South v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Kelsey and Senior Judge Overton
Argued at Chesapeake, Virginia

HOLLY JO SOUTH
OPINION BY
v. Record No. 2209-04-1 JUDGE D. ARTHUR KELSEY
DECEMBER 20, 2005
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge

Brooke E. Woodzell, Assistant Public Defender (Office of the
Public Defender, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.

Holly Jo South assaulted two United States Navy police officers serving at the Norfolk

Naval Base. The trial court found her guilty of three counts of felony assault and battery of

law-enforcement officers under Code § 18.2-57(C). South argues that the statute does not apply

to the federal officers she assaulted. We agree, reverse the convictions, and remand for retrial on

the misdemeanor offenses of simple assault and battery under Code § 18.2-57(A).1

I.
A. LAW-ENFORCEMENT OFFICERS UNDER CODE § 18.2-57

Code § 18.2-57(C) makes it a Class 6 felony to commit “an assault and battery against

another knowing or having reason to know that such other person is a law-enforcement officer as

defined hereinafter . . . .” Subsection E lists the categories of law-enforcement officers included

within the reach of the statute:
1
The trial court also convicted South of driving under the influence of alcohol and
assaulting a deputy employed by the Norfolk Sheriff’s Office. South did not challenge those
convictions.
 As used in this section: “Law-enforcement officer” means any
full-time or part-time employee of a police department or sheriff's
office which is part of or administered by the Commonwealth or any
political subdivision thereof, who is responsible for the prevention or
detection of crime and the enforcement of the penal, traffic or
highway laws of this Commonwealth, and any conservation officer of
the Department of Conservation and Recreation commissioned
pursuant to § 10.1-115, and game wardens appointed pursuant to
§ 29.1-200, and such officer also includes jail officers in local and
regional correctional facilities, all deputy sheriffs, whether assigned to
law-enforcement duties, court services or local jail responsibilities,
auxiliary police officers appointed or provided for pursuant to
§§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed
pursuant to § 15.2-1603.

(Emphasis added.) If a victim does not fit within one of the listed categories (conservation

officers, game wardens, jail officers, deputy sheriffs, and auxiliary officers), the statute does not

apply unless the law-enforcement officer is an “employee of a police department or sheriff’s

office which is part of or administered” by the Commonwealth or local government. Id.

South assaulted two federal police officers employed by the United States Navy. Neither

officer was an employee of a police department or sheriff’s office that was part of, or

administered by, the Commonwealth or any local government. The Navy employed, paid, and

controlled both federal officers. Under the plain meaning of Code § 18.2-57(E), the federal

officers do not fit within the statutory definition. “It is a fundamental principle of statutory

construction that expressio unius est exclusio alterius, or ‘where a statute speaks in specific

terms, an implication arises that omitted terms were not intended to be included within the scope

of the statute.’” Conkling v. Commonwealth, 45 Va. App. 518, 522, 612 S.E.2d 235, 237 (2005)

(quoting Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000)).

The Commonwealth argues that no policy justification supports the exclusion of federal

police officers from the state felony assault and battery statute. Perhaps not ⎯ but when a

statutory text speaks clearly on a subject, “effect must be given to it regardless of what courts

think of its wisdom or policy.” Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357,
-2-
358 (1944). We may not extend the meaning of the statute “simply because it may seem to us

that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very

likely broader words would have been used.” Franklin & Pittsylvania Ry. Co. v. Shoemaker,

156 Va. 619, 624, 159 S.E. 100, 102 (1931) (quoting McBoyle v. United States, 283 U.S. 25, 27

(1931) (Holmes, J.)).

The Commonwealth also contends our interpretation misses entirely the intent of the

statute, which is to impose an enhanced punishment on those who assault law-enforcement

officers and thereby deter violence against them. Here again, we do not in the slightest denigrate

this perceived legislative purpose.2 But the “question here is not what the legislature intended to

enact, but what is the meaning of that which it did enact. We must determine the legislative

intent by what the statute says and not by what we think it should have said.” Carter v. Nelms,

204 Va. 338, 346, 131 S.E.2d 401, 406 (1963). When it chooses to do so, the General Assembly

includes “law-enforcement agents of the Armed Forces of the United States” and other federal

officers within the statutory meaning of “law-enforcement officer.” See, e.g., Code

§ 18.2-308(M); Code § 18.2-433.1.3 It simply did not choose to do so in Code § 18.2-57(E).

