Due Process and Reasonable Reliance on Government Assurances in Virginia

Can you be convicted of a crime if a government official told you that your conduct was lawful? Under certain circumstances, Virginia law recognizes a constitutional due process defense for a person who reasonably and in good faith relies on an affirmative assurance from a government official that the conduct is permitted.

This defense is sometimes described as a reasonable reliance defense, an official-assurance defense, or a form of entrapment by estoppel. In Virginia, however, the defense is grounded in the Due Process Clause, not in the traditional defense of entrapment.

The Virginia Court of Appeals addressed this issue directly in Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018). The decision is particularly important because it recognized that a judge can be the government official whose affirmative assurance gives rise to the defense.

For Virginia criminal defendants, the case raises an important question:

When can a person rely on what a government official tells them about whether certain conduct is legal?

What Is the Due Process Reasonable-Reliance Defense in Virginia?

Virginia courts have recognized that, in limited circumstances, a criminal prosecution may violate due process when the defendant reasonably and in good faith relied upon an affirmative assurance from a government official that the defendant’s conduct was lawful.

The defense is based on a fundamental principle of due process: it can be fundamentally unfair to criminally punish a person for doing something that the government itself affirmatively told that person was lawful.

In Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997), the Court of Appeals explained that the defense applies when a defendant is prosecuted for “reasonably and in good faith doing that which he was told he could do.” The court reasoned that applying the criminal law against someone who reasonably relied upon the advice of a state actor can raise constitutional due process concerns.

The defense does not mean that a person is generally entitled to rely upon any statement made by any government employee. Virginia law imposes specific requirements.

The Three Requirements for the Virginia Reasonable-Reliance Defense

Virginia courts have identified three basic requirements.

Under Branch v. Commonwealth, 42 Va. App. 665, 593 S.E.2d 835 (2004), and the cases following it, a defendant must establish:

1. The defendant was assured that the conduct giving rise to the criminal charge was lawful;
2. The assurance came from a government official who was legally responsible for defining permissible conduct concerning the offense; and
3. The defendant’s reliance on the assurance was reasonable and in good faith.

See Branch, 42 Va. App. at 671, 593 S.E.2d at 837; Miller, 25 Va. App. at 738-39, 745, 492 S.E.2d at 488-89, 491.

The defendant bears the burden of establishing the affirmative defense. The first question is therefore whether the information received from the government was legally sufficient to implicate the Due Process Clause. The second question generally involves the factual issue of whether the defendant’s reliance was reasonable and in good faith.

The Government Must Give an Affirmative Assurance

One of the most important limitations on this defense is that mere silence, ambiguity, or a defendant’s personal interpretation of government conduct is generally not enough.

The government official must provide an affirmative assurance that the conduct is lawful.

In Miller, the defendant was a convicted felon who possessed a muzzle-loading rifle after his probation officer told him he could possess such a firearm for hunting. The Court of Appeals held that the probation officer was a legally sufficient source of information because the officer had responsibility concerning the defendant’s conduct as a probationer.

The important distinction is between:

• “The government told me I could do this.”
• “I believed the government had not prohibited me from doing this.”

The first may implicate the reasonable-reliance defense. The second ordinarily does not.

The Court of Appeals emphasized this distinction in Claytor v. Commonwealth, 62 Va. App. 644, 751 S.E.2d 686 (2013). There, the court explained that the defense is available only when the defendant seeks to determine whether the conduct is lawful and receives an affirmative assurance that it is lawful.

The distinction remains important today. In Northcraft v. Commonwealth, the Court of Appeals reiterated that the defense fails when the defendant cannot establish that a government official actually gave an affirmative assurance that the conduct was lawful.

Who Qualifies as a “Government Official”?

The source of the information is equally important.

Virginia courts have described the relevant government official as a person or governmental body “charged by law with responsibility for defining permissible conduct with respect to the offense at issue.”

That requirement prevents a defendant from asserting a constitutional defense based upon virtually any statement made by a government employee.

