Some Virginia Democrats want to ‘defelonize’ assaults on cops. Here’s what that means.

By: - July 20, 2020 12:13 am

A police car in Richmond, Va. Police currently provide the vast majority of transports to psychiatric hospitals across Virginia. (Ned Oliver/Virginia Mercury)

Flying onion rings may be the stuff of cafeteria food fights. But in Virginia, they can mean prison time if you hit a cop.

A young Hispanic woman learned that the hard way in late 2013 when she encountered a group of police officers one night at a Northern Virginia restaurant, according to Vernida Chaney, the lawyer who represented her.

The woman, who had mental health issues, had just gotten out of the hospital and became upset as she asked the police to help her get home. She started throwing things, including a styrofoam food container. At one point during the fracas, a sliver of cooked onion ring hit an officer on the arm. The woman was arrested, Chaney said, and the airborne onion led to a felony charge of assault on law enforcement, an offense with a mandatory minimum of six months behind bars.

“When you think of assault on a police officer, you don’t necessarily think of them getting hit by a piece of onion,” Chaney said in an interview. “You think of them getting ran over by a car or shot or something really egregious.”

Chaney fought the charges, which also included allegations the woman spat at an officer and made a bomb threat. Before it went to trial, the parties agreed to a lesser charge of disorderly conduct and probation. But the story of the assault by onion ring has become a rallying cry for Democratic legislators and others who want to change the law so that people can no longer face severe criminal penalties for confrontations with police that don’t involve physical injuries to the officer.

“Because the police officers kind of get the first say as to what someone is charged with, they tend to weaponize the assault on a police officer charge unfairly,” Chaney said. “And it tends to disproportionately affect minorities and people with mental health issues.”

Democrats in the state Senate included a proposal to “defelonize” assault on a law enforcement officer in their package of criminal justice and policing reforms that will be taken up at an upcoming special session that will feature legislative responses to the coronavirus pandemic as well as the outcry over police tactics that followed the killing of George Floyd.

“I think most Virginians would be shocked to think you could get a felony with a minimum six months in prison for situations where there’s no injury,” said Sen. Scott Surovell, D-Fairfax, who’s working on the legislation.

As a misdemeanor, the maximum punishment for assaulting an officer would be up to a year in jail or a fine of up to $2,500.

Republican lawmakers — who lost their power to decide the state’s criminal justice policies last year when they lost control of the General Assembly — have responded with indignation, rejecting what they see as a radical, anti-police idea that would undercut public safety by making it harder for officers to carry out their duties.

“This is just crazy,” Sen. Mark Obenshain, R-Rockingham, the former chairman of the Virginia State Crime Commission, said on Twitter. “Pandering at its worst.”

Del. Rob Bell, R-Albemarle, said if there’s a dispute over an arrest, it should be resolved in court, not through “a fight in the field.”

“It is a protection for law enforcement and it’s only when they’re in the course of their duties,” Bell said in an interview. “This is not about two people having a beef and one of them just happens to be a cop.”

The proposal — one of several aimed at promoting police accountability and a fairer justice system — has also drawn attention from conservative media outlets, including Fox News host Tucker Carlson.

“The country is engulfed in a moral hysteria and the target of it is police officers,” Carlson said on national TV as he mentioned the Virginia proposal and an accompanying one from Senate Democrats requiring officers to give warnings before firing their guns.

The Virginia Association of Chiefs of Police opposes the change, pointing out that the legal protection in question also applies to firefighters, EMS personnel and judges who are performing their duties.

Dana Schrad, the police organization’s executive director, said “we believe the courts are fair in how they apply the facts of the case to the law.”

“It was meant to protect those who take on the responsibility to uphold the law and respond to a situation in which they could be subject to an injury because of the job they do,” Schrad said.

Specific bills have not been released ahead of the session, which is scheduled to begin Aug. 18, and it’s not yet clear how much Democratic support there is for downgrading the offense.

When asked if Speaker Eileen Filler-Corn, D-Fairfax, supports the idea, a spokesman referred to a general statement from the House of Delegates leader.

