MEDVIN LAW PLC is one of the very few law firms trusted by Virginia police officers for the defense of serious internal investigations, criminal investigations, and personal traffic and family/domestic accusations. Attorney Marina Medvin has represented police officers, their friends, and their family members from many of the local VA/DC Metro area police departments.

References: City of Alexandria Police Department, Fairfax County Police Department, Arlington County Police Department, Metropolitan Police Department of the District of Columbia, and Federal Law Enforcement Agencies (including Quantico Police and Secret Service).

Law Enforcement Use Of Force

Police officers in Virginia cannot use excessive force to apprehend a subject, but they may use reasonable force or effort, as required in a given set of circumstances, to compel compliance by an unwilling subject.

In reality, this means that as a situation escalates, an officer makes split-second decisions as to how to control the situation, respond to possible threats, and apprehend their subject. Reasonableness of force varies incident-by-incident and is judged on a case-by-case basis.

The reasonableness of the force is evaluated from the objective perspective of a reasonable police officer on the scene, allowing for officers to make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary.” In addressing the reasonableness of an officer’s actions, Virginia courts must consider the facts at the moment that the challenged force was employed.

The United States Supreme Court has held that the proper application of an excessive force test under the Fourth Amendment “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Law enforcement use of deadly force can be deemed excessive force and not “reasonable in relation to the perceived threat,” and result in homicide charges, manslaughter or murder. A police officer “cannot kill unless there is a necessity for it, and the jury must determine upon the testimony the existence or absence of the necessity. They must judge of the reasonableness of the grounds upon which the officer acted,” according to Virginia courts. “The law does not clothe him with authority to judge arbitrarily of the necessity. He cannot kill, except in case of actual necessity, and whether or not such necessity exists is a question for the jury.”

Use of force in each Virginia police department is guided by internal policy, in addition to Virginia law and Federal law. The Fairfax County Police Department Use of Force Policy can be found here. The City of Alexandria Use of Force Directives can be found here. The local department’s use of force policy has been held relevant to the issue of the use of force by an officer and admissible in Virginia courts.

Escalation and Reasonable Use of Force by Police Officers

The first level of force is the mildest one – police officer presence in uniform or with a badge, in itself, is a way for the officer to exert a level of force and authority over citizens.

The second level of force is through verbal commands. Officers issue commands, such as “Let me see your identification and registration,” “stop,” or “don’t move.”

The third level of force is physical restraint and physical command over a subject. If the situation calls for it, officers can grab and hold the subject in order to restrain that individual. If this doesn’t work or is not an option, then officers may use physical force to control and restrain an individual. These actions must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly.

The next level of force is when officers have a reasonable need to control the situation by using their tools or weapons. Officers may use a baton or projectile to immobilize a combative person. Officers may use chemical sprays or projectiles such as pepper spray. And, officers may use tasters to immobilize an individual. This type of force must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly. Officers cannot continue beating someone with their baton once the person is no longer resisting or no longer posing a threat, for example.

The last level of force is deadly force. The U.S. Supreme Court’s decision in Tennessee v. Garner placed restrictions on police use of deadly force:

“deadly force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

A Virginia police officer is allowed to use deadly force if he can articulate that his life or the life of another was threatened. This is a type of self-defense or defense of another situation. It is judged from the perspective of the officer at the time of the shooting. However, Virginia police officers have been found guilty of homicide for use of deadly force. As such, extreme force must be used with extreme caution. “With great power comes great responsibility.”

Fairfax, Virginia example of the use of force training: Fairfax Police Department Retrains Officers to Avoid Use of Deadly Force


The Rights of a Police Officer Being Investigated By Internal Affairs For Use of Force

When a police officer is coerced, under threat of discipline, to provide a statement to IA (Internal Affairs) or the police department about the performance of his duties, the officer’s statement cannot be introduced in a subsequent criminal prosecution. Garrity v. New Jersey, 385 U.S. 493 (1967). Stated more simply, statements obtained from police officers under threat of termination for refusal to answer cannot be used in subsequent criminal proceedings.

  • Fifth Amendment provides that no individual “shall be compelled in any criminal case to be a witness against himself.”
  • Under the Fourteenth Amendment, statements that the government compelled a public employee to give by the threat of job loss are coerced and cannot be used in any subsequent criminal proceeding. The 14th Amendment protects an officer’s right not to testify when he is a defendant in a criminal trial but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answer might incriminate him in future criminal proceedings.
  • Many police departments require officers to provide a statement to IA about the use of force. Police verbiage example: “[a]n employee may be ordered to answer questions that are related to their duties or fitness. Failure to answer such questions may be the basis for disciplinary action.”
  • Garrity policy example: “The employee shall truthfully and completely answer all questions pertaining to the investigation, either verbally or in writing. Refusal to truthfully and completely answer these questions shall be grounds for disciplinary action and may result in dismissal from the department. While an employee has the right to remain silent and not incriminate him or herself in a criminal proceeding, the employee’s silence or refusal to answer questions during an administrative investigation will be deemed insubordination and will result in discipline, which may result in dismissal from the department in accordance with Garrity v. New Jersey.”

However, a police officer may not refuse to answer questions relating to the performance of his duties as long as the officer is given immunity (from the use or derivative use of his statements) in a potential criminal prosecution. Gardner v. Broderick, 392 U.S. 273 (1967). This is rare.

If you are being investigated for potential criminal activity for the performance of your duties as a police officer, you need to speak to an attorney before you speak to IA or anyone else in your department. 

The Fairfax County Police Department Conduct and Discipline Policy can be found here.

The Fairfax County Police Department Internal Investigations Policy can be found here.

The Fairfax County Police Department Ethics and Integrity Policy can be found here.

Articles by Marina Medvin on Use of Force by Police Officers

The Atlanta Wendy's Officer Shooting: Justified Use of Force

How It Actually Happened

Atlanta police arrived at Wendy’s in response to a 911 call about a man passed out in a drive-through lane. When the first officer arrived on scene, Officer Brosnan, he observed that the vehicle in question had the motor running and that the driver was indeed passed out or sleeping. It took the officer multiple attempts to wake the driver. Ofc. Brosnan then asked the driver to move his car out of the drive-through lane and to park it in a parking spot.

As the driver was attempting to park, he drove over the curb in front of the parking spot and had to back up to move off. The officer also observed the driver as groggy, heard a slurred speech, smelled an odor of alcohol coming from the vehicle, observed watery eyes, and noted the driver’s confusion. These are all evidentiary indicators of intoxication.

Ofc. Brosnan asked the driver for his driver’s license and detained him for a DUI investigation.

Then, the second officer arrived on scene, Officer Garrett Rolfe. Ofc. Rolfe first obtained a full debrief from the first officer on the scene. He then proceeded to ask the driver, Rayshard Brooks, what happened. In his interaction with Mr. Brooks, it is clear that Ofc. Rolfe is interacting with an intoxicated individual. Mr. Brooks cannot keep a straight story, doesn’t know which city he is in, is slurring his words, and appears very confused, he intermittently doesn’t recall interacting with Officer Brosnan; Mr. Brooks even tells the officers that he pulled over Officer Brosnan.

Ofc. Rolfe asks to pat down Mr. Brooks for weapons and then institutes standardized field sobriety tests. Mr. Brooks shows signs of intoxication on those tests. Mr. Brooks then provides a breath sample showing that he is above the legal limit, though only by a bit. Mr. Brooks exhibits much stronger signs of intoxication than we would expect from the .10 BAC level that appeared on the portable breath test; there is a good chance that there were intoxicants other than alcohol in his system.

Georgia law permits DUI enforcement on private property like a Wendy’s parking lot. And, mere control of a vehicle while intoxicated is sufficient for DUI arrest (which means evidence of driving behavior is not necessary for an arrest). Thus, Ofc. Rolfe had both the authority and the required probable cause to arrest Mr. Brooks for DUI.

The arrest is the moment in which Mr. Brooks makes a series of terrible decisions that lead to him being shot just moments later.

Mr. Brooks begins struggling and pulling away forcefully as the two officers attempt to handcuff him. The struggle thrashes all three men onto the pavement. The officers are continuously giving Mr. Brooks commands to stop and warn him that they will have to tase him if he doesn’t stop resisting and fighting them. Ofc. Brosnan takes out his taser and points it at Mr. Brooks, who manages to get it out of the officer’s hands. The officers can be heard on the bodycam footage telling Mr. Brooks not to touch the taser. Mr. Brooks succeeds in stealing the taser away from Ofc. Brosnan and throws the two officers off of him. He punches Ofc. Rolfe and breaks free, running back from the officers on the ground, stolen taser in hand.

Mr. Brooks has now committed a felony obstruction by fighting the officers, a felony assault by striking the officers to rob them of the taser, and a felony robbery by stealing the taser while using force.

Ofc. Rolfe now discharges his taser at Mr. Brooks, though unsuccessfully. Mr. Brooks changes directions and runs. Mr. Brooks has turned himself into a dangerous, fleeing felon. Ofc. Rolfe pursues him with the taser in hand.

Mr. Brooks, while running forwards, then turns his hand bearing the taser back at Ofc. Rolfe. Mr. Brooks also turns his head back and looks behind him (while continuing to run forwards). Mr. Brooks then discharges the taser at the officer running behind him. Mr. Brooks has just committed another felony act of aggravated assault on an officer. Ofc. Rolfe ducks and moves out of the way to avoid being shot with the taser, while simultaneously switching from holding his taser to his firearm. This all happens in the course of one second.

In the next second, Mr. Brooks continues running forwards, and again turns his hand bearing the taser back at Ofc. Rolfe and looks back at him. The two men appear in a duel position, their arms, weapons in hand, pointed at one another. Mr. Brooks is in the commission of another felony assault. Ofc. Rolfe then shoots his firearm three times, with two of the bullets striking Mr. Brooks and taking him down. As soon as Mr. Brooks is down, Ofc. Rolfe holsters his weapon and screams, “put your hands behind your back!”

