COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
JOHN H. HILL, JR.
OPINION BY
v. Record No. 1783-00-1 JUDGE ROBERT P. FRANK
OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Denise Winborne, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Randolph A. Beales, Acting Attorney
General; Richard B. Smith, Senior Assistant
Attorney General, on brief), for appellee.
John H. Hill, Jr., (appellant) was convicted in a bench trial
of assault and battery against a law enforcement officer, in
violation of Code § 18.2-57(C).1 On appeal, he contends that
1
Code § 18.2-57 states in part:
C. In addition, if any person commits an
assault or an assault and battery against
another knowing or having reason to know
that such person is a law-enforcement
officer as defined hereinafter, a
correctional officer as defined in § 53.1-1,
a person employed by the Department of
Corrections directly involved in the care,
treatment or supervision of inmates in the
custody of the Department or a firefighter
as defined in § 65.2-102, engaged in the
performance of his public duties as such,
such person shall be guilty of a Class 6
because he used reasonable force to repel an illegal arrest, the
trial court erred in convicting him of the offense. For the
reasons stated herein, we reverse the conviction.
I. BACKGROUND
On July 9, 1999, at approximately 1:21 a.m., Suffolk Police
Officer K.I. Fromme received a report of an anonymous call that
claimed two black males were displaying and dealing firearms in
front of a green house in the 400 block of Briggs Street in the
City of Suffolk. The report described one suspect as wearing a
dark shirt, dark shorts, and a baseball cap; the other suspect was
described as wearing jeans.
Officer Fromme, in uniform, arrived on the scene at 1:24 a.m.
in a marked unit, and Officer Rupe arrived shortly thereafter.
Officer Fromme observed appellant and another individual in front
of a green house in the 400 block of Briggs Street. Appellant was
wearing a baseball cap and dark blue sweatpants. As the officers
approached, appellant was sitting in the driver's seat of a car
with the door open. The other individual was standing near the
felony, and, upon conviction, the sentence
of such person shall include a mandatory,
minimum term of confinement for six months
which mandatory, minimum term shall not be
suspended, in whole or in part.
Nothing in this subsection shall be
construed to affect the right of any person
charged with a violation of this section
from asserting and presenting evidence in
support of any defenses to the charge that
may be available under common law.
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car. Neither appellant nor the other individual ran. The
officers did not observe any suspicious activity.
The officers asked appellant to step out of the car. When he
complied, Officer Fromme told appellant that he wanted to pat him
down for weapons, and appellant refused. According to Officer
Fromme, appellant did not have a choice about whether a pat-down
would take place.
The officer attempted to frisk appellant. Appellant offered
no resistance when Officer Fromme patted down his left side.
However, when Officer Fromme attempted to pat down appellant's
right side and noticed a bulge in his right pocket, appellant
pushed the officer's hand away. Officer Fromme again explained to
appellant that he was only "trying to make sure he did not have
any weapons."
When Officer Fromme saw the bulge in appellant's pocket, he
"did not know what he had in there." As the officer reached for
the right pocket, appellant put his hand in his pocket and "would
not remove it." Fromme then grabbed appellant's hand to remove it
from the pocket. Appellant turned and attempted to run away.
"When he turned and attempted to run away, he struck [the officer
in the] mouth with his [open] hand." Officer Fromme testified at
that point appellant was under arrest.
Officer Rupe testified that appellant was moving around
trying to stop Officer Fromme from putting his hand in appellant's
pocket. When Officer Fromme "went to put his hands on him he
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turned, and when he turned around he slightly -- he actually
slapped Officer Fromme in the mouth . . . ." Officer Rupe said
appellant was trying to get away when he "smacked Officer Fromme."
Appellant ran a short distance before Officer Fromme caught
him. Officers Duke and Rupe assisted Fromme in putting appellant
on the ground. Appellant hit Officer Fromme "a couple of times"
in the ensuing fight. Appellant testified, "I snatched [my hand]
away and I accidentally hit him."