We have heard the pain and frustration of so many that have been plagued by inequities in our system,” Filler-Corn said. “The House Courts of Justice and Public Safety Committees will be holding joint public hearings over the next three weeks to discuss reforms and receive public input so that our body can swiftly move forward with meaningful legislation in this area.”

A spokeswoman for Gov. Ralph Northam said that, as with all bills, the governor “would review this measure if and when it reaches his desk.”

Surovell rejected the notion that his bill could be seen as excusing attacks on police, saying any assaults that cause major injuries such as cuts, broken bones or concussions could still be prosecuted as felonies under malicious wounding statutes. Resisting arrest, a misdemeanor offense with no mandatory minimum, might also apply in some situations currently treated as felony assaults.

As the law stands now, Surovell said, many feel it can be used to “cover up for overaggressive policing” by making it appear someone subject to a rough arrest was acting violently.

“The reality is this statute does not do anything to deter people from assaulting cops,” Surovell said. “All it does is give them a tool to minimize an allegation of misconduct.”

State data shows most assaults on law enforcement officers don’t involve injuries to the officer. Out of almost 2,000 such assaults in 2019, according to a Virginia State Police report, 68 percent did not cause injuries. About 25 percent of assaults caused minor injuries. A few dozen assaults involved broken bones, severe cuts or other serious injuries. One officer was killed in the line of duty last year. Intentionally killing a police officer counts as capital murder and is punishable by death.

Some reform supporters believe the existing system gives police officers, who are also the alleged victims of any such assaults, too much leeway to decide what the initial charge should be.

Henrico County Commonwealth’s Attorney Shannon Taylor said that of the 177 felony assaults on law enforcement charged in her county since the beginning of 2017, 134, or about 75 percent, have been resolved as misdemeanors.

“That is us assessing it and asking the question: ‘Is this really the felony conviction that is meant to be put on somebody?’” Taylor, a possible Democrat candidate for attorney general in 2021, said in an interview.

Cases that have come through her office often involve behaviors like pushing, spitting or elbowing when law enforcement is responding to a situation, Taylor said, not premeditated attacks on unsuspecting officers.

Taylor said she sees the issue as part of a larger conversation about improving officer-citizen interactions so they’re less likely to devolve into hands-on tussles.

“We need to figure out as as a society whether or not we think that felonizing people’s behavior is actually achieving a goal of a safer society,” Taylor said. “I think particularly during this time when we are trying to do a reset of what public safety looks like. … We need to look at that.”

Though the charges are often reduced to misdemeanors, several Virginia court rulings have upheld the idea that arguably nonviolent acts against police can result in serious criminal penalties.

During a traffic stop in Charlottesville in 1998, a man named Michael Anthony Carter pointed his finger at an officer as if it were a gun, said “Pow,” and started laughing. The officer said he briefly thought it was a real gun and, fearing for his life, reached for his own gun and could have easily shot Carter.

Despite the lack of any actual violence, Carter was convicted of felony assault on an officer and given a three-year sentence, with two years and six months suspended. He appealed the ruling, arguing authorities couldn’t show he had any ability to harm the officer.

In 2004, the Virginia Court of Appeals upheld the decision, finding the finger gun met the definition of assault because “the officer believed for a moment that Carter had the intention and present ability to kill him.”

In another case from 1999, a high school senior in Gloucester County received a six-month prison sentence for shining a six-dollar laser pointer in the eye of a sheriff’s deputy. The teenager appealed, arguing nothing touched the deputy because lasers have no mass. 

The Court of Appeals also upheld that conviction, ruling that a battery occurred because shining a light beam at someone can be considered “unlawful touching.”

One judge warned the battery-by-light-beams theory went too far.

“Will the next prosecution for battery be based upon failure to dim high beams in traffic, flash photography too close to the subject, high intensity flashlight beams or sonic waves from a teenager’s car stereo?” the dissenting judge wrote.

The General Assembly later passed a law specifying that pointing lasers at cops is a misdemeanor.

Even the threat of a felony conviction, said Chaney, the defense lawyer in the case of the thrown onion ring, can have serious consequences for defendants who may struggle to find jobs because their record suggests they might be dangerous.

“They understand the gravity of that charge and the consequence,” Chaney said of police. “Even having that arrest on your record is just extremely problematic for someone.”

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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville.