Concept
Limits on Reliance
Mistake-of-law excuse for belief conduct is not an offense
Limits on Reliance
Each clause of § 2.04(3)(b) names a source of official law that a person may follow, and the wording around those clauses attaches conditions to every one of them. The actor must act in "reasonable reliance" on an official statement of the law "afterward determined to be invalid or erroneous," and clause (iv) adds that the interpretation must come from the officer or body "charged by law" with responsibility for the law defining the offense.1 Those phrases produce three limits: the reliance must be reasonable, the official statement must later prove wrong, and the source must be a proper official. Each limit guards against a different way in which a defendant's mistake might fail to trace back to the state.
The reason for the three conditions lies in why the defense exists at all. The Code starts from the position that ignorance or mistake about the law is no excuse, and it makes a single exception for a person who acted on an official statement of what the law permitted.2 The exception rests on the state's share of responsibility for the error, since the government itself told the person the conduct was lawful. Remove any one condition and that premise fails. When the reliance is unreasonable, the defendant's own carelessness produced the mistake. When the official statement was correct, the error lies in the defendant's reading of it, and the state said nothing false. When the advice came from someone with no official responsibility for the law, the state said nothing at all. A New York court construing that state's parallel provision called the defense "a very narrow escape valve" and warned that reading it loosely would turn mistake of law into a generally available defense instead of an unusual exception.3 The same court added that the defense stays alive for a person who made an effort to learn the law, relied on its validity, and later learned that the law itself was mistaken.4
The three limits are not equally uncontroversial. The reasonableness requirement and the requirement that the official statement prove wrong follow directly from the text, while the proper-official limit has drawn the criticism that it is unduly narrow, because ordinary citizens rarely know which office holder is the right one to ask.5 The subsections below take the limits in the order just given, beginning with the requirement that the reliance be reasonable.
Reasonable Reliance Required
The word “reasonable” in § 2.04(3)(b) does the first work of limiting the defense, because the actor must act in “reasonable reliance” on the official statement.6 That phrase contains two requirements. The defendant must actually have known of the official statement and acted on it, since a person cannot rely on something never seen, and the reliance itself must be reasonable when judged by an objective standard. A concurring opinion in United States v. Barker, a D.C. Circuit decision, states the defense in four parts: the individual (1) reasonably, on an objective standard, (2) relies on (3) a conclusion or statement of law (4) issued by an official charged with interpretation, administration, or enforcement responsibilities in the relevant legal field.7 The first three parts raise factual questions that a jury can decide, while the fourth is a question of law because it asks about the limits of the official's authority.8 This section concerns the first two parts, and the fourth returns under the proper-official limit.
Each requirement has its own reason. The objective standard keeps the inquiry testable: a jury can ask what a sensible person would have made of the statement and its source, whereas a purely personal test would collapse into the defendant's own account of a sincere belief, which is easy to assert and hard to check. The defense therefore protects the person who did what a sensible person would do with the guidance in hand, and sincerity alone does not qualify. The awareness requirement does subtler work. The defense exists because the state shares responsibility for the mistake, and a statement can share responsibility only if it actually shaped what the defendant did, so a defendant who first learns of an official statement after being charged cannot say it caused anything. The Barker concurrence adds that this requirement keeps the defense from encouraging ignorance of the law, because the individual must either seek out or be aware of the statement, which means some knowledge of the law, checked against a competent source, is always present.9
Because the statute requires only that the statement later prove invalid or erroneous, a reader may ask how reliance on a statement that looked authoritative at the time could ever be unreasonable. Two things can make it so. The statement may say less than the defendant read into it, or the source may deserve less trust than the defendant gave it. Both are ordinary jury questions, since each asks what a sensible person would have concluded from the words and from the speaker, and the cases and cautions below turn on exactly those two variables.
