favorability
06-07-2009, 02:11 AM
Expatriating a U.S. citizen subject to the Citizenship Clause of the Fourteenth Amendment on the ground that, after reaching the age of 18, the person has obtained foreign citizenship or declared allegiance to a foreign state generally will not be possible absent substantial evidence, apart from the act itself, that the individual specifically intended to relinquish U.S. citizenship. An express statement of renunciation of U.S. citizenship would suffice.
An intent to renounce citizenship can be inferred from the act of serving in the armed forces of a foreign state engaged in hostilities against the United States.
June 12, 2002
MEMORANDUM OPINION FOR THE SOLICITOR GENERAL
You have asked us for a general survey of the laws governing loss of citizenship, a process known as "expatriation" (also known within the specific context of naturalized citizens as "denaturalization"). See, e.g., Perkins v. Elg, 307 U.S. 325, 334 (1939) ("Expatriation is the voluntary renunciation or abandonment of nationality and allegiance."). Part I of this memorandum provides a general description of the expatriation process. Part II notes the relative difficulty of expatriating a person on the grounds that he has either obtained naturalization in, or declared allegiance to, a foreign state, absent evidence of a specific intention to relinquish U.S. citizenship apart from the act of naturalization or declaration itself. Part III analyzes the expatriation of a person who serves in a foreign armed force engaged in hostilities against the United States. (1)
I. Law of expatriation
It is now well settled that anyone may renounce his United States citizenship. (2) "In 1794 and 1797, many members of Congress still adhered to the English doctrine of perpetual allegiance and doubted whether a citizen could even voluntarily renounce his citizenship. By 1818, however, almost no one doubted the existence of the right of voluntary expatriation." Afroyim v. Rusk, 387 U.S. 253, 258 (1967). (3) In 1868, Congress declared that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness." Act of July 27, 1868, ch. 249, 15 Stat. 223, 223 (1868); see also 8 U.S.C. § 1481 note (2000) (quoting R.S. § 1999) (same). That declaration further stated that "any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government." 15 Stat. at 224. Similarly, the Burlingame Treaty of 1868 between the United States and China recognized "the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of . . . free migration and emigration . . . for purposes of curiosity, of trade, or as permanent residents." United States-China, July 28, 1868, art. 5, 16 Stat. 739, 740. Congress provided specific legislative authority for nullifying citizenship when, in 1907, it enacted the predecessor of the modern federal expatriation statute. See Act of Mar. 2, 1907, ch. 2534, 34 Stat. 1228 (1907). As the Supreme Court has noted, such acts of Congress "are to be read in the light of [Congress's 1868] declaration of policy favoring freedom of expatriation which stands unrepealed." Savorgnan v. United States, 338 U.S. 491, 498-99 (1950).
By virtue of its express power "[t]o establish an uniform Rule of Naturalization," U.S. Const. art. I, § 8, cl. 4, Congress has an implied power to set the terms of U.S. citizenship, including the power to expatriate. (4) But that power is limited by the Citizenship Clause of the Fourteenth Amendment. That provision states that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const. amend. XIV, § 1.(5) As that clause has been construed by the Supreme Court at least since 1967, the United States may not deprive a person "born or naturalized in the United States" of his U.S. citizenship "'unless he voluntarily relinquishes it.'" Vance v. Terrazas, 444 U.S. 252, 260 (1980) (quoting Afroyim, 387 U.S. at 262). (6) Forced expatriation has also been thought to violate other provisions of the Constitution. See Trop v. Dulles, 356 U.S. 86, 101, 102, 103 (1958) (plurality opinion) ("[U]se of denationalization as a punishment is barred by the Eighth Amendment. . . . The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. . . . [T]he Eighth Amendment forbids Congress to punish by taking away citizenship[.]"); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-66 (1963) (striking down as unconstitutional "the sanction of deprivation of nationality as a punishment . . . without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments"). Accordingly, at least since the Supreme Court's ruling in Afroyim v. Rusk, 387 U.S. 253 (1967), it is no longer constitutionally sufficient that a person who was born or naturalized in the United States has voluntarily engaged in conduct deemed by law to be an act of expatriation. The person must also undertake such an act with the specific intention to relinquish his U.S. citizenship. See Terrazas, 444 U.S. at 263 (requiring that "the expatriating act [be] accompanied by an intent to terminate United States citizenship"). "[B]ecause of the precious nature of citizenship, it can be relinquished only voluntarily, and not by legislative fiat." Jolley v. INS, 441 F.2d 1245, 1248 (5th Cir. 1971).
Under current federal law, any party claiming that a person has abandoned his U.S. citizenship must establish three elements. See 8 U.S.C. § 1481 (2000) (text provided in the attached appendix). First, the person must take one of the statutorily enumerated acts of expatriation, such as "obtaining naturalization in" or "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state" after reaching the age of 18, "entering, or serving in, the armed forces of a foreign state . . . engaged in hostilities against the United States," or formal renunciation before an appropriate United States official. 8 U.S.C. § 1481(a). (7) Second, he must act "voluntarily." Id. See also Nishikawa, 356 U.S. at 133 ("no conduct results in expatriation unless the conduct is engaged in voluntarily"). Third, he must act "with the intention of relinquishing United States nationality." 8 U.S.C. § 1481(a). (8) Expatriation occurs "at the time the expatriating acts were committed, not at the time his alienage was judicially determined." United States ex rel. Marks v. Esperdy, 315 F.2d 673, 676 (2nd Cir. 1963), affirmed by an equally divided court, 377 U.S. 214 (1964); see also 8 U.S.C. § 1488 (2000) ("The loss of nationality under this part shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this part.").