To reiterate: within a two-second time period, Mr. Brooks transformed his destiny. Mr. Brooks decided to shoot a taser at Ofc. Rolfe, who was chasing him while also holding out a taser pointed at Mr. Brooks. Only after Mr. Brooks points and shoots the taser at the officer is when the officer shifts from holding a taser to taking out his firearm. Mr. Brooks continues to hold out his arm and to point it at the officer, looking back at him, trying to aim his taser. At this point, the men are pointing arms at each other. Ofc. Rolfe then shoots, causing Mr. Brooks to drop his arm down. The second and third shots bring Mr. Brooks to the ground.

Yes, the bullets entered Mr. Brooks’ back. That is how he was positioned while threatening the officer. But no, the back entry point of the bullets does not in itself transform the incident into a murder.

The Law

Ofc. Rolfe acted in self-defense. Georgia law does not impose on him a duty to retreat. Instead, it authorizes a person to use deadly force “if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” (Georgia law defines “forcible felony” as any felony which involves the use or threat of physical force or violence against any person.) Ofc. Rolfe acted lawfully in utilizing the deadly force of his firearm to protect himself against Mr. Brooks’ immediate threat and to prevent Mr. Brooks from completing yet another forcible felony.

Moreover, police have the right to use deadly force to apprehend a fleeing felon “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm,” according to the Supreme Court. Under these circumstances, “deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

Criminal Prosecution of Officer Rolfe?

In direct contradiction to the evidence and the law, the prosecutor, Paul Howard, told CNN on Sunday that Mr. Brooks “did not seem to present any kind of threat to anyone, and so the fact that it would escalate to his death just seems unreasonable.” This sham prosecutor then went on to threaten the good guy in this story, Ofc. Rolfe, with criminal charges of murder or felony murder.

According to Townhall, this prosecutor is under investigation following local reporters’ discovery that about $200,000.00 of funds sent to his office for crime prevention programs ended up in his pocket. Embezzlement, anyone?

It’s certainly plausible that this prosecutor is utilizing the mass media hysteria surrounding Mr. Brooks’ shooting to deflect attention from his own criminal wrongdoing. That would explain why he had the audacity to get on CNN and falsely claim that fleeing felon Mr. Brooks “did not seem to present any kind of threat to anyone.”

Malicious prosecution, which means bringing frivolous, vindictive, or otherwise improper criminal charges, is a cause of action in Georgia. This prosecutor might find himself in hot water if he proceeds.


Ofc. Rolfe was 100 percent justified in his use of force. He acted professionally and appropriately throughout his interaction with Mr. Brooks. Ofc. Rolfe adjusted the proportionality of his force to respond to the growing threats from Mr. Brooks, who has only himself to blame for what happened. Mr. Brooks was not entitled to commit whatever felonies of his choosing, to feloniously assault police officers, to attempt to tase a police officer, and to get away with it.

For those not in law enforcement or in the field of criminal law, witnessing a police officer in the process of criminal apprehension or arrest tends to appear overly aggressive. Understand – the job of law enforcement isn’t to hand out participation stickers for felonies. It is to apprehend dangerous people physically and to bring them to a jail cell. Criminals don’t immediately walk themselves into jail cells with a ballon escort and words of positive encouragement; that’s just not how the world works. Please understand that your cushy office job and your ability to play Monday morning quarterback isn’t commensurate with what law enforcement officers deal with on the street. Remember, this officer shifted levels of force and defended himself against the threat by the fleeing felon within a two-second time period

Phoenix Police Shooting Was Justified Use of Force

With great power comes great responsibility. When a citizen answers the police knocking on his door with a firearm in hand, he assumes a lethal risk. He immediately becomes a deadly threat to the officers and should expect the officers to arm themselves in response to his actions. What happens next will be a matter of life and death, so he must tread carefully.

On May 21, 2020, Mr. Ryan Whitaker was shot to death by Phoenix Police after answering his door with a firearm in hand. Mr. Whitaker’s family believes the shooting was unjustified, and they are calling for the officer to be charged with murder. The county attorney’s office has not yet commented on whether the officer who killed Mr. Whitaker will be prosecuted. The Phoenix Police Department released a brief statement of what happened and video from two officers’ body cameras that captured the incident.

Based on the evidence released, I do not believe the police officer should be prosecuted.

The Phoenix Police Department received two 911 calls after 10 PM from a neighbor who initially reported a loud domestic dispute and later called in fear that it escalated to violence. Two police officers were sent to the apartment to investigate, Officer Jeff Cooke and Officer John Ferragamo. Their body cameras reveal the officers arriving at the scene relaxed, with their arms on their vests, guns holstered. They knock on the door and announce “Phoenix Police,” then back away from the door. Moments later, Mr. Whitaker opens the door and proceeds to come out. He sees Officer Ferragamo and continues to move briskly from his apartment into the hallway, revealing a handgun in his right hand – pointed down and in front of his body. He does not say a word.

Officer Ferragamo sees the firearm and is heard yelling, “whoa!” He begins to draw his service weapon, shouting, “hands, hands!” Mr. Whitaker then moves his hand with the pistol in it behind his back and conceals the firearm from Officer Ferragamo behind his back. Officer Cooke, standing maybe a couple of yards behind Mr. Whitaker, can now see the gun in Mr. Whitaker’s right hand.

Without being told to do so, Mr. Whitaker, while still facing Officer Ferragamo, begins to kneel down in the doorway, holding his left hand out, but bringing his right hand down in the obscured doorway, where neither officer can see what Mr. Whitaker is doing. An officer is heard shouting, “put your hands down.” Then, as Mr. Whitaker appears to begin rising up again from the kneeling position, still looking at Officer Ferragamo and his hand still in the obscured doorway, Officer Cooke fires three shots into Mr. Whitaker’s back, two of which hit Mr. Whitaker. As Mr. Whitaker falls forwards from the force of the bullets, his right hand comes into view, and it is empty. His gun was found in the doorwaylater.

Mr. Whitaker died of his injuries on the scene.

According to the police department, Officer Cooke stated that he shot Mr. Whitaker “believing the other officer is in immediate danger.” The period from the moment that Mr. Whitaker opens the door to when he is shot is 3 seconds, and from the moment that Officer Cooke sees the firearm to when he shoots Mr. Whitaker is 1.5 seconds. Thus, Officer Cooke, who was not holding his gun when Mr. Whitaker first exited his apartment, responded promptly to what he perceived as an immediate threat to Officer Ferragamo’s life.

What Mr. Whitaker’s family believes he could have been thinking at the time of the incident is not relevant to evaluating whether Officer Cooke should be charged with a crime for shooting Mr. Whitaker. Irrespective of the family’s storyof what they thought happened, the standard by which an Arizona police officer is judged is an inquiry into what the officer reasonably believed at the time of the shooting. It is an analysis from the perspective of the officer, not the deceased.

Arizona’s jury instruction for “the justified use of force in crime prevention” states, in relevant part: “A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other’s commission of [murder, manslaughter, aggravated assault] … A person is presumed to be acting reasonably … if the person is acting to prevent what the person reasonably believes is the imminent or actual commission of any of the offenses listed…” (Emphasis added.)

Indeed, Officer Cooke asserted that he fired his service weapon to save Officer Ferragamo from being shot by Mr. Whitaker. As it appeared to Officer Cooke at the time, the events signified that Mr. Whitaker was an imminent threat. Officer Cooke had to make a decision fast, and he chose to save his partner’s life over waiting to risk another second to see what Mr. Whitaker would do with that gun. After all, waiting for Mr. Whitaker to first fire his gun at Officer Ferragamo would be too late to save Officer Ferragamo.

For background, the officers were responding to a domestic violence call, which is one of the most dangerous calls for police officers. According to available FBI data, for the period between 1980 and 2006, a total of 113,236 officers were assaulted responding to domestic violence calls; 160 police officers died as a result. Domestic violence calls are notoriously dangerous. The background these Phoenix officers had on the incident was that there was something loud or violent going on in that apartment before they arrived.

True to form, the incident unfolded very dangerously for the officers once they knocked on the door and announced themselves as police. A man opened the door and came at them with a gun. This man then tried to conceal the gun behind his back, and then again in the doorway. He didn’t communicate with the officers, so the only intent they could read from him was his body language. His posture showed he was on the offense: he stepped out confidently, acted on his own accord. The man kept moving, hid the gun behind his back, then began bending down on his own, hiding the hand with the firearm in an obstructed doorway where Officer Cooke could not see what he was doing. The entire time, this man is staring at his partner. Then this man started rising up again without being told to do so, that hand with the firearm still obscured. Officer Cooke took all of these cues to indicate that this man was going to shoot, and he did the only thing he could do at that moment to stop this man from shooting his partner.

The Monday morning quarterback would have always waited to shoot, I know. But this officer didn’t have the benefit of 20/20 hindsight when he had to decide within second’s time whether he should save his partner’s life. Officer Cooke certainly didn’t come to this domestic call with a gun in hand. It wasn’t until Mr. Whitaker presented the threat that Officer Cooke did what he thought he had to do to save his partner.

Over 30 years ago, three experts on the police use of deadly force testified in an Arizona trial that arose out of a police officer shooting and killing a suspect. The state Court of Appeals summarized their testimony as follows: “[Even] if the suspect were immobile, holding his weapon limply at his side, whether the officer should shoot would be a very close call … any overt movement by an armed suspect justifies the officer’s use of deadly force because of the unpredictability of the suspect and the officer’s disadvantage in having to react to the suspect’s actions. Even a change in facial expression would be enough.”

With great power comes great responsibility. How a man acts upon police seeing him with a gun in hand will be the difference between life and death. Mr. Whitaker may have been putting the gun down in the obscured hallway, which would explain why he was bending down and why the gun was later found there, but the officers did not know that and could not see that. Communication and body language is critical in these instances, and Mr. Whitaker did not communicate nor behave carefully.