The reading of the statement is where reasonableness is most often contested, and Commonwealth v. Twitchell shows the defense surviving that contest. The Attorney General's 1975 opinion answered a broad question whether parents who withhold medical services on religious grounds would be prosecuted, and the court said a reasonable person not trained in the law might fairly read the answer as a negative one, particularly because the opinion issued no caveat about homicide charges.10 Because that lay reading was available, the court held that whether a person would reasonably conclude the Attorney General had ruled that the spiritual treatment provision protected against a manslaughter charge was a question of fact for the jury.11 The opinion was arguably misleading for what it left out, and a reading that its words can reasonably bear, even one a trained lawyer would resist, is the kind of reading the objective standard is built to protect.12
Twitchell also shows how the awareness requirement works when a defendant's knowledge arrives second-hand. The Twitchells had never seen the opinion, but they knew of a church publication on the legal rights of Christian Scientists that plainly rested on it, and they had spoken with the church's Committee on Publication shortly before their child died.13 The court did not treat that route as disqualifying. It identified a second question of fact, whether the defendants reasonably relied on the publication and the committee's advice, to be reached assuming the lay construction of the opinion was itself reasonable.14 When an intermediary stands between the defendant and the official, reasonableness therefore operates in layers, first in the reading of the official statement and then in the trust placed in whoever conveyed it.
What counts as reasonable is not fully settled. The Barker concurrence calls for an objective standard.15 An objective standard still leaves open whose vantage the jury takes, and the Twitchell court observed that the defense has special merit where religious beliefs are involved and the defendant tried to obey the law while following those beliefs as far as possible.16 Whether a jury must measure reasonableness against the average citizen or may take account of the defendant's own beliefs remains an open question.17
The weight of the source also bears on reasonableness. The Barker concurrence cautions that the reasonableness of reliance may dissipate when a person depends on nonenforceable advisory opinions of minor officials.18 The defense rests on trust in those whose words carry apparent authority, so the less authority behind a statement, the less a sensible person can treat it as an assurance. The Attorney General in Twitchell stood at the other end of that range, as the Commonwealth's chief law officer with statutory power to give opinions on questions of law.19
A court may go further and withdraw the question from the jury when the source is too thin. In Hawaii v. DeCastro, a motorist who left a scene after a 911 operator gave him permission was arrested, and the court concluded that even if the operator's permission were treated as an administrative grant, it was not official, so reliance on it was unreasonable as a matter of law.20 Whether a source counts as official at all is a separate limit, taken up below with the proper-official requirement.
Reasonableness is also the main battleground when the official statement is a lower-court decision. Reliance on a decision of the highest court of the jurisdiction, later overruled, is the clearest case for the defense. With lower-court decisions, a question of reasonableness is more likely to arise, it has been suggested that reliance should fail when the defendant knew the decision was on appeal, and some modern codes recognize reliance only on appellate decisions.21 A decision under review has not yet been accepted by the courts, so a person who knows it is being challenged has a reason to doubt it. An official warning has the same effect: once an authority says the conduct is unlawful, no reasonable basis for believing otherwise remains, which is why the defense would normally be available to a defendant only once.22
The same concern about the reliability of the source helps explain why private legal advice does not support the defense. The Code confirms the common-law rule that reliance on a lawyer's advice is no defense, and one explanation is that lawyers are trained to help clients get what they want and may be tempted, even subconsciously, to give the desired advice, so perhaps no reliance on an attorney is reasonable.23
Statement Must Prove Wrong
A defendant can satisfy the reasonableness requirement and still lose, because the second limit looks at the official statement rather than at the defendant. Section 2.04(3)(b) protects reliance on an official statement of the law “afterward determined to be invalid or erroneous,” and that phrase describes the statute, decision, order, or interpretation the defendant followed.25 The defense therefore presupposes that the official source itself proved wrong: a statute is struck down, a judicial decision is overruled, or an Attorney General’s opinion is rejected by the courts. A defendant whose only mistake lies in reading a valid statute wrongly has followed nothing that proved wrong, so the clause is never triggered, however sensible the reading looked when the defendant acted.26
