Wednesday, June 10, 2015

The Difference Between Legal and Factual Errors

Posted by Sherry F. Colb

In my column for this week, I discuss the U.S. Supreme Court case of Heien v. North Carolina.  In Heien, a police officer stopped the petitioner for driving with only one working brake light. As it turned out, however, according to a later state court of appeals decision, North Carolina law allows people to drive with one working brake light.  The state supreme court nonetheless ruled that the police officer complied with the Fourth Amendment when he stopped the driver, Nicholas Brady Heien, because the ambiguous language of the statute at issue could have led a reasonable person to conclude that two working brake lights were required.  The question faced by the U.S. High Court was whether such a reasonable mistake about the law (which led to a stop for a non-offense, after which the officer, conducting a consent search, found cocaine, for which Heien was charged with attempted trafficking) meant that the officer who conducted the stop did or did not violate the Fourth Amendment.

In his opinion for the Court, holding that suspicion based on a reasonable mistake of law constitutes "reasonable suspicion" and therefore authorizes a Fourth Amendment stop, Chief Justice Roberts, among other arguments that he invoked for this result, contended that because it is utterly uncontroversial to conclude that there is reasonable suspicion when an officer turns out, after the fact, to have been (reasonably) mistaken about the facts, it ought to be no different when the officer has the correct facts but is (reasonably) mistaken about the law.

There are a number of reasons to quarrel with the Chief Justice's equation between these two sorts of reasonable errors, some of which I discuss in my column, referenced above.  It may be useful, however, in thinking about this difference to consider the more general difference between errors of fact (whether reasonable or not) and errors of law (also regardless of reasonableness).

Consider what happens when a criminal defendant, John, turns out to have been mistaken about the facts. He believed that his next door neighbor, James, was aiming a gun at him and, for that reason, John shot James, hoping to kill the latter but instead placing James in an irreversible coma. In reality, James was holding a hockey stick and walking toward his own car.  If the attempted murder statute requires the intent to kill one's victim, (a typical requirement for proving an attempt offense) then this defendant--on these facts--cannot be convicted of attempted murder.

Consider now what happens if John understood the facts perfectly.  He knew that James was carrying a hockey stick, not a gun, and that James was in no way threatening John's safety.  At the same time, however, John did not know the law of attempted murder (or of attempts liability more generally). He believed that the law punishes only successful attempts at killing people, not unsuccessful ones.  (And assume that the law is unambiguous in rejecting his position).  No matter how sincerely he believed that this was the law, he would have no defense for his behavior.  In the common parlance, "ignorance of the law is [generally] no defense."

This seems like the right result here.  If you do not have the facts right (in the way that John did not, in the first scenario), this tends to mitigate your culpability.  You may pose a danger to the community (and are perhaps subject to civil commitment), but you do not prove yourself to have a bad character by being inclined to kill your neighbor in self-defense, even if it turns out that your belief that he was threatening you was both wrong and unreasonable.

The same would hold true for a man who believed that ignoring his date's attempts to make him stop touching her and ignoring her screams as he forcibly had sex with her were lawful, because she agreed to go out on a date with him.  To the extent that the criminal law reflects normative judgments about bad behavior or behavior that reflects a bad character, a man who forces a woman to have sex has seriously violated those norms, regardless of whether he happens to believe (erroneously) that the law supports his misogynistic violence.

On the other hand, if the man above believed that his date had expressed an interest in having sex and indicated her consent through her words and actions, then unless his belief was tantamount to thinking that rape is legal (e.g., if he thought that going on a date and then saying "stop" and screaming indicate that the woman is "asking for it"), that belief does, to some degree, mitigate his culpability (whether or not it actually reduces the offense).

Though most of us do not have occasion to read and digest the entire criminal code of the state where we live, we are nonetheless held responsible for conforming our conduct to that code, no matter how ignorant we and the rest of the population might be.  At the same time, if we misunderstand the facts that we encounter, it is understood that that misunderstanding is very different from legal mistakes and can substantially affect the culpability of our conduct.  Giving someone poison because you believe the substance is tea is quite different from giving someone poison because you think it is legal to give someone poison.

