Concept
Reliance on Official Statements
Mistake-of-law excuse for belief conduct is not an offense
Reliance on Official Statements
Section 2.04(3)(a), discussed above, excuses a defendant when the government failed to make the law available. Subsection (3)(b) addresses the opposite situation, in which the government did speak and what it said turned out to be wrong. A belief that conduct is not an offense is a defense when the actor "acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous," and the statement is contained in one of four listed sources.1 The Code keeps the baseline rule that a mistake about the law excuses nothing, so this provision operates as an exception to that rule.2 The drafters took the step cautiously, protecting defendants who rely on advice about legality only within defined limits.3
The provision breaks into four components, and the whole defense fails if any one is missing. The sources themselves are taken up one at a time in the subsections that follow, so the components are stated once here as a working checklist.
A concurring opinion in United States v. Barker sets out a useful way to organize the same material, though it is one judge's frame and not a controlling test. It says the defense is available if, and only if, an individual reasonably, on an objective standard, relies on a conclusion or statement of law issued by an official charged with interpreting, administering, or enforcing the law in the relevant field.5 The frame also sorts the issues by decision-maker. Reasonableness, actual reliance, and the existence of a statement of law are questions of fact that a jury may decide, while whether the source is an official with the required authority is a question of law for the court, since it turns on the boundaries of legal authority.6 That division explains why the fourth component in the checklist behaves differently from the first three on an exam stem.
The reason for the defense starts with what punishment can accomplish. A legal system works only if people can rely on its officials' statements of what the law is, and a person who does what an authoritative source said was lawful has not been deterred by the threat of punishment, because no threat could have reached someone who saw nothing to fear. The only way punishment could deter such a person is by teaching distrust of official pronouncements, and that questioning of authority is itself undesirable.7 The Code's commentary adds that these cases usually involve an actor whose conduct is consistent with law-abidingness, where collusion is unlikely and a court can assess the reasonableness of the belief without much difficulty.8 A conviction in that setting serves no purpose a court can identify. The fairness basis is the same one that supports the ex post facto and vagueness doctrines: the government, acting through its officials, is responsible for the defendant's inability to know the conduct was forbidden.9
United States v. Mancuso, described in the Barker concurrence, shows the rationale at work. A local draft board issued an order to the defendant, but a court decree, itself erroneous and subject to reversal, forbade the board from issuing it, and the Third Circuit held the defendant could not be convicted for failing to obey. In the court's words, a layman taking part in a lawsuit is not required to know more than the judge.10 The defendant in Mancuso had a real official source that said one thing, and the later correction of that source's error should not become the defendant's crime.
The same reasoning explains why the defense stays narrow. The Barker concurrence points out that the defense does not encourage public ignorance of the law, because the defendant must have sought out or known of the statement relied on, so some knowledge of the law, checked against a competent source, is required.11 It adds that the policy is strongest for sources with the most apparent finality, such as legislatures and courts, and weaker for advisory opinions of minor officials.12 The commentary also observes that the defense would normally be available only once, since a defendant who has been warned can hardly have a reasonable basis for believing the conduct legal.13 A long period of nonenforcement, with notorious disregard of the statute, is rarely treated as enough, because the defense requires a formal, official statement.14
People v. Marrero marks the boundary from the other side. The New York court construed its own statute in light of the Model Penal Code and described the defense as protecting a person who relies on a statute that in fact authorized the conduct and was later invalidated.15 The defendant there possessed a weapon because he thought statutory exemptions covered him, but the primary statute plainly forbade the conduct and the final court to rule held that the exemptions did not reach him either.16 Allowing the defense on those facts would let each individual choose a personal reading of the law and act on it, which the court said would produce legal chaos.17 The difference between Mancuso and Marrero is the existence of an official source that actually said the conduct was permitted. The Mancuso defendant had one, and the Marrero defendant had only his own reading of a statute that forbade the act. A defendant who misreads a valid statute therefore gets no help from subsection (3)(b), a limit developed in the section on limits on reliance.
States that adopted the defense have varied its wording at the margins. Maine's version, reproduced in State v. LaVallee-Davidson, tracks the Code closely but names "ordinance" among the enactments, limits the judicial source to a final decision, and states that the official-interpretation clause does not impose any duty on an officer to issue an interpretation.18 Those differences matter when a question is set in a particular jurisdiction, though the structure of reliance on an official statement that later proves wrong is the same. The next four subsections apply the components to each listed source in turn, beginning with statutes and other enactments.