The leading illustration is People v. Marrero, in which a federal corrections officer stationed in Danbury, Connecticut, was arrested in a Manhattan social club carrying a loaded .38 caliber automatic pistol.27 He claimed that New York’s peace officer exemption entitled him to carry the gun without a permit, a belief he based on what fellow officers and teachers had said and on his own reading of the statute defining a peace officer.28 As he read that statute, it reached a correction officer at any penal institution, including a federal one.29 The trial court refused to instruct the jury on mistake of law, he was convicted of criminal possession of a weapon in the third degree, and the Court of Appeals affirmed.30 The decisive point was that the underlying weapons statute never in fact authorized his conduct, and the final court to speak on the question held that even the exemption did not cover him.31 The court thought it would be ironic to declare free of criminal responsibility the same defendant whom it had just held to be outside the exemption on which he relied.32
The reasoning in Marrero shows why the clause is built as it is, and two reasons support it that differ in kind. The first concerns the source of the error. The defense rests on the state’s own contribution to the mistake, and when the state has declared conduct lawful and later reverses itself, punishment can deter only by teaching citizens to doubt official pronouncements, a questioning of authority that the law has no reason to encourage.33 When the statute never authorized the conduct, the state told no one that the conduct was lawful, and the mistaken belief exists only in the defendant’s own head.34 The second reason concerns incentives and does subtler work. If a reasonable personal reading of a valid statute were enough, every defendant charged under a complex statute would have a reason to construct a plausible account of what it meant, and the factfinder would have to separate sincere readings from ones contrived after the fact to put an excuse before the jury.35 The court warned that the exception would then swallow the rule, since mistakes about the law would be encouraged in place of respect for and adherence to it, and it described the result as “a legal chaos based on individual selectivity.”36
Marrero carries a caution about what kind of authority it is. It construes New York Penal Law § 15.20(2), which excuses a mistaken belief founded on an official statement of the law contained in a statute or other enactment, and that text does not contain the Model Penal Code’s words “afterward determined to be invalid or erroneous.”37 The majority nonetheless read the New York provision as drawn from the Code, pointing to legislative history full of references to the Code’s influence and to the fact that no one in over twenty years had argued for the sweeping reading now proposed.38 The dissent disagreed, arguing that New York followed parts of the Code and rejected others, and that the omitted phrase was exactly the limit the majority supplied.39 Marrero is thus a persuasive illustration of how a Code-style provision operates, and it does not construe the Code itself. The officer would lose under the Code as well, where the limiting phrase appears in the text and a defendant’s personal misinterpretation of the law is not enough; only official statements, reasonably relied upon, count.40 Authority cited alongside Marrero, including People v. Fraser, supports the same reading of provisions worded this way: they do not cover an erroneous, even if reasonable, interpretation of a statute that is not thereafter found invalid.41
The narrow construction still protects the person the defense was written for. The Marrero court stressed that its holding does not rule out every mistake-of-law defense, which remains available when an individual makes an effort to learn what the law is, relies on the validity of that law, and later learns that the law itself was mistaken.42 The principle is one of governmental responsibility: a person whom the government has affirmatively, even if unintentionally, misled about what is permitted should not be punished for it, while a person whose error exists only in the defendant’s own mind has no claim on the state.43
The trap on an exam is treating the defendant’s own misreading as the “erroneous” statement the clause describes. Every mistaken defendant holds an erroneous belief, which is what makes the belief a mistake, so the word “erroneous” has to be read as describing the official source. When a stem presents a defendant who reasonably misreads a clear statute or exemption, ask what the official source actually said and whether anyone later found it wrong. If the source was right all along, the defense fails at this step and the reasonableness inquiry never matters.
Proper Official Required
The third limit asks who made the statement. Clauses (i) through (iii) name sources that announce their own official character, since a statute, a judicial decision, and an administrative order or permit each issue from an institution acting in its public role. Clause (iv) covers interpretations, which come from individuals, so the text specifies which individuals count: the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the offense.45 Two conditions sit inside that phrase. The responsibility must come from law, and it must attach to the particular law the defendant is charged with violating. An official whose authority covers some other subject has not been given the state's voice on this statute.