Given the line between errors of law and of fact that exists more generally, in the law and in our normative intuitions, it seems disingenous for the Supreme Court to find that distinction so puzzling and bizarre when it comes to a police officer's mistakes of facts and law and how each implicates the Fourth Amendment.  It is quite obvious that factual mistakes, so long as they are reasonable, are consistent with reasonable suspicion or probable cause if such facts (when true) would implicate the suspect in a crime.  It should be equally obvious that the same need not hold true when the police officer reasonably (but mistakenly) believes that what a suspect is doing is criminal.  If it is not criminal, then the better approach at most admits the evidence under the good faith exception (but perhaps should not even do that) but, in any event, acknowledges that without a criminal statute that prohibits what the suspect is (or appears to be) doing, there is no reasonable suspicion.  The Fourth Amendment is parasitic on the law that an officer is enforcing; if there is no law in place, then we should recognize that and deem the officer's searches or seizures to be Fourth Amendment violations.


Unknown said...

Hi Sherry: This comment is in two parts. I'm sorry it's long. Please bear with me.

The Heien decision has been bothering me for a while now. I understand your concerns about SCOTUS's refusal to slide this case under the "good faith" exception, because the decision expands the scope of police authority (as you put it) rather than merely counting as a refusal to apply the exclusionary rule when there is reasonable mistake of law. But there is something else about the case that bothers me. (I have an interest in these sorts of cases for two reasons. First, that I have worked on fourth amendment law, and second that I am currently working on the question of legal interpretation.)

Everyone on SCOTUS agrees that the statute in question in Heien is ambiguous. But, as best I can tell, it's really *not* ambiguous. (Nor is it vague -- or, at least, it's not vague in any way that would matter to this case.) One part of the statute requires that any car be “equipped with a stop lamp on the rear of the vehicle" and goes on to say that "the stop lamp may be incorporated into a unit with one or more other rear lamps". Another part of the statute says that vehicles must have "all originally equipped rear lamps or the equivalent in good working order". The question, then, is whether any stop lamp on the rear of a vehicle counts as a rear lamp. If the answer is yes, then the statute requires that *both* rear stop lamps be in good working order.

It looks like the Appeals Court read "a stop lamp" and "the stop lamp" as connoting singularity. But if there is a connotation of singularity, it is not semantically encoded, i.e., it is not part of the meaning of the words. It is not difficult to see this. If I say "My car has a stop lamp; indeed, it has two", I am not contradicting myself. But on the theory that singularity is encoded in the *meaning* of "a stop lamp", I would be (because I would be saying: "My car has exactly one stop lamp; indeed, it has two."). Any connotation of singularity is pragmatically imparted. That singularity is not encoded in this particular use of "the stop lamp" should be even clearer. Suppose FIFA says: "Every world cup game must be played with a game ball. The game ball must be properly inflated." Here it should be clear that this rule leaves it open that there be many game balls during a single world cup game (as there are, for example, at the women's world cup right now). But it's also clear that "the game ball" in the second sentence refers to any and all of the game balls that are used during any world cup game. The semantic content of both sentences, taken together, is that every world cup game must be played with at least one game ball, and that *any* of the game balls used at any world cup game must be properly inflated.

The statute therefore leaves it open that there might be more than one stop lamp at the rear of a vehicle, and says that any such stop lamp may be incorporated into a unit with one or more other rear lamps.

Unknown said...

Here is part 2:

More important is the "other" issue. The Appeals Court simply read the word "other" out of the statute. But "other" has a definite meaning. If I say "Joan will be going to dinner with one or more other legislators", I am not merely presupposing, nor am I merely pragmatically conveying, that Joan is a legislator. The sentence *entails* that Joan is a legislator. If it didn't, then it would have the same meaning as "Joan will be going to dinner with one of more legislators". But it doesn't. So the statute, properly understood, entails that all stop lamps are rear lamps. And thus the statute entails that all stop lamps be in good working order.