Formal renunciation (9) is therefore not the only way in which a U.S. citizen may express his "intention of relinquishing United States nationality." 8 U.S.C. § 1481(a). An intention to abandon citizenship can also be manifested through various categories of conduct. See Terrazas, 444 U.S. at 260 ("intent to relinquish citizenship . . . [can be] expressed in words or . . . found as a fair inference from proved conduct"); Expatriation--Effect of Afroyim v. Rusk, 387 U.S. 253, 42 Op. Att'y Gen. 397, 400 (1969) ("'Voluntary relinquishment' of citizenship is not confined to a written renunciation . . . . It can also be manifested by other actions declared expatriative under the act . . . ."). Thus, although the performance of an expatriating act cannot be used as "the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen," the Supreme Court has held that such conduct "may be highly persuasive evidence in the particular case of a purpose to abandon citizenship." Terrazas, 444 U.S. at 261 (quotations omitted). So long as "the trier of fact . . . conclude[s] that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship," the statutory requirements for expatriation have been met. Id. Lower courts have similarly held that "specific subjective intent to renounce United States citizenship . . . may [be] prove[d] . . . by evidence of an explicit renunciation, acts inconsistent with United States citizenship, or by affirmative voluntary act[s] clearly manifesting a decision to accept [foreign] nationality." King v. Rogers, 463 F.2d 1188, 1189 (9th Cir. 1972) (citations and quotations omitted). "Specific intent may . . . be proven by evidence of what steps the alleged expatriate did or did not take in connection with his expatriating acts." United States v. Schiffer, 831 F. Supp. 1166, 1194 (E.D. Pa. 1993), aff'd without opinion, 31 F.3d 1175 (3rd Cir. 1994).
The party claiming that a person has lost his U.S. citizenship has the burden to prove by a preponderance of the evidence the performance of an act of expatriation and the intention to relinquish citizenship. 8 U.S.C. § 1481(b); Terrazas, 444 U.S. at 268; see also id. at 264-67 (upholding preponderance of the evidence standard of proof against constitutional attack). Although any person who performs an act of expatriation is presumed to have done so voluntarily, that presumption can be rebutted with proof by a preponderance of the evidence that the act was performed involuntarily. 8 U.S.C. § 1481(b); see also Terrazas, 444 U.S. at 267-70 (upholding voluntariness presumption against constitutional attack).
Factual doubts in expatriation cases "are to be resolved in favor of citizenship." Bruni v. Dulles, 235 F.2d 855, 856 (D.C. Cir. 1956). See also Nishikawa, 356 U.S. at 136 ("Rights of citizenship are not to be destroyed by an ambiguity.") (quoting Elg, 307 U.S. at 337); Nishikawa, 356 U.S. at 136 ("evidentiary ambiguities are not to be resolved against the citizen"). In cases of legal ambiguity, we have previously concluded that the State Department has, as the agency charged with the implementation of the expatriation statute, the discretion to select from among reasonable interpretations of the statute. Letter for Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, Department of State, from Todd David Peterson, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Voluntary Expatriation of Puerto Rican Nationalists, at 3 (Oct. 31, 1997) (concluding that Chevron deference applies to State Department decisions "to apply the construction of the statute that it believes is most consistent with the policies underlying the statute"). But see Savorgnan, 338 U.S. at 498-99 (concluding that expatriation statutes "are to be read in the light of [Congress's 1868] declaration of policy favoring freedom of expatriation which stands unrepealed").
The issue of expatriation can arise in litigation in a number of different ways. "Since United States citizenship is considered by most to be a prized status, it is usually the government which claims that the citizen has lost it, over the vigorous opposition of the person facing the loss." United States v. Matheson, 532 F.2d 809, 811 (2nd Cir. 1976). Moreover, the Executive Branch need not seek a judicial determination that a particular individual has expatriated. It can simply treat that individual as an alien by denying him a right of U.S. citizenship and, if that action is challenged in court, defend that action on the ground that the individual is no longer a U.S. citizen. For example, any individual who is issued a certificate of loss of citizenship by the State Department pursuant to 8 U.S.C. § 1501 (2000), (10) or who is denied a right or privilege of a United States citizen by a government agency (such as a United States passport, see, e.g., Nishikawa, 356 U.S. at 131) on the ground that he is not a citizen of the United States, may file a declaratory judgment action in federal court under 28 U.S.C. § 2201 for a declaration that he is in fact a national of the United States. 8 U.S.C. § 1503(a) (2000). See, e.g., Terrazas, 444 U.S. at 256 (§ 1503 suit filed following issuance of certificate of loss of nationality). Alternatively, a person might claim U.S. citizenship through a petition for a writ of habeas corpus challenging, for example, a deportation action. See, e.g., Marks, 315 F.2d at 675. (11)
On the other hand, a U.S. citizen who is accused of treason might claim that he had renounced his U.S. citizenship before undertaking his allegedly treasonous acts and was therefore legally incapable of committing the crime of treason against the United States. The assertion of such a defense would require a court to determine whether or not the defendant had in fact renounced his citizenship. See, e.g., Kawakita v. United States, 343 U.S. 717, 722 (1952) (noting defense argument that acquittal on treason charge is required "since his duty of allegiance would have ceased with the termination of his American citizenship"). Similarly, one might claim loss of citizenship to avoid liability under U.S. tax laws. See, e.g., Matheson, 532 F.2d at 811 ("Here the estate of a wealthy deceased United States citizen seeks to establish over the government's opposition that she expatriated herself. As might be suspected, the reason is several million dollars in tax liability, which the estate might escape if it could sustain the burden of showing that the deceased lost her United States citizenship.").
II. Foreign naturalization or declaration of foreign allegiance
Under federal law, a U.S. citizen can lose his nationality if he voluntarily "obtain[s] naturalization in a foreign state . . . after having attained the age of eighteen years." 8 U.S.C. § 1481(a)(1). Likewise, a citizen of the United States could be expatriated if he voluntarily "tak[es] an oath or mak[es] an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years." 8 U.S.C. § 1481(a)(2). In either case, however, no loss of citizenship may result unless the citizen acts "with the intention of relinquishing United States nationality." 8 U.S.C. § 1481(a).
