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Criminal Liability for a Strict-Liability Offense Requires Fair Notice and Proximate Cause

By Shari Allison

United States v. Apollo Energies, Inc., ___ F.3d ___ , 2010 WL 2600502 (10th Cir. 2010) (Kan)Violation of the Migratory Bird Treaty Act (MBTA) is a strict liability crime, requiring no mens rea to commit an offense. However, due process is satisfied in this case only if defendants?in this case, oil and gas producers whose exhaust equipment sometimes traps and kills migratory birds sheltering or nesting there?proximately caused the harm to protected birds. Two key concepts in the COA?s analysis: (1) fair notice that an act is criminal is especially important in the case of strict liability crimes. ?When, as here, predicate acts which result in criminal violations are commonly and ordinarily not criminal, we must ask the fair notice question once again;? (2) criminalizing acts which the defendant does not cause is unconstitutional...continue to full post

Full post as published by Tenth Circuit Blog on July 12, 2010 (boomark / email).