The lower court found the Appeals Court decision "surprising". It's more than surprising. It's just about as wrong as could be. The law, as written, literally requires both stop lamps to be in good working order. The officer in the Heien case got it absolutely right. (Grouper really *are* tangible objects! Oh, don't get me started...)

So this is not just a case in which an officer made an error of law. This is a case in which an officer read the law correctly (or the instructions given to the officer by the local police department or state police training manual were based on a correct reading of the law), but the Appeals Court gave the law a wacky interpretation.

As I see it, this changes the equation. Although it may be that we should not give carte blanche to police officers who interpret a genuinely ambiguous or vague statute in a way that increases their power and discretion to detain persons, it's less clear to me that we should not recognize that police officers have the authority to apply what, ex ante, is the most reasonable reading of a statute (perhaps the *only* reasonable reading), even if that reading is subsequently invalidated by a higher court.

Ryan said...

Prof. Colb,
I think you should reconsider the hypos that you used.

Your first hypothetical is obviously wrong. Unlike, e.g., believing that he was sitting at a mannequin, the mistake of fact you describe wouldn't negate intent. It might give rise to an affirmative defense of self defense, but that's a separate matter.

Your second hypo is confusing, at best, given that the defendant was trying to commit an act that he knew to be unlawful. "Mistake of law" isn't an interesting or useful concept unless the defendant acts in reliance on that mistaken belief, and it isn't possible to rely, ex ante, on a mistaken belief regarding attempt liability.

Anonymous said...


God bless you Sam. More than once I've seen lawyers for both sides stipulate to facts that aren't facts so that way they can get to the juicy legal issues. See, only trial lawyers like to argue facts; for the most part appellate lawyers like to argue the law because that's how they build their reputations. I can pick the names of at least a dozen cases like Heien where the parties do this--including this term's Ohio vs Clark. It's terrible in my view but fake facts never stood in the way of making real law.

Unknown said...

@ James: Thank you, James, that is so kind of you, and deeply appreciated.

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Joseph said...

Samuel Rickless,

Wasn't the Supreme Court bound to deem the statute ambiguous where the NC Court of Appeals held it to mean one thing even though, as the majority wrote, "[t]he use of 'other' suggests to the everyday reader of English that a 'stop lamp' is a type of 'rear lamp'"?

If this were a disagreement about facts (you say the fish is red, I say the fish is blue), the Court could state the obvious (the fish is blue); but where it is a disagreement about the meaning of North Carolina traffic law, shouldn't the Court generally defer to the state?

Unknown said...

Joseph: In the case of genuine ambiguity, perhaps SCOTUS should defer to the State Court of Appeals. But my contention is that the NC statute is not genuinely ambiguous. Maybe SCOTUS should be polite, but it shouldn't stand for a lower court's calling a handsaw a hawk.

Hypo for you. Suppose there is a statute that permits a police officer to arrest any passenger in a vehicle when the officer is permitted to arrest the vehicle's driver. Suppose that Jones is driving a car, and officer Smith lawfully arrests Jones. Smith then notices that Brown is in the back seat of the car, and arrests Brown. Brown later contests the arrest, claiming that he wasn't a passenger because Jones had kidnapped him. Suppose further that the State Court of Appeals rules in Brown's favor, claiming that "passenger" means "person *voluntarily* conveyed by the driver". This is not what "passenger" means, the State Court just got it wrong. Does SCOTUS later compound the error by claiming that "passenger" is ambiguous? I hope not.

More importantly, perhaps, whether a word or sentence is ambiguous is a matter of *fact*. There are linguistic facts and there are non-linguistic facts. It can be no less obvious that a word is unambiguous than it is obvious that a fish is blue. "Banana" is unambiguous: that's a fact. "Bank" is ambiguous: and that's a fact too. There can be disagreement about the meanings of sentences, just as there can be disagreement about non-linguistic facts. But if the facts are clear, I don't see why deference is called for. It is possible for a court to get the linguistic facts wrong. And this should be pointed out.