The most common obstacle to expatriation in cases involving foreign naturalization or declaration of foreign allegiance is sufficient proof of a specific intention to renounce U.S. citizenship. Intent need not be proved with direct evidence, to be sure. It can be demonstrated circumstantially through conduct. Thus, in some cases, such as service in a hostile foreign military at war with the United States, the act of expatriation itself may even constitute "highly persuasive evidence . . . of a purpose to abandon citizenship." Terrazas, 444 U.S. at 261 (quotations omitted). See generally Section III. Because, however, both foreign naturalization and declaration of foreign allegiance are, with respect to U.S. citizenship, more ambiguous acts, they constitute weaker evidence of "a purpose to abandon citizenship." Terrazas, 444 U.S. at 261 (quotations omitted).
Dual nationality, the Supreme Court has explained, is "a status long recognized in the law." Kawakita, 343 U.S. at 723. See also id. at 734 ("Dual nationality . . . is the unavoidable consequence of the conflicting laws of different countries. One who becomes a citizen of this country by reason of birth retains it, even though by the law of another country he is also a citizen of it.") (citation omitted); Savorgnan, 338 U.S. at 500 (although "[t]he United States has long recognized the general undesirability of dual allegiances[,] . . . [t]emporary or limited duality of citizenship has arisen inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective"); Elg, 307 U.S. at 329 ("As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality."). The mere assertion by an individual of citizenship in one country thus need not manifest an intention to relinquish citizenship in another country, for "[t]he concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other." Kawakita, 343 U.S. at 723-24.
Current federal regulations thus establish an administrative presumption under which "U.S. citizens who naturalize in" or "take a routine oath of allegiance" to a foreign country "need not submit evidence of intent to retain U.S. nationality." 22 C.F.R. § 50.40(a). In such cases, "intent to retain U.S. citizenship will be presumed." Id. "In other loss of nationality cases," by contrast, such as those involving service in a hostile foreign military, federal regulations erect no such presumption; instead, "the consular officer will ascertain whether or not there is evidence of intent to relinquish U.S. nationality." Id.
Relevant case law reflects a similarly cautious attitude towards expatriation based on foreign naturalization or declaration of foreign allegiance. In a number of cases, courts have held that a declaration of foreign allegiance was alone insufficient to manifest an intention to renounce U.S. citizenship, because such assertions are frequently consistent with the maintenance of dual U.S.-foreign citizenship. In Kawakita, for example, the Supreme Court held that the defendant, a dual Japanese-U.S. national, had failed even to commit an act of expatriation, let alone manifest the requisite intention to renounce, even though he had expressed his allegiance to Japan. The Court noted that, because "all Japanese nationals, whether or not born abroad, are duty bound [under then-Japanese law] to Japanese allegiance," the mere act of "registering in the Koseki [an official Japanese census register] is 'not necessarily a formal declaration of allegiance but merely a reaffirmation of an allegiance to Japan which already exists.'" Id. at 724 (quoting expert deposition). (12)
Likewise, in United States v. Matheson, 532 F.2d 809 (2nd Cir. 1976), the Second Circuit affirmed the U.S. citizenship of the decedent, Dorothy Gould Burns, a U.S. natural born citizen who later became a Mexican citizen by virtue of her marriage to a Mexican national, even though she had sworn an oath stating that "I expressly renounce all protection foreign to said laws and authorities (of Mexico) and any right which treaties or international law grant to foreigners, expressly furthermore agreeing not to invoke with respect to the Government of the Republic (of Mexico) any right inherent in my nationality of origin." Id. at 816. The court first noted that "there must be proof of a specific intent to relinquish United States citizenship before an act of foreign naturalization or oath of loyalty to another sovereign can result in the expatriation of an American citizen." Id. at 814. Applying that rule, the court concluded that Burns's oath expressed "merely a subscription to a basic principle of international law governing dual nationality: that a national of one country (e. g., United States) may not look to it for protection while she is in another country (e. g., Mexico), of which she is also a national," a principle that "has repeatedly been recognized by the Supreme Court of the United States." Id. at 816. The court further noted that
[h]ad Mrs. Burns wished to expatriate herself she could simply have unequivocally stated that she renounced her American citizenship. Instead, she used language to the effect that as a Mexican national she could not claim her rights as a United States citizen 'with respect to the Government of the Republic (of Mexico). . . .' This limited surrender did not preclude her from claiming rights as a United States citizen outside of Mexico. Indeed, once outside of Mexico she did not hesitate, consistent with this interpretation of her 1944 declaration, to invoke important rights and privileges inherent in her United States birthright. Thus we must conclude that the 1944 declaration amounted to nothing more than a statement of dual nationality.
Id. (citations omitted). The Ninth Circuit concluded in King v. Rogers, 463 F.2d 1188 (9th Cir. 1972), that Elihu King was no longer a U.S. citizen. The court noted that, "to obtain British naturalization, King took an oath of allegiance to Queen Elizabeth II." Id. at 1189. That act "alone," however, was "insufficient to prove renunciation," although it did "provide[] substantial evidence of intent." Id. To reach its ultimate conclusion that Mr. King had renounced his U.S. citizenship, the court relied on other statements in which he demonstrated that he considered himself no longer to be a U.S. citizen as the result of his British naturalization. See id. at 1190 ("These statements indicate that while King never formally renounced his United States citizenship, he intended to do so when he became a naturalized British subject, and that he would do so at any time to 'simplify' matters."). See also In re Balsamo, 306 F. Supp. 1028, 1033 (N.D. Ill. 1969) (although "[n]early all sovereignties recognize that acquisition of foreign nationality ordinarily shows a renunciation of citizenship," the Constitution requires that one "voluntarily abandon or relinquish his United States citizenship"); cf. Baker v. Rusk, 296 F. Supp. 1244, 1246 (C.D. Cal. 1969) ("It would seem evident that any time a person takes an oath of allegiance to the sovereign of the country in which he is then residing, he gives substantial indication that he considers himself to be a national of that country and that he has relinquished any prior citizenship. However, this is not inevitably so . . . .").