The reason for tying the defense to the specific law follows from what the defense corrects. The excuse exists because the government, through its representatives acting in an official capacity, is responsible for the defendant's inability to know that the conduct was proscribed.46 The state speaks about a given law through the officers it has charged with that law, so reliance on anyone else involves no statement from the state on the subject. The limit also removes a temptation. If any official or adviser would do, a defendant could canvass offices until someone offered reassuring words, and the force of the criminal law would depend on whoever was willing to give assurances. The Barker concurrence reaches the same boundary from the policy side. It observes that the defense does not extend to a stranger to public office whom the defendant mistakenly believes to be an official, however reasonable the belief, or to an employee who holds a public job but has no interpretive or administrative responsibility in the area of law involved.47
Two examples from the sources show the limit operating against a defendant. A tavern keeper who relies on the mayor's advice about the state law on closing bars on election day cannot invoke the defense, and neither can a police officer who relies on the court clerk who administered the oath of office for an opinion on whether the officer may carry a concealed weapon.48 The mayor and the clerk are genuine public officials, and each has a plausible connection to the situation, one as the town's leading officer and the other as the person who handled the officer's swearing-in. Neither is the officer or body charged by law with interpreting or enforcing the statute that defines the offense, and that is the only question clause (iv) asks. The same result appeared in Marrero, where the New York court rejected the defense under that state's own interpretation clause, a separate text from the Code, because none of the interpretations the defendant offered met its requirements.49
The opposite pole turns on one changed fact. A chemical company could reasonably rely on the Corps of Engineers' interpretation that the River and Harbor Act prohibits only deposits that affect navigation, because the Corps is the administrative agency responsible under that Act.50 The company's source and the tavern keeper's source are alike in being government actors, and they differ in the one respect the clause tests, whether the speaker holds legal responsibility for the statute at issue. The Attorney General in Twitchell fits the favorable side for the same reason. The Massachusetts court described that officer as the Commonwealth's chief law officer, acting in an area of official responsibility, and empowered by statute to give opinions on questions of law submitted by the executive branch or the Legislature.51
The focus on the law defining the offense also matters when an agency is responsible for one body of law and the defendant is charged under another. In December 2012 a television news host planned to display an unloaded high-capacity gun magazine on the air, and a network employee asked the Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces federal gun laws, and was told that the display violated no federal law; the display in fact violated a District of Columbia gun-control statute.52 The bureau's authority runs to federal gun law, while the offense was defined by a District statute, so the requirement that the officer be responsible for the law defining the offense is hard to satisfy. A second obstacle comes from the preceding limit, because nothing in the account suggests the bureau's statement about federal law was itself wrong.53
The limit has critics. Laypeople at a government counter seldom know which employee holds statutory authority, and the criticism is that a clause turning on distinctions citizens cannot see is unduly narrow.54 The clause as written still asks about legal responsibility and not about appearances. The Barker concurrence treats the official's authority as a question of law, since it concerns the parameters of legal authority, while reasonableness, actual reliance, and the content of the statement go to the jury.55 A court can therefore decide this limit without sending it to a jury, as the court did in Hawaii v. DeCastro, where a 911 operator's permission to leave a scene was held not to be official even if it counted as an administrative grant, and reliance on it failed as a matter of law.56 How the issues divide between judge and jury is taken up in the next section.
Reliance on a privately retained lawyer falls outside the clause for a related reason. The four categories in § 2.04(3)(b) list only official sources, and a lawyer hired by the defendant is none of them.57 The Code therefore confirms the common-law rule that reliance on a lawyer's advice is no defense.58 Whether the rule ought to be that way is a policy debate. One argument is that the usual objections to a mistake-of-law defense, the risk of collusion and the difficulty of judging reasonableness, are no stronger when the defendant consulted a reputable attorney in good faith about conduct that is not obviously antisocial.59 The answer on the other side is that lawyers are trained to help clients get what they want and may be tempted, even subconsciously, to give the desired advice, which suggests that reliance on counsel may never be reasonable.60 Excusing such reliance also raises the question whether lawyers and clients would acquire bad incentives.61 Advice of counsel can still matter by a different route, because knowledge of illegality is an element only when the offense definition or the Code so provides, and where an offense does require it, a belief formed on a lawyer's advice that the conduct was lawful bears on whether the prosecution has proved that element.62
The trap on an exam is treating any government employee as a source of an official interpretation. A stem will often supply a sympathetic speaker, such as a mayor, a clerk, or a helpful agency worker, and the temptation is to stop at the fact that the speaker works for the government. The correct move is to ask whether that officer or body is charged by law with interpreting, administering, or enforcing the very law the defendant is accused of violating. If the answer is no, the reliance fails at this step, however reasonable it felt.