South v. Com., Record No. 2209-04-1.

Docket NºRecord No. 2209-04-1.
Citation47 Va. App. 247, 623 S.E.2d 419
Case DateDecember 20, 2005
CourtSupreme Court of Virginia
623 S.E.2d 419
47 Va. App. 247
Holly Jo SOUTH
v.
COMMONWEALTH of Virginia.
Record No. 2209-04-1.
Court of Appeals of Virginia, Chesapeake.
December 20, 2005.

Page 420

Brooke E. Woodzell, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: HUMPHREYS and KELSEY, JJ., and OVERTON, S.J.

KELSEY, Judge.


Holly Jo South assaulted two United States Navy police officers serving at the Norfolk Naval Base. The trial court found her guilty of three counts of felony assault and battery of law-enforcement officers under Code § 18.2-57(C). South argues that the statute does not apply to the federal officers she assaulted. We agree, reverse the convictions, and remand for retrial on the misdemeanor offenses of simple assault and battery under Code § 18.2-57(A).1

I.
A. LAW-ENFORCEMENT OFFICERS UNDER CODE § 18.2-57

Code § 18.2-57(C) makes it a Class 6 felony to commit "an assault and battery against another knowing or having reason to know that such other person is a law-enforcement officer as defined hereinafter. . . ." Subsection E lists the categories of law-enforcement officers included within the reach of the statute:

As used in this section: "Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth, and any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115, and game wardens appointed pursuant to § 29.1-200, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603.

(Emphasis added.) If a victim does not fit within one of the listed categories (conservation officers, game wardens, jail officers, deputy sheriffs, and auxiliary officers), the statute does not apply unless the law-enforcement officer is an "employee of a police department or sheriff's office which is part of or administered" by the Commonwealth or local government. Id.

South assaulted two federal police officers employed by the United States Navy.

Page 421

Neither officer was an employee of a police department or sheriff's office that was part of, or administered by, the Commonwealth or any local government. The Navy employed, paid, and controlled both federal officers. Under the plain meaning of Code § 18.2-57(E), the federal officers do not fit within the statutory definition. "It is a fundamental principle of statutory construction that expressio unius est exclusio alterius, or `where a statute speaks in specific terms, an implication arises that omitted terms were not intended to be included within the scope of the statute.'" Conkling v. Commonwealth, 45 Va.App. 518, 522, 612 S.E.2d 235, 237 (2005) (quoting Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000)).

The Commonwealth argues that no policy justification supports the exclusion of federal police officers from the state felony assault and battery statute. Perhaps not but when a statutory text speaks clearly on a subject, "effect must be given to it regardless of what courts think of its wisdom or policy." Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944). We may not extend the meaning of the statute "simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used." Franklin & Pittsylvania Ry. Co. v. Shoemaker, 156 Va. 619, 624, 159 S.E. 100, 102 (1931) (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.)).

The Commonwealth also contends our interpretation misses entirely the intent of the statute, which is to impose an enhanced punishment on those who assault law-enforcement officers and thereby deter violence against them. Here again, we do not in the slightest denigrate this perceived legislative purpose.2 But the "question here is not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative intent by what the statute says and not by what we think it should have said." Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406 (1963). When it chooses to do so, the General Assembly includes "law-enforcement agents of the Armed Forces of the United States" and other federal officers within the statutory meaning of "law-enforcement officer." See, e.g., Code § 18.2-308(M); Code § 18.2-433.1.3 It simply did not choose to do so in Code § 18.2-57(E).

B. RECIPROCAL AGREEMENTS UNDER CODE § 15.2-1726

The Commonwealth also asserts that the federal officers possess arrest powers to enforce state law pursuant to a "reciprocal agreement" with the City of Norfolk authorized by Code § 15.2-1726. They should be treated, the Commonwealth argues, as the "functional equivalent" of state or local law enforcement officers for purposes of the assault-and-battery statute. We assume, without deciding, a "reciprocal agreement" exists between the City of Norfolk and the United States Navy.4 Even with that assumption, the Commonwealth's argument has no merit.

Page 422

Code § 18.2-57(E) incorporates by reference various officers identified in other provisions of state law — such as conservation officers under Code § 10.1-115, game wardens under Code § 29.1-200, auxiliary police officers under Code §§ 15.2-1731, 15.2-1733, and auxiliary deputy sheriffs under Code § 15.2-1603. Yet subsection E conspicuously omits any reference either to federal officers generally or to those specifically subject to reciprocal agreements under Code § 15.2-1726 (formerly codified at Code § 15.1-131.3), a statute that had been on the books for more than a decade before the enactment of Code § 18.2-57(E) (formerly codified at Code § 18.2-57.1). This omission has continued despite the many amendments to Code § 18.2-57 over the years.5

Nor does Code § 15.2-1726, of its own force, somehow incorporate itself into the criminal assault-and-battery statute. The relevant part of the statute provides:

Any locality may, in its discretion, enter into a reciprocal agreement with any other locality, any agency of the federal government exercising police powers, police of any state-supported institution of higher learning appointed pursuant to § 23-233, or with any combination of the foregoing, for such periods and under such conditions as the contracting parties deem advisable, for cooperation in the furnishing of police services. Such localities also may enter into an agreement for the cooperation in the furnishing of police services with the Department of State Police. The governing body of any locality also may, in its discretion, enter into a reciprocal agreement with any other locality, or combination thereof, for the consolidation of police departments or divisions or departments thereof. Subject to the conditions of the agreement, all police officers, officers, agents and other employees of such consolidated or cooperating police departments shall have the same powers, rights, benefits, privileges and immunities in every jurisdiction subscribing to such agreement, including the authority to make arrests in every such jurisdiction subscribing to the agreement; however, no police officer of any locality shall have authority to enforce federal laws unless specifically empowered to do so by statute, and no federal law-enforcement officer shall have authority to enforce the laws of the Commonwealth unless specifically empowered to do so by statute.