An oath of allegiance to a foreign country that includes an express statement of intention to renounce United States citizenship is likely to result in expatriation. For example, in Terrazas v. Haig, 653 F.2d 285 (7th Cir. 1981), the Seventh Circuit concluded that Laurence Terrazas, a U.S. natural born citizen who had also acquired Mexican citizenship at birth by virtue of his father's Mexican citizenship, had adequately manifested an intention to renounce when, at age 22, he executed an application for a certificate of Mexican nationality. Id. at 286. That application, the court concluded, contained a statement not only asserting foreign nationality, but also expressly renouncing United States citizenship:
I therefore hereby expressly renounce ____ citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of ____, of which I might have been subject, all protection foreign to the laws and authorities of Mexico, all rights which treaties or international law grant to foreigners; and furthermore I swear adherence, obedience, and submission to the laws and authorities of the Mexican Republic.
Terrazas, 444 U.S. at 255 n.2. "The blank spaces in the statement were filled in with the words 'Estados Unidos' (United States) and 'Norteamerica' (North America), respectively." Id. The court thus concluded that "there is abundant evidence that plaintiff intended to renounce his United States citizenship when he acquired the Certificate of Mexican Nationality willingly, knowingly, and voluntarily." Terrazas, 653 F.2d at 288. In addition to the statement itself, the court noted, inter alia, the timing of Terrazas's actions, which suggested that he was attempting to avoid U.S. military service. Id. at 288-89. Terrazas also never took steps to reverse his application, even after he had received his certificate of Mexican nationality, id. at 288, which also expressly recited his renunciation of any other citizenship, id. at 286.
In sum, expatriating an individual on the ground that, after reaching the age of 18, a person has obtained foreign citizenship or declared allegiance to a foreign state generally will not be possible absent substantial evidence, apart from the act itself, that the individual specifically intended to relinquish U.S. citizenship. An express statement of renunciation of U.S. citizenship would suffice.
III. Service in a hostile foreign armed force
An individual who voluntarily "enter[s], or serv[es] in, the armed forces of a foreign state" (13) may be expatriated, "if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer." 8 U.S.C. § 1481(a)(3). Nonetheless, no person may be expatriated unless he acts "with the intention of relinquishing United States nationality." 8 U.S.C. § 1481(a). That said, although the performance of an expatriating act cannot be used as "the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen," such conduct "may be highly persuasive evidence in the particular case of a purpose to abandon citizenship." Terrazas, 444 U.S. at 261 (quotations omitted).
Voluntary service in a foreign armed force that is engaged in hostilities against the United States has frequently been viewed as a particularly strong manifestation of an intention to abandon citizenship. As Attorney General Clark once opined, "it is highly persuasive evidence, to say the least, of an intent to abandon United States citizenship if one enlists voluntarily in the armed forces of a foreign government engaged in hostilities against the United States." 42 Op. Att'y Gen. at 401. See also 22 C.F.R. § 50.40(a) (although "intent to retain U.S. citizenship will be presumed" when an individual "naturalize[s] in a foreign country" or "take[s] a routine oath of allegiance," no such presumption is provided "[i]n other loss of nationality cases").
Lower federal courts have expressed a similar view. It bears noting that most of the cases involving expatriation on the ground of service in a foreign armed force were decided prior to 1967, (14) when the Supreme Court announced in Afroyim v. Rusk, 387 U.S. 253 (1967), that the Citizenship Clause of the Fourteenth Amendment protects all individuals "born or naturalized in the United States" against expatriation absent a demonstration of specific intention to relinquish U.S. citizenship. In at least two relatively recent decisions, however, courts have concluded that the requisite intention to renounce U.S. citizenship can be inferred from the act of serving in an armed force engaged in hostilities against the United States.
In United States v. Schiffer, 831 F. Supp. 1166 (E.D. Pa. 1993), aff'd without opinion, 31 F.3d 1175 (3rd Cir. 1994), the government brought a denaturalization action against Nikolaus Schiffer, a U.S.-born citizen who had previously been expatriated for his service as a member of the Romanian army and a guard at concentration camps during World War II, but who subsequently and successfully sought naturalization. Schiffer was born in Philadelphia, Pennsylvania, to non-citizen parents in 1919, but in 1920 he moved with his parents to Moravitz, Romania, where he maintained dual U.S. and Romanian citizenship as a minor. In 1940, he voluntarily presented himself for registration for the Romanian Army, even though Romania did not permit United States citizens bearing dual Romanian citizenship to serve in the Romanian Army. In 1941, he reported for basic training for Romanian Army service and, like his fellow soldiers, swore an oath of allegiance to the Romanian monarch, King Carol II. That December, Romania declared war on the United States. The defendant served in the Romanian Army until 1943. See generally 831 F. Supp. at 1169-71. In 1943, he volunteered to serve in the Waffen-SS Totenkopfsturmbann (Death's Head Battalion), an elite Nazi force, and like his fellow SS members, swore an oath of allegiance to Adolf Hitler. In that capacity, the defendant served as a concentration camp guard until 1945. As a concentration camp guard, he never requested a transfer or refused any assignment. Id. at 1175-76. In 1945, he was captured and held by U.S. Armed Forces as a prisoner of war. The next year, he was discharged as a prisoner of war and arrested by U.S. authorities as a suspected war criminal. He was released in 1947. Id. at 1180-81. In 1952, the State Department executed a certificate of loss of citizenship to the defendant. The next year, he obtained an immigrant visa and was admitted to the United States accordingly. Id. at 1183-84. In 1958, he applied for naturalization. His application failed to disclose fully, however, his prior service and detention as a suspected war criminal. His naturalization application was approved on the basis of his misrepresentations, and a federal district court issued the defendant a certificate of naturalization. Id. at 1184-85.
In 1993, the same district court granted the government's request for an order canceling Schiffer's 1958 naturalization certificate. Id. at 1206. The court reasoned that the defendant, a natural born U.S. citizen, had relinquished his citizenship and then procured his naturalization through misrepresentation. Notably, the court justified its expatriation determination by noting that an intention to renounce U.S. citizenship could easily be inferred from the defendant's service in a hostile foreign army at war with the United States:
We find Schiffer's intent to renounce his United States citizenship was manifested by his conduct prior to and upon entering and serving in the Romanian army and swearing allegiance to King Carol II, his conduct upon voluntarily entering and serving in the Waffen-SS and swearing allegiance to Adolf Hitler, and his conduct immediately following the war.
At least from his teenage years, Schiffer knew that he was an American citizen and, as such, was exempt from military service. . . . Schiffer failed to take any action whatsoever despite knowing that Romania was at war with the United States. We can think of no conduct more repugnant to an intent to retain American citizenship or more demonstrative of an intent to relinquish American citizenship than voluntary service in the armed forces of a country at war with the United States. . . . Schiffer's conduct in voluntarily joining the Romanian army is so obnoxious to an intent to retain United States citizenship that, in the absence of credible proof to the contrary, we can infer his intent to relinquish his United States citizenship.
Id. at 1194-95 (emphasis added, citations omitted). The court's decision was affirmed on appeal without opinion. 31 F.3d 1175.
The Third Circuit took a similar view of service in a hostile foreign army in Breyer v. Meissner, 214 F.3d 416 (3rd Cir. 2000). Like Schiffer, Johann Breyer later joined the Death's Head Battalion during World War II. Id. at 418-19. The court first determined that Johann Breyer was entitled to citizenship at birth. Although he was born in Czechoslovakia in 1925, his mother was an American citizen. At the time, federal law granted citizenship at birth to children born abroad to fathers who are American citizens, but not to children born abroad to foreign fathers and mothers who are citizens of the United States. The court held the law unconstitutional and concluded that Breyer was entitled to citizenship at birth. Id. at 429. The court then remanded the case back to the district court to determine whether Breyer remained a U.S. citizen, in light of his activities during World War II. In doing so, the court expressly pointed out that Breyer's decision to join the Death's Head Battalion could constitute a renunciation of American citizenship, regardless of whether he was even aware of his entitlement to U.S. citizenship at the time:
[T]he knowing commitment made by a member of the Death's Head Battalion, during a period when Germany was at war with the United States, demonstrates a loyalty to the policies of Nazi Germany that is wholly inconsistent with American citizenship. Although when he took his oath of allegiance first to the Waffen SS and then to the Death's Head Battalion, Johann Breyer was not aware of his right to American citizenship, one could conclude that he voluntarily made a commitment that, had he known of this right, clearly would have repudiated it. . . . Johann Breyer may have made such a disclaimer of allegiance to the United States by a voluntary enlistment in the Waffen SS and then again in the Death's Head Battalion.
. . . If these acts were voluntary, . . . the court must determine whether they were performed with an intent to relinquish citizenship. We conclude that a voluntary oath of allegiance to a nation at war with the United States and to an organization of that warring nation that is committed to policies incompatible with the principles of American democracy and the rights of citizens protected by the American constitution--an organization such as the Death's Head Battalion--is an unequivocal renunciation of American citizenship whether or not the putative citizen is then aware that he has a right to American citizenship.
Id. at 431 (emphasis added). Accordingly, the court remanded the case
to determine if [Breyer's] actions constitute a voluntary and unequivocal renunciation of any possible allegiance to the United States of America, a renunciation made in a time of war against the United States that demonstrated an allegiance to Nazi Germany and a repudiation of any loyalty--citizen or not--to the United States. Cf. Perez v. Brownell, 356 U.S. 44, 68, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958) (Warren, C.J., dissenting and stating that some actions "may be so inconsistent with the retention of citizenship as to result in loss of that status."). On remand, the District Court must determine whether Breyer's acts constitute such a renunciation.
Id. at 431 (emphasis added). On remand, the district court denied Breyer's motion for summary judgment on the issue of voluntariness. See Breyer v. Meissner, No. CIV. A. 97-6515, 2001 WL 1450625 (E.D. Pa. Nov. 16, 2001). According to the last published court order in the case, trial was set for mid-May, 2002. See Breyer v. Meissner, No. CIV. A. 97-6515, 2002 WL 922160, at *1 (E.D. Pa. May 7, 2002) ("a trial currently is scheduled in this matter for mid-May of this year so that the question of whether Breyer voluntarily relinquished his United States citizenship may be resolved").
In summary, both the Third Circuit and the district court in Schiffer (which the Third Circuit affirmed without opinion) have determined that the act of serving in a foreign armed force engaged in hostilities against the United States may itself manifest a specific intention to relinquish U.S. citizenship.
Finally, we must point out that involuntary service in a hostile armed force does not constitute grounds for expatriation, because no person can lose his U.S. citizenship "unless he voluntarily relinquishes it." Terrazas, 444 U.S. at 260 (quoting Afroyim, 387 U.S. at 262). As our Office has noted, "conscription into military service, particularly in a totalitarian country, may make such service and any attendant oath of allegiance involuntary, if the individual would otherwise face physical punishment, imprisonment, or economic deprivation." Voluntariness of Renunciations of Citizenship Under 8 U.S.C. § 1481(a)(6), 8 Op. O.L.C. 220, 229 (1984) (collecting cases). Courts have thus found that certain individuals could not be expatriated on the basis of their conscripted service in a hostile armed force, on the grounds that such service was truly involuntary under the circumstances. See, e.g., Nishikawa, 356 U.S. at 136 ("petitioner showed that he was conscripted in a totalitarian country [Japan] to whose conscription law, with its penal sanctions, he was subject"); Augello v. Dulles, 220 F.2d 344, 346-47 (2nd Cir. 1955) ("fact of the plaintiff's conscription into the Italian army was sufficient proof of duress to preclude a finding that his consequent taking of the oath was voluntary"). See also Mandoli v. Acheson, 344 U.S. 133, 135 (1952) (noting Attorney General's conclusion that "[t]he choice of taking the oath or violating the law was for a soldier in the army of Fascist Italy no choice at all") (quotations omitted).
