Surviving Your Next Sovereign Citizen

This scenario will sound familiar to many criminal attorneys:  you’re in court, the DA calls the next case, and the judge asks John Q. Defendant how he pleads?

“Your Honor, I am not ‘JOHN Q. DEFENDANT,’ which is a fictional corporate entity. I am a natural living being, appearing pro per on behalf of John Q. Defendant, free citizen, for the limited purpose of challenging jurisdiction….” What follows next is a confusing series of questions to the judge about standing and injured parties, and quasi-legal arguments full of buzz words about the U.C.C., admiralty court, strawmen, right to travel, capital letters, red ink, fiduciaries, de facto government, accepted for value, etc. On and on and on it goes, for however long the court is willing to listen.

Yep, you’ve got a “sovereign citizen” on your hands.

Readers may have different opinions on the best way to handle these defendants in court (which I hope you will share in the comments), but I recommend taking the simplest approach of all: don’t play the game.

Who are sovereign citizens?

Retired SOG faculty member Michael Crowell wrote this helpful “Quick Quide” which summarizes the movement, and the Southern Poverty Law Center also has an informative write-up about them. In short, “sovereign citizen” is used as a catch-all term to describe a wide range of groups and organizations (Freemen on the Land, Washitaw Nation, Moorish Sovereign Movement, tax protesters, white supremacists, and others) who, for various reasons, claim they are exempt from the law and not subject to the court’s jurisdiction. Their beliefs are usually based on convoluted readings of commercial law and the 14th Amendment, conspiracy theories involving the U.S. Treasury, some wishful thinking, and misinformation from other defendants who promise them that “it really works.”

These defendants have been making their arguments (without success) for many years now, but the movement is still going. Just ask Jared Fogle, the former Subway pitchman, who tried to overturn his federal sex crime convictions with a pro se sovereign citizen filing a few months ago. It was denied.

Are there any valid legal arguments behind their theories?

No. There are relatively few North Carolina appellate cases dealing with sovereign citizens, in part because these defendants often represent themselves and have difficulty perfecting an appeal. But the limited number of cases to reach the North Carolina Court of Appeals have, not surprisingly, failed. E.g., State v. Phillips I, 149 N.C. App. 310 (2002) (discussion and rejection of several common sovereign citizen arguments); State v. Rogers, 808 S.E.2d 156, 158, fn.1 (N.C. App. 2017) (“[C]ourts repeatedly have been confronted with sovereign citizens’ attempts to delay judicial proceedings, and summarily have rejected their legal theories as frivolous”), quoting State v. Faulkner, 792 S.E.2d 836, 842 (N.C. App. 2016).

The Fourth Circuit has likewise rejected these arguments in federal court. E.g., U.S. v. Underwood, __ Fed. Appx. __, 2018 WL 1252115 (4th Cir. 2018) (unpublished) (defendant’s sovereign citizen arguments “ha[d] no conceivable validity in American law” and “did not support the conclusion that the district court lacked jurisdiction over his prosecution”).

Then why are these cases so frustrating and time-consuming?

It’s not because of what the defendant is saying – it’s because of what he’s not saying.

The criminal justice system usually operates with some degree of cooperation and participation by the defendant. Come stand over here. Fill out this financial affidavit. Sign this waiver form. Do you understand the charges? What do you want to do about a lawyer? How do you intend to plead?

Instead of answering those questions, sovereign citizens interrupt the judge, demand to see a “certificate” of jurisdiction, and read lengthy statements into the record. If the judge and attorneys are not prepared for this kind of non-response, there may be some confusion about how to move on to the next step in the process. Sovereign citizens see this as evidence that their strategy is “working,” and take it as encouragement to keep trying.

So how should prosecutors (and the court) handle these defendants?

First, as general guidance, review Michael Crowell’s helpful tips for court personnel on dealing with sovereign citizens. These suggestions are from a few years ago, but still good advice. The key is to simply refuse to play along.