B. RECIPROCAL AGREEMENTS UNDER CODE § 15.2-1726

The Commonwealth also asserts that the federal officers possess arrest powers to enforce

state law pursuant to a “reciprocal agreement” with the City of Norfolk authorized by Code

§ 15.2-1726. They should be treated, the Commonwealth argues, as the “functional equivalent”

2
The federal criminal code directly addresses this subject. See 18 U.S.C. § 111(a)(1)
(criminalizing assaults on federal officers engaged in “the performance of official duties”).
3
See also Code § 15.2-915.2 (exempting “law-enforcement officers or military
personnel” from the prohibition of carrying a loaded firearm); Code § 18.2-85 (exempting
members of the “armed forces of the United States” and “law-enforcement officers” from the
prohibition on manufacturing or possessing explosive devices); Code § 18.2-287.4 (exempting
“law-enforcement officers” and “military personnel” from the prohibition of carrying certain
loaded firearms in public places).
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of state or local law enforcement officers for purposes of the assault-and-battery statute. We

assume, without deciding, a “reciprocal agreement” exists between the City of Norfolk and the

United States Navy.4 Even with that assumption, the Commonwealth’s argument has no merit.

Code § 18.2-57(E) incorporates by reference various officers identified in other

provisions of state law ⎯ such as conservation officers under Code § 10.1-115, game wardens

under Code § 29.1-200, auxiliary police officers under Code §§ 15.2-1731, 15.2-1733, and

auxiliary deputy sheriffs under Code § 15.2-1603. Yet subsection E conspicuously omits any

reference either to federal officers generally or to those specifically subject to reciprocal

agreements under Code § 15.2-1726 (formerly codified at Code § 15.1-131.3), a statute that had

been on the books for more than a decade before the enactment of Code § 18.2-57(E) (formerly

codified at Code § 18.2-57.1). This omission has continued despite the many amendments to

Code § 18.2-57 over the years.5

Nor does Code § 15.2-1726, of its own force, somehow incorporate itself into the

criminal assault-and-battery statute. The relevant part of the statute provides:

4
At trial, the Commonwealth did not introduce a reciprocal agreement into evidence.
Nor did any witnesses once mention the existence of any agreement of any sort. The federal
officers testified only that, as they understood it, their “authority” to arrest under state law came
“[f]rom the City of Norfolk.” Similarly, the word “agreement” never appears in any comments
by the prosecutor during the trial. She argued only that the federal officers have a “special
conservancy under a statute . . . that allows them to issue summons.” When summarizing the
evidence, however, the trial judge mistakenly recalled the federal officers testifying that their
arrest powers stemmed from “a mutual agreement” with the City of Norfolk. Despite these
evidentiary infirmities, we assume a reciprocal agreement under Code § 15.2-1726 exists only
because South does not challenge that issue on appeal.
5
This section’s definition of “law-enforcement officer” was originally located in Code
§ 18.2-57.1 and was limited at its inception to “full-time employee[s] of a police department or
sheriff’s office which is part of or administered by the Commonwealth or any political
subdivision thereof.” 1983 Va. Acts, ch. 578. That definition was modified twice before 1997
when it was relocated to Code § 18.2-57. See 1994 Va. Acts, ch. 205 (adding conservation
officers); 1994 Va. Acts, ch. 427 (adding part-time employees, auxiliary police officers, and
auxiliary deputy sheriffs); 1997 Va. Acts, ch. 833. Since then, the definition has been changed
twice more. See 2000 Va. Acts, ch. 288 (adding game wardens, jail officers, and deputy
sheriffs); 2001 Va. Acts, ch. 129 (adding jail officers of regional facilities).
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 Any locality may, in its discretion, enter into a reciprocal agreement with
any other locality, any agency of the federal government exercising
police powers, police of any state-supported institution of higher learning
appointed pursuant to § 23-233, or with any combination of the
foregoing, for such periods and under such conditions as the contracting
parties deem advisable, for cooperation in the furnishing of police
services. Such localities also may enter into an agreement for the
cooperation in the furnishing of police services with the Department of
State Police. The governing body of any locality also may, in its
discretion, enter into a reciprocal agreement with any other locality, or
combination thereof, for the consolidation of police departments or
divisions or departments thereof. Subject to the conditions of the
agreement, all police officers, officers, agents and other employees of
such consolidated or cooperating police departments shall have the same
powers, rights, benefits, privileges and immunities in every jurisdiction
subscribing to such agreement, including the authority to make arrests in
every such jurisdiction subscribing to the agreement; however, no police
officer of any locality shall have authority to enforce federal laws unless
specifically empowered to do so by statute, and no federal
law-enforcement officer shall have authority to enforce the laws of the
Commonwealth unless specifically empowered to do so by statute.