The mere fact of conscription, alone, is not sufficient to defeat the statutory presumption of voluntariness, however. After all,
military service is frequently performed willingly, freely, even voluntarily, although technically there is no enlistment but conscription under a 'compulsory' service law. We are not ready to believe that everyone inducted into an army, a navy, or an air force, performs his service solely because of the proximity of the court martial or the police station. Duress cannot be inferred from the mere fact of conscription.
Acheson v. Maenza, 202 F.2d 453, 458 (D.C. Cir. 1953) (footnote omitted). See also United States v. Ciurinskas, 148 F.3d 729, 734 (7th Cir. 1998) (holding that an individual who had served in the German Order Police during World War II had done so voluntarily, where there was no evidence that he had been conscripted, and where members of his battalion were permanently released from service upon a written request); United States v. Stelmokas, 100 F.3d 302, 313 (3rd Cir. 1996) (same). As noted in Section I, the presumption of voluntariness must be rebutted with proof by a preponderance of the evidence that the act of expatriation was in fact performed involuntarily. See 8 U.S.C. § 1481(b); see also Terrazas, 444 U.S. at 267-70 (upholding voluntariness presumption against constitutional attack).
favorability
06-07-2009, 02:29 AM
New Jersey Case Law: Resisting Arrest
Disorderly Persons Offense
341 N.J.Super. 247, 775 A.2d 193
Superior Court of New Jersey, Appellate Division.
STATE of New Jersey, Plaintiff-Respondent,
v.
Frederick STAMPONE, Defendant-Appellant.
Argued May 30, 2001.
Decided June 21, 2001.
Defendant was convicted following a court trial in the Superior Court, Law Division, Bergen County, of failing to exhibit a driver's license and disorderly conduct. Defendant appealed. The Superior Court, Appellate Division, Ciancia, J.A.D., held that: (1) police officer did not have an articulable suspicion of illegal conduct to support an investigatory stop; (2) defendant did not engage in tumultuous conduct; (3) defendant's conduct had no capacity to cause public inconvenience, annoyance or alarm; and (4) defendant was not guilty of failing to exhibit a driver's license.
Reversed and dismissed.
West Headnotes
[1] Arrest Key Symbol63.5(5)
Officer did not have an articulable suspicion of illegal conduct to support an investigatory stop of defendant in driver's seat of car parked on residential street; though defendant's vehicle had out-of-state plates, defendant failed to make eye contact with officer, and a burglary had occurred in the neighborhood one or two weeks earlier, nothing in defendant's appearance suggested he was a burglar, car's ignition was off, it was 5:00 p.m. and defendant told officer he was waiting for girlfriend who would be home shortly. U.S.C.A. Const.Amend.4.
[2] Obstructing Justice Key Symbol3
A person approached by a police officer making a field inquiry need not respond to the police and is always free to leave. U.S.C.A. Const.Amend.4.
[3] Disorderly Conduct Key Symbol1
Though preventing a police officer from performing his duties may, under proper circumstances, constitute obstruction, or hindering, or resisting arrest, it is not an element of disorderly conduct. N.J.S.A. 2C:29-1 to 2C:29-3, 2C:33-2.
[4] Disorderly Conduct Key Symbol1
Defendant who slammed a car door closed, thereby almost hitting a police officer, did not engage in tumultuous conduct such as to support a conviction for disorderly conduct, as defendant was not fighting, threatening or violent, was not under a valid investigatory stop, and was free to leave. N.J.S.A. 2C:33-2, subd. a.
[5] Disorderly Conduct Key Symbol1
Actions of defendant who engaged in testy exchange with police officer and slammed car door shut had no capacity to cause public inconvenience, public annoyance or public alarm such as to support a conviction for disorderly conduct, absent evidence that passers-by noticed any of the actions or were even present. N.J.S.A. 2C:33-2, subd. a.
[6] Automobiles Key Symbol326
Defendant was not guilty of failing to exhibit a driver's license, where, although he said "no" upon officer's first request, upon second request he immediately complied by going to car trunk and retrieving manila envelope containing documents, and went back inside his vehicle to get out of the rain before opening envelope. N.J.S.A. 39:3-29.
**194 *249 John Vincent Saykanic, Passaic, for appellant. Pia S. Perez, for respondent (William H. Schmidt, Bergen County Prosecutor, attorney; Susan W. Sciacca, Deputy First Assistant Prosecutor, of counsel and on the brief). Before Judges PRESSLER, CIANCIA and ALLEY.[ FN1] The opinion of the court was delivered by CIANCIA, J.A.D. Defendant Frederick Stampone was found guilty, after a trial de novo in the Law Division, of failing to exhibit a driver's license, N.J.S.A. 39:3-29 and disorderly conduct, N.J.S.A. 2C:33-2a(1). He appeals and we now reverse both convictions. Except as otherwise noted, the following version of the facts was elicited through the testimony of arresting Officer Joseph Fazio. On September 7, 1999, at approximately 4:50 p.m., Fazio was driving his patrol car on Hillside Avenue in Saddle Brook when he noticed a white Pontiac with Kansas license plates parked on the residential block in front of 222 Hillside Avenue. Defendant was in the driver's seat and the car's ignition was off. When Fazio drove by, defendant did not make eye contact with him and, in fact, looked away from the officer. A week or two earlier a burglary had occurred "down the street." The officer did not know if a car had been involved in the burglary or whether the burglary had occurred during the night or day. Nothing in the record suggests that Fazio had a description of the burglar or that defendant's appearance in any way suggested he was a burglar. Defendant testified he was wearing a shirt and tie. *250 Fazio decided he would approach defendant, but not before "calling in the stop." Fazio asked defendant what he was doing there and Stampone replied he was waiting for his girlfriend. In response to Fazio's next question, Stampone said his girlfriend lived "right here at 222 Hillside Avenue." The officer asked her name and defendant gave her first name but said he did not know her last name. Fazio then asked defendant his name and defendant said it was Fred. Defendant would not give his last name to the officer. At this point, Fazio went to the residence at 222 Hillside Avenue and determined no one was home. He relayed that information to defendant, who explained that the woman he was waiting for would be home by 5:00 p.m. In fact, shortly thereafter a woman who lived at 222 Hillside Avenue arrived and acknowledged that she and defendant were dating. Prior to her appearance, defendant was twice asked for "identification" and twice said no. Fazio then asked Stampone for his driver's license and defendant said it was in the trunk. By this time it was raining and according to defendant, raining heavily. Fazio asked if defendant could get the license and defendant said no. When asked again, defendant complied. Defendant went to the trunk and retrieved a manila envelope. Defendant went back inside his car with the envelope and closed