Joseph v. Commonwealth(Court of Appeals of Virginia): Resisting Arrest without Fleeing

by Eric Snow
Instructor of Criminal Justice
Radford University
E-mail:  esnow@radford.edu

On February 10, 2015, the Court of Appeals of Virginia decided Joseph v. Commonwealth[1], a case related to resisting arrest without actually fleeing.  According to the record of the court, an officer stopped Joseph for speeding and determined he had outstanding warrants.  Joseph was informed he would be taken into custody, but he became argumentative and refused to exit the vehicle as instructed by the officer.  The officer opened the vehicle door, Joseph eventually removed his seat belt, and Joseph exited the vehicle after numerous requests from the officer.  Joseph continually disregarded the officer’s commands to place his hands on the vehicle to be searched or to place his hands behind his back to be handcuffed.  He forcibly pulled away from the officer as he was being handcuffed and repeatedly pulled away from the officer prior to being handcuffed.  Joseph was eventually handcuffed and placed into custody when back-up officers arrived.  He was charged with resisting arrest under Virginia code section §18.2-479.1.

Joseph was convicted by the trial court of resisting arrest, but appealed his conviction on the basis that he did not flee from the officer during the incident; flight is a required element of resisting arrest under code section §18.2-479.1.  Joseph’s evidence, which was corroborated by the officer’s testimony, was that he never left the scene and was near the officer for the entire event.  Upon appeal to the Court of Appeals of Virginia, the Commonwealth Attorney trying the case agreed with Joseph’s argument that the evidence was insufficient to convict him for resisting arrest because the element of flight was not proven.[2]  The Court of Appeals of Virginia agreed with Joseph and overturned his conviction based on an analysis of code section §18.2-479.1, which states:

A. Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor.

B. For purposes of this section, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when (i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave.

Additionally, the Court utilized the Black’s Law Dictionary definition of flee, including “to run away or escape” or “to vanish,” in reaching a decision on the matter.  The Court’s opinion states “We hold that “fleeing” from an officer for purposes of Code § 18.2-479.1 requires some form of “running away” or movement away from the officer’s immediate span of control, beyond the resistance that occurred in this case where the appellant “remained continuously in . . . close proximity” at all times.”

The Court of Appeals of Virginia decided Joseph v. Commonwealth based on a single, very important, word within the text of code section §18.2-479.1.  The result of their decision, which appears unlikely to be changed based on the Commonwealth Attorney’s agreement with Joseph’s argument, leaves law enforcement officers and prosecutors with a potential for a violent situation where no criminal law applies.  Obviously if the arrestee’s actions reach the level of assault and battery then a relevant code section applies, but under the Court’s current ruling if an individual “merely resists” arrest without fleeing it appears the only possible criminal charge is the often used and very broad “obstructing justice” code section §18.2-460.  Hopefully Virginia’s legislature will address the matter, but a review of 2015 proposed bills did not reveal any remedy at this point.

The Court of Appeals of Virginia's opinion in Joseph v. Commonwealth is available here.

[1] Joseph v. Commonwealth (Court of Appeals of Virginia, 2015)

[2] The court indicated that, even though the Commonwealth agreed with the defendant that a proper interpretation of §18.2-479.1 would not support a conviction, it retained a duty to resolve the legal issue presented by the defendant.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.