(Emphasis added).

A reciprocal agreement under Code § 15.2-1726 cannot, by itself, contractually confer arrest authority on federal officers to enforce state law. Immediately after recognizing the reciprocal power of arrest, the statute includes a "however" proviso which confirms that, no matter what the agreement may say, "no federal law-enforcement officer shall have authority to enforce the laws of the Commonwealth unless specifically empowered to do so by statute." Id. All the more, we question whether a reciprocal agreement under Code § 15.2-1726 can contractually confer upon a federal officer the "privilege" of special victim status reserved by the legislature solely for state and local officers under Code § 18.2-57(E).6

Page 423

We need not examine the question further, however, because nothing in the record discloses what the putative agreement in this case said. The Commonwealth did not introduce the agreement in evidence, or provide testimony from any witness about specific contractual terms, or make any unchallenged avowal about the subject. And whatever may be included among the "powers, rights, benefits, privileges and immunities" alluded to in the statute, they still remain "[s]ubject to the conditions of the agreement," as Code § 15.2-1726 makes clear.7 Without that agreement or some testimonial evidence of its terms, we cannot assume anything in it purports to transform the federal officers South assaulted into employees "of a police department or sheriff's office which is part of or administered" by the Commonwealth or local government for purposes of Code § 18.2-57(E).

In the end, the Commonwealth's argument is little more than a request that we add Code § 15.2-1726 to the list of statutes incorporated by reference by Code § 18.2-57(E). Granting this request would require us to "judicially graft" an unrelated...

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4 practice notes
  • Travelers Property Cas. of Amer. v. Ely, Record No. 1056-06-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 6, 2007
    ...clearly on a subject, 'effect must be given to it regardless of what courts think of its wisdom or policy.'" South v. Commonwealth, 47 Va.App. 247, 251-52, 623 S.E.2d 419, 421 (2005) (quoting Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944)), remanded for resentenci......
  • Fox v. Commonwealth, Record No. 0204-09-4 (Va. App. 12/22/2009), Record No. 0204-09-4.
    • United States
    • Virginia Court of Appeals of Virginia
    • December 22, 2009
    ...enforcement officer" described in Code § 18.2-57(E). We also disagree with Fox's argument that our decision in South v. Commonwealth, 47 Va. App. 247, 623 S.E.2d 419 (2005), rev'd in part on other grounds, 272 Va. 1, 630 S.E.2d 318 (2006), compels a different result. In South, the defendant......
  • Cline v. Com, Record No. 2563-07-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 21, 2009
    ...151, 655 S.E.2d 49, 50 (2008). Our construction of Code § 18.2-57(E) is governed by the principles enunciated in South v. Commonwealth, 47 Va.App. 247, 623 S.E.2d 419 (2005), rev'd in part on other grounds, 272 Va. 1, 630 S.E.2d 318 (2006). In South, the question was whether the provision a......
  • Guinyard v. Commonwealth, Record No. 1185-06-1 (Va. App. 7/31/2007), Record No. 1185-06-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 31, 2007
    ...because if it had, the General Assembly could easily have enacted language that said so. As we explained in South v. Commonwealth, 47 Va. App. 247, 623 S.E.2d 419 If a victim does not fit within one of the listed categories (conservation officers, game wardens, jail officers, deputy sheriff......
4 cases
  • Travelers Property Cas. of Amer. v. Ely, Record No. 1056-06-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 6, 2007
    ...clearly on a subject, 'effect must be given to it regardless of what courts think of its wisdom or policy.'" South v. Commonwealth, 47 Va.App. 247, 251-52, 623 S.E.2d 419, 421 (2005) (quoting Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944)), remanded for resentenci......
  • Fox v. Commonwealth, Record No. 0204-09-4 (Va. App. 12/22/2009), Record No. 0204-09-4.
    • United States
    • Virginia Court of Appeals of Virginia
    • December 22, 2009
    ...enforcement officer" described in Code § 18.2-57(E). We also disagree with Fox's argument that our decision in South v. Commonwealth, 47 Va. App. 247, 623 S.E.2d 419 (2005), rev'd in part on other grounds, 272 Va. 1, 630 S.E.2d 318 (2006), compels a different result. In South, the defendant......
  • Cline v. Com, Record No. 2563-07-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 21, 2009
    ...151, 655 S.E.2d 49, 50 (2008). Our construction of Code § 18.2-57(E) is governed by the principles enunciated in South v. Commonwealth, 47 Va.App. 247, 623 S.E.2d 419 (2005), rev'd in part on other grounds, 272 Va. 1, 630 S.E.2d 318 (2006). In South, the question was whether the provision a......
  • Guinyard v. Commonwealth, Record No. 1185-06-1 (Va. App. 7/31/2007), Record No. 1185-06-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 31, 2007
    ...because if it had, the General Assembly could easily have enacted language that said so. As we explained in South v. Commonwealth, 47 Va. App. 247, 623 S.E.2d 419 If a victim does not fit within one of the listed categories (conservation officers, game wardens, jail officers, deputy sheriff......

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