Mr. Whitaker’s death is tragic. But based on the evidence, Officer Cook’s perceptions were reasonable and his use of deadly force was justified.

Virginia Case Law - Police Officer Use of Force

Police officer use of deadly force: COUTURE v. COMMONWEALTH

A jury convicted Michael Couture of voluntary manslaughter for the fatal shooting of Santanna Olavarria. On appeal, Couture argues the trial court prejudiced his defense by incorrectly answering a question from the jury during deliberations. Couture also challenges the sufficiency of the evidence to support his conviction. Rejecting both arguments, we affirm.

On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the record through this evidentiary prism requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, 427*427 and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

One evening in May 2004, Couture, a police officer, and his partner, Officer Edward Aeschlimann, were patrolling an area of Richmond when they observed a vehicle illegally drive through a stop sign. Traveling in a marked police cruiser, the officers activated their emergency lights and stopped the vehicle. When the driver, Santanna Olavarria, opened the driver’s side door and leaned out, the officers directed him to get back inside the vehicle.

As the officers approached the vehicle, one on each side, they saw Olavarria extend his right hand beneath his knees under the seat. He was the only occupant of the vehicle. Both officers feared Olavarria might be armed. Complying with an order from Couture, Olavarria put his hands on the steering wheel. Couture asked Olavarria for his license and registration. Olavarria appeared nervous. When Aeschlimann got to the passenger’s side window, he saw a few inches of the barrel of a pistol under Olavarria’s seat. Aeschlimann told Couture to “get him out” three times. Couture interpreted his partner’s warnings to suggest Olavarria was armed.

With the driver’s side door still partially opened, Couture reached into the car and used an “arm bar” technique to acquire physical control over Olavarria. Couture ordered Olavarria out of the vehicle. Olavarria attempted to step out of the driver’s side door, but his seatbelt restrained him. As Couture reached over to unbuckle the seatbelt, Olavarria grabbed Couture’s shirt, and the vehicle started to move forward. Couture ordered Olavarria to stop the vehicle. Couture tried to run with the car while attempting to obtain control over Olavarria but lost his footing and fell into the vehicle on top of Olavarria. Panicked by his vulnerable situation, Couture testified, “I decided that I was going to use lethal force to end this without me possibly losing my life or someone else’s life.” Couture then drew his service firearm. Just as Olavarria raised his hands and said, “don’t,” Couture shot him.

Fearing that Olavarria had shot his partner, Aeschlimann fired into the vehicle as he ran behind it. One of the rounds hit Couture in the leg. After the vehicle came to a complete stop, Couture crawled out of the passenger’s side window. Investigators later found a firearm underneath the driver’s seat in the place Aeschlimann had noticed it. Olavarria was dead, slumped over the steering wheel.

Couture was charged with voluntary manslaughter punishable under Code § 18.2-35. At trial, Couture’s counsel told the jury the evidence would support the conclusion that the killing of Olavarria was a “justifiable homicide” under the circumstances. Couture took the witness stand asserting that he fired in self-defense. He admitted, however, that he never saw any weapon in the vehicle and recalled Olavarria’s raised hands as he pulled the trigger.

After the presentation of evidence, the parties agreed on a jury instruction defining voluntary manslaughter as proof beyond a reasonable doubt that Couture killed Olavarria as a “result of an intentional act” and “while in the sudden heat of passion upon reasonable provocation or in mutual combat.” The parties similarly agreed to an instruction, labeled Instruction No. 9, defining the boundaries of a police officer’s privilege to use deadly force:

You are instructed that when a police officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to that officer or others, it is legally permissible to use deadly force to prevent harm to one’s self or others and to prevent escape.

However, the amount of force used to defend oneself and prevent escape must not be excessive and must be reasonable in relation to the perceived threat. The use of deadly force is an act of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of imminent danger, by some overt act, as to amount to the creation of necessity. The right to kill in self-defense 428*428 begins when the necessity begins and ends when the necessity ends.

In this context, “imminent danger” is defined as an immediate and perceived threat to one’s safety or the safety of others.[1] A defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim. It is not essential that the danger should in fact exist. If it reasonably appears to a defendant that the danger exists, he has the right to defend himself against it to the same extent, and upon the same rules, as would obtain in case the danger is real. A defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.

Couture’s counsel, however, objected to the prosecutor’s proposed instruction on self-defense which stated: “If a defendant is even slightly at fault at creating the difficulty leading to the necessity to kill, the killing is not judged justifiable homicide. Any form of conduct by the defendant from which the jury may reasonably infer that the defendant contributed to the affray constitutes fault.” Couture’s counsel argued that this proposed instruction misstated the law applicable to police officers. The trial court agreed and rejected the proposed at-fault instruction.

During closing arguments, both the prosecutor and Couture’s counsel addressed whether Couture’s use of deadly force in self-defense satisfied the requirements of Instruction No. 9. Neither discussed whether any specific showing of fault would categorically disentitle Couture from the privilege to use deadly force if the circumstances otherwise warranted it.

While deliberating, the jury presented several questions to the court, including: “Does self defense still apply if the officer is largely responsible for creating the perception of danger?” Couture’s counsel argued that the court should answer simply, “Yes.” In response, the trial court suggested the answer to the jury’s question could be found “in the instructions as they exist.” Couture’s counsel objected. Anything less than an unqualified “yes,” he argued, would be “inadequate and nonresponsive.” The trial court disagreed and advised the jury that the “instructions of law have been given [to] you, and they should be sufficient for you to determine the issue that you have raised.”

The jury found Couture guilty of voluntary manslaughter and recommended that he be fined $2,500 without incarceration. Couture filed a motion to set aside the verdict, asserting again that the trial court’s response to the jury’s question was incomplete and inaccurate. The trial court denied the motion and entered final judgment.


On appeal, Couture repeats his objection to the trial court’s response to the jury’s question. He does not challenge the accuracy of the jury instructions generally and concedes they adequately covered all the issues either he or the prosecutor intended to present to the jury. Even so, Couture argues, the jury introduced a new concept into the case with its question: “Does self defense still apply if the officer is largely responsible for creating the perception of danger?” The trial court’s only proper response, Couture concluded, was to answer with an unqualified “yes.”

We find Couture’s argument unpersuasive at several levels. To begin with, even if the question should have been answered at all, the trial court could not have answered with an unqualified “yes.” At best, the correct answer would have been, “It depends.” Instruction No. 9 made clear that Couture could not use deadly force to defend himself if it amounted to “excessive” force not “reasonable in relation to the perceived threat.” To the extent his responsibility for “creating the perception of danger,” as the jury put it, rendered his perception unreasonable or his use of force excessive, then the privilege to 429*429 defend himself with deadly force would not be available. On the other hand, if Couture’s responsibility for creating the perception of danger did not undermine the reasonableness of his use of force or of his apprehension of danger, then the answer would be, “Yes.” In either case, the “yes” or “no” answer depended entirely on the boundaries set by Instruction No. 9 for a police officer’s privilege to use deadly force.

Consequently, the trial court correctly avoided giving an unqualified “yes” answer to the jury’s question. Instead, the court told the jury to answer its own question by looking at the instructions of law already given. Instruction No. 9 set out the limits of an officer’s privilege to use deadly force and never suggested the privilege was extinguished simply by showing that the officer was “largely responsible” for getting himself in a position of peril. Both the officer’s apprehension of the perceived danger and his response to it turned solely on a reasonableness standard. “It is entirely proper for the court to refer the jury back to the court’s original charge,” United States v. Barsanti, 943 F.2d 428, 438 (4th Cir.1991), when it accurately and completely marks off the jury’s decisional boundaries.

Couture nonetheless fears the jury’s question implies the belief that a defendant at fault for creating the danger must “retreat to the wall,” Appellant’s Br. at 12, 14-15, before exercising deadly force in self-defense. “The notion that a person at fault must retreat to the wall,” Couture correctly points out, “had not been placed before the jury because it did not apply to the facts of the case.” Id. at 15. The trial court’s response to the jury’s question, Couture argues, permitted the jury to raise a new issue and then decide it against him. Had the trial court been more direct with its response, he concludes, that result could have been avoided. Two considerations persuade us otherwise.

First, we presume juries follow the instructions of the trial court. See Muhammad v. Commonwealth, 269 Va. 451, 524, 619 S.E.2d 16, 58 (2005); Seaton v. Commonwealth, 42 Va.App. 739, 750, 595 S.E.2d 9, 14 (2004). When the court directed the jurors to find the answer to their question by consulting the other instructions, we trust that they set aside any concerns they may have had about Couture’s fault to the extent they were not relevant to determining the reasonableness of his apprehension of danger and his use of force — limiting concepts explained in considerable detail in Instruction No. 9.

Second, we reject Couture’s assumption that the basis for the jury’s ultimate decision can be inferred from questions asked during the deliberative process. As we recently explained: “A jury speaks only through its unanimous verdict. `The verdict, as finally agreed upon and pronounced in court by the jurors, must be taken as the sole embodiment of the jury’s act.'” Kennemore v. Commonwealth, 50 Va.App. 703, 709, 653 S.E.2d 606, 609 (2007) (citation omitted). “In Virginia, as elsewhere, the deliberations of jurors `during retirement, their expressions, arguments, motives, and beliefs, represent that state of mind which must precede every legal act and is in itself of no jural consequence.'” Id. (quoting 8 Wigmore, Evidence § 2348, at 680 (McNaughton rev. 1961) (emphasis added)). “A question posed to the court during deliberations, after all, could suggest as little as the tentative views of a single juror.” Id.

For these reasons, neither the jury’s question nor its ultimate verdict shakes our confidence in the jurors’ presumed obedience to the trial court’s directive to resolve all issues in the case (including the one they brought up entirely on their own) solely on the basis of the instructions of law already given. The trial court, therefore, did not err in answering the jury’s question by referring the jury to the previously given instructions rather than answering the question with an unqualified “yes,” as Couture requested.


