I was asked a question about bows and felons, recently, and posted the question and answer in different blog article. However, I started thinking about the extent of what, if any weapon, a felon is permitted to own. I came across a very interesting court case I wanted to highlight in this blog. This case covers a variety of topics — including malum per se, and the requisite knowledge required for a crime. These topics are rarely covered, and almost always lost by the defense when brought forth. In this instance, the defendant won. Read on!

Case: http://www.courts.state.va.us/opinions/opncavtx/2040964.txt

This was decided in our backyard — Alexandria. It dealt with a felon owning first a bow, and then a muzzle loading rifle. The facts:

Wanting to pursue his sport, [ed: the defendant] Miller sought to determine whether he, as a convicted felon, could possess a muzzle-loading rifle. Miller knew that Virginia law distinguished muzzle-loading rifles from other guns. Specifically, he knew that Virginia did not require a criminal background check to be performed on individuals seeking to purchase muzzle-loading rifles. He also knew that Virginia defined different hunting seasons for and issued different licenses to hunters using muzzle-loading rifles.

Miller testified that he “talked to everyone who [he] thought might know the answer.” He spoke with his probation officer, who told him he could have a muzzle-loading rifle. He also inquired of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) and the Virginia Department of Game and Inland Fisheries (VDGIF), and representatives from each, who knew Miller was a convicted felon, told him he could have a muzzle loader. Miller acknowledged that no one told him he could possess a “firearm” and that a muzzle loader was “in a sense” a firearm because “it fires.” Relying on the interpretation provided by the government officials contacted, Miller purchased a muzzle loader and obtained a license to hunt with it. In short, Miller, a convicted felon, knowingly and intentionally possessed a muzzle-loading rifle.

Interestingly, despite having received assurances from three government officials regarding whether he was permitted to have a muzzle loader as a felon, and being assured he was, the police later arrested him, and he was later convicted of being a felon in possession. That’s a very serious offense with a multi-year jail sentence. Folks, VA and DC do not play when it comes to guns and convictions. He was looking at a mandatory sentence of between 2 and 5 years. See https://vacode.org/18.2-308.2. Most states have similar laws. By the way, the argument in this case is absolutely applicable in most jurisdictions.

Miller’s possession of the muzzle loader was discovered by police officers during an unrelated search of the house in which Miller was living. [He was] Charged with possession of the gun as a convicted felon under Code 18.2-308.2…Miller argued at trial that his “good faith reliance” on the advice he received regarding the propriety of his possession of the muzzle loader, regardless of the accuracy of that advice, precludes his conviction. His argument is grounded in the due process clause of the Fourteenth Amendment. The trial court believed Miller’s testimony concerning the content of the information he received but concluded that the sources of Miller’s information were not sufficient to preclude his conviction on due process grounds.

A few comments about this last part. First, this argument is recognized by the Federal government under the 5th amendment to the Constitution (passed in 1791) — no individual shall be deprived of life, liberty or property without due process of law (see: https://www.law.cornell.edu/constitution/fifth_amendment). However, the States are not the Federal government, so they were not initially beholden to the 5th amendment. In 1868, following the civil war, the government passed the 14th amendment which made due process and equal protection (among others) applicable to the individual States in the Union (see:https://www.law.cornell.edu/constitution/amendmentxiv; generally this means the 4th, 5th and 6th amendments are applied to the States for criminal defense purposes). So both the State and the Federal government are bound by due process. But what does that mean?

Due process means that you have to be given a chance to be heard. Before something can be “taken” from you (say, your freedom through being detained), you need to have a chance to challenge the right of the State to act against you. In Miller’s case, he argued that the government deprived him of his chance to defend himself or make a decision on his own when, on the advice of the government employees he bought a muzzle-loader. In layman’s terms, essentially, he was setup.

Secondly, as we’ll see below, arguing that, “you thought it was okay to do something because someone said so” is a very bad argument. Almost never wins — but, sometimes, you’re right!

Reflecting the axiom that everyone is “presumed to know the law,” the common law rule that “ignorance of the law is no excuse” admitted of few exceptions. See People v. Studifin, 504 N.Y.S.2d 608, 609 (N.Y. Sup. Ct. 1986); Wimbish v. Commonwealth, 75 Va. 839, 844 (1880). The common law position was based on the fact that most common law crimes were malum in se. Studifin, 504 N.Y.S.2d at 609. Seen as “inherently and essentially evil . . . without any regard to the fact of [their] being noticed or punished by the law of the state,” Black’s Law Dictionary 959 (6th ed. 1990), ignorance of the prohibition of such crimes was simply untenable.

The rationale underlying the rule is less compelling for crimes that are malum prohibitum, viz., acts that are “wrong because prohibited,” not by virtue of their inherent character. Black’s Law Dictionary 960 (6th ed. 1990); see generally Studifin, 504 N.Y.S.2d at 609-10. Yet, the proposition that ignorance of the law is no excuse generally maintains with respect to crimes malum prohibitum, largely for pragmatic purposes.

A couple of technical terms here: malum per se and malum prohibitum. You will rarely ever hear these terms in Court…unless you bring up the crazy defense of “I didn’t know!” “Malum per se” means “evil [bad acts] in and of it self” and refers to crimes that, on their surface, a reasonable person would understand is bad. Examples include murder, rape or theft. The very crimes are anti-social and tend to destroy the order of people living together.