At trial, appellant argued he had a right to use reasonable
force to repel an unlawful arrest. The trial court, while
acknowledging the seizure was illegal, found the police acted in
good faith and their actions were reasonable. Further, the trial
court found the assault of Officer Fromme was "not proportionate
to the actions of the officer in removing [appellant's] hands from
his pocket." It was "not a reasonable response." The trial court
stated:
This was a simple pat-down. It never was
represented to be anything other than that,
and Officer Fromme was prevented from
conducting what should have been a peaceable
pat-down when the defendant just simply
turned around and hit him in the mouth.
The trial court convicted appellant of assault and battery
against a law enforcement officer.
II. ANALYSIS
Appellant contends that because the pat-down and his
subsequent arrest were illegal, he had a right to use reasonable
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force to repel the police officer. He argues he acted
reasonably under the circumstances. 2
Appellant and the Commonwealth both agree on the applicable
law. Although this case involves an illegal detention, as
opposed to an illegal arrest, the law of resisting an illegal
"arrest" applies in this context.
As we stated in Brown v. Commonwealth:
It has long been held in Virginia that where
an officer attempts an unlawful arrest, the
officer is an aggressor which gives the
arrestee the right to use self-defense to
resist so long as the force used is
reasonable. See [Foote v. Commonwealth, 11
Va. App. 61, 69, 396 S.E.2d 851, 856
(1990)]; see also Annotation, Modern Status
of Rules as to Right to Forcefully Resist
Illegal Arrest, 44 A.L.R.3d 1078 (1972).
"[T]he amount of force used [always] must be
reasonable in relation to the harm
threatened." Diffendal v. Commonwealth, 8
Va. App. 417, 421, 382 S.E.2d 24, 26 (1989).
When the issue on appeal is whether there is
sufficient evidence to support a criminal
conviction, we view conflicting evidence in
the light most favorable to the
Commonwealth. However, when the issues are
the lawfulness of an arrest and the
reasonableness of force used to resist an
unlawful arrest, the ultimate questions
involve law and fact and are reviewed de
novo on appeal. See Foote, 11 Va. App. at
65, 396 S.E.2d at 853-54; see also McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (citing
2
The Commonwealth, on appeal, does not maintain the
detention and arrest were lawful. Our analysis, therefore, is
limited to a determination of whether appellant's actions were
"reasonable."
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Ornelas v. United States, 517 U.S. 690, 116
S. Ct. 1657, 134 L.Ed.2d 911 (1996)).
27 Va. App. 111, 116-17, 497 S.E.2d 527, 530 (1998).
"The rules of self-defense determine whether the force used
was reasonable." Foote, 11 Va. App. at 67, 396 S.E.2d at 855.
It is well established that "a person who reasonably
apprehends bodily harm by another is privileged to exercise
reasonable force to repel the assault." Diffendal, 8 Va. App.
at 421, 382 S.E.2d at 25 (citations omitted). However, such
force "'shall not, except in extreme cases, endanger human life
or do great bodily harm.'" Id. at 421, 382 S.E.2d at 26
(quoting Montgomery v. Commonwealth, 98 Va. 840, 843, 36 S.E.
371, 372 (1900)). "Moreover, the amount of force used must be
reasonable in relation to the harm threatened." Id.
We then must determine whether appellant's intentional
"slapping" 3 of Officer Fromme in the mouth with an open hand was
reasonable in relation to the officer's assault on appellant.
Clearly, it was.
The evidence proved that Officer Fromme, without reasonable
suspicion, attempted to pat down appellant. This unlawful
3
The trial court found appellant's actions were
intentional, not accidental. We are bound by that factual
finding. See Christian v. Commonwealth, 33 Va. App. 704, 709,
536 S.E.2d 477, 480 (2000) (en banc) (explaining that appellate
courts are bound by a trial court's factual findings when
reviewing legal determinations).
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action was an illegal detention and search and, therefore, an
assault. As we stated in Perkins v. Commonwealth:
An assault and battery is the unlawful
touching of another. See Gnadt v.
Commonwealth, 27 Va. App. 148, 151, 497
S.E.2d 887, 888 (1998). Assault and battery
is "the least touching of another, willfully
or in anger." Roger D. Groot, Criminal
Offenses and Defenses in Virginia 29 (4th
ed. 1998) . . . .