For example, the relevant question may be whether the official had legal authority or responsibility concerning the particular conduct at issue.

Probation Officers

In Miller, the defendant’s probation officer provided the relevant assurance.

The Court of Appeals concluded that the probation officer was a legally sufficient source because the officer’s responsibilities necessarily involved advising and supervising the defendant concerning permissible conduct.

Judges

The most significant development came in Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).

In Davis, the defendant was charged with possessing a firearm while subject to a protective order in violation of Virginia Code § 18.2-308.1:4(B).

The defendant maintained that he reasonably relied upon information from the Fairfax Juvenile and Domestic Relations District Court indicating that the protective order was no longer in effect.

The trial court refused to recognize the defense, reasoning in part that a judge was not the type of “government official” contemplated by Miller.

The Court of Appeals disagreed.

Davis v. Commonwealth: A Judge Can Provide the Relevant Government Assurance

The facts in Davis are particularly important.

The defendant presented evidence that, during proceedings concerning the protective order, the JDR judge stated that “all matters” had been dropped and entered an order indicating that the petitions had been dismissed.

The trial court concluded that the judge could not qualify as the government official contemplated by Miller.

The Court of Appeals reversed.

The court explained that judges have the responsibility to interpret and apply the law. Because the protective order had been entered in the JDR court and was subject to enforcement and modification there, the judge was a legally sufficient source of information concerning the status of that protective order.

The Court of Appeals concluded that the JDR judge could constitute a “government official” for purposes of the reasonable-reliance defense.

The court further held that the defendant had presented sufficient evidence of an affirmative assurance to warrant a jury instruction.

Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).

This holding is significant beyond protective-order cases. It recognizes that the identity and legal authority of the government official must be evaluated in the context of the particular law involved.

Reasonable Reliance Is a Question for the Jury

Importantly, establishing that a government official made an affirmative assurance does not automatically establish the defense.

The defendant must also show that his or her reliance was reasonable and in good faith.

In Davis, the Court of Appeals explained that this issue is a factual determination based upon the totality of the circumstances.

That means the court may consider circumstances such as:

• What exactly did the government official say?
• Was the defendant specifically asking whether the conduct was lawful?
• Was the statement affirmative or merely ambiguous?
• Did the official have authority concerning the subject matter?
• What did the defendant know at the time?
• Did the defendant have reason to doubt the official’s statement?
• Did the defendant rely upon the statement before engaging in the conduct?
• Were there contradictory statements or documents?
• Was the defendant’s interpretation reasonable under the circumstances?

The question is not simply whether the defendant claims to have misunderstood the law.

The question is whether the government affirmatively provided information upon which the defendant reasonably and in good faith relied.

Davis and Protective Orders

Davis provides an especially useful example because protective orders can create complicated questions concerning the defendant’s legal status.

A person may believe that a protective order has been dismissed, modified, or otherwise terminated. If the person receives an affirmative statement from the court responsible for the order indicating that the order is no longer in effect, the circumstances may potentially implicate the due process defense.

This is particularly significant in cases involving Virginia Code § 18.2-308.1:4, which criminalizes certain firearm possession by a person subject to a qualifying protective order.

The Davis decision does not establish that every misunderstanding concerning a protective order constitutes a defense. Instead, it recognizes that a defendant may be entitled to present a reasonable-reliance defense when there is evidence that the defendant actually sought information concerning the status of the order and received an affirmative assurance from the government official responsible for the order.

The Difference Between Mistake of Law and Government-Induced Mistake

Ordinarily, a person’s ignorance of the law is not a defense to a criminal charge.

The reasonable-reliance doctrine is different.

The defendant is not simply arguing:

“I did not know the law.”

Instead, the defendant is arguing:

“I sought information from the government concerning whether my conduct was lawful, and the government affirmatively told me that it was.”

That distinction is at the heart of the due process doctrine.

