Direct action comes with legal risks. As a people’s movement, we are committed to supporting each other in our encounters with the criminal legal system. By building strong relationships and sticking to our principles, we can use the criminal process as an opportunity to advance our cause. Extinction Rebellion’s legal strategy involves telling the truth, holding the government accountable, and educating the public about the climate emergency.

Scroll down for information on how to protect yourself before, during, and after encounters with the police and the courts, to learn more about Extinction Rebellion’s strategy of legal activism, to read some useful legal resources, and to find legal assistance.

Climate Defense Project is a legal non-profit that supports XRNYC and XRUS and offers advice, referrals, and representation to climate activists. Contact them at info@climatedefenseproject.

Protest, Arrest, and Charges: Know Your Rights

So you’ve committed to direct action. What are the risks, and what are your rights?

Consult this guide to your rights at protests, during police encounters, and when you’re arrested (a PDF of the guide is available here).

Here’s a graphic that explains the arrest process in NYC (note: this varies widely by city).

Please consult the XR Action Commitments, which we ask everyone to adhere to.

And it’s a good idea to fill out our jail support form so that we can support each other in the case of arrest.

Political Defenses and Climate Legal Activism

We can approach our encounters with the climate legal system in different ways. For some, the most important goal is to avoid adverse consequences and to get back onto the streets as quickly as possible. For others, the process from arrest to trial offers an opportunity to raise public awareness of the climate emergency and to use the law of the state to tell the truth and hold the government accountable.

In recent years, climate activists have increasingly used political defenses to argue that their acts of civil disobedience were justified. In some cases, judges and juries have agreed with them. In April 2019, for example, a group of Extinction Rebels including co-founder Roger Hallam were acquitted for their part in a protest at King’s College, London. In Minnesota, activists who had turned off tar sands pipelines had their charges dismissed after they filed declarations from experts about the climate crisis and the effectiveness of nonviolent civil disobedience.

We’ve gathered some resources that will be useful to activists preparing a political defense. A few notes on carrying your protest into the courtroom:

• Even if you choose to defend yourself at trial, it’s a good idea to speak with a trusted attorney who can explain procedural rules, quirks of the law, and tricks of the trade. See below for help with this.

• Laws are different in each state, and your available options for a legal defense will vary depending on which court you’re in (municipal, state, federal, etc.) and the level of the charges you are facing.

• The criminal legal system is designed to discourage dissent and to move people through court quickly. Allying yourself with other criminal defendants — for instance, sharing attorneys or signing a joint defense agreement — will help to make the process more effective, both for you and for the movement.

One legal strategy that many climate activists have used in recent years is the “climate necessity defense.” This defense allows protesters to argue that their actions were justified by the severity of the climate crisis, and that they should be acquitted for trying to prevent harm. The availability of the defense varies greatly by state and court, and does not guarantee any results (in fact, most judges have barred activists from presenting the defense in court). Check out the climate necessity defense resources below for more details, as well as this pamphlet for activists and this infographic explaining the strategy.

Legal Resources

Evidence about the climate crisis and the necessity of protest

• Science

  • Start with XRNYC’s page describing The Emergency: here you will find crucial information on the state of the climate crisis, a timeline on climate science, industry lies, and government inaction, and reports on what will happen to the planet and humanity without immediate action.

  • In addition, this collection of articles and reports provide evidence of the science behind climate change and its effects. You may want to cite these to describe the crisis that your protest is intended to address.

• Protest

  • These materials describe why direct action is necessary to address climate change and why protest works. You may want to cite these to show that civil disobedience is a necessary and prudent method of addressing the crisis, especially in the absence of government action.

Legal materials to make your argument: cases, briefs, articles, and a template

You’ll need some legal arguments to convince a court that your protest was justified.

• The United States Supreme Court described the severity of climate change in Massachusetts v. EPA

• The Washington Court of Appeals recently issued a historic decision recognizing that climate activist may have legal justification for their acts of protest (specifically addressing the climate necessity defense).

• This opinion by the Minnesota Court of Appeals made a similar ruling. These cases are useful for showing that courts are starting to accept the legal justification of direct action to address the climate crisis.

These law review articles are a useful source of ideas and citations: Lance Long and Ted Hamilton’s article on the climate necessity defense, Bill Quigley’s article on the political necessity defense, and Douglas Colbert’s article on how prosecutors try to keep this sort of evidence out of court.

How does this work in practice? It may be helpful to check out the following case materials from Washington v. Ward, a case in which an activist turned off a tar sands pipeline. The activist offered a climate necessity defense, offering a wide array of evidence to show that the climate crisis is imminent, that there are no good legal alternatives to protest, and that protest is effective.

• Prosecutors filed this motion to block the climate necessity defense

• Here is the activist’s response in which the climate necessity defense is laid out

• After the judge orally denied the defense, the activist responded with this brief providing more evidence for the climate necessity defense

• The activist was ultimately convicted after the trial judge barred his evidence. He appealed, and here’s his appellate brief

• The State responded with this brief

• The Washington Court of Appeals agreed with the activist that his constitutional rights had been violated: here’s their opinion (same as above)

It’s very useful to bring in experts — scientists, professors, and other professionals — who can explain to a court the science behind climate change, the effectiveness of civil disobedience, and the political paralysis over global warming. Here is a collection of expert declarations from the ongoing case Minnesota v. Yildirim, which activists filed prior to trial. Note: these declarations were prepared by the experts only for use in this specific case; only use them as an example of how activists have presented this evidence in the past.

Finally, here’s a template climate necessity brief that lays out the basic argument of why protest to address the climate crisis is justified. Note: the law of necessity varies greatly by state and court. Briefs and case strategy must be adjusted to each locale. See the resources below for some guidance. Consulting a trusted attorney is a good idea.

Some resources for figuring out the law and the legal process

Climate Defense Project, a non-profit that provides legal support to climate activists, has prepared the following resources:

• A climate necessity case guide that summarizes attempts by activists to use the climate necessity defense

• A jurisdiction guide to the law of necessity in each state and federal court circuit, with useful reference cases

A very useful resource for political defendants is the Tilted Scales Collective’s Guide to Being a Defendant. 

Finding legal assistance

Whether or not you plan to defend yourself in court, it’s always a good idea to seek legal advice. Laws and court procedures vary widely by city and state, so it’s important to contact someone with local knowledge.

Climate Defense Project is a legal non-profit that supports XRNYC and XRUS and offers advice, referrals, and representation to climate activists. Contact them at info@climatedefenseproject.

The National Lawyers Guild is a national organization of progressive attorneys and legal workers, with a wide network of movement lawyers. Their Mass Defense Committee has legal hotlines in cities around the country. The NYC NLG legal hotline number is: 212-679-6018.

Working with attorneys or representing yourself: a few pointers

You have the right to represent yourself at trial. This may be the most effective strategy for activists facing a jury. At other times, you’ll want professional help from an attorney (and it’s always a good idea to seek advice).

Some attorneys understand the climate crisis and are open to political trial strategies. Others may be a bit more resistant to non-traditional approaches to court. Some things to remember when dealing with lawyers:

• You have the right to determine which defenses you will raise in your own case. (Although your attorney can determine the particulars of how the argument will be made.)   

• You have the right to argue your case without the assistance of an attorney (this is called defending yourself “pro se”). Generally speaking, this strategy is good for defendants with experience in the criminal legal process, and/or those who are part of a group where other defendants are represented by attorneys.

Teams of attorneys are often valuable in criminal defense cases, particularly where both local expertise and climate-political expertise is required.