Sovereign citizens and a restrained sovereign

United States v. Ductan, No. 14-4220 (4th Cir. Sept. 2, 2015).

This case illustrates the problems—and the ironies—that can arise when a criminal defendant tries to inject “sovereign citizen” theories into a legal proceeding. Roughly speaking, “sovereign citizens” believe (or say they believe) that they are sovereign and therefore exempt from all laws and legal proceedings to which they do not personally and specifically consent. When embroiled in legal proceedings, sovereign citizens tend to spout pseudolegal nonsense involving, among other things, liens and contracts and copyright.

Here, Defendant Philip Ductan was charged with drugs and firearms offenses. After Ductan’s first attorney withdrew, the magistrate judge asked Ductan whether he wanted to hire new counsel, have new counsel appointed for him, or represent himself. In response, Ductan started spouting sovereign-citizen gibberish. Thereafter, the judge issued an order acknowledging that Ductan hadn’t intelligently and voluntarily waived his right to counsel, but ruling that he’d forfeited that right by advancing frivolous arguments and making evasive answers. The judge then appointed standby counsel for Ductan, while making clear that Ductan would have to try his case himself.

In later court appearances, including the first day of trial, Ductan said he was seeking private counsel and did not want to represent himself. The judge decided that trial would go forward anyway, and after an apparently uneventful trial, Ductan was convicted on all counts and sentenced to seven years in prison.

The Fourth Circuit now reverses. The right to counsel can’t be forfeited. It can only be waived, and waiver is the intentional and voluntary relinquishment of a known right. Ductan never voluntarily relinquished his right to counsel—just the opposite. True, Ductan tried to resist both appointed counsel and self-representation, which put the magistrate judge in a difficult position. But representation by counsel is the “default” position of a criminal defendant, so, without waiver, Ductan was entitled to representation. The conviction is reversed.

Sovereign citizens conceive of sovereignty as the absence of all restraint. I, the citizen, am sovereign, so you, the court, are powerless over me: that’s pretty much the theory. But the result in this case shows how wrong that theory of sovereignty is. The federal government, though a sovereign, is constrained by the right to counsel that the Sixth Amendment confers on criminal defendants. That constraint limits the government’s power over the peopleincluding those, like Ductan, who believe that they themselves are unconstrained.