(Emphasis added).

A reciprocal agreement under Code § 15.2-1726 cannot, by itself, contractually confer

arrest authority on federal officers to enforce state law. Immediately after recognizing the

reciprocal power of arrest, the statute includes a “however” proviso which confirms that, no

matter what the agreement may say, “no federal law-enforcement officer shall have authority to

enforce the laws of the Commonwealth unless specifically empowered to do so by statute.” Id.

All the more, we question whether a reciprocal agreement under Code § 15.2-1726 can

contractually confer upon a federal officer the “privilege” of special victim status reserved by the

legislature solely for state and local officers under Code § 18.2-57(E).6

6
Though other federal-state inter-governmental statutes exist, none apply to this case.
See, e.g., Code § 15.2-1728 (authorizing a “mutual aid agreement” over lands subject to the
“exclusive jurisdiction” of the federal government); Code § 15.2-1729 (authorizing the
“governing body of any county” to enforce county ordinances and state law on federal property).
No evidence established the place of South’s arrest as being subject to exclusive federal
jurisdiction, making Code § 15.2-1728 inapplicable. See generally Campbell v. Commonwealth,
39 Va. App. 180, 188, 571 S.E.2d 906, 910 (2002) (recognizing a “presumption in favor of
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 We need not examine the question further, however, because nothing in the record

discloses what the putative agreement in this case said. The Commonwealth did not introduce

the agreement in evidence, or provide testimony from any witness about specific contractual

terms, or make any unchallenged avowal about the subject. And whatever may be included

among the “powers, rights, benefits, privileges and immunities” alluded to in the statute, they

still remain “[s]ubject to the conditions of the agreement,” as Code § 15.2-1726 makes clear.7

Without that agreement or some testimonial evidence of its terms, we cannot assume anything in

it purports to transform the federal officers South assaulted into employees “of a police

department or sheriff’s office which is part of or administered” by the Commonwealth or local

government for purposes of Code § 18.2-57(E).

In the end, the Commonwealth’s argument is little more than a request that we add Code

§ 15.2-1726 to the list of statutes incorporated by reference by Code § 18.2-57(E). Granting this

request would require us to “judicially graft” an unrelated provision into the statute “under the

subtle guise of judicial interpretation,” Washington v. Commonwealth, 46 Va. App. 276, 283,

616 S.E.2d 774, 778 (2005) (en banc) (citations and internal quotation marks omitted) ⎯ an

exercise in which we have neither the authority nor the inclination to engage.

concurrent jurisdiction” over federal lands in Virginia). And the City of Norfolk is not a county,
making Code § 15.2-1729 inapplicable.
7
The phrase “powers, rights, benefits, privileges and immunities” in Code § 15.2-1726 is
not self-defining. Phrases like this usually describe the common law and statutory powers to
seize persons and property, the protection from legal liability accompanying the proper
performance of official duties, the employment-related accoutrements of the office, and legal
entitlements of like kind. See, e.g., Code § 44-75.1:1(A) (describing the “benefits, privileges,
immunities, or rights” of national guard personnel); Blackmon v. Lee, 12 F.R.D. 411, 412
(D.D.C. 1952) (noting the “rights, benefits, privileges or immunities” granted by Congress to
veterans), aff’d, 205 F.2d 13 (D.C. Cir. 1953).
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 II.

The trial court erred as a matter of law in convicting South under Code § 18.2-57(C) of

felony assault and battery of the United States Navy police officers. We reverse these three

felony convictions and remand the case for retrial on the lesser-included misdemeanor offenses

of simple assault and battery under Code § 18.2-57(A).8

Reversed and remanded.