Couture also argues the evidence is too weak to support the voluntary manslaughter verdict. We disagree.

When a jury decides the case, Code § 8.01-680 requires that “we review the jury’s decision to see if reasonable jurors could have made the choices that the jury did make. We let the decision stand unless we 430*430 conclude no rational juror could have reached that decision.” Pease v. Commonwealth, 39 Va.App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003). A reviewing court does not “ask itself whether itbelieves that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original and citation omitted).

We must instead ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)(quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original)). Because an appellate court is “not permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), when “there is evidence to support the conviction, an appellate court is not permitted to substitute its own judgment for that of the finder of fact, even if the appellate court might have reached a different conclusion.” Commonwealth v. Presley,256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).

In this case, the jury found Couture guilty of voluntary manslaughter. In Virginia, “manslaughter is a common law offense.” Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981). Common law defined manslaughter as the “unlawful killing of another” without malice. 4 William Blackstone, Commentaries on the Laws of England ch. 14, at 191 (1769). “Voluntary manslaughter may be found upon evidence that an intentional, non-malicious homicide occurred in sudden mutual combat or as a result of heat of passion induced by reasonable provocation. This is the customary language of the Virginia cases from early times.” John L. Costello, Virginia Criminal Law & Procedure § 3.6-1, at 64-65 (3d ed. 2002). Unlike murder, which requires malice, voluntary manslaughter arises not out of “malignity of heart” but from a lack of self-control “imputable to human infirmity.” Willis v. Commonwealth, 37 Va.App. 224, 231, 556 S.E.2d 60, 64 (2001) (quoting Hannah v. Commonwealth,153 Va. 863, 870, 149 S.E. 419, 421 (1929)).

The furor brevis of voluntary manslaughter can include “fear” of harm as well as rage. McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 292 (1975). As Professor Bacigal explains: “Fear is another emotion that can reduce what would otherwise be murder to voluntary manslaughter. If fear was adequately and in fact provoked, but is insufficient for self defense, the resultant killing is voluntary manslaughter.” Ronald J. Bacigal, Criminal Offenses & Defenses in Virginia 358 (2007-08 ed.). “Thus it seems the fearful killer is a manslaughterer when his fear is produced by facts insufficient to make him a self-defender, e.g.,the deadly response was unnecessary or the fear was unreasonable.” Id. at 358-59.[2]

Applying that distinction in the context of a police officer’s use of deadly force, Instruction No. 9 explained that criminal culpability for manslaughter ended where the exoneration of self-defense began. Couture was entitled to use deadly force to protect himself, the instruction made clear, but only if the “amount of force” was not excessive and was “reasonable in relation to the perceived threat.” As the instruction stated:

The use of deadly force is an act of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of imminent danger, by some overt act, as to amount to the creation of necessity. The right to kill in self-defense begins when the necessity begins and ends when the necessity ends.

In this context, “imminent danger” is defined as an immediate and perceived threat to one’s safety or the safety of others.

431*431 Instruction No. 9 rests on the settled proposition that a police officer “cannot kill unless there is a necessity for it, and the jury must determine upon the testimony the existence or absence of the necessity. They must judge of the reasonableness of the grounds upon which the officer acted.” Hendricks v. Commonwealth, 163 Va. 1102, 1109, 178 S.E. 8, 11 (1935). “The law does not clothe him with authority to judge arbitrarily of the necessity. He cannot kill, except in case of actual necessity, and whether or not such necessity exists is a question for the jury.” Id. at 1110, 178 S.E. at 11 (citations omitted).

Accepting Instruction No. 9 as the law of the case,[3] we conclude a rational jury could have found Couture — while motivated, no doubt, by non-malicious fear — nonetheless used deadly force disproportionate to any reasonable apprehension of harm. Olavarria did not confront Couture with a weapon or appear to be trying to do so. Olavarria was shot while saying “don’t” with both hands raised. The circumstances of the stop, moreover, did not involve a suspect either officer knew or reasonably suspected to be a violent criminal. The jury could have rationally concluded that, while understandably frightening, the movement of the vehicle and Couture’s attempt to stop it produced an insufficiently grave risk of harm to warrant the use of deadly force.

In short, the right to use deadly force in self-defense “begins where the necessity begins and ends where it ends.” Thomason v. Commonwealth, 178 Va. 489, 498, 17 S.E.2d 374, 378 (1941) (citations omitted). Because the question of necessity “is pre-eminently a question of fact and therefore a question for the jury,” Hendricks, 163 Va. at 1110, 178 S.E. at 11, we have no authority to set aside the decision of the jury in this case.

Finding no error in the trial court’s response to the jury’s question and no insufficiency of evidence to support the verdict, we affirm Couture’s conviction for voluntary manslaughter.


[1] With consent of the parties, the trial court modified this sentence of the instruction in response to a question from the jury. The phrase “immediate, real threat” was changed to “immediate and perceived threat.”

[2] Some courts and commentators refer to this principle as “imperfect self-defense” because it includes situations where “the defendant is entitled to self-defense under the facts, but in defending himself uses greater force than is reasonably necessary for his protection and kills his opponent.” Roy Moreland, The Law of Homicide 93 (1952). “Another instance of imperfect self-defense is found in the situation where the accused kills because he thinks his life is in danger but his belief is an unreasonable one.” Id.

[3] Because jury instructions “given without objection” become the “law of the case,” Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990), and Couture raises no challenge to Instruction No. 9 on appeal, we assume arguendo — but do not hold — that Instruction No. 9 accurately states the law governing a police officer’s privilege to use deadly force.

Police officer use of force: RANKIN v. COMMONWEALTH

Stephen D. Rankin appeals his conviction for voluntary manslaughter. He argues that the trial court erred by not allowing his witness to testify as an expert. The appellant also argues that the trial court erred by denying his motion for a mistrial based on juror contact with a courtroom observer and not conducting additional investigation into the alleged misconduct. For the reasons that follow, we affirm the conviction.


The appellant, who was a Portsmouth police officer at the time of the offense, was charged with first-degree murder and the use of a firearm in the commission of a felony. At trial, the Commonwealth presented evidence that in response to a call regarding a suspected shoplifting incident, the appellant attempted to detain William Chapman (the victim), the purported shoplifter, in a parking lot. The pair struggled, and the appellant deployed his Taser. Despite the appellant’s use of his Taser, the victim continued to resist.[1] The appellant then drew his firearm and ordered the victim to get on the ground. He responded by making a quick and aggressive gesture toward the appellant, who fired his gun twice, hitting the victim’s chest and head. The victim died from his wounds.

The jury found the appellant guilty of voluntary manslaughter and not guilty of the use of a firearm offense. The trial court fixed the sentence at two and one-half years in prison, as recommended by the jury, and imposed an additional post-release “term” of one year, which it suspended.


The appellant raises two distinct assignments of error. He argues that the trial court erred by not allowing a criminal justice professor to testify as an expert on the subject of use of force by police officers. He also contends that the trial court erred by denying his motion for a mistrial based on contact between a juror and a courtroom observer and not further investigating that contact.

A. Defense Witness Proffered Testimony

The appellant suggests that the trial court erred by refusing to allow his witness, Professor Michael Lyman of Columbia College in Missouri, to testify as an expert on the subject of police use of force. He argues that the trial court misapplied the law by excluding the witness’ testimony in part because he had not previously testified in Virginia. The appellant also contends that the trial court erred in excluding Lyman’s expert testimony even though he had sufficient knowledge and experience to qualify as an expert.[2]

1. Basis for Trial Court’s Ruling

The appellant argues that the court erroneously held that Lyman did not qualify as an expert witness due to his lack of previous experience testifying in Virginia. See generally Va. R. Evid. 2:702(a)(i), (ii) (explaining in part that a witness may “qualif[y] as an expert by knowledge, skill, experience, training, or education”). This conclusion is not supported by the record when viewed in its entirety.

The trial court ruled that Lyman could not testify as an expert and then commented, “[P]lus he’s never testified as an expert in Virginia on this issue.” When the prosecutor stated, “I don’t think he’s ever testified,” the trial judge responded, “That’s not the issue.” The court also noted that the proffered testimony was “getting kind of close to the ultimate” issue of fact to “be decided by the jury.” When the appellant raised the issue of Lyman’s expert testimony again, the trial court confirmed its earlier ruling, stating, “[I]t was my decision that I thought it would invade the province of the jury with respect to the ultimate issue, and also he had never qualified as an expert in the State of Virginia. That’s not required, but whether or not one is an expert is within the discretion of the Court. . . .”

“Absent clear evidence to the contrary,” we presume that the trial court knew the law and properly applied it. Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). In addition, the comments by the judge cannot be viewed in a vacuum. Id. (holding that a reviewing court “will not fix upon isolated statements of the trial judge taken out of the full context in which they were made[] and use them as a predicate for holding the law has been misapplied”).

Viewing the trial court’s ruling and comments in context and taking into account the entire discussion, the record supports the conclusion that the judge properly applied the law. The court made clear that it did not exclude Lyman from testifying as an expert witness on the basis of his lack of previous experience testifying in a Virginia court. When the prosecutor commented in the argument opposing Lyman’s admission as an expert witness, “I don’t think he’s ever testified,” the trial judge responded, “That’s not the issue.” Further, the court later acknowledged its understanding of the rule relating to expert qualification and stated that it was “not required” that Lyman had previously qualified as an expert in the Commonwealth. The court then correctly concluded that the decision was a matter of its discretion. A reading of the record as a whole simply does not support the appellant’s claim that the court prohibited the witness from testifying as an expert because he had not done so before in Virginia.

2. Admissibility of Testimony

The appellant argues that the trial court erred by not allowing Lyman to opine on whether the appellant’s conduct “was consistent with well-established and widely-adopted police training and policies concerning use of force” as well as with the Portsmouth Police Department use of force policy itself. Further, he unsuccessfully sought to have Lyman testify about certain types of accepted police training. He contends that Lyman’s testimony would have given the jury context for both his actions and the Portsmouth Police Department’s use of force guidelines.

