Reliance on a Government Statement

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A government may not officially inform an individual that certain conduct is permitted and then prosecute the individual for engaging in that conduct. Yet this is not uncommon. Sometimes we call this defense reliance on a government statement, governmental estoppel or entrapment-by-estoppel.

If the government tells you that some conduct is lawful, then prescutes you criminally for engaging in that conduct, you have the right to raise this as a defense to the criminal charge. And you have a right to a jury instruction on the law of the defense.

What are some examples of cases where the reliance on a government statement (government estoppel) defense was raised? Examples include:

1. Possession of a firearm by prohibited person, Whitten v. State, 690 NW2d 561 (Minn Court of Appeals 2005) (due-process prevents the government from informing a felon that all his civil rights are restored and then prosecuting him for an act that would have been legal if all his civil rights had been restored).

2. Ballot destruction, State v. Shane, 883 NW2d 606 (Minn Supreme Court 2016) (reliance on a government statement defense).

2. Conspiracy to procure unlawful voting and conspiracy to commit forgery, State v. Jacobson, 697 NW2d 610 (Minn Supreme Court 2005) (although framed in terms of defenses, reliance on an official interpretation is fundamentally an evidentiary issue relating to intent; “the ‘defenses’ at issue here are fundamentally evidentiary issues relating to the defendant’s mental state. Because the existence of intent is a question of fact, it must be submitted to the jury.”)

3. Parades near courthouse, Cox v. Louisiana, 379 US 559 (US Supreme Court 1965) (where police official informed protesters they could picket across the street from courthouse, state could not prosecute those protestors for violating a statute prohibiting demonstrations near courthouse).

4. Contempt of a legislative committee, Raley v. Ohio, 360 US 423 (US Supreme Court 1959) (state could not prosecute individuals for refusing to testify before legislative committee when committee members informed those individuals they could invoke state privilege against self-incrimination; reliance on a government statement defense).

5. Manslaughter, State v. McKown, 475 NW2d 63 (Minn Supreme Court 1991) (The spiritual treatment and prayer exception to the child neglect statute expressly provided respondents the right to “depend upon” Christian Science healing methods so long as they did so in good faith, so the state could not prosecute them for exercising that right; governmental estoppel based on statute).

6. Search warrant execution prior to deadline given for compliance by government zoning office, State v. Akers, 636 NW2d 841 (Minn Court of Appeals 2001).

“The State supreme court … said that [the defendants] were presumed to know the law … [But] we cannot agree that the Due Process Clause permits us to hold to any such fiction here. After the Commission, speaking for the State, told the witnesses that they had a privilege, to turn around and fine or imprison them for exercising that privilege would be standardless, arbitrary, and a violation of due process.”

Justice Tom C. Clark, Raley v. Ohio, 360 US 423 (US Supreme Court 1959)

Government estoppel may be invoked when the government, whether by law enforcement or government agency, advises a person that conduct is legal or permitted and a person acts in reliance on that advice. The defense fits where a statute, rule, official statement or act by a government agent that a person relies on in good faith.

Model Penal Code

The Model Penal Code (MPC) is an non-binding text drafted by the American Law Institute (ALI) in 1962 with the hope of rationalizing criminal law in the United States. And it has had some influence on criminal codes in most states in the USA, including Minnesota.

The MPC holds that a mistake of fact or law is a defense if it “negatives” the mental state “required to establish a material element of the offense.” Model Penal Code § 2.04 (1985).

More specifically, Model Penal Code §2.04 (3) establishes a limited “entrapment by estoppel defense.” It allows a defendant to argue they are not guilty of a crime when they acted in reasonable reliance on an official statement of the law from an authorized source (whether or not invalidated). The defense applies when the belief is based on an official statement of the law found in:

1. A statute, ordinance or legislative enactment;
2. A judicial decision, opinion, or judgment;
3. An administrative order, executive order or grant of permission; or
4. An official interpretation by a public officer or body legally responsible for administering or enforcing the law in question.

This defense is that the person whom the government is accusing, lacked criminal intent because the government previously told them the conduct at issue was lawful. This is a type of intent defense. Without intent to do a prohibited act, there never was a crime.

Due Process and Fundamental Fairness

The fundamental fairness doctrine of the Due Process Clause of the Fourteenth Amendment is related to the defense of reliance on a government statement.

“The United States Supreme Court has … recognized that due process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.”

McDonnell v. Comm’r of Pub. Safety, 473 NW2d 848, 854 (Minn Supreme Court 1991)

A due process violation under the entrapment-by-estoppel theory requires that the government misled the defendant by authoritatively assuring him that certain conduct is lawful.

A person has the right to rely on the promises of a government representative and may follow the advice or instructions of the representative, even if the advice is a misstatement of the law. And the same is true of a person’s right to rely upon their good faith understanding of a criminal statute or rule.

“The defense of ‘entrapment by estoppel applies when an official tells the defendant that certain conduct is legal and the defendant believes the official.’ … Despite its descriptive terminology, the defense of entrapment by estoppel ‘stems from the due process clause, not from the common law of contract, equity or agency.'” 

US v. Austin, 915 F2d 363 (US Court of Appeals 8th Circuit 1990)

Pretrial & Jury Trial Issue: Reliance on a Government Statement

The defense can raise this issue in pretrial motion asking a judge for relief suppressing illegal evidence or dismissing a criminal charge. When we do, we spotlight the constitutional due process issue.

And the defense can raise this issue as a defense during a jury trial in two ways. One way we can do that is in the form of an entrapment by estoppel defense at trial. As one court noted above, it is a due process issue presented to a jury during trial.

And another way we can present this issue as a defense during a jury trial is the reliance on a governmental statement defense where, as one court noted above, we are pointing out the lack of criminal intent. One of the elements of every criminal law that a prosecutor must attempt to prove in a criminal prosecution is criminal intent. So if the evidence shows the accused person lacked criminal intent, the verdict must be “not guilty.”

But this defense, sometimes called governmental estoppel, has roots in “equity.” This reflects that when the government is a bad actor or at least a sloppy, uncaring one, we should not allow it to benefit from its negligence or misconduct.

Beyond the legal form of the reliance on a government statement defense, the specific evidence in a given case where the government made a statement that the accused reasonably relied upon, is key. And as the case examples above show, that statement could be in the form of a statute, ordinance, rule, administrative communication, court order, probation officer statement, legislative committee or commission, zoning commission police officer statement, among others.

Question? Call Attorney Thomas Gallagher, 612 333-1500

Do you have a question about Minnesota criminal defenses relating to reliance on a government statement, government estoppel, entrapment-by-estoppel, or governmental misleading about the law? You are welcome to call Attorney Thomas Gallagher to discuss.

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