8
South does not challenge any other aspect of her assault-and-battery convictions.
“When an appellant successfully challenges the sufficiency of the evidence on some (but not all)
aspects of his conviction, we must determine if the proven elements of the original charge
qualify as a lesser-included offense. If so, the appropriate remedy on appeal is a reversal of the
conviction on the greater charge and a remand of the lesser charge for retrial — assuming the
Commonwealth, in its prosecutorial discretion, chooses to go forward on the lesser charge.”
Crowder v. Commonwealth, 41 Va. App. 658, 666, 588 S.E.2d 384, 388 (2003); see also
Gorham v. Commonwealth, 15 Va. App. 673, 678, 426 S.E.2d 493, 496 (1993).
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Humphreys, J., dissenting.

I believe that Code § 18.2-57, when read in conjunction with Code § 15.2-1726, entitles

these federal officers to “the same powers, rights, benefits, privileges and immunities while

acting in the performance of their duties,” including the fullest protection of the law when

carrying out those duties. As a result, the statutory definition of “law-enforcement officer”

contained in Code § 18.2-57 must therefore also encompass federal officers who have entered

into, and are acting pursuant to, a contractual mutual assistance arrangement with a state or local

law enforcement agency. Accordingly, I respectfully dissent.

I.

South contends that, because the United States naval base police officers were not

“law-enforcement officers” as defined by Code § 18.2-57, she cannot be convicted of the offense

of assaulting a police officer. The majority correctly points out that “[n]either naval base officer

was an employee of a police department or sheriff’s office that was part of, or administered by,

the Commonwealth or any local government. The Navy employed, paid, and controlled both

federal officers.” However, I disagree with the majority’s conclusion that the ability of the

Commonwealth to charge South with the enhanced assault charge rises and falls solely with the

statutory definition provided in Code § 18.2-57(C).

Clearly, federal officers are not specifically listed in Code § 18.2-57(C). And, without

further analysis, it would seem that the principle of “expressio unius est exclusio alterius”

applies, limiting us to the list of individuals delineated within that Code section. However,

because the Commonwealth introduced unchallenged evidence of a contractual agreement

between the City of Norfolk and the federal government, I believe that this Court must also take

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into consideration the provisions of Code § 15.2-1726 when determining whether these officers

are afforded the privilege of claiming “special victim status” under Code § 18.2-57.9

A. APPLICABLE RULES OF STATUTORY CONSTRUCTION WHEN
CONSIDERING MULTIPLE STATUTES

When this Court is faced with an issue of statutory construction, we are, as the majority

acknowledges, bound by the “plain meaning rule.” See Brown v. Lukhard, 229 Va. 316, 321,

330 S.E.2d 84, 87 (1985). In other words, if the statute is clear on its face, we need not resort to

rules of statutory construction, but rather, we must give full effect to the plain meaning of the

words chosen by the legislature. Id.10 However, if the statutory language is ambiguous, or if two

statutes seem to be in conflict, as is the case here, we must employ the rules of statutory

construction. Id.; see also Buzzard v. Commonwealth, 134 Va. 641, 653, 114 S.E. 664, 667

(1922).

When resorting to the rules of statutory construction, our overriding inquiry focuses upon

ascertaining the intention of the lawmakers. Buzzard, 134 Va. at 653, 114 S.E. at 667. The

“intention [of the legislature] must be gathered from the words used, but unreasonable or absurd

results must not be reached by too strict adherence to literal interpretation.” Id. Statutes must be

considered together, and the literal meaning of separate statutes, if in conflict, “must yield to a

reasonable and fair interpretation to be gathered from the context, the subject matter and the

reason and spirit of the law.” Id. Moreover, “[t]he doctrine of pari materia teaches that statutes

9
The majority uses the term “special victim status” to refer to the “privilege” conveyed
to law-enforcement officers under Code § 18.2-57. For consistency, I will adopt this
terminology.
10
Under the “plain meaning” rule, “if statutory language is not ambiguous but has a usual
and plain meaning, rules of construction do not apply and resort to legislative history is both
unnecessary and improper.” Marsh v. Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987).
Thus, as long as the words are not ambiguous, and as long as there is no conflict when the statute
is read in conjunction with another, we are restricted to the words used within the statute. As
such, under the majority’s “plain meaning” approach, we should not look to the many
amendments of Code § 18.2-57 and speculate as to the legislative intent behind them.
-9-
are not to be considered as isolated fragments of law, but as a whole, or as parts of a great,

connected homogenous system, or a simple and completed statutory arrangement.”

