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'Necessity defense' in Doug Hughes' gyrocopter case a long shot, experts say

Doug Hughes flys his gyrocopter on March 17 near the Wauchula Municipal Airport. To shine a spotlight on campaign finance reform, Hughes flew his gyrocopter onto the lawn of the U.S. Capitol while carrying letters for each member of Congress. He was arrested and faces federal charges. [JAMES BORCHUCK | Times]
Doug Hughes flys his gyrocopter on March 17 near the Wauchula Municipal Airport. To shine a spotlight on campaign finance reform, Hughes flew his gyrocopter onto the lawn of the U.S. Capitol while carrying letters for each member of Congress. He was arrested and faces federal charges. [JAMES BORCHUCK | Times]
Published Aug. 9, 2015

Doug Hughes wants to tell a jury that he had no choice. He wants to argue that he had to fly a gyrocopter to the U.S. Capitol to deliver 535 letters about campaign finance reform to 535 members of Congress. It was, he wants to say, a necessity.

In his forthcoming trial for the April stunt that thrust him into a national spotlight — and landed him six federal charges and a potential 9½-year prison sentence — Hughes wants to use a defense that, to some legal observers, seems just as outlandish as the act itself.

If permitted, the "necessity defense" will make Hughes' trial less about aircraft regulations and protected airspace and more about the influence of big money in politics. It could allow him to call political scientists and former members of Congress as witnesses, making the courtroom a forum for his cause.

"I'm going to put Congress on trial," Hughes told the Tampa Bay Times last week.

Will it work?

"I don't think his odds are very good," said Susan Rozelle, the associate dean and professor of law at Stetson University College of Law.

The necessity defense, widely used in courts nationwide, is generally considered a justification for a crime committed in an emergency. In such a situation, the harm would have been more severe if the crime had not occurred.

An often-cited hypothetical example involves a person who breaks into a vacant house during a heavy storm. The justification: Had the defendant not committed the break-in, he or she might have died.

Other examples abound in American law. In 2008, a Texas man used the defense to win an acquittal on a marijuana possession charge, arguing that he needed the drug to relieve symptoms of an HIV infection. In 2013, the Minnesota Supreme Court allowed the defense in the case of a woman whose driver's license was revoked after she drove drunk to escape an abusive husband, but eventually ruled against her.

In recent years, the necessity defense has become attractive to practitioners of civil disobedience.

Abortion protesters have used it to justify blocking clinic entrances.

A famous 1989 case involved protesters who threw fake blood inside an IRS office in Tucson, Ariz., and refused to leave to protest tax dollars being sent to El Salvador. A court rejected their necessity argument.

This year, a group of climate change activists known as the Flood Wall Street 11 attempted a necessity defense, having been accused of defying police orders during a September protest in New York. Their attorney, Martin R. Stolar, sought to have each defendant discuss an aspect of climate change in court. A judge ultimately did not allow it. The group was subsequently acquitted on First Amendment grounds.

The criteria for the defense to be considered varies between jurisdictions. But case law has laid out some general principles that a defendant must demonstrate. Among them: that the crime was done to prevent imminent harm and that there was no reasonable legal alternative.

Given that, it is hard to see how Hughes' case qualifies.

"The necessity defense is a defense that proves the danger was clear and imminent, that it was reasonable to break this law to avert harm, that there was nothing else you could do," Rozelle said. "That's not the situation the gyrocopter pilot is defending. … Flying onto the Capitol lawn is not going to stop the influence of money in politics."

Still, attempting such a defense carries symbolic importance.

"I think the significance of the necessity defense right now is a lot of Americans are frustrated with the democratic process in general," said Heidi Boghosian, the former director of the National Lawyers Guild who now heads the A.J. Muste Memorial Institute, a nonprofit that supports activist organizations.

"I do think we're seeing it more and more," Boghosian said. "The issue that he is raising is just one issue of concern to regular people. Using a defense like this, even if it doesn't have a high rate of success, I think it's important."

Hughes still has several hurdles to overcome before his trial. Some are legal, some financial.

Hughes wants to add Mark Goldstone, an attorney specializing in First Amendment issues, to his defense team. He wants to pay for Goldstone's services by raising money from supporters of his cause. A judge has yet to rule on whether he will be allowed to do that.

The location of Hughes' trial poses a further challenge. Federal courts have tended to be less willing to allow the necessity defense for civil disobedience cases. But even in state court, such defenses rarely prevail.

"I don't think he'll get off totally free," Boghosian said. "But I would be surprised if he gets the harshest punishment."

Even that could still be a boon for Hughes.

"If he has a sympathetic audience in society, their sympathies will be raised by his getting convicted and serving time," Rozelle said. "He will be a very effective martyr figure. It actually gets less attention for his cause if he succeeds. One of the best ways to get attention is to be wrongly convicted."

Contact Dan Sullivan at dsullivan@tampabay.com or (813) 226-3386. Follow @TimesDan.