By Dick Hall-Sizemore
One of the pieces of the criminal justice reform package that caused some consternation on this blog has been killed in a House committee. SB 5032 (Surovell, D-Fairfax) would have amended the statute that makes assault of a public safety employee, including a law-enforcement officer, a felony, with a mandatory minimum sentence of six months. (Assault generally is a misdemeanor.)
As the bill emerged from the Senate, it included the following provisions:
- The felony charge was retained;
- The mandatory minimum sentence was eliminated;
- If the degree of culpability were slight, e.g. offender was mentally ill, or if there were no bodily injury, a jury or judge could find the offender guilty of misdemeanor assault, rather than felony assault. (Such a reduction in the charge would be discretionary on the part of the jury or judge.), and
- The incident would have to be investigated by another law-enforcement officer not involved and any arrest approved by the Commonwealth’s attorney.
According to a report in the Daily Press, the opponents of the bill focused on the possible exemption for a situation involving no bodily injury. Wayne Huggins, the executive director of the Virginia State Police Association, pointed out that, just because there was no bodily injury, it did not mean none was intended. He argued, “Through our defensive tactics training, if we are able to, say, block a punch, somebody throws a punch at us, or somebody swings an object at us, and we were able to block it and not get injured,” that person should face the same charge “as the person who does connect with a punch or a blunt force object.”
That argument echoes one posed by Jim Bacon in these pages. A person may throw a brick at law enforcement officers and miss. No bodily injury occurred, but the officers were put in danger of being seriously injured.
The House Courts of Justice Committee seemed to be troubled enough by the patron’s arguments for the bill and the possible ramifications of changes that it decided to kill the bill, but also refer it to the Crime Commission for further study. As Del. Jeff Bourne, D-Richmond, explained, “We need to get it right.”
It seems that giving a jury or judge the discretion to find the accused person guilty of a felony or misdemeanor if she had a diminished physical or mental capacity or pervasive developmental disorder, or if there were no bodily injury to the law-enforcement officer would meet the objections of the opponents of the bill, as well as address the points raised in this blog. However, Mr. Huggins and some members of the committee seemed to have ignored this aspect of the bill and contended that the absence of bodily injury would be enough to avoid the felony charge. Rather, the burden would have been on the defendant to convince the judge or jury to reduce the charge.
I suspect that the Democrats on the committee, in light of the other police reforms they are pushing, were overly wary of being painted as being “anti-police.” Also, there may have been some undercurrents of House-Senate tension among Democrats at play here, which would be difficult for the public to detect.