Property Rights Practice Group and network with others interested in property rights. * Erick Kaardal is an attorney in the Minnesota firm of Trimble & Associates. He is Vice Chairman of Publications for the Environmental Practice Group.
2001 The Federalist Society

[Catspaw]

I asked for an legal citation (e.g. case law), not an opinion piece. Can you come up with one?

[Notwithstanding]

With a little googling I am sure you can find one yourself.
This "opinion piece" from the Federalist Society is well-researched and cites the common law and one state's attempt at codifying the common law.

[Catspaw]

This case is on appeal. The Wisconsin Court of Appeals is not going to look to an opinion piece (they may take judicial notice of it in a footnote, but that's not going to be the basis for their decision). They want case law--simply because basing the Court's decision on an opinion piece would be the Court making new law. They aren't going to do that.

[BlackElk]

Were you feeling left out?

[Notwithstanding]

I presume that TMLC is seeking to establish a precedent.

Necessity defense has not been successful in the past due largely to the legal (but immoral "binding" fiction) that a fetus deserves no protection (which is itself at odds with Roe), but since then laws protecting fetal life have sprung up all over, including laws in Wisconsin.

I suspect (but have no inside info) that they will combine legislative developments granting legal protections to human fetal lives and the right a mother has to know what she is doing to her child.

[Catspaw]

I'm talking about the "necessity" defense in its entirety, not as it specifically applies to abortion/abortion clinics, simply because that's how the Court of Appeals is going to approach it, and how their decision is going to be decided--and further interpreted by other courts.

In essence, they're asking the Court of Appeals to make law as regards to the "necessity" defense as it applies only to abortion clinics. I doubt if any appeals court decision can be drawn that narrowly. I do expect, however, that this will be appealled to the Wisconsin Supreme Court, no matter which side is the victor.

[Notwithstanding]

There are dozens of cases that treat abortion protesters use of this defense in a specific way - in all sorts of fed and state jurisdictions.

It always points back to abortion being legal and the unborn having no rights.

Thats how the courts look at it.

After looking again, I think the TMLC argument will focus in on this (from the article):

"The Law Center pointed out that there is
no constitutional right to perform an abortion,
and any medical procedure performed without voluntary and informed consent is a battery under Wisconsin law."

The trespass is against the folks performing abortions, not the moms, and thus the right to GET an abortion is not really at issue, which was key from past courts rulings denying this defense of necessity. In addition there is a right to informed consent which women are being denied.

[Notwithstanding]

If tyou are familiar with legal briefs, you would enjoy and be extremely impressed by any brief written by Muise. He is a genius and judges have a hard time ignoring him.

[Catspaw]

Once again, that is not how the Wisconsin Court of Appeals is going to approach the appeal on the use of the necessity defense, because they are first going to rule on the general use of the necessity defense, then how the necessity defense may be used by the defense in this case. And that's all, because this is an interlocutory appeal. The issues of law concerning abortion clinic protests and a challenge to the specific law under which Goodman was charged would have to wait if and until Goodman was convicted. (943.145(2) Criminal Trespass to Medical Facility) http://wcca.wicourts.gov/caseDetails.do;jsessionid=343CF84A03F24BCBB23CFF18DD2C2082.render4?caseNo=2000CM004739&countyNo=13&cacheId=1F174CD03FDEB3F19EA77FDA22DCF4DD&recordCount=27&offset=18

We'll just have to wait for the Court of Appeals decision, and the subsequent Wisconsin Supreme Court decision.

[Siobhan]

God bless you, Black Elk. ¡Viva Cristo Rey!

[Illbay]

Yes, and on any given day there are 10% more "disenfranchised" people living in the U.S. than the Census has counted, therefore we need to increase the number of Democrat-safe congressional seats proportionally.

[BlackElk]

I have litigated this issue and you are correct that the courts wrongfully use Roe v. Wade as the excuse to deny the ancient common law necessity defense which is otherwise properly applied in American courts when abortion is not involved.

The necessity defense relies on the SUBJECTIVE belief of the actor (which must be an objectively REASONABLE belief whether the actor is correct or not as to the facts) that his or her action, though otherwise illegal, will prevent a greater harm.

It is objectively reasonable to believe that the unborn child is a human being from the moment of conception whether or not the abortionist, the mother or the abortion-mill protecting law enforcement officials agree with that conclusion or not.

There is little doubt in these cases of "criminal trespass" to prevent abortion that the actor SUBJECTIVELY believes that human beings are about to be killed when the mill opens for business even if patient Mary Jones happens to choose such a strange location for a pap smear.

If it is necessary that there be some reasonable possibility of success, Planned Barrenhood's own Alan Guttmacher Institute has claimed that fully 20% of those turned away from abortion mills by "rescuers" occupying the premises will not return and will bear the child whom they had intended to abort.

Examples of the necessity defense being successfully applied in American courts include: the violation of the reasonable statute prohibiting the laying across railroad tracks of anything which might constitute an obstruction when the violation involves putting a water hose across the track to fight a nearby fire (Minnesota); or the violation of an otherwise reasonable statute against vehicular speeding when the driver of a private vehicle is hurrying a woman in labor to a hospital (Connecticut).

The books which report the decisions of our appellate courts: state and federal, give many other examples of the approval by courts and application of the necessity defense. The defense still has to be proven and not merely alleged. That is, the defendant must prove that his belief is objectively REASONABLE (but NOT that it is true) and that he sincerely SUBJECTIVELY held the belief and that his apparent violation of law was necessary to prevent a greater harm. The death of an unborn child by intentional action of another is reasonably a greater harm than a temporary trespoass as to property.

The courts have been curiously resistant to the application of the necessity defense to those seeking to prevent abortions by comparison with other situations. If the mere fact that a court, even the SCOTUS, has made a decision such as Dred Scott denying the humanity of the slave and his standing to challenge his status, or Roe v. Wade denying the humanity of the unborn or Plessy v. Ferguson which declared segregation to be legal so long as it was "separate but equal," in and of themselves made the beliefs of thgose disagreeing with SCOTUS or any other court per se unreasonable, the courts, including SCOTUS would be depriving themselves of the ability to reverse their own errors in subsequent cases.

The obvious fact is that SCOTUS imposed the silly notion of the lack of the humanity of the unborn not because of any requirement of the US Constitution or of federal law or of common law but in spite of all three. SCOTUS is not and never will be infallible even when we might like it to be. Few of us appreciate what a sorry state the vaunted "Rule of Law and not of Men" has reached.

There is absolutely no constitutional guarantee that is truly safe from the courts when abortion is involved in the controversy.

Crimes against humanity (abortion was so defined in the Nuremburg trials according to published work of the very Catholic Professor John Hunt, history professor at the NOT very Catholic St. Joseph's College in West Hartford, Connecticut, and he has the transcripts to prove it) are now the "Law of the Land" in the United States.

In reviewing the applicability of the necessity defense, the Wisconsin Appellate and Supreme Courts will likely review the history of the defense itself which has been part of the common law for many centuries before turning to its applicability to the actions of the gentleman arrested. See Blackstone. The procedure in this matter seems to be a plea of nolo contendere (the defendant chooses not to contest the factual allegations of the state) with a reservation of the right to test the denial of the necessity defense as a matter of law. If the defendant prevails, the state will have the decision to try him or not to try him but the necessity defense will have to be allowed. If the appeal fails, he will stand convicted as a result of the nolo contendere plea. This is actually considerate behavior by the defendant in that he could make the same claims on appeal after a full jury trial. He is probably represented by lawyers who represent him without charge and they are merely making this a pure case on the law of necessity and its applicability.

Property rights of the owner or lessee are not the key to this case. The defendant is essentially, by a plea of nolo conendere, conceding the facts (for the purposes of the criminal case only) as alleged by the prosecution, prsumably that he entered property owned and/or controlled by another and did not leave when ordered to do so or whatever the trespass statute may require. The only issue now being litigated is whether he was entitled to do so despite that concession of fact on the basis of a defense of necessity.

Ironically, while the Founding Fathers would not have imagined in a million years that they were promulgating a constitution that would protect "the right to abortion", they very well knew that they were promulgating a constitution intended to preserve the common law, modifiable by statute or by subsequent decisions consistent with common law standards. Most of our founders were men well acquainted with the common law and with Blackstone as its great scholar.

[victim soul]

I guess if I see a fire in your house -- you wouldn't want me to stop and try to save you and your family.

[Catspaw]

Not quite accurate on the case status, Black Elk. From what I can gather, Goodman's previous guilty/no contest plea (it's impossible to tell which one he entered by the records on CCAP) was vacated by the appeals court and he's going to get a new trial in April. As far as I can tell, the appeal is only on the use of the necessity defense (which would have to have been denied by the trial court judge), not a direct challenge of the constitutionality of the law under which he's been charged. It may be that Goodman is challenging the law indirectly, but unless someone has the briefs, it's still difficult, if not impossible to tell what is being challenged beyond the use of necessity defense.