However, “malum prohibitum” is a different kettle of fish. The term means, “evil [bad acts], prohibited” and refers to crimes that don’t have an obvious evil intent or socially destructive element, making inherent knowledge much more difficult. A classic example is sale of alcohol after 12AM on Sundays. Uh…why is selling alcohol at 11:59PM any different then selling alcohol at 12AM? Because there is no inherent difference, no obvious “wrong” to the act, people make this mistake all the time.

The Court here, however, is saying that is anyone could simply state, “I didn’t know that was the rule!”, there would be no ability to pass laws others then those that stop obvious wrongs. There would be a complete breakdown in law enforcement for anything but felonies. Chaos. The Court explains this:

Although leading at times to seemingly “unfair” results, rigid application of the rule promotes the policy it serves: “to encourage people to learn and know the law.” E.g.,Clark v. State, 739 P.2d 777, 779 (Ak. 1987); see also Wimbish, 75 Va. at 845; Oliver W. Holmes, The Common Law 48 (1881) (“It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey . . . .”).

But what happens when the government tells you can do something, and then arrests you anyway? Is that fair? The Federal government has exceptions for just this type of event. For example, if you call the IRS and receive advice on filing your taxes…and it turns out the advice was wrong, you will have to pay the correct tax, but you will not be penalized. Why? Because you reasonably relied on a government actor, who had a authority to advise you on this matter, and it was the government actor that was wrong, and not you. Of course, if you provide the wrong information, or purposefully mislead, then all bets are off. However, in Miller’s case, he relied on three government employees before he purchased a muzzle loader.

The defense derived from the Raley, Cox, PICCO [Supreme Court cases on] trilogy applies where a defendant has reasonably relied upon affirmative assurances that certain conduct is lawful, when those assurances are given by a public officer or body charged by law with responsibility for defining permissible conduct with respect to the offense at issue. The defense is a due process defense, Raley, 360 U.S. at 437; Cox, 379 U.S. at 571, grounded in “traditional notions of fairness inherent in our system of criminal justice.” PICCO, 411 U.S. at 674; United States v. Caron, 64 F.3d 713, 715 (1st Cir. 1995) (applying standard of fundamental fairness)….

[In this case] The due process argument is, in essence, “that the criminal statute under which the defendant is being prosecuted cannot constitutionally be applied to the defendant without violating due process of law, where government officials have misled the defendant into believing that his conduct was not prohibited.” Ghent, supra, at 1031; see also Studifin, 504 N.Y.S.2d at 610 (“[F]or the state to prosecute someone for innocently acting upon such mistaken advice is akin to throwing water on a man and arresting him because he’s wet.”).

The application of the defense then requires a factual determination whether the defendant’s reliance upon the information received was reasonable and in good faith…. The defendant bears the burden of establishing the affirmative defense. See [PICCO] at 675; Howell, 37 F.2d at 1205. With respect to content, the defense is available only where the information upon which the defendant has relied is an affirmative assurance that the conduct giving rise to the conviction is lawful. In the absence of such an affirmative assurance, the due process concerns that the defense is designed to protect are not implicated, and the defense fails.

The question then — did Miller ask the right people and if so, was the advice he received reasonable? Ultiimately, the Court said it was

However, a government official’s status as “state actor” has not alone been sufficient to invoke the defense in cases recognizing its availability. The issue is not whether an “agent” of the state has bound the government by his or her word. The issue is whether convicting an individual who has reasonably relied on the advice of a state actor is so fundamentally unfair as to raise due process concerns. Such concerns are implicated only when the source of the information is a public officer or body charged by law with responsibility for defining permissible conduct with respect to the offense at issue….

Moreover, there can be no doubt that the sources upon which appellant relied–a federal ATF agent, a VDGIF [Virginia Department of Game and Inland Fisheries] agent, and his probation officer–were “state actors.”…

We hold that Miller’s case fails as a matter of law with respect to the ATF agent and the VDGIF agent. Neither of those agents was charged by law with responsibility for defining permissible conduct under Code 18.2-308.2. The ATF agent, although arguably charged with such responsibility under federal firearms laws, has no such duty with respect to Virginia law… See Etheridge, 932 F.2d at 321; Bruscantini, 761 F.2d at 642; Brady, 710 F. Supp. at 295. Likewise, the Commonwealth of Virginia has not charged the VDGIF with the duty of defining permissible conduct under Code 18.2-308.2. The VDGIF exists to provide public, informational and educational services related to Title 29.1, which concerns Game, Inland Fisheries and Boating….

By contrast, however, Miller’s probation officer was charged by the Commonwealth with responsibility for defining Miller’s permissible conduct with respect to Code 18.2-308.2. The legislature granted the probation officer supervisory responsibility for Miller’s conduct and treatment during the course of his probation…including the responsibility for arresting him for a violation of his probation. Violation of the law regarding the possession of a firearm by a convicted felon was surely one. It follows that a probation officer, statutorily required to supervise, assist, and provide a probationer with a statement of the conditions of his release from confinement, as well as to arrest a probationer for a violation of the terms of his release, is, a fortiori, charged by law with defining a probationer’s permissible or impermissible conduct.

Miller’s conviction for being a felon in possession of a firearm was dismissed. The lesson here is this:

  • You can’t say, “I didn’t know the law.”
  • If you intend to rely on a government officer for instructing you on what you may or may not do, be sure to verify that the officer to whom you are speaking is qualified to give you an opinion. The officer must be authorized by the State or the Federal government to give you the advice you are seeking.
  • If you intend to rely on a government officer, your reliance must also be reasonable.

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