At the risk of overstating the obvious — yes, the court is required to have jurisdiction. And yes, if there is a genuine factual dispute as to that issue, the state may even be required to prove it to the jury. But there is no requirement that the judge (or anyone else) engage in lengthy discussions with the defendant to try to convince him that jurisdiction exists. Whether it’s a nonsensical argument made in open court or a frivolous written motion filed with the clerk, the judge can promptly rule that he or she has considered the argument and determined that as a matter of law, and pursuant to the cases cited above, the defendant has failed to state a valid basis for relief under G.S. 15A-954(a)(8) or any other grounds, so the motion is denied.

Then move on. And keep moving.

When the defendant refuses to accept or reject the plea offer, and only wants to argue with the prosecutor at the bar? Set it for trial, announce the date, and move to the next case on the docket. See G.S. 7A-49.4.

When the defendant refuses to enter a plea of either guilty or not guilty? Record that fact, and then proceed to try the defendant “as if he had pleaded not guilty.” See G.S. 15A-941(a).

When the defendant interrupts the trial and refuses to follow the judge’s instructions? The court has its contempt powers under Chapter 5A, and the inherent authority to take “whatever legitimate steps are necessary to maintain proper decorum and appropriate atmosphere in the courtroom during a trial.” See State v. Dickerson, 9 N.C. App. 387 (1970).

In other words, just remember that a sovereign citizen’s cooperation is not actually required to successfully resolve the case.

What about counsel?

Many sovereign citizens will want to represent themselves, although they may deny that they are “proceeding pro se” and insist that they are only “appearing pro per.” That’s fine. “Pro per” is an abbreviation of “in propria persona,” meaning “in one’s own person,” and it serves the same purpose here as “pro se.”

But before allowing a defendant to represent himself, G.S. 15A-1242 requires that the judge make a “thorough inquiry” and be satisfied that the defendant understands his right to counsel, the nature of the charges and proceedings, and the consequences of deciding to represent himself. It can be difficult and time-consuming to get through that discussion with a sovereign citizen, but if the court is able to do it, then the defendant’s unusual legal beliefs do not necessarily preclude him from pro se representation. See State v. Faulkner, 792 S.E.2d 836 (N.C. App. 2016) (sovereign citizen’s waiver of counsel for a probation violation hearing was valid, despite twice stating that he did not understand some part of what the judge said – appellate court considered the colloquy as a whole, deferred to trial court’s assessment of defendant’s credibility, and noted that “a defendant’s contention that he ‘does not understand’ the proceedings is a common aspect of a ‘sovereign citizen’ defense”).

Or the defendant may ask for standby counsel under G.S. 15A-1243. That’s also allowed, but defense attorneys should be wary of getting sucked into the “hybrid representation” trap, which is not allowed. A defendant can appear pro se, or he can have counsel represent him, but he can’t have it both ways. See State v. Glenn, 221 N.C. App. 143 (2012); State v. Thomas, 331 N.C. 671 (1992).

  • Follow-up: For an interesting read on when a sovereign citizen’s obstructive behavior may constitute a forfeiture of his right to counsel, see State v. Mee, 233 N.C. App. 542 (2014).

“Paper Terrorism” and Other Risks

Finally, prosecutors should be prepared to respond to any attempts at intimidation or retaliation by sovereign citizen defendants. This usually takes the form of fraudulent legal filings, which may include filing false liens against the property of anyone involved in the case. This tactic is addressed by G.S. 14-118.6, which not only empowers the registers of deeds and clerks of court to refuse to accept a lien or encumbrance if they have a reasonable suspicion it is false (subject to a hearing), but also makes it a Class I felony to file such a false lien or encumbrance.

In the most extreme cases, if the defendant engages in repetitive frivolous filings, bogus lawsuits, and so on, the court may consider entering a “gatekeeper order,” which is essentially a pre-filing injunction that bars the person from filing any new suits or papers without the court’s prior approval.

For most judges and attorneys, a sovereign citizen encounter will involve some frustration and delay, but it does not usually pose a serious risk to their personal safety. Unfortunately, that’s not always the case for police officers, detention staff, and others who are called upon to maintain order in the courtroom or confront sovereign citizens out on the road. So please, be cautious in those situations, and make sure you have backup available nearby.