Whether to admit expert testimony is a decision within the sound discretion of the trial court.[3] See Currie v. Commonwealth, 30 Va. App. 58, 64, 515 S.E.2d 335, 338 (1999). An appellate court will reverse that determination to admit or exclude expert testimony only if the trial court abused its discretion under the particular circumstances of the case. E.g., Atkins v. Commonwealth, 272 Va. 144, 153, 631 S.E.2d 93, 97 (2006). “This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie.” Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493, 499 (2016) (quoting Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664, 670 (2015)). A reviewing court can conclude that “an abuse of discretion has occurred” only in cases in which “reasonable jurists could not differ” about the correct result. Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 268 (2015)(quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)). “[B]y definition,” however, a trial court “abuses its discretion when it makes an error of law.” Coffman v. Commonwealth, 67 Va. App. 163, 166, 795 S.E.2d 178, 179 (2017) (quoting Commonwealth v. Greer, 63 Va. App. 561, 568, 760 S.E.2d 132, 135 (2014)). It is within this legal framework that we review the trial court’s decision.

We start with the fundamental principle that “[t]he sole purpose of permitting expert testimony is to assist the trier of fact to understand the evidence presented or to determine a fact in issue.” Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002). In a Virginia criminal proceeding, a qualified expert witness is allowed to testify if “the subject matter is beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions.” Va. R. Evid. 2:702(a)(ii). “[T]he trial judge must determine whether the subject matter of the testimony is beyond a lay person’s common knowledge and whether it will assist the trier of fact in understanding the evidence or in determining a fact in issue.” Utz v. Commonwealth, 28 Va. App. 411, 423, 505 S.E.2d 380, 386 (1998) (emphasis added); see also Dowdy v. Commonwealth, 278 Va. 577, 600, 686 S.E.2d 710, 723 (2009) (“`Expert testimony is admissible when it concerns matters not within the ordinary knowledge of the jury’ such that it may assist the jury’s understanding of the evidence presented.” (quoting Payne v. Commonwealth, 277 Va. 531, 542, 674 S.E.2d 835, 841 (2009))).

However, not all relevant testimony is admissible. Factors that weigh against admitting probative evidence include if “it is confusing and will likely mislead the jury.” Farley v. Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d 310, 312 (1995); see also Va. R. Evid. 2:403(a). Another “factor[] that weigh[s] against the admission of relevant evidence” is if that evidence presents a “danger of distracting the jury from the major issues in the case.” Byrd v. Commonwealth, 30 Va. App. 371, 376, 517 S.E.2d 243, 245 (1999).

The evidence admitted regarding the Portsmouth use of force policy is important to our analysis because, based on the facts of this case, it was relevant to the appellant’s mens rea. He introduced into evidence the Portsmouth Police Department policy manual on use of force that was in effect at the time of the offense. The manual provides that “[t]he degree of force used depends on what the officer perceives as reasonable and necessary based upon the totality of [the] circumstances.” The document lists seven levels of force. Level four, “Intermediate Techniques,” encompasses “intermediate force options such as Aerosol Subject Restraint” sprays and “Electronic Control Weapon[s].” Level five, “Hard Control Techniques,” includes use of “the police baton” and “defensive tactics maneuvers” such as “taking the subject to the ground.”

Assistant Chief Kim Wilson of the Portsmouth Police Department testified for the defense about the department’s use of force guidelines that make up the policy. Wilson explained that Portsmouth police officers were periodically instructed on its guidelines on use of force. She stated that the guidelines set out different levels of force and that officers are not required to employ each level in sequence if the circumstances require a greater level of force. Wilson also explained that if an officer uses either a spray or an electronic control weapon known as a Taser, he or she is “[n]ot necessarily” “required to use the other.”

The appellant testified in his defense. He likewise spoke about the levels of force listed in the Portsmouth Police Department policy. He stated that the level that a police officer should employ depends on the circumstances. He reiterated Wilson’s testimony that the department policy does not require a “step by step” use of the different levels of force, explaining instead that a police officer is “trained to use the force that’s appropriate to the situation.”[4]

The jury was charged with determining the nature of the appellant’s act. It was required to consider whether the appellant’s killing of the victim was first-degree murder, second-degree murder, voluntary manslaughter, or justifiable self-defense. Consequently, the jury had to decide the appellant’s state of mind: whether it was willful, deliberate, premeditated, malicious, intentional, or in the sudden heat of passion. See, e.g., Woods v. Commonwealth, 66 Va. App. 123, 131-32, 782 S.E.2d 613, 617-18 (2016) (explaining that second-degree murder is a malicious killing and voluntary manslaughter is an intentional killing done without malice and in the sudden heat of passion); Archie v. Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718, 721 (1992) (defining the intent element of first-degree murder).

In addition, consistent with determining state of mind, the jury had to determine alternatively whether the appellant acted in reasonable apprehension of bodily harm. See, e.g., Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25 (1989) (explaining that a person “is privileged to use reasonable force” when he or she “reasonably apprehends bodily harm by another” and “exercise[s] reasonable force to repel the assault”). If the jury determined that the appellant acted without malice but in fear of harm, it was tasked with deciding whether the appellant acted in self-defense. This defense requires a finding that the force that the appellant used was reasonable in relation to the threatened harm. See Caison v. Commonwealth, 52 Va. App. 423, 440, 663 S.E.2d 553, 561 (2008). “[T]he right to use deadly force in self-defense `begins where the necessity begins and ends where it ends.'” Couture v. Commonwealth, 51 Va. App. 239, 251, 656 S.E.2d 425, 431 (2008) (quoting Thomason v. Commonwealth, 178 Va. 489, 498, 17 S.E.2d 374, 378 (1941)).

In this case, evidence of the appellant’s actions in the context of his training and his police department policy on use of force was probative of his state of mind in the context of the crimes charged and his defense. See generally Clay v. Commonwealth, 262 Va. 253, 257, 546 S.E.2d 728, 730 (2001) (“Evidence is relevant if it tends to prove or disprove, or is pertinent to, matters in issue.”). The portion of the Portsmouth Police Department manual regarding its use of force policy was admitted into evidence, and the Assistant Chief testified regarding the training Portsmouth police officers receive regarding use of force. The appellant also testified extensively about his own training and his department’s policy. The jury had in evidence the Portsmouth written policy on use of force and heard the accounts of the appellant’s actions. Consequently, it was able to consider the appellant’s actions in light of his training and his department’s policy on the use of force.

In contrast to Wilson and the appellant, Lyman did not have any particular familiarity with the Portsmouth policy. The appellant’s proffer of Lyman’s opinion regarding whether he acted in accordance with the Portsmouth policy indicated that it was formed based on other evidence before the jury consisting of the descriptions of the appellant’s actions and the Portsmouth manual. As a result, the jury could independently “determine[] intelligently” whether the appellant acted in compliance with the Portsmouth policy, and admitting Lyman’s opinion testimony on that point would not have assisted the trier of fact in understanding the evidence.[5] See Pelletier v. Commonwealth, 42 Va. App. 406, 418, 592 S.E.2d 382, 387-88 (2004) (noting that an expert opinion is admissible if the factfinder “`is confronted with issues’ that `cannot be determined intelligently'” without expert insight (quoting Schooler v. Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992))). Accordingly, the trial court did not abuse its discretion in excluding from evidence this piece of Lyman’s testimony.

Likewise, Lyman’s testimony regarding national police policies on use of force, including his opinions on whether the appellant’s actions and the Portsmouth use of force policy complied with generally accepted standards of police departments regarding use of force, would not have aided the jury’s determination of the issues before it.[6] See generally United States v. Henderson, 409 F.3d 1293, 1304 (11th Cir. 2005) (affirming the exclusion of expert testimony about police training because it would not assist the trier of fact in determining the facts in issue); Farley, 20 Va. App. at 499, 458 S.E.2d at 312 (noting that for evidence to be admissible, “[t]here . . . must be a connection between the evidence and [a] factual dispute in the case”). Whether the appellant acted in accordance with national standards on use of force was irrelevant to the considerations before the jury regarding the criminal charges and related defense. Even if the appellant followed general police policy, he could have been criminally culpable. Further, there was no evidence that the appellant, who testified extensively before Lyman testified, was familiar with national policies on use of force, and thus such policies were not relevant to his state of mind when the offenses occurred. Consequently, this proffered testimony presented the danger of confusing the jury by misleading it to focus on the reasonableness of national and Portsmouth police policies on use of force themselves rather than the reasonableness of the appellant’s fear of bodily harm and the level of force that he used in relation to the threatened harm. See generally May v. Caruso, 264 Va. 358, 363, 568 S.E.2d 690, 693 (2002) (noting that the potential of evidence to confuse the jury is a proper consideration in excluding it); Farley, 20 Va. App. at 498, 458 S.E.2d at 312(discussing that a rationale for excluding probative evidence can exist if it “is confusing and will likely mislead the jury”). Further, the rejected evidence posed the risk of distracting the jury from the determinative issue of whether the appellant used reasonable force in relation to the harm threatened by the victim. See generally Benson v. Commonwealth, 190 Va. 744, 753, 58 S.E.2d 312, 316 (1950) (holding that the trial court properly excluded evidence that “would have tended to confuse the jury and distract attention from the real issues involved”), superseded by statute on other grounds, Code § 19.2-218, as recognized in Wright v. Commonwealth, 51 Va. App. 628, 643, 659 S.E.2d 583, 591 (2008). Therefore, the trial court acted within its discretion by excluding Lyman’s testimony about general police training and standards on use of force widely accepted by law enforcement.

Based on the record, it is clear that the trial court did not abuse its discretion by excluding either Lyman’s opinion about whether the appellant’s actions complied with the Portsmouth Police Department use of force policy or his testimony regarding “well-established and widely-adopted police training and policies” concerning use of force.[7]

B. Juror Contact with a Member of the Public

The appellant also argues that the trial court erred by denying his motion for a mistrial based on contact between a juror and a courtroom observer. In addition, he contends that the trial court had an “affirmative duty to further investigate the matter” and, as a consequence, he did not receive a fair trial by an impartial jury.