the door. Fazio saw defendant reach over to the passenger side with his left arm, but could not see what defendant was reaching for. Fazio then opened the driver's door of the car and defendant "reaches back across. Turns backward over here, grabs the door, slams it shut" **195 and "almost slams it" into Fazio's legs. Fazio again opened the door, grabbed defendant by the arm and pulled him "straight forward." The manila envelope dropped onto the passenger seat. Fazio then "stood in the doorway so he wouldn't be able to close it on me again." Defendant told Fazio to let go of his arm and cursed at Fazio. The officer let go of defendant and again asked for identification. Defendant gave Fazio a Kansas driver's license which Fazio ran a check on. Defendant's license and registration were in order. While this was occurring or perhaps shortly before, a deputy chief *251 had arrived in his own vehicle. He positioned it so as to block defendant's car in case defendant attempted to drive away. Defendant told the officer his shoulder was injured and he wanted an ambulance. An ambulance was called and arrived on the scene. Before defendant departed for a local hospital, he was arrested and charged with disorderly conduct and failing to produce a driver's license. Defendant's version of events differed significantly in many respects from Fazio's. The municipal court judge made no explicit findings of credibility. The Law Division judge also made no explicit credibility findings, although he obviously relied upon Fazio's version of events in reaching his decision. In these circumstances we are not obliged to defer to the Law Division's credibility determinations, but we will evaluate the issues based upon Fazio's testimony. On that version of events, the Law Division judge concluded:
I am convinced, beyond a reasonable doubt, that on the date in question, September the 7th, 1999, that Mr. Stampone did cause or did prevent this officer from effectuating what he intended to do, and that was to ascertain his identity through some identification, in the form of a license. And in doing that he did cause public inconvenience, annoyance or alarm and did engage in tumultuous behavior, specifically, by his actions which I read into the record before: Closing the door, preventing the officer from coming in, making movements in the car, that gave the officer the indications that this defendant might be considering itself to cause the officer to take action against this defendant by opening the door and grabbing his arm. All those things were put into place by Mr. Stampone, improperly, and in contravention of 2C:33-2A(1). Perhaps he could have been charged with assault, I don't know, I'm not going to make those findings, but I do believe that he violated 2C:33-2A(1). For those reasons I find him guilty of that. I also find that he failed to exhibit a license or other identification which in fact violates 39:3-29 and I find him guilty of that also ... .
We disagree. In our view, nothing in this factual complex permitted a conclusion that defendant failed to display his driver's license within the meaning of the motor vehicle statute or that he engaged in disorderly conduct within the meaning of the disorderly conduct statute. This entire incident was an unfortunate example of a police officer overreacting to innocuous conduct and a citizen treating an officer with rudeness approaching insolence *252 that only aggravated the situation. At some point, common sense should have prevailed and the two antagonists gone their separate ways. That did not happen, but we are entirely satisfied that as a matter of law defendant cannot be found guilty of a motor vehicle violation and a petty disorderly persons offense on the facts presented in this record. [1] Initially, we note that nothing in the evidence would support a claim that Fazio had an articulable suspicion of illegal conduct to support a Terry stop. Terry v. **196 Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968); State v. Maryland, 167 N.J. 471, 488, 771 A.2d 1220 (2001). Evaluation of such a proposition is always fact-sensitive and similar facts, when mixed and matched with other circumstances, will produce varying legal conclusions. Here though, giving every deference to the expertise of Officer Fazio, we can find no basis for the detention of defendant that took place in the course of events leading up to defendant's arrest. A car parked on a residential street at 5:00 p.m., occupied by a person with no unusual personal characteristics, is not suspicious. Out-of-state plates do not change that. A person's failure to make eye contact with the police does not change that. Most certainly, the fact a crime was committed in the neighborhood a week or two earlier does not change that. If those facts, either separately or collectively, but without more, were sufficient to support a Terry stop, a significant portion of our urban population would be susceptible to constant police investigation. In our view that is an entirely unacceptable proposition. [2] This is not to say that Officer Fazio was prohibited from approaching defendant and engaging him in voluntary conversation, i.e., a field inquiry. State v. Maryland, at 482-483, 771 A.2d 1220; State v. Sheffield, 62 N.J. 441, 447, 303 A.2d 68, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L. Ed.2d 121 (1973). Concomitantly, however, a person approached by a police officer on that basis need not respond to the police and is always free to leave. Thus, when Fazio made general requests for identification, defendant was at liberty to refuse. Florida v. Royer, 460 U.S. 491, 497-498, 103 S.Ct. 1319, 1324, 75 L. Ed.2d 229, 236 (1983). It *253 is apparent to us, however, and we are sure it was apparent to defendant, that at some point well prior to defendant's arrest, defendant was not free to leave. State v. Maryland, at 482-484, 771 A.2d 1220; State v. Tucker, 136 N.J. 158, 165-166, 642 A.2d 401 (1994). Fazio went from a field inquiry to a Terry stop without the benefit of articulable suspicion. Ibid. Under defendant's version of events, that detention was explicit at the point Fazio went to see if anyone was home at the adjacent residence and instructed defendant not to leave. On Fazio's version it is no later than when he opened the car door and grabbed the defendant. We note this not because the appeal turns on the law of search and seizure, but because the intent of defendant and the interpretation of his actions are essential to a determination of whether he committed a disorderly persons offense and that evaluation must be made in light of the total factual construct. The summons/complaint against defendant stated that he "purposely cause[d] annoyance or alarm by engaging in tumultuous behavior that prevented a police officer from performing his duties" in violation of N.J.S.A. 2C:33-2a. Defendant was not charged with offensive language under subsection b. In relevant part, the disorderly conduct statute provides:
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
[N.J.S.A. 2C:33-2a(1) & (2).] In a second paragraph following subsection b. dealing with offensive language, is a definition of "public":
**197 'Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
[N.J.S.A. 2C:33-2b.]