Commonwealth v. Wallace, 29 Va. App. 228, 234, 511 S.E.2d 423, 425 (1999) (quoting Moreno

v. Moreno, 24 Va. App. 190, 197, 480 S.E.2d 792, 796 (1997)) (internal quotations omitted).

Therefore, “proper construction seeks to harmonize the provisions of the statute both internally,

and in relation to other statutes.” Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458

S.E.2d 305, 307 (1995) (citations omitted) (emphasis added).

B. READING CODE § 18.2-57 IN CONJUNCTION WITH CODE § 15.2-1726

In this case, the Commonwealth produced evidence—without objection or other evidence

to the contrary—that the City of Norfolk and the federal government maintained a mutual aid

agreement, pursuant to state law, by which Norfolk Naval Base police officers had the authority

to enforce and uphold the laws of the Commonwealth.

According to Code § 15.2-1726,

Any locality may, in its discretion, enter into a reciprocal
agreement with any other locality, any agency of the federal
government exercising police powers, police of any
state-supported institution of higher learning appointed pursuant to
§ 23-233, or with any combination of the foregoing, for such
periods and under such conditions as the contracting parties deem
advisable, for cooperation in the furnishing of police services . . . .
Subject to the conditions of the agreement, all police officers,
officers, agents and other employees of such consolidated or
cooperating police departments shall have the same powers,
rights, benefits, privileges and immunities in every jurisdiction
subscribing to such agreement, including the authority to make
arrests in every such jurisdiction subscribing to the agreement;
however, no police officer of any locality shall have authority to
enforce federal laws unless specifically empowered to do so by
statute, and no federal law-enforcement officer shall have authority
to enforce the laws of the Commonwealth unless specifically
empowered to do so by statute.

(Emphasis added). In other words, a locality may enter into a mutual aid agreement with the

federal government, and absent any language in the agreement to the contrary, the statute itself
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gives the federal officers all “powers, rights, benefits, privileges and immunities,” including the

power to arrest, that are conferred upon the law enforcement officers of the contracting

jurisdiction. (Emphasis added).

However, the majority offers several reasons why Code § 18.2-57, in combination with

Code § 15.2-1726, does not provide these officers with the privilege to charge South with the

enhanced assault charge. For the reasons that follow, I disagree with each.

1. The Existence of a Mutual Aid Agreement

Although the record is clear that the federal officers had arrest powers, the majority

questions the existence of an agreement between the City of Norfolk and the federal government,

stating, “[w]e assume, without deciding, a ‘reciprocal agreement’ exists between the City of

Norfolk and the United States Navy.”11 The majority then goes on to state that even if an

agreement does, in fact, exist, “Code § 15.2-1726 cannot, by itself, confer arrest authority on

federal officers to enforce state law.”

However, the majority’s interpretation of Code § 15.2-1726 joins two different portions

of the statute together that— when read in accordance with the “plain-meaning rule”— the

legislature clearly intended to make distinguishable. Specifically, the power to arrest and the

power to enforce the laws of the Commonwealth are two different propositions. See Lukhard,

229 Va. at 321, 330 S.E.2d at 87 (addressing the “plain-meaning” rule); see also Code

§ 15.2-1726.

11
The arrest warrants issued to South were styled “Commonwealth of Virginia Warrant
of Arrest.” Because the officers’ “authority” to arrest under state law came “[f]rom the City of
Norfolk,” and because the officers validly arrested South under color of the authority of the
Commonwealth, we must assume they were authorized to do so pursuant to a mutual aid
agreement. Moreover, although the majority questions whether these federal officers received
the power to issue summons pursuant to a mutual aid agreement, neither the validity of the arrest,
nor the officers’ power to issue the summons are contested on appeal.
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 The majority argues that Code § 15.2-1726 states that, no matter what the mutual aid

agreement may say, “‘no federal law-enforcement officer shall have authority to enforce the laws

of the Commonwealth unless specifically empowered to do so by statute.’” This may be true.

However, because Code § 15.2-1726, does, by itself, confer upon these officers “the authority to

make arrests” when a mutual aid agreement exists, we need not even go so far as to ask whether

these officers had the power “to enforce the laws of the Commonwealth.” Rather, because the

officers had the power to arrest, which derived from a mutual aid agreement between the City of

Norfolk and the federal government, they had the same “powers, rights, benefits, privileges and

immunities” of their counterparts employed directly by the Commonwealth. (Emphasis added).