Before addressing the legal challenges, it is important to review the facts in context. The very specific facts inform the legal analysis regarding whether the trial court correctly denied the motion for a mistrial or erred by not further investigating the purported juror misconduct.

At the beginning of trial, the judge instructed the jury to abstain from discussing the case, “remain[ing] within hearing of anyone who may be discussing it,” and talking “with anyone connected with” the trial. After the members of the jury were selected, before court adjourned for the day, the judge told the jurors that if any family members, friends, or neighbors asked about the case, the juror should simply “advise them that you’re performing your civic duty.” The judge reminded the jurors that they could not “discuss anything—anything—about this case.”

The guilt phase of the trial lasted six days: two days of jury selection, almost two days of presenting evidence, and jury deliberations that fell over three days. On the second full day of jury deliberations, the judge asked the members of the jury if they had encountered “anything about this case by way of . . . family, friends[,] or neighbors.” All of the jurors answered no. Later that day, the court learned that a member of the public who was an observer in the courtroom had spoken with one of the jurors that morning. In response, the judge questioned the observer and the juror each out of the presence of the other.

The observer, “Ms. James,” told the court that she “spoke to someone” that she knew without realizing that “he was a juror.” She explained that the pair entered “through the gate” at about the same time and that she said “good morning.” She further stated that they each asked why the other was at the courthouse, and they both responded vaguely that they were there “for a trial.” She also added, “I think he said [that he was here for] this [trial], and I took another elevator when I realized that he was here for that. I went around, came back around, and took the opposite elevator. . . .”

The court then questioned the juror. He explained that he knew the observer “from hanging out at a club” but had not known previously that she was “involved in this case.” He said that she “approached” him as he passed through security, signaling, “Pssst, pssst, pssst.” When asked if they had a conversation, the juror responded, “No; just that . . . I was doing my civic duty.” He added that the woman told him that she was there “to see somebody.” He assured the court that they did not discuss the case. The juror confirmed that they used different elevators because “she didn’t want to get on the same elevator as me.”

The judge also asked Captain Lilley to describe the incident.[8] Lilley explained that “[o]ut of an abundance of caution, somebody came to [him] in reference” to the observer. His “scanner technicians and deputies” reported that the woman said to the juror, “Pssst, pssst, pssst, hold on a minute. I want to talk to you.” The two individuals “kind of [gave] each other an elbow,” although it was not clear whether the movement was intentional. The captain also told the court that the two walked down the main hall and stood at an elevator together. He noted that the elevator was not the “back elevator” that the jurors had used all week. According to Lilley, as the juror waited for the elevator, the observer “kind of pace[d] around him.” Lilley “assume[d]” that the two had a conversation. By Lilley’s account, the juror got on the elevator without the woman, and she left the building.

After the court conducted the inquiries, the appellant noted “concern” because the observer “ha[d] been in the courtroom every day.” Although he suggested that the observer was attempting to “have some influence or impact upon the juror” and asked the trial court to exclude her from the courtroom, he did not move for a mistrial.

Later, after viewing the courthouse security videos, which contain no audio, the appellant made a motion for a mistrial. He argued that the contradictions between the observer’s account and the videos, as well as the juror’s use of a different elevator than the one he had used other times, cast doubt on the observer’s credibility and suggested her intent to somehow influence the juror. The court denied the motion, emphasizing that the two had not ridden the elevator together.

The next day, the appellant’s counsel proffered the courthouse security videos showing the contact between the observer and the juror. Counsel also informed the judge that after court had adjourned the previous day, he saw the observer embrace the victim’s mother outside the courthouse. Counsel explained that he raised the matter “to demonstrate again” that the observer “has a vested interest in the case, and her attempt to speak or influence the juror was an intentional act on her part.” Nevertheless, the appellant did not make any motions at that time, nor did he request a hearing. The trial court did not conduct any further inquiry.

The courthouse security recordings show the security scanner at the entry into the courthouse. A video depicts a woman, presumably the observer, leaning over and getting a man’s attention as he collects his items from the security checkpoint. It then shows the man, presumably the juror, quickly waving to the woman. Next, the man stands and waits while the woman passes through security. Recordings also show the two walking down a hall together but riding the elevator separately, the man first, then the woman shortly thereafter.

1. Bedrock Legal Principles

It is uncontroverted that a criminal defendant has a constitutional right to be tried by an impartial jury. U.S. Const. amend. VI; Va. Const. art. I, § 8. This is one of the most fundamental rights afforded by the criminal justice system. “Because our [Virginia] juries have the dual responsibility of determining questions of guilt and punishment, `it is not only important that justice should be impartially administered, but it should also flow through channels as free from suspicion as possible.'” Scott v. Commonwealth, 11 Va. App. 516, 519, 399 S.E.2d 648, 650 (1990) (en banc) (quoting Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879)). “The Supreme Court has long recognized the dangers to impartiality posed by unauthorized communications between third parties and members of the jury.” Stockton v. Virginia, 852 F.2d 740, 743 (4th Cir. 1988). It is a trial court’s responsibility to ensure that a jury is free from bias. See Scott v. Commonwealth, 1 Va. App. 447, 451, 339 S.E.2d 899, 901 (1986).

These fundamental legal principles along with the factual backdrop frame our analysis of this issue.

2. Motion for Mistrial

“We review [a trial court’s] denial of a motion for mistrial for abuse of discretion.”

Lawlor v. Commonwealth, 285 Va. 187, 220, 738 S.E.2d 847, 866 (2013); see also Hunt v. Commonwealth, 25 Va. App. 395, 399, 488 S.E.2d 672, 674 (1997)(reviewing decision to retain juror mid-trial for an abuse of discretion). Reviewing alleged improper and prejudicial communication with a juror, however, presents mixed questions of law and fact. See generally United States v. Basham, 561 F.3d 302, 319 (4th Cir. 2009) (noting that “the ultimate factual determination regarding the impartiality of the jury necessarily depends on legal conclusions” (quoting United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996))). In instances when the facts are not in dispute, the question of whether an ex parte discussion with a juror “concerned a matter pending before the jury . . . is an issue of law which we review de novo.” See Commonwealth v. Juares, 274 Va. 812, 816, 651 S.E.2d 646, 648 (2007); see also Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (noting that when the facts are undisputed, the remaining question is an “issue of law”). In contrast, when the facts are in dispute, the questions of fact are “best determined by the trial court.” Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985). As a consequence, that court’s factual findings are “entitled to great weight.” Id.

The established approach to “analyzing allegations of extrajudicial juror contact” is neatly explained by the United States Court of Appeals for the Fourth Circuit. Basham, 561 F.3d at 319 (quoting Cheek, 94 F.3d at 141). “First, `[t]he party who is attacking the verdict bears the initial burden of introducing competent evidence that the extrajudicial communications or contacts were more than innocuous interventions.'” Id. (alteration in original) (quoting Cheek, 94 F.3d at 141); see also Remmer v. United States, 347 U.S. 227, 229 (1954)(holding that extrajudicial communication with a juror “during a trial about the matter pending before the jury” triggers a presumption of prejudice to the defendant); Riner v. Commonwealth, 268 Va. 296, 316, 601 S.E.2d 555, 566 (2004) (assuming that the juror misconduct was sufficient to shift the burden to the Commonwealth to prove that the ex parte communication was harmless).[9]It is only if the challenging party meets this initial burden that the burden “shifts to the prevailing party,” in this case the Commonwealth, “to prove that there exists no `reasonable possibility that the jury’s verdict was influenced by an improper communication.'”[10] Basham, 561 F.3d at 319 (quoting Cheek, 94 F.3d at 141); see also Evans v. Commonwealth, 39 Va. App. 229, 236-37, 572 S.E.2d 481, 484 (2002) (noting that the Commonwealth may be able to demonstrate harmlessness).

This two-part analysis requires the trial court to first consider whether the appellant met the burden of showing that the communication was more than something that was simply innocuous. For an exchange to qualify as a private communication that is innocuous, it cannot pertain to “the matter before the jury.” Basham, 561 F.3d at 319-20 (quoting Cheek, 94 F.3d at 141). “`[A]ny private communication, contact or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury‘” is “`presumptively prejudicial’ unless the contact was pursuant to the directions and instructions of the trial court with complete knowledge by both parties.” Riner, 268 Va. at 315, 601 S.E.2d at 565 (emphasis added) (quoting Lenz v. Warden, 267 Va. 318, 328, 593 S.E.2d 292, 298 (2004)). In contrast, if such a communication does not “relate to any `fact in controversy or any law applicable to the case,'” then the challenging party has not met his burden and no presumption of prejudice arises. See Juares, 274 Va. at 816, 651 S.E.2d at 648 (quoting Rushen v. Spain, 464 U.S. 114, 121 (1983)).

Here, both the observer and the juror told the judge that they knew each other and exchanged greetings as they entered the courthouse. Both individuals also said that they talked briefly and did not discuss the case. Further, the two stated that they did not ride the elevator together, a fact memorialized in the video. The appellant argues that the discrepancies between the observer’s account, the juror’s account, and the video depictions merited a mistrial. After a review of the record, we hold that it supports the conclusion that the discrepancies between the accounts are minor and reconcilable, and the video recordings do not alter this conclusion. Further, the record simply does not support the appellant’s argument that the observer and juror spoke about a matter that was before the jury.

The observer indicated that she said “good morning” to the juror; he said that she got his attention by saying “[p]ssst, pssst, pssst.” The video additionally shows her leaning over slightly to get his attention, and Lilley’s second-hand account indicated that she told the juror to wait “a minute” and that she “want[ed] to talk” to him. Although not apparent on the video, Lilley also reported that the two individuals bumped elbows. The observer stated that they both asked why the other was there and that they each responded vaguely that it was for a trial. The juror said that he told the observer that he was there to perform his “civic duty” and that she informed him that she was there to “see somebody.” The video recording of the two independently exiting the elevator shows that the observer actually rode the same elevator as the juror, but at a different time, thus separately.

