Judge is reluctant to allow claim by DeChristopher

While his supporters and attorneys were likening Tim DeChristopher to prominent historical social advocates, a judge wants more evidence before determining whether DeChristopher's actions can be defended as civil disobedience.

DeChristopher's defense argued Friday that DeChristopher acted out of necessity to prevent illegal government action, making a "choice of evils" on a December day last year when he decided to submit bogus bids for oil and gas leases on Bureau of Land Management land as an act of protest.

DeChristopher won 14 parcels of land totaling $1.7 million that he never intended to buy and was later indicted for providing a false statement and violating the Federal Onshore Oil and Gas Leasing Reform Act.

His attorney, Ron Yengich, said DeChristopher's protest was "not typical" but was done out of necessity as he was seeking to combat an outgoing government he believed was engaged in illegal acts, and "there was no other option in his mind."

But that is one area where the prosecutors say the claim of a necessity defense falls flat. Assistant U.S. Attorney John Huber said there are four "crystal-clear" elements necessary to claim a defense of necessity and one of those is that the defendant had "no legal alternatives."

The prosecutor reiterated that there is always a legal alternative. He also said there was no "real emergency or imminent harm" in DeChristopher's situation, which is also required to claim a defense of necessity.

Huber gave the example of prisoners in a burning prison who have to escape to save their lives. In that instance, he said the actions of the inmates, while illegal, would be seen as necessary to save them from danger.

Prosecutors said that there is "no case law from the circuit courts or supreme courts that allows necessity defense in protest cases like this."

Judge Dee Benson asked the defense why they failed to provide more written support for their claim in their brief. Yengich said this was a conscious decision done in an effort to provoke a case based on evidence rather than written materials. He said he wants a jury to hear about the act from DeChristopher himself so it could understand that what he did wasn't criminal but nonviolent civil disobedience.

"I want 12 people, tried and true, basic American citizens to listen to another American citizen say, 'I'd rather go to jail than see that land sold,' " Yengich said.

The case seemed relatively clear in the mind of Benson, who said based on what he's read and heard, he "wouldn't hold out a lot of hope for an in-court evidentiary hearing" to determine whether DeChristopher had acted out of necessity.