As the Virginia Court of Appeals explained in Miller, the constitutional concern arises because the government should not ordinarily be permitted to mislead a person into believing conduct is lawful and then prosecute that person for engaging in the very conduct the government represented was permissible.

See Miller v. Commonwealth, 25 Va. App. 727, 735-39, 492 S.E.2d 482, 486-89 (1997).

This Is Not the Same as Traditional Entrapment

The reasonable-reliance defense should not be confused with traditional entrapment.

Traditional entrapment generally concerns government inducement to commit a crime that the defendant otherwise was not predisposed to commit.

The Virginia reasonable-reliance defense focuses on something different: the government’s affirmative representation concerning the legality of the defendant’s conduct.

The issue is therefore not necessarily whether the government persuaded the defendant to commit a crime.

Instead, the issue is whether the government affirmatively assured the defendant that the conduct was lawful, and whether the defendant reasonably and in good faith relied upon that assurance.

Some jurisdictions refer to similar doctrines as “entrapment by estoppel,” “official reliance,” or an “official statement” defense. Virginia cases generally analyze the doctrine under the Due Process Clause and the reasonable-reliance framework established in Miller and Branch.

What Does Not Usually Establish the Defense?

Virginia cases demonstrate several important limitations.

A Defendant’s Personal Interpretation Is Not Enough

In Claytor, the defendant relied upon his interpretation of a court order concerning his driving privileges. The Court of Appeals distinguished that situation from Miller because the defendant had not received an affirmative assurance that his conduct was lawful.

General Government Information May Not Be Enough

A government employee providing general information does not necessarily have authority to provide a legally binding assurance concerning the specific criminal prohibition at issue.

The question is whether the person providing the information was legally responsible for defining permissible conduct concerning that offense.

Silence Is Not the Same as an Affirmative Assurance

The fact that a government employee did not tell someone that conduct was prohibited generally does not establish that the government affirmatively told the person that the conduct was lawful.

The distinction between affirmative assurance and mere absence of a warning is critical.

What Evidence Can Be Important?

Because reasonable reliance is heavily fact-dependent, preserving evidence concerning the government assurance can be extremely important.

Depending upon the circumstances, relevant evidence may include:

• Court orders;
• Transcripts of hearings;
• Recorded court proceedings;
• Written correspondence from government officials;
• Emails;
• Letters;
• Probation records;
• Conditions of probation;
• Protective-order documents;
• DMV records;
• Written instructions from government agencies;
• Witness testimony concerning statements made by government officials; and
• Evidence demonstrating that the defendant specifically asked whether the conduct was lawful.

The exact language used by the government official can be critical.

For example, there is an important difference between:

“I don’t know.”

and:

“Yes. You are permitted to do that.”

The second statement is much more likely to constitute the type of affirmative assurance contemplated by the Virginia cases.

The Defendant Has the Burden

The reasonable-reliance defense is an affirmative defense.

Under Miller, Branch, Davis, Park, and subsequent cases, the defendant bears the burden of establishing the defense.

The defendant therefore must produce evidence sufficient to establish the necessary components of the doctrine.

At the same time, Virginia law recognizes an important procedural protection concerning jury instructions.

In Davis, the Court of Appeals explained that when there is more than a scintilla of evidence supporting the affirmative defense, the defendant is entitled to have the jury instructed on the defense.

Thus, the trial court should not simply decide whether the defendant’s reliance was ultimately reasonable and in good faith when that issue is properly supported by the evidence. Where the evidence supports the defense, the jury may be required to decide the factual question.

The Three-Part Test: A Practical Guide

When evaluating a potential reasonable-reliance defense in a Virginia criminal case, the analysis can be reduced to three questions:

1. Was there an affirmative assurance?

Did a government official actually tell the defendant, expressly or through an official action, that the conduct was lawful?

2. Did the official have the appropriate authority?

Was the person or governmental body legally responsible for defining or administering the law governing the defendant’s conduct?