The actions described by the juror, the observer, and Lilley are not mutually exclusive and in fact, all comport with one person’s getting another’s attention to greet him. The juror’s account did not match the observer’s account verbatim, but the accounts were not mutually exclusive. The video showing the two individuals walking down the hall together briefly comports with their accounts that they had a brief and minimal conversation. The minor differences in their narratives were not noteworthy, nor were they sufficient to meet the appellant’s burden of demonstrating that the extrajudicial communication was about “the matter pending before the jury.” See Riner, 268 Va. at 315, 601 S.E.2d at 565 (quoting Lenz, 267 Va. at 329, 593 S.E.2d at 298).

The record simply shows that a juror and a courtroom observer greeted each other and spoke briefly while entering the building and walking down the hall together. They then took the elevator separately up to the floor of the courtroom.[11] Nothing in the record suggests that the two individuals spoke of a “matter pending before the jury” or that the exchange was anything more than an innocuous brief conversation.[12] For these reasons, we defer to the conclusions of the trial judge, who was closest to the issue, that the appellant did not meet his burden and no presumption of prejudice attached. See generally Du, 292 Va. at 564, 790 S.E.2d at 499 (noting that in the context of an abuse of discretion standard, the trial judge is closest to the question and best-suited to resolving certain issues). Instead, the “burden remained” on the appellant “to establish that he was prejudiced by the . . . communication.” See Juares, 274 Va. at 817, 651 S.E.2d at 648 (explaining that “[i]n the absence of a presumption of prejudice, the burden remain[s]” on the party challenging the verdict “to establish that he was prejudiced by the ex parte communication”). For the reasons already stated, the appellant failed to show that he was prejudiced by the interaction. Consequently, the trial court did not abuse its discretion in denying the motion for a mistrial.

3. Duty to Further Investigate

The appellant alternatively contends that at the very least, the circumstances mandated additional investigation by the trial judge.[13] He argues that the observer’s “close association with” the victim’s mother, “her prominent presence in the courtroom” with the victim’s family and supporters, “her conduct with the juror,” and her possible untruthfulness to the court suggest that she “exerted improper influence upon this particular juror.” The appellant only now on appeal suggests that the court should have placed the observer under oath and asked about her first name, her interest in the case, the nature of her relationship with the victim and his family, and how she did not realize that the person with whom she spoke was a juror. He also now complains that the trial court did not watch the video or put either the juror or the observer under oath for questioning. The appellant cites Remmer v. United States, 347 U.S. 227 (1954), for the proposition that he was entitled to a full hearing in which he was allowed to participate in questioning the juror and court observer. We hold that in the context of this case, the trial court had sufficient information before it to make a reasoned decision, and it did not owe the appellant additional scrutiny regarding the juror.

“When there is a probability that . . . external evidence has influenced the jury, the court has `the affirmative duty “to investigate the charges and to ascertain whether . . . as a matter of fact, the jury was guilty of such misconduct.”`” Harris v. Commonwealth, 13 Va. App. 47, 52, 408 S.E.2d 599, 601 (1991) (second alteration in original) (quoting Evans-Smith v. Commonwealth, 5 Va. App. 188, 209, 361 S.E.2d 436, 448 (1987)); see also Hurst v. Joyner, 757 F.3d 389, 397 (4th Cir. 2014) (holding that a defendant is entitled “to an evidentiary hearing” when he or she “presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury” (quoting Barnes v. Joyner, 751 F.3d 229, 242 (4th Cir. 2014))). This duty on the trial court to investigate purported juror misconduct requires a “showing that extraneous information was injected into the jury deliberations” or that the defendant was prejudiced. See Hall v. Commonwealth, 14 Va. App. 65, 74, 415 S.E.2d 439, 444-45 (1992).

Here, the trial judge promptly investigated the matter when it was first brought to his attention. See Evans, 39 Va. App. at 237, 572 S.E.2d at 484. The judge questioned the observer and the juror individually about their contact. Additionally, the court accepted the representations regarding the courthouse surveillance recordings made by Captain Lilley and the appellant’s counsel for purposes of its decision. In the context of this record, the appellant’s claim “of possible juror bias is supported only by a `series of speculative links,'” and the “alleged connection” is “too tenuous to require the court to [have] conduct[ed]” further investigation. See Nelson v. Commonwealth, 268 Va. 665, 671-72, 604 S.E.2d 76, 79 (2004) (affirming and quoting Nelson v. Commonwealth, 41 Va. App. 716, 730, 589 S.E.2d 23, 30 (2003)). Nothing in the record supports the appellant’s contention that the observer said anything substantive about the trial to the juror or that the contact prejudiced the appellant. In fact, the juror told the observer exactly what he was instructed by the court to say if approached by anyone, that he was there to do his “civic duty.” Consequently, no “probability” existed that “external evidence . . . influenced the jury” or that extraneous information affected the jury deliberations. See Harris, 13 Va. App. at 52, 408 S.E.2d at 601 (quoting Evans-Smith, 5 Va. App. at 209, 361 S.E.2d at 448). There is absolutely no evidence of prejudice to the defendant. The court was under no duty to investigate the matter further, particularly in light of the appellant’s failure to request it to do so. See, e.g., United States v. Olano, 507 U.S. 725, 740 (1993) (“Respondents have never requested a hearing, and thus the record before us contains no direct evidence that the alternate jurors influenced the verdict.”). For these reasons, the trial court was not obligated to conduct any additional investigation into the appellant’s allegation of inappropriate communication between the juror and the observer.


We hold that the trial court acted within its discretion by refusing to allow proffered expert testimony regarding whether the appellant’s actions complied with the Portsmouth Police Department use of force policy and about widely accepted national standards on police use of force and certain police procedures. In addition, the court acted within its discretion by denying the motion for mistrial based on juror contact with a courtroom observer and no formal hearing or additional inquiry was required. Accordingly, we affirm the conviction for voluntary manslaughter.


[*] Pursuant to Code § 17.1-413, this opinion is not designated for publication.

[1] The appellant testified that the victim knocked the Taser out of his hand. An eyewitness described the victim’s reaction to being hit with the Taser as “put[ting] his hand up like he was about to fight.”

[2] The Commonwealth contends that the appellant did not preserve certain matters for appeal pursuant to Rule 5A:18 by not proffering them until after the case was submitted to the jury. See generally Va. R. Evid. 2:103(a)(2) (requiring the proponent of excluded evidence to make “the substance of the evidence . . . known to the court by proffer”); Creamer v. Commonwealth, 64 Va. App. 185, 195-96, 767 S.E.2d 226, 231 (2015) (noting that Rule 5A:18 requires a party to contemporaneously make clear the bases upon which he contends offered evidence should be admitted in order to preserve an issue for appeal). For purposes of this appeal, we assume without deciding that the appellant’s first proffer encompassed the more specific points made in his later proffer and consequently that the appellant is not procedurally barred from relying on the entirety of Lyman’s proffered testimony. See Dunham v. Commonwealth, 59 Va. App. 634, 638, 721 S.E.2d 824, 826 (assuming without deciding that Rule 5A:18 did not bar the assignment of error), aff’d per curiam, 284 Va. 511, 513, 733 S.E.2d 660, 661 (2012).

[3] In refusing to allow the witness to testify as an expert, the trial judge stated that the proffered opinion testimony was “getting kind of close to the ultimate” issue of fact to “be decided by the jury.” (Emphases added). Regardless of the actual basis for the trial court’s ruling, this Court may rely on any ground to affirm a judgment, as long as such ground does not require additional factual development. See Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (limiting the holding in Whitehead v. Commonwealth, 278 Va. 105, 677 S.E.2d 265 (2009), because “[f]ailure to make the argument before the trial court is not the proper focus of the right result for the wrong reason doctrine”).

[4] During cross-examination, the appellant stated that he did not employ a different “hard control” technique because “the situation had escalated” and “it was no longer appropriate.”

[5] To the extent that Lyman was allowed to testify regarding matters that appellant testified were part of his training, the admissibility of Lyman’s testimony that was allowed is not an issue on appeal, and the Court takes no position on the propriety of that testimony.

[6] We analyze this case through the lens of a criminal trial, not a civil one. Compare Caison, 52 Va. App. at 440, 663 S.E.2d at 562 (explaining that to constitute self-defense, “[t]he amount of force used must be reasonable in relation to the harm threatened” (quoting Diffendal, 8 Va. App. at 421, 382 S.E.2d at 26)), with Graham v. Connor, 490 U.S. 386, 393-95 (1989) (holding that the standard for assessing the civil claim that the police used excessive force was whether they acted reasonably under the Fourth Amendment).

[7] In light of our conclusion that the trial court did not err, we do not address the harmless nature of the exclusion of this evidence, as argued by the Commonwealth. See, e.g., Swann, 290 Va. at 200, 776 S.E.2d at 269 (noting that Code § 8.01-678 limits reversal based on evidentiary errors to cases in which the error was not harmless).

[8] The parties agree that Lilley works for the sheriff’s office.

[9] In a situation such as this one, in which the jury has been instructed not to discuss the case with outsiders, this principle comports with the broadly accepted axiom that we presume that jurors followed their instructions. See Prieto v. Commonwealth, 283 Va. 149, 169, 721 S.E.2d 484, 496 (2012).

[10] “[O]nly slight evidence of influence or prejudice . . . should be required to warrant the granting of a new trial.” Evans-Smith v. Commonwealth, 5 Va. App. 188, 208, 361 S.E.2d 436, 447 (1987) (second alteration in original) (quoting Crockett v. Commonwealth, 187 Va. 687, 705, 47 S.E.2d 377, 386 (1948)).

