Mens Rea Revisited: Knowingly does not mean not knowing the law.

U.S. v. O'Malley (aka "Butch") | 12-2771

January 2014

Federal regulations abound. It has been reported that more than 13,000 final rules were published in the Federal Register during President Obama’s first term. Over 330 of those rules were classified as “major.” Nevertheless, in O’Malley, the Seventh Circuit reminds us that a person is presumed to know all of these regulations, and can be found guilty of “knowingly” violating one of them, without proof that he ever opened up the Code of Federal Regulations or was otherwise aware of the substance of the regulation.  “As a general rule, ‘unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense,’” not knowledge of the regulation violated.

Mr. O’Malley, known as “Butch,” removed more than 2,200 linear feet of asbestos-laden insulation from a building and disposed of it by scattering 100 large plastic bags throughout Kankakee.  He was charged with knowingly violating a prohibition of the Clean Air Act regulating the removal of asbestos-containing material. The facts made clear Butch knew he had removed insulation containing asbestos, but on appeal, he argued that the government had to prove he  knew the asbestos was one of six types of regulated “asbestos-containing material,” as opposed to some other type of asbestos-containing material. The Court said no. It is enough that Butch knew he was disposing of a dangerous material; that fact alone makes the probability of regulation so great that anyone dealing with it “must be presumed to be aware of the regulation.” Citing U.S. v International Minerals & Chemical Corp., 402 U.S. 558, 563 (1971).

While O’Malley dealt with dangerous materials, the presumption of regulation applies to most things today: trading, banking, or health care to name just a few industries. Under the logic of O’Malley, a person working in any of those industries will likely be presumed to know every one of the hundreds of rules in that particular industry promulgated each year.  And ignorance of any one of them will be no excuse.