06 July 2007

The Supreme Court Changes Virginia's Obstruction Law

I've been trying to put together a post outlining the decisions of the Virginia Supreme Court so far this year. I'm about 2/3 of the way thru and will put it up either Friday or Monday. However, I realized that the decisions by the court concerning Virginia's Obstruction of Justice Statute (18.2-460) were too big to encapsulate in a blurb. Therefore, I am posting them now. The first decision is a truly terrible example of ignoring plain intent of a statute and legislating from the bench. The second doesn't change the words of the statute, but I'm not sure that "force" under the Court's new interpretation can be anything short of a force which qualifies as assault and battery of an officer - a separate offense in and of itself (18.2-57(C)).

Washington v. Commonwealth (no. 061042) Justice Kinser


The supreme court refuses to follow the very plain language of a statute. The language in question is a recent statutory addition, 18.2-460(C):
C. If any person by threats of bodily harm or force knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, witness, or any law-enforcement officer, lawfully engaged in the discharge of his duty, OR to obstruct or impede the administration of justice in any court relating to a violation of or conspiracy to violate [gang, drug distribution, or violent felonies] he shall be guilty of a Class 5 felony
and the older, misdemeanor subsection, 18.2-460(B):
B. If any person, by threats or force, knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or any law-enforcement officer, lawfully engaged in his duties as such, or to obstruct or impede the administration of justice in any court, he shall be deemed to be guilty of a Class 1 misdemeanor.
The section in green is an obvious overlap. The supreme court turns to a series of obscure cases from 1933, 1925, and 1909 for the principal that punctuation is to be used as a way of interpreting a statute only if the reason can't be found by legislative intent. Of course, this ignores the more modern and dominate method of changing the statute only in case of a scriviner's error. The court also offers one case for the principal that if there are two possible interpretations for a statute the interpretation must avoid "absurdity, hardships, or injustice." It uses these case to justify ignoring the plain meaning of ", or" in subsection C and legislating an "and" in its place so that in order to be convicted the defendant must offer threats or force AND obstruct or impede administration of justice in a court for the specified offenses.

Obviously, that doesn't even remotely track with the meaning of the statute. To begin with, there was no ambiguity where the court claims to have found it. There are not two meaning for "or." In fact, if the court had wanted to find ambiguity it could have done so easily earlier in subsection C where it says "by threats of bodily harm or force." Unlike subsection B's "by threats or force", there with ambiguity in C as to whether "threats of" applies to one or both objects of the subjunctive

If the court had found that "threat" applied to both "bodily harm" and "force" it would have distinguished C from B and set up a commonsense penal scheme. Under 18.2-460(B) threats such as getting someone fired or withholding child support would be a misdemeanor; minor offers of resistant force would also be a misdemeanor (most typically, these are the guys who resist being handcuffed). Under 18.2-460(C) threats of bodily harm or threats of force such as "I'm going to kill you" or "When you come to serve the warrant I'm going to punch you" would be felonies. Under 18.2-57(C) actual assaults (under Virginia law a physical threat with a step taken toward completion) or batteries of police officers would be felonies with mandatory 6 month sentences.

Unfortunately, the court did not do that. Instead it legislated a different meaning for a section of the statute which had a very plain meaning.

Jordan v. Commonwealth (no. 061211) Justice Kinser

REVERSAL Facts Insufficient: Possession with Intent, Obstruction of Justice

Possession with Intent: When a passenger in a car drops drugs out the side of the car, the fact that the the driver admits that a large amount of money in the glove compartment is his and that he had just come from a club is not enough to convict the driver of possession with intent to distribute.

Obstruction: When the defendant stole the money which the officer had confiscated from the police car, resisted being handcuffed, walking away from the officer so the officer had to pin him to the wall several times, stopped so that the officer walked into him, and stuck his hands in his groin area requiring that the officer pull them out to fingerprint him it "did not involve the use of force. Furthermore, it did not impede or prevent Officer Kern from performing his tasks."

This case specifically overrules the court of appeals holding that stealing the money was impeding and that resisting being handcuffed was a use of force. This seems to overrule the longstanding practice in Virginia of charging someone who resists being handcuffed with obstruction of justice. There may still be an argument for this charge under subsection A of 18.2-460 which merely calls for knowing obstruction, but the supreme court seems to use impede and obstruct interchangeably in this decision and clearly states that the defendant's acts were not enough to impede.

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