*254 It is not clear whether the Legislature intended this definition to apply to use of the word "public" in subsection a., but for present purposes we assume a consistency of meaning. [3] Initially, we note that the portion of the summons charging that defendant prevented a police officer from performing his duties, and the Law Division judge's finding thereof, are irrelevant to a disorderly persons charge pursuant to N.J.S.A. 2C:33-2. Preventing a police officer from performing his duties may, under proper circumstances, constitute obstruction, N.J.S.A. 2C:29-1, or hindering, N.J.S.A. 2C:29-3, or even resisting arrest, N.J.S.A. 2C:29-2, but it is not an element of our disorderly conduct statute. See State v. Doss, 254 N.J.Super. 122, 130-131, 603 A.2d 102 (App.Div.), certif. denied, 130 N.J. 17, 611 A.2d 655 (1992) (interference with another, formerly prohibited by N.J.S.A. 2A:170-29, is now encompassed within N.J.S.A. 2C:29-1 even though historical comments to N.J.S.A. 2C:33-2 indicate a pedigree back to N.J.S.A. 2A:170-29, among other statutes). [4] Offensive language aside, in order to successfully convict an accused of disorderly conduct the State must prove beyond a reasonable doubt that the defendant caused public inconvenience, public annoyance or public alarm, or a reckless risk thereof, by fighting, threatening, violent or tumultuous conduct, or by creating a hazardous or physically dangerous condition by an act serving no legitimate purpose of the actor. We are unable to find these elements in defendant's conduct. He was not fighting, threatening, nor violent, and the summons did not allege that he was. He was not charged with nor found to have created a hazardous or physically dangerous condition that did not serve his own legitimate purpose. What this case really boils down to is whether slamming a car door closed, and thereby almost hitting a police officer, constitutes tumultuous behavior causing or recklessly risking public inconvenience, public annoyance or public alarm. We have found no case defining "tumultuous behavior," nor any case where conduct as unexceptional as slamming a car door in the presence of a police officer was so characterized. Defendant does *255 not challenge the phrase "tumultuous behavior" as unconstitutionally vague or overly broad, although we are hard-pressed to ascertain its definitional parameters. The dictionary definition of tumult speaks in terms of a disorderly and violent movement, agitation or milling about of a crowd, usually with great uproar and confusion of voices, a noisy and turbulent popular uprising, a riot. Webster's Third New International Dictionary 2462 (1993). For present purposes, it is sufficient to find that on the facts here presented there was no tumultuous conduct as a matter of law. [5] Moreover, in our view, the actions of defendant and his testy exchange with Fazio had no capacity to cause public inconvenience, public annoyance or public alarm. There was no indication that passers-by were noticing any of this or congregating or, indeed, that such persons were even present. Nor was there anything inherent in defendant's conduct as to make it likely that his colloquy with Fazio would cause public inconvenience, annoyance or alarm. And, of course, there was really no evidence that defendant acted with a purpose to cause such public reactions. Not to put too fine a point on it, the conduct **198 most likely to have had such an effect was Fazio's unauthorized entry into defendant's vehicle and the grabbing of defendant. Absent a legitimate fear for his safety or probable cause to arrest, Fazio's intrusion into defendant's vehicle was unwarranted. [6] Finally, as to the alleged violation of N.J.S.A. 39:3-29, we find that, at most, the facts support a conclusion that defendant once said no to a request for his driver's license and upon a second request immediately complied by going to the trunk and retrieving his documents. That defendant went back inside his car with the manila envelope rather than just handing it to Fazio, is too equivocal to constitute a refusal. The most likely inference is that defendant was getting out of the rain and returned to the protection of his car to open the envelope and obtain the license. Bending over toward the passenger seat is consistent with that as is the envelope dropping onto the passenger seat when Fazio grabbed defendant. In fact, defendant testified, "soon as I got *256 back [into the car] I turned to take the I.D. out of the envelope, and that's when Mr. Fazio grabbed my arm." The papers were ultimately given to Fazio and, except for his precipitous entry into defendant's vehicle, they likely would have been handed over sooner. Our motor vehicle statutes should not be used to punish every citizen who does not instantly comply with an officer's request but does so shortly thereafter. Compare the defendant's contentious and persistent refusal to tender her license and registration in State v. Perlstein, 206 N.J.Super. 246, 250, 502 A.2d 81 (App.Div.1985) (defendant refused, spewed a barrage of comments at the officer and continued to refuse). What occurred here was unfortunate. An officer who had every right to speak to a citizen chose someone who had a disputatious attitude and was not communicative. Fazio described defendant as very uncooperative and very agitated. He stated that at one point during the exchange defendant was yelling and had an angry tone. We do not condone defendant's conduct, but whatever characterization might be given to it, the point is that he did not act illegally. There was no assault and he was not charged with creating "a hazardous or physically dangerous condition ... ." N.J.S.A. 2C:33-2a(2). His speech was certainly protected. Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L. Ed. 1131 (1949), reh'g denied, 337 U.S. 934, 69 S.Ct. 1490, 93 L. Ed. 1740 (1949). A fortiori, his attitude, demeanor and tone were not violative of any legal prohibition, whatever opprobrium society may attribute to them. To prosecute defendant on the present facts trivializes our laws. Not every conversational exchange between an overzealous police officer and a contentious citizen should become an occasion for prosecution. Defendant's convictions are reversed and the charges dismissed.
[FNa0] of the New Jersey Bar.
[FN1] Judge Alley did not participate in oral argument. However, the parties consented to his participation in this decision.