16 August 2020

Virginia: Proposed New Criminal Laws : Police on the Street

So, the Virginia General Assembly is going back into session on Tuesday, 18 August 2020, for a session which I believe was originally meant to be about fiscal problems caused by the 'Rona, but has mutated into a session which I've heard called everything from the anti-police session to the criminal law reform session. As it currently stands, the bills introduced have ended at SB5047 and HB5044 (17 August 2020). I won't be surprised if all sorts of bills drop tomorrow, but there are a limited few as of today and here's my short breakdown and off the thumb analysis.


 Changing Substantive Law Regarding Officer Protections

SB5029 - This bill would raise the bar for felony convictions on attacking a police officer, requiring an actual battery (not just an assault) and "a visible bodily injury." It will also do away with the mandatory minimum six months in jail upon conviction.

To be fair, this statute needed a little more nuance. A person who missed when she threw a pebble at an officer faced the same punishment as someone who jumped out of an alleyway and hit an officer with a crowbar. However, it would probably have been better if they'd left the mandatory time in for a class of more serious offenders.

Flaws: The visible bodily injury would seem to leave out things like broken bones or torn ligaments or internal organ damage all of which could be as bad or worse than a visible injury. 

Unintended Consequences: The removal of the mandatory minimum six month sentence will probably result in more felony convictions. Previously, there has been a strong incentive to lower lesser batteries to misdemeanors because six months was a disproportionate sentence. That will be gone with the passage of this statute.

 SB5010 - This statute would increase the punishment for assaulting or battering a police officer to a mandatory minimum year or two years if it happens during a state of emergency.

DOA - Less chance of passing in the current General Assembly then I have of inheriting Bill Gates' billions (I'd be satisfied with just 1 or 2, Bill).


Changing Police Street Enforcement Procedures

 SB5002 - This bill would make it illegal for officers to use "choke holds."

This method of disabling a combative individual has held on in law enforcement because it is an effective means of bringing down someone without resorting to disabling sprays, electric shock, metal batons, or bullets. This is just the General Assembly removing choke outs from the use of force continuum. It may well have the consequence of hastening the officer up the continuum to more drastic means of gaining control with higher potential lethality, but that's the General Assembly's call.

HB5029 - This bill would make an officer failing to stop another officer from using unlawful force guilty of a class one misdemeanor or a class 6 felony if deadly force is used or a class 4 felony if the citizen is killed or suffers a permanent injury.

The difference between necessary force, unlawful force, and deadly force is going to be highly subjective. This could also subject officers to gamesmanship as yahoos go to the magistrate and try to take out misdemeanor charges against officers.


(1) Forbids choke holds.

(2) Forbids shooting at a car unless it is a danger to a person.

(3) Forbids use of deadly force unless necessary. Lists circumstances in determining whether necessary including whether the officer tried to de-escalate.

This is dumb. It assumes officers don't already abhor killing someone. I've known officers involved in fatal shootings; they are shaken by it. Also, they always attempt de-escalation as best the situation allows it. 

(4) A police officer witnessing another officer using unlawful force shall intervene and report the unlawful use of force to her superiors.

(5) Punishment as proposed under this bill for 1 thru 4 would be disciplinary action.

SB5029 (0, Defense~5, Rights~5) - This bill would make several offenses "secondary offenses." In other words, it makes it illegal for officers to act against these illegal activities unless another offense occurs first. This is the General Assembly trying to eliminate what the defense bar has called for years "pretext stops." It affects bad mufflers, bad license plate lights, noisy exhaust systems, illegal window tinting, items hanging from rear view mirrors, and possession of marijuana. Furthermore, it makes any evidence found after a search pursuant to the odor of illegal marijuana inadmissible in Virginia courts.

That last part is interesting and may be constitutionally suspect. Can the General Assembly tell courts to ignore evidence found pursuant to a search based on solid probable cause of illegal activity? A little research makes me tend to think they can, See Greenwood, but I don't see how that can be a universal rule. Imagine if the General Assembly were to write a law stating that although rape is illegal no evidence found pursuant to a search based upon probable cause that a rape occurred is admissible in court. I don't see how that could stand, but I don't have the time to sit and puzzle out a valid rule that would apply to both situations equally. There might be some sort of Moore-ish work around. Maybe after I finish breaking down all these potential statutes I might have time to come back to it.

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