Legalization conflicts and reliance defenses.

• Author: Fan, Mary D.
• Position: Abstract through I. Rebellion Decriminalization and Reliance Dilemmas B. Three Contemporary Reliance Dilemmas 1. The Perilous Boom Industry of Marijuana Legalization, p. 907-932

ABSTRACT

This Article addresses an open question of pressing practical import-- whether people and businesses operating in the shadow of a legalization conflict have a reliance defense. A legalization conflict arises when conduct is decriminalized by one authority while remaining criminalized under another legal regime. For example, drugs, guns, undocumented immigrants, and giving legal advice or financial support for certain activities, may be both illegal and legal under conflicting regimes. People plan their lives, hopes, and financial affairs around legalization laws and decrees. If people take actions now in reliance, will they face sanctions later? The question is of great import for many people and businesses, as well as the lawyers who advise them.

The Article argues that reliance defenses should be available when governmental actors in charge of enforcing the criminal regime expressly acquiesce in the competing legalization. In such cases, reliance is reasonable and estoppel is required lest people or businesses be lulled by the statements of actors charged with administering the law into a snare of sanctions. Potential objections regarding privileging governmental lawlessness and the danger of giving people a normative choice of law that enables strategic gamesmanship are addressed.

Table of Contents Introduction I. Rebellious Decriminalization and Reliance Dilemmas A. Not Grandpa's Mistake-of-Law B. Three Contemporary Reliance Dilemmas 1. The Perilous Boom Industry of Marijuana Legalization a. Culture Clash b. Decriminalization Conflict 2. State Firearms Nullification Laws 3. Deferred Action for Early Childhood Arrivals and Parents of U.S. Citizens or Permanent Residents II. Paired Principles To Guide When Reliance Defenses Should Be Available A. Estoppel and Legality B. Acquiescence and Reasonable Reliance III. Main Potential Objections and Answers A. Governmental Lawlessness B. Giving the Governed a Normative Choice of Law Conclusion Introduction

Legalization conflicts are proliferating. Drugs, guns, undocumented immigrants, giving legal advice or financial support to facilitate certain activities, and more may be both illegal and legal within the same space. (1) The clashing permissions and prohibitions can arise from overlapping governing authorities and laws with competing normative visions of what should be criminalized or authorized. (2) These legalization-criminalization conflicts create a jungle gym structure of laws that can allow for strategic maneuvering by the savvy--and traps for the unwary or confused. (3) The conflicts also create a welter of questions for the courts, law enforcers, and people subject to the laws.

Consider, for example, some of these puzzles. If you grow or smoke marijuana in a legalization state, do you have a defense based on reliance on state legalization and licensing if prosecuted by federal authorities? (4) If banks lend to state-licensed marijuana businesses or law firms provide legal services to such start-ups, is there a safe harbor against federal sanctions for facilitating unlawful activity because of state legalization and licensing? (5) If a presidential administration states it will not prosecute conduct legal under state law, do people or entities acting in reliance have a defense in a criminal prosecution by that administration or a subsequent one? (6)

If you are in one of the nine states thus far to pass laws nullifying federal firearms law, do you have a reliance defense if prosecuted for possession, distribution, or manufacturing of firearms in violation of federal law? (7) Should it make a legal difference when it comes to reliance based defenses that federal authorities have refused to acquiesce in firearms legalization regimes conflicting with federal law? (8)

What happens to all the undocumented youths dubbed DREAMers who revealed their identities and locations when applying for President Obama's grant of deferred action on deportation? (9) When the presidential administration changes or if Congress overrides the nonenforcement policy, can the information applicants supplied in their application be used to hunt them down for deportation--or even prosecution for illegal entry? (10) Similarly, if undocumented parents of U.S. citizens step out of the shadows to apply for work authorization under President Obama's executive order, can the information revealed in their applications later be used against them if the political administration changes? (11)

These questions from different areas of human and commercial activity share a common core--a legalization conflict. A legalization conflict arises when conduct is decriminalized or permitted by one authority while remaining criminalized under another concurrent legal regime. (12) The conflicts can arise from contradictory permissions and prohibitions issued by countries, states, counties, cities, and other governing authorities. (13) Within the same level of government, different branches and actors can send clashing messages about legality and enforcement policy. While scholars are drawn to the federalism and preemption issues that can arise from clashing laws, (14) people living under these laws have more immediate concerns--when can reliance on legalization be a defense against criminal liability under a competing regime? This question is increasingly important as more legalization conflicts are arising--sometimes even with the acquiescence of entities in charge of the competing criminalization regime. (15) Even at this early stage, some of the people lulled by legalization into acting in reliance are already facing prosecution and courts must decide whether they have a defense. (16)

Legalization conflicts are different than those covered by traditional conflicts of law. Traditionally, conflicts of laws dealt with choice of law or recognition of judgment questions involving events or persons with ties to more than one state. (17) For example, when citizens of different states sue each other for events happening in a third state, which state's law should control? (18) Much of conflicts analysis is focused on civil procedure, jurisdiction, and private-law issues such as contract enforcement and torts. (19) To the extent criminal law issues are considered at all, the focus is generally on the classic questions of what happens when a crime or criminal crosses state lines. (20) By contrast, at stake in legalization conflicts is not choice of law but rather reliance on the law.

This Article tackles the question of reliance defenses that are arising because of the welter of contemporary legalization conflicts. In addition to these criminal law questions, the Article also addresses conflicts between immigration-related legal sanctions and executive enforcement clemency because of the rise in criminal sanctions for immigration offenses. (21) The Article argues that reliance defenses should be available when the entity charged with enforcing the criminalization regime acquiesces in the competing legalization regime. If enforcers of the controlling criminal regime expressly acquiesce to a rebellious legalization scheme they may not later spring upon hapless people simply relying on the laws on the books or executive decrees. This Article also argues that the reliance defense for conduct during the period of acquiescence survives a change in the law enforcement administration.

The Article proceeds in three parts. Part I discusses how contemporary decriminalization conflicts are a challenge for traditional mistake-of-law doctrine and highlights the need for guidance in this uncertain terrain. This Part discusses three examples of contemporary conflicts involving marijuana, guns, and immigration that are raising an array of questions for courts, law enforcement, and people and businesses. The three case studies also illustrate the factors that can make a reliance case stronger or untenable. The marijuana example illustrates a situation of express state decriminalization coupled with acquiescence by the enforcers of the...