Hill v. Commonwealth

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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