31 Va. App. 326, 330, 523 S.E.2d 512, 513 (2000).
As the officer attempted to pat down appellant's right
side, appellant pushed his hand away. Then, Officer Fromme
grabbed appellant's hand as appellant was putting it into his
pocket. Appellant turned around to get away. As Officer Rupe
testified, appellant was trying to get away when he "smacked"
Officer Fromme. Clearly, the officer conveyed to appellant he
was not free to leave and seized him without reasonable
suspicion, as the trial court found. See Florida v. J. L., 529
U.S. 266, 270-73 (2000) (finding an anonymous call, with no
indication of reliability, alleging that a juvenile, standing at
a particular street corner and wearing particular clothing, had
a gun did not provide police with reasonable suspicion to stop
and search the juvenile).
At this point, given the police held appellant against his
will and without reasonable suspicion or probable cause,
appellant was illegally detained. Therefore, he was entitled to
resist the detention with reasonable force. See, e.g., Dennis
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v. State, 674 A.2d 928, 935-36 (Md.), rev'd and remanded for
recons. sub nom. Maryland v. Dennis, 519 U.S. 802 (1996), aff'd,
693 A.2d 1150 (Md. 1997) (finding an officer had no reasonable,
articulable suspicion for a Terry stop, therefore, the suspect
had the right to resist the illegal forcible detention).
At no time did appellant use excessive force. When he
struck the officer, he did so with an open hand. He did not
aggressively pursue or attack the officer. The officer was
struck only as appellant attempted to get away from the
officer's assault.
After appellant ran, he was pursued by Officer Fromme.
When Officer Fromme caught him, all three officers tried to put
him on the ground. Appellant hit Officer Fromme during this
scuffle. Again, this action was reasonable.
The Commonwealth invites us to repudiate this defense,
urging that an individual facing illegal arrest "should contest
the arrest in court and not in the streets." In its brief, the
Commonwealth maintains:
"[T]he right to resist an illegal arrest is
in its legal death throes." Resisting
Unlawful Arrests: Inviting Anarchy or
Protecting Individual Freedom? 46 Drake L.
Rev. 383 (1997). This is because:
"[C]ourts and legislatures have terminated
the right to forcibly resist unlawful arrest
because legal and societal circumstances
have changed dramatically since the
inception of that right. In the early
development of the common law, physical
resistance used to be an effective response
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to the problem of unlawful arrest. There
were few if any means of effective redress
for unlawful arrest. None of these reasons
remains valid today.
State v. Hobson, 577 N.W.2d 825, 835 (Wisc.
1998) . . . .
The Supreme Court of Virginia, addressing a different
common law concept, articulated several reasons why courts
should not change the common law.
We believe that the decision whether a
common law rule of such ancient vintage as
the one at bar should be reversed is one
properly within the province of the General
Assembly. The issue involves a multitude of
competing economic, cultural, and societal
values which courts are ill-equipped to
balance, a fact best illustrated by the
disparate conclusions reached by the several
courts which have tinkered with the common
law rule. On the other hand, the
legislative machinery is specially geared to
the task. A legislative change in the law
is initiated by introduction of a bill which
serves as public notice to all concerned.
The legislature serves as a forum for
witnesses representing interests directly
affected by the decision. The issue is
tried and tested in the crucible of public
debate. The decision reached by the chosen
representatives of the people reflects the
will of the body politic. And when the
decision is likely to disrupt the historic
balance of competing values, its effective
date can be postponed to give the public
time to make necessary adjustments.
Bruce Farms, Inc. v. Coupe, 219 Va. 287, 293, 247 S.E.2d 400,
404 (1978).
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We agree with the Supreme Court of Virginia and decline the
Commonwealth's invitation to abrogate this doctrine. 4 We find
that appellant's response to an illegal detention and search was
reasonable and proportionate to the conduct of the police. We,
therefore, reverse appellant's conviction and dismiss the
indictment.
Reversed and dismissed.
4
Further, this Court has no authority to overrule decisions
of the Supreme Court of Virginia. See Code § 17.1-406.
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