3. Was the defendant’s reliance reasonable and in good faith?

Considering all of the circumstances, was it reasonable for the defendant to rely upon what the government official said or did?

If all three questions can be supported by the evidence, the case may present a viable Virginia due process reasonable-reliance defense.

Why Davis v. Commonwealth Matters

Davis v. Commonwealth is an important Virginia criminal case because it makes clear that the reasonable-reliance defense is not limited to statements from probation officers or similar officials.

The case establishes that, depending upon the circumstances, a judge may be the government official whose affirmative assurance is sufficient to invoke the defense.

The decision also reinforces an important principle of due process: criminal liability can raise constitutional concerns when the government affirmatively tells a person that conduct is lawful and the person reasonably and in good faith relies upon that representation.

The defense remains narrow. A defendant cannot simply claim ignorance of the law or point to an ambiguous government document. There must be an affirmative assurance from an appropriate government source, followed by reasonable and good-faith reliance.

But when those circumstances exist, the government’s own representations may become a critical part of the criminal defense.

Frequently Asked Questions About Virginia’s Reasonable-Reliance Defense

Can I use a government official’s statement as a defense to a Virginia criminal charge?

Potentially. Virginia recognizes a due process defense where a defendant reasonably and in good faith relies upon an affirmative assurance from a government official that the defendant’s conduct was lawful.

What is the Virginia case about reasonable reliance on government advice?

The leading cases include Miller v. Commonwealth, 25 Va. App. 727 (1997); Branch v. Commonwealth, 42 Va. App. 665 (2004); and Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).

Can I rely on what a judge tells me?

Under Davis, a judge can qualify as the relevant government official when the judge has responsibility for the legal matter at issue. In Davis, the judge’s statements concerning the status of a protective order were sufficient to implicate the reasonable-reliance defense.

Is ignorance of the law a defense in Virginia?

Generally, no. The reasonable-reliance defense is different because it involves an affirmative assurance from the government concerning the legality of the defendant’s conduct.

Does the government have to tell me that my conduct is legal?

The Virginia cases emphasize the need for an affirmative assurance. A defendant’s subjective interpretation of an ambiguous government action generally is not enough.

Who has the burden of proving reasonable reliance?

The defendant bears the burden of establishing the affirmative defense.

Does reasonable reliance automatically result in dismissal of the charges?

Not necessarily. The defense depends upon the particular facts and circumstances, including the source and content of the government’s assurance and whether the defendant’s reliance was reasonable and in good faith.

Conclusion

Virginia’s reasonable-reliance defense provides an important constitutional protection in the unusual circumstance where a person acts based upon an affirmative assurance from the government that the conduct is lawful.

The doctrine developed through Miller and Branch and was significantly clarified by Davis v. Commonwealth. Davis confirms that a judge can qualify as the relevant government official when the judge has authority over the legal matter at issue.

For anyone charged with a Virginia criminal offense after relying upon information provided by a court, probation officer, law-enforcement officer, governmental agency, or other authorized government official, the precise words used, the authority of the person who provided the information, and the circumstances surrounding the defendant’s reliance can be critically important.

A person should not assume that a government statement automatically creates a defense. But neither should a potential due process defense be overlooked simply because the defendant technically violated the language of a criminal statute.

When the government itself has affirmatively assured a person that particular conduct is lawful, Virginia law recognizes that due process may limit the government’s ability to prosecute that person for relying upon its own assurance.

Key Virginia Authorities

• Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).
• Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997).
• Branch v. Commonwealth, 42 Va. App. 665, 593 S.E.2d 835 (2004).
• Palmer v. Commonwealth, 48 Va. App. 457, 632 S.E.2d 611 (2006).
• Claytor v. Commonwealth, 62 Va. App. 644, 751 S.E.2d 686 (2013).
• Park v. Commonwealth, 74 Va. App. 635, 871 S.E.2d 629 (2022).
• Northcraft v. Commonwealth (Va. Ct. App. 2023).