Therefore, in viewing this evidence in the light most favorable to the Commonwealth, I

believe this Court is compelled to find that the federal officers’ ability to arrest South was

established pursuant to a mutual aid agreement between the City of Norfolk and the federal

government, as allowed by Code § 15.2-1726.

2. Failure to Offer the Agreement Into Evidence

The majority also suggests that, because the Commonwealth failed to offer the actual

agreement between the City of Norfolk and the federal government into evidence, “we cannot

assume anything in it purports to transform the federal officers South assaulted into employees of

a police department or sheriff’s office which is part of or administered by” the Commonwealth.

In other words, the majority contends that we cannot consider the agreement because the

Commonwealth did not satisfy its burden of proof with regard to the charged offense.

Although it is true that, “[t]o satisfy the due process requirements of the Federal

Constitution, the prosecution must bear the burden of proving all elements of the offense beyond

a reasonable doubt,” Stokes v. Warden, Powhatan Correctional Center, 226 Va. 111, 117, 306

S.E.2d 882, 886 (1983) (quoting In Re Winship, 397 U.S. 358, 363 (1970)), and while it would

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certainly have made our task easier had the Commonwealth offered the agreement as an exhibit,

I disagree with the majority’s implicit conclusion that the Commonwealth completely failed to

prove the existence of such an agreement. Specifically, the Commonwealth presented

uncontroverted testimony, by both arresting officers, that a cooperative agreement existed that

gave them the power to arrest and issue summons by the City of Norfolk. Moreover, in ruling on

the motion to strike, the trial court stated,

[T]hey operate under permission from the City of Norfolk—this
political subdivision that these events occurred in—to lawfully
execute and issue summons and arrests within this jurisdiction.
That has been unchallenged . . . . I think the testimony of the
officers effectively said just this – they didn’t get into all the
details because it wasn’t charged. They said they got authority
from the City, and they have a mutual [aid] agreement with the
City, and there is no challenge to that by the evidence, and
therefore, I will deny your motion to strike.

The Commonwealth’s failure to introduce the agreement itself, although arguably in

contravention of the best evidence rule, does not, in the absence of an objection to that effect,

preclude either the trial court or this Court from finding that the evidence establishes that the

contract did, in fact, exist.

In Virginia, the best evidence rule provides that “where the contents of a writing are

desired to be proved, the writing [the primary evidence] itself must be produced or its absence

sufficiently accounted for before other evidence of its contents can be admitted.” Randolph v.

Commonwealth, 145 Va. 883, 889, 134 S.E. 544, 546 (1926); Butts v. Commonwealth, 145 Va.

800, 816, 133 S.E. 764, 769 (1926). If the trier of fact concludes with reasonable certainty that

the document existed and that it is unavailable for admission at trial, testimony about its contents

is admissible, and any remaining disputes center on the weight to be given the evidence, not its

admissibility. See, e.g., Foley v. Commonwealth, 8 Va. App. 149, 164-65, 379 S.E.2d 915, 924

(1989). However, the rules of evidence require counsel to object in order for the court to apply

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this rule. See, e.g., Ohree v. Commonwealth, 26 Va. App. 299, 494 S.E.2d 484 (1998). In this

case, however, South failed to raise any objection to the introduction of the officers’ testimony

regarding the agreement between the City of Norfolk and the federal government. And, although

such an objection may have been well taken, it is not the province of this Court to consider on

appeal an issue that was not preserved below. See Rule 5A:18. Thus, absent any objection from

defense counsel, or any affirmative evidence that the contract did not exist, I would hold that the

Commonwealth presented sufficient evidence from which the trial court could infer that the

agreement existed.

Therefore, in viewing this evidence in the light most favorable to the Commonwealth as

required by the appellate standard of review, we can and should find that a contractual agreement

existed that provided these officers with the same “powers, rights, benefits, privileges and

immunities” as their colleagues that are employed directly by the Commonwealth or its political

subdivisions. Code § 15.2-1726 (emphasis added).

3. The Terms of the Contractual Relationship

The majority also questions “whether a reciprocal agreement under Code § 15.2-1726 can

contractually confer upon a federal officer the ‘privilege’ of special victim status,” and, even if

the agreement did exist, whether it would “transform” the federal officers into an employee of

the Commonwealth for purposes of Code § 18.2-57.

However, nothing in the statute requires such a “transformation” in order for the

contracting officer to receive the “rights, benefits, privileges and immunities” that the statute

provides. Id. (emphasis added). Rather, the contractual relationship is a mechanism by which a

local entity, in this case, the City of Norfolk, in conjunction with agencies of the federal

government, can efficiently and effectively cooperate in the furnishing of police services, while

simultaneously providing the officers of the contracting agencies with the same authority and

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benefits as their local counterparts. These benefits are, as the statute indicates, the same “rights,

benefits, privileges and immunities” of the local officers. Id. (emphasis added).

Although the majority suggests that these terms are not “self-defining,” and are usually

used to “describe the common law and statutory powers to seize persons and property, the

protection from legal liability accompanying the performance of official duties . . . and legal

entitlements of the kind,” we must begin our interpretation of every statute by discerning the

plain meaning of the words within it. See Lukhard, 229 Va. at 321, 330 S.E.2d at 87.

According to Black’s Law Dictionary 1215 (7th ed. 1999), a privilege is “a special legal

right, exemption, or immunity granted to a person or class of persons.” (Emphasis added). In

giving effect to the plain meaning of the words chosen by the legislature, as we must, the

legislature’s use of the word “privilege” connotes that this statute provides contracting officers

with “special legal right[s].”12 Id. Clearly, I agree with the majority that, “it is our duty to take

the words which the legislature has seen fit to employ and give to them their usual and ordinary

signification, and having thus ascertained the legislative intent, to give effect to it.” Saville v.

Va. Ry. & P. Co., 114 Va. 444, 452-53, 76 S.E. 954, 957 (1913). To that end, we must give

effect to the meaning of the word “privilege” when Code § 18.2-57 and § 15.2-1726 are read

together.

Accordingly, I would hold that the “special legal rights,” bestowed upon the federal

officers by Code § 15.2-1726 by virtue of the cooperative agreement, give these federal officers

the “privilege” of special victim status under Code § 18.2-57, thus providing the same level of

deterrent effect conferred by the enhanced penalty for those who assault the law enforcement

officers of the Commonwealth. I respectfully suggest that the legislature did not intend that

12
The majority contends the legal rights afforded these officers would be of the kind
addressed in Code § 44-75.1:1(A), and were not meant to afford these officers special victim
status under an “unrelated” criminal statute.
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these officers would be afforded the “special legal right” of claiming protection from legal

liability accompanying the good faith performance of their duties, but in turn would not be

afforded the “special legal right” of claiming the special victim status available under Code

§ 18.2-57.

4. Jurisdiction

Lastly, in footnote 2, the majority seems to suggest that deterring violence against federal

officers, who are contractually authorized to enforce state law, may only be done through the

federal court system pursuant to 18 U.S.C. § 111(a)(1). Although South could certainly have

been charged in federal court with the crime of assaulting a federal officer, nothing prevents the

Commonwealth from pursuing a cause of action that is a violation of state law. More

specifically, where a state shares concurrent jurisdiction with the federal government over an

area where a state cause of action arises, that state court is the proper forum for deciding the

case. See, e.g., Gay v. Commonwealth, 10 Va. App. 229, 230-31, 391 S.E.2d 737, 738 (1990)

(holding the Virginia Beach Circuit Court had concurrent jurisdiction over Little Creek Naval

Amphibious Base for traffic violations). Accordingly, in contrast to the assertion made by my

colleagues, I would hold that the Commonwealth has not only the jurisdiction to pursue this

claim, but also an overriding interest in protecting the officers it contracts with to uphold the

laws of the Commonwealth.

II.

In the present case, we are presented with two statutes. Although South urges us to

strictly construe the meaning of “law-enforcement officer” as defined solely by Code § 18.2-57,

this Court must also consider Code § 15.2-1726. In reading these two statutes together, so as to

discern “the true intention of the Legislature, and to adopt that sense of the words which

harmonizes best with the context, and promotes in the fullest manner the apparent policy and

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objects of the Legislature,” Northrop v. Richmond, 105 Va. 335, 339-40, 53 S.E. 962, 963 (1906)

(internal quotations omitted), I conclude that the General Assembly intended to give federal

officers—such as those involved in this case—the same level of protection from criminal acts as

is afforded their law enforcement colleagues employed by the Commonwealth, its cities, and its

counties. Because I would affirm the convictions, I respectfully dissent.

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