Statutes and Enactments
The first of the four listed sources is the legislature's own text. Under clause (b)(i), a person who reasonably relies on a statute or other enactment under which the conduct is lawful has a defense if that enactment is afterward determined to be invalid or erroneous.20 The standard setting is a statute that a court later strikes down as unconstitutional. The defendant acted while the law on the books permitted the conduct, and the later ruling does not turn that conduct into a crime.21 The word enactment reaches beyond acts of a state legislature, and Maine's version of the defense, reproduced in State v. LaVallee-Davidson, names ordinances alongside statutes to make that point explicit.22
The rule has two supports, and they work differently. The first concerns compliance. A legal system wants people to follow its enactments, and a person who does what a statute permits is doing exactly that, so convicting that person after a court invalidates the statute would be inconsistent with the sound policy that the community should be encouraged to act in compliance with legislation.23 A conviction would also teach the wrong lesson. In People v. Marrero the New York court explained that punishment could deter such a person only by making them doubt the official pronouncement before acting, and that kind of questioning of authority is itself undesirable.24 The second support is fairness. The government, acting through its legislature, is responsible for the defendant's inability to know the conduct was forbidden, which makes a conviction resting on a later invalidation akin to an ex post facto law.25
The protection runs in one direction only, and that asymmetry is the most testable feature of this clause. A defendant who relied on an enactment permitting the conduct is excused if the enactment falls, but a defendant who violates a valid statute because of a belief that it is unconstitutional has no defense.26 The difference lies in what each defendant followed. The first did what the legislature said was lawful, while the second substituted a private judgment about which laws bind, with nothing official behind it. The defense exists to encourage people to read and rely on official statements of the law, and a person who bets against the statute that governs them has done the reverse.27
The clause also depends on the enactment itself having authorized the conduct, a limit the later section on limits on reliance develops. In Marrero the defendant possessed a weapon because he read statutory exemptions as covering him, yet the primary statute plainly forbade the possession, and the final court to rule held that the exemptions did not reach him either.28 The statute had never in fact authorized his conduct, so he had no enactment to rely on, only his own reading of one. Reasonableness of the reliance remains a separate requirement for every listed source, and it is taken up with the other limits.
Judicial Decisions
Clause (b)(ii) carries the reliance defense from legislatures to courts. A person who reasonably relies on a judicial decision, opinion, or judgment has a defense if that decision is afterward determined to be invalid or erroneous.30 The wording is broad because it names no particular level of court, so the Code allows reliance on any judicial opinion rather than only the highest court's.31 That breadth makes this clause a matter of degree in a way the statutory clause is not, since courts speak with different amounts of finality and the weight of the reliance follows the finality of the court's word. The analysis therefore starts with the strongest source, a decision of the highest court in the jurisdiction, and then works downward.
The clearest case is reliance on a decision of the jurisdiction's highest court that is later overruled, and the defense applies whether the decision concerned a statute's constitutionality, a statute's meaning, or the common law.32 The subject matter of the decision drops out because each variety gives the actor the same thing: an authoritative answer, from the court with the last word, on what the law permits. A person who acts on the law as that court has announced it has done all a citizen can do to learn what is lawful, since no higher authority is available to consult. If the later overruling could then be applied to the earlier conduct, the defendant would be punished under a rule that did not exist when the act occurred, which is as unfair as ex post facto legislation.33 That unfairness is the basis for every reliance clause: the government, acting through its officials, is responsible for the defendant's inability to know the conduct was forbidden.34
The timing in the twin is the point most often missed. The defense protects conduct that took place while the decision stood, so conduct after the overruling falls outside it, because from that moment no decision in force permits what the earlier one allowed and the defendant stands where any other violator stands. The defense also requires more than the existence of a favorable decision. The concurrence in United States v. Barker observes that the defense does not encourage ignorance of the law, because the defendant must have sought out or known of the statement relied on.35 Actual knowledge, actual reliance, and reasonableness judged on an objective standard are therefore separate requirements, developed in the section on limits on reliance.
The clause names a decision, an opinion, and a judgment, so the source need not be a published opinion announcing a general rule. United States v. Mancuso, the illustration the Barker concurrence uses for the rationale of the defense, shows a decree aimed at a single dispute doing the work.36 A local draft board issued an order to the defendant even though a judicial decree forbade the board to issue it, and the decree was itself erroneous and subject to reversal.37 The Third Circuit held that the defendant could not be convicted for failing to obey the order, reasoning that although people are generally held responsible for violating the law whether they know of it or not, it did not think "the layman participating in a lawsuit is required to know more than the judge."38 The court's error, once corrected, could not become the defendant's crime. Mancuso also leads to the harder question of courts below the highest, because a decree open to reversal is exactly the kind of ruling whose finality can be questioned.
Decisions of lower courts present a weaker case, and the support for them is more tentative. Several decisions support the view that reasonable reliance on a lower court's ruling is also a defense, as where the lower court found a repealer statute constitutional, declared the criminal statute in question unconstitutional, or enjoined enforcement of the statute.39 The difficulty lies in reasonableness. A trial-level ruling is made to be reviewed, so a person who relies on it relies on something that may not survive, and that reliance is more open to challenge than reliance on the final word of the highest court. It has been suggested, for example, that reliance should not be a defense when the actor knew the lower court's decision was on appeal, since that knowledge gives the actor a reason to doubt the ruling would stand.40 The gradient matches the policy behind the defense, which is strongest for sources with the most apparent finality.41
Codes also differ on the threshold question of which courts count. Some modern codes recognize reliance only on appellate decisions.42 Maine's version, reproduced in State v. LaVallee-Davidson, limits the category to a final judicial decision, opinion, or judgment, which is narrower than the Model Penal Code's open wording.43 On a question set in a particular jurisdiction, the wording of that jurisdiction's provision therefore decides whether a trial-court ruling can support the defense at all, and only if it can does the reasonableness inquiry begin.
Administrative Orders and Permits
Clause (b)(iii) carries the reliance defense from legislatures and courts to administrative agencies. A person who acts in reasonable reliance on an administrative order or grant of permission has a defense if that order or permission is afterward determined to be invalid or erroneous.46 The most obvious application is a prosecution for engaging in an activity without a license that state law requires. The defendant shows that, on applying for the license to the proper authority, the defendant was advised that no license was required.47
The reason this situation earns a defense lies in what the defendant did. Because the law required a license, it sent the defendant to a particular authority to learn where the defendant stood, and the defendant went there, asked, and acted on the answer. A defendant who has done that has done everything that may reasonably be expected.48 If the agency's answer is later held wrong, the mistake is the state's own, since the government, through representatives acting in an official capacity, is responsible for the defendant's inability to know that the conduct was forbidden.49 A conviction in that setting would also penalize use of the very process the licensing scheme sets up, and it would teach the next applicant that asking the agency is no safer than guessing.
The twin shows which fact carries the clause. Clause (b)(iii) requires an official statement to rely on, and a person who never asks the agency has none. That person holds only a private assumption about what the law requires, which is the ordinary mistake about the law that the Code leaves without a defense.50 The clause therefore protects the applicant who consults the licensing authority and follows its answer, and it gives nothing to the one who skips that step. The limits that govern every reliance clause still apply: the reliance must be reasonable, the agency's statement must afterward prove wrong, and the answer must come from the proper authority. The section on limits on reliance takes each in turn.
Official Interpretations
Clause (b)(iv) carries the reliance defense to the officials whose work consists of saying what the law means. A person who reasonably relies on an official interpretation by the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the offense has a defense if the interpretation is afterward determined to be invalid or erroneous.52 The earlier clauses cover enactments, decisions, and orders that carry formal legal force, while this one covers a statement about what such a law means or how it applies. At common law, reliance on an interpretation of that kind was no defense, and the Code's approach supplies one when the statement comes from an official charged by law with responsibility for the law in question.
The reason for the clause is practical. Officials charged with interpreting and enforcing a law are the people citizens naturally consult, and many of them have a duty to give legal opinions.53 A person who asks and follows the answer has behaved as a law-abiding citizen would. If the answer proves wrong, a conviction would punish the very obedience the answer invited, because the government, through representatives acting in an official capacity, is responsible for the person's inability to know the conduct was forbidden.54 The Code's commentary adds that these are situations where the act charged is consistent with the actor's law-abidingness and where collusion is unlikely, so it is hard to see what purpose a conviction would serve.55 Some codes, Maine's among them, state expressly that the clause imposes no duty on any official to issue an interpretation, so the defense protects a person who obtained and followed a statement without compelling anyone to give one.56
An interpretation differs from the earlier sources in a way that shapes the rest of this section, because it is usually advisory. The concurrence in United States v. Barker explains that the policy of fostering obedience to officials is strongest for bodies that make or apply law with the most apparent finality, namely legislatures and courts, yet it reaches officials who interpret the law in an advisory capacity, such as the United States Attorney General.57 The same concurrence cautions that the reasonableness of the reliance may dissipate when a person depends on nonenforceable advisory opinions of minor officials.58 An interpretation can therefore support the defense, but its weight depends on who issued it and on what it actually said.
The leading illustration is Commonwealth v. Twitchell, a Massachusetts prosecution in which parents were charged with manslaughter after their child died while they relied on spiritual treatment instead of medical care.59 The defendants invoked an opinion the Attorney General had given in 1975 to the deputy director of the Office for Children, answering the general question whether parents who withhold medical services on religious grounds would be prosecuted.60 The court observed that a reasonable person not trained in the law might read the answer as a flat no. The opinion said children could receive needed services "notwithstanding the inability to prosecute parents in such cases" and issued no caveat about homicide, even though its discussion centered on negligent failures and wanton or reckless failures are different.61
The Twitchells had never seen the opinion. They knew of a Christian Science publication on the legal rights and obligations of Christian Scientists in Massachusetts, which plainly rested on the opinion, and they had spoken with the church's Committee on Publication shortly before the child died.62 The court held that they were entitled to present the defense to the jury, because the Attorney General was acting within his official responsibilities as the Commonwealth's chief law officer, with statutory power to give opinions on questions of law submitted by the executive branch or the Legislature.63 Whether a person would reasonably conclude that the opinion protected against a manslaughter charge, and whether the defendants reasonably relied on the publication and the committee's advice, were questions of fact for the jury, so the court reversed and remanded.64 The court also noted that federal courts call a defense of this kind entrapment by estoppel, a label for the idea that the state may not convict a person for conduct an official assured the person was lawful, and it rested the defense on fairness principles that in federal cases are grounded in due process.65 The reliance in Twitchell ran through an intermediary, since the parents knew the opinion only by way of the publication, and how far a defendant may rely on a statement known at second hand is a question for the limits on reliance taken up in the next section.
The twin shows which feature of the opinion carried the defense. The defense tracks what the official actually said, and in Twitchell the opinion was arguably misleading because of what it left out.66 Silence about homicide made the favorable reading available, and a caveat would have closed the gap, a point the court tied to the likelihood that the church publication would have repeated any warning.67 A reading the official's words cannot reasonably bear is a private conclusion, and the reasonableness requirement screens it out.
A harder setting arises when a person, outside any application for a license or permit, asks an enforcement official, most often the local prosecutor, whether contemplated conduct would violate the criminal law. The argument for a defense is straightforward, since local prosecutors have a duty to give legal opinions to local officials and private citizens naturally come to them for advice too.68 In Hopkins v. State, a minister was convicted under a statute forbidding signs intended to aid in the solicitation or performance of marriages, and he tried to show that he erected the signs only after the local prosecutor told him his plan was lawful.69 The court rejected the defense on the ground that the prosecutor's advice "would become paramount to the law."70 Its broader reasoning was that a person whose right to act depends on the construction of a penal statute acts at personal peril if that right is doubtful.71
The criticism of Hopkins attacks the premise of that objection. The law would remain paramount, because the advice establishes a good-faith defense only for the individual who received it and only so long as that individual has not been authoritatively advised to the contrary.72 A defense that is personal and temporary cannot amend the criminal law, cannot protect anyone but the recipient, and ends the moment an authoritative correction arrives. The Code's commentary makes the same point from the other direction, observing that the defense would normally be available to a defendant only once, since after a warning there is no reasonable basis for believing the conduct legal.73
The area remains contested. Hopkins denied the defense, while the Code, reflecting a widespread view that decisions like Hopkins are unfair, adopts a limited defense for reasonable reliance on an official interpretation.74 Whether a prosecutor's advice qualifies under clause (iv) turns on whether the prosecutor is within the officer or body charged with enforcing the law that defines the offense, and one reading is that a county attorney probably is.75 The form of the statement matters as well. One reading treats an official's oral misstatement that was never reduced to a written interpretation as insufficient, but the clause itself says only "official interpretation" without prescribing a form, so that view is better treated as a contested reading than as settled law.76 Critics also point out that convicting a person for conduct state officials said was permissible raises a constitutional problem, which the final section of this chapter takes up.77 Which officials count at all is a separate limit, developed with the other limits on reliance.