[11] The appellant stresses that the juror took the public elevator as opposed to the elevator that the jury members took throughout the trial. This point is not significant because, as the trial court noted, the juror and the observer did not ride that elevator together. In fact, the videos show the observer briefly walking away and using the elevator after the juror, consistent with her representation to the trial court.

[12] This conclusion is supported by examination of Virginia appellate cases considering different types of ex parte communications. Compare Juares, 274 Va. at 817, 651 S.E.2d at 648 (holding that the defendant did not establish that the communication was about a matter pending before the jury when court personnel told the jury that the court would not provide an interpreter), with Riner, 268 Va. at 314-15, 601 S.E.2d at 565 (agreeing that the communication with a juror about newspaper headlines regarding the trial pertained to the matter pending before the jury), Brittle v. Commonwealth, 222 Va. 518, 521-23, 281 S.E.2d 889, 890-91 (1981) (reversing the convictions based on ninety unintroduced photographs of the crime scene accidentally given to the jury), and Evans, 39 Va. App. at 239, 572 S.E.2d at 486 (holding that communication from the defendant’s uncle to a juror about the defendant’s propensity to commit crimes constituted extraneous evidence).

[13] Despite his argument, the appellant did not ask the trial judge to conduct additional investigation at any point. When the judge questioned the juror and the court observer, the appellant did not suggest that the judge place them under oath or ask them additional questions. After appellant’s counsel watched the courthouse surveillance recordings, he raised additional concerns to the court. However, he did not ask for further questioning or a full hearing. The appellant raised the matter a third time after counsel viewed more security footage and witnessed the observer embrace the victim’s mother outside the courthouse. Nevertheless, he did not ask for additional inquiry.

Excessive use of force: CROMARTIE v. BILLINGS

Cromartie challenges the circuit court’s granting of Billings’ motion to strike her § 1983 claim for excessive force in violation of the Fourth Amendment. The Fourth Amendment is the “source of constitutional protection against th[e] sort of physically intrusive government conduct” alleged in excessive force claims. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Determining whether the force was reasonable requires “balancing . . . the `nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing government interests at stake” in light of the facts of each 257*257case. Id. at 396, 109 S.Ct. 1865 (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The reasonableness of the force is evaluated from the objective perspective of a reasonable police officer on the scene, allowing for officers to make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary.” Id.at 396-97, 109 S.Ct. 1865. In addressing the reasonableness of an officer’s actions, we must consider the facts at the moment that the challenged force was employed. See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

The Supreme Court of the United States established a test in Graham to determine whether the force used by a police officer violated a person’s constitutional rights. In that case, Graham, a diabetic, asked a friend to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Id. at 388, 109 S.Ct. 1865. When Graham entered the convenience store and observed the number of people ahead of him in line, he hurried out and asked the friend to drive him elsewhere. Id. at 388-89, 109 S.Ct. 1865. The police officer became suspicious after Graham’s hasty entrance and exit, so he followed the car and made an investigative stop, ordering Graham and his friend to wait while he found out what happened in the store. Id. at 389, 109 S.Ct. 1865. Back-up officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham’s diabetic insulin reaction. Id. The police did not allow Graham to drink a glass of orange juice brought to the scene by a second friend. Id. During the encounter with police, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder. Id. at 390, 109 S.Ct. 1865. The Supreme Court held that the proper application of an excessive force test under the Fourth Amendment “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865.

To determine whether Billings’ use of force violated Cromartie’s Fourth Amendment rights, we apply the three factors articulated in Graham. Application of the Graham factors to this case demonstrates that Billings’ use of force was not objectively reasonable and therefore he is not entitled to qualified immunity. First, Cromartie’s infraction was minor: speeding. When the offense is a “minor one . . . the first Graham factor weighed in plaintiff’s favor.” Jones, 325 F.3d at 528 (quoting in part from Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994) (internal quotation marks omitted)). Speeding, the offense for which Billings stopped Cromartie, is not a criminal offense. Speeding is a traffic infraction under Code § 46.2-874. Obstruction of justice, the offense for which Billings unjustifiably obtained an arrest warrant, is a misdemeanor under Code § 18.3-460. The first Graham factor, therefore, strongly favors Cromartie.

Second, Cromartie posed no immediate threat to the safety of the officer or others. Cromartie’s window was rolled up, she was seated inside the vehicle, and she was on the telephone. Her car engine was off, and she made no threatening actions or statements. Cromartie had no actual, physical contact with Billings before he used force to remove her from her vehicle. Furthermore, Cromartie was a 100-pound woman with several health issues, Billings “did not have any reason to believe” that she was armed, and she made no other movements to indicate that she was a danger to Billings. See Smith v. Ray, 781 F.3d 95, 102 (4th Cir. 2015); see also Rowland, 41 F.3d at 174. Billings was a large man with a second officer on the scene. See Smith, 781 F.3d at 102; see also Rowland, 41 F.3d at 174. Accordingly, the second Graham factor also strongly favors Cromartie.

Third, Cromartie did not attempt to flee or resist arrest. Billings initiated the force against Cromartie when she was not looking at him. The video of the encounter does not show a physical struggle from Cromartie. Rather, the video shows an uninterrupted motion in which Billings pulled Cromartie from the vehicle and forced her onto 258*258 the pavement three seconds later. A reasonable officer could not believe that the “initial act of pulling [one’s] arm away” when an officer grabs her “without warning or explanation” justifies the officer’s decision to throw the person to the pavement. Smith, 781 F.3d at 103. Billings pulled Cromartie from the vehicle after two separate knocks on the window, within mere seconds of making contact with Cromartie, and without having given any order to Cromartie to exit the vehicle. Billings grabbed Cromartie without warning or explanation. Cromartie’s reaction was instinctive, resulting from the abrupt physical contact by Billings. This reaction was not resistance. Id. Thereafter, Cromartie complied with the officers when Billings requested her other arm to put it in handcuffs. Taking this evidence in the light most favorable to Cromartie, the third Graham factor also strongly favors Cromartie.

Application of the Graham factors to this case demonstrates that Billings’ use of force was objectively unreasonable under the Fourth Amendment. This excessive force violated Cromartie’s Fourth Amendment constitutional right against physically intrusive government conduct.

In determining whether the right at issue was clearly established at the time of the violation, “`the salient question . . . is whether the state of the law’ at the time of the incident provided `fair warning’ to the defendants `that their alleged [conduct] was unconstitutional.'” Tolan, 572 U.S. at 656, 134 S.Ct. 1861 (quoting Hope, 536 U.S. at 741, 122 S.Ct. 2508). Graham, and its progeny, Smith and Rowland,established such fair warning to Billings.

Following Graham, the Fourth Circuit applied the Graham factors in both Rowlandand Smith. Rowland involved a misdemeanor larceny. 41 F.3d at 174. In that case, a police officer witnessed a woman drop a five-dollar bill in a bus station and saw Rowland pick it up without returning it. Id. at 171. The officer approached Rowland and told him to return the money to the woman who dropped it. See id. Rowland attempted to do so, but the woman stated that it was not hers. See id. Rowland then left the bus station. See id. While Rowland stood at the street corner, the officer approached, and “without any provocation, [] grabbed his collar and jerked him around, yelling harshly as he did so.” See id. at 172. Frightened by the sudden force, Rowland instinctively tried to escape the officer’s grasp. See id. The officer responded by punching Rowland and throwing him down, “throwing his weight against Rowland’s right leg and wrenching the knee until it cracked,” tearing Rowland’s anterior cruciate ligament. Id. Holding the three Graham factors disfavored the officer, the court in Rowland concluded that the officer was not entitled to qualified immunity.

Smith involved contributing to the delinquency of a minor, a “nonviolent misdemeanor offense . . . not of the type that would give an officer any reason to believe that Smith was a potentially dangerous individual.” Smith, 781 F.3d at 102. The plaintiff in Smith was likewise a small woman faced with two on-scene officers. Id. at 93, 102. One of the officers, Ray, was the defendant. In Smith, the suspect used clearly offensive language after the sudden initiation of force. Id. at 98. Smith was compliant with the officers until Ray suddenly grabbed her arm. Then, she instinctively pulled her arm away from the officer, which the Fourth Circuit determined was a reaction to the officer’s sudden use of force. Id. at 98, 102-03. Smith asked why Ray was suddenly grabbing her and then was forced to the floor. In light of Rowland, the court in Smith concluded that no reasonable officer could have believed that “rather than answer . . . why Ray was suddenly grabbing her, Ray was justified in throwing her to the ground, slamming his knee into her back, and wrenching her arm behind her.” Id. at 103. The court in Smith held that the officer was not entitled to qualified immunity.

These cases are sufficiently similar to Cromartie’s to constitute clearly established law. Smith and Rowland provided fair warning to Billings that the amount of force he used against Cromartie under the circumstances was unreasonable. In Smith,there were arguments that Rowland was not sufficiently similar to the facts in Smith to constitute clearly established law. The court in Smith concluded:

259*259 [O]ur determination that the officer was not entitled to qualified immunity in Rowland was not based on any case that was factually on all fours. Rather, it was based on the simple fact that the officer took a situation where there obviously was no need for the use of any significant force and yet took an unreasonably aggressive tack that quickly escalated it to a violent exchange when the suspect instinctively tried to defend himself.

Like the officer in Smith, in this case Billings faced a situation where there was obviously no need for the use of any force—writing a traffic citation to Cromartie for speeding and her minor delay in responding to his request to open her window—and took an unreasonably aggressive action of forcing her face-down onto the pavement, escalating this incident to a violent exchange where she suffered numerous injuries. Because the factors so strongly favor Cromartie and because the force was excessive under the circumstances, a police officer could not have believed the use of force was objectively reasonable. The holdings in Graham, Smith, and Rowland demonstrate that the circuit court erred in granting Billings qualified immunity on the excessive force claim. Because Billings’ use of force was unreasonable under the circumstances and because it fails both prongs of the qualified immunity analysis at the motion to strike stage, the circuit court erred by granting the motion to strike on the § 1983 excessive force claim.

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