THE CIRCUIT COURT OF THE CITY OF STAUNTON Charles L.
Ricketts, III, Judge
L. Czyzyk, Assistant Public Defender, for appellant.
Christian Obenshain, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Petty, Chafin and Decker Argued by
WILLIAM G. PETTY, JUDGE
Lawerence Doscoli was convicted of misdemeanor refusal to aid
an officer in execution of his office in violation of Code
§ 18.2-463 and felony assault on a law enforcement
officer in violation of Code § 18.2-57. Doscoli argues
that the officers had no probable cause to arrest him and
therefore he had the right to use reasonable force to repel
an unlawful arrest. Because we find the arrest was lawful, we
affirm the trial court.
Minix and Officer Hylton of the City of Staunton Police
Department were dispatched to investigate a 911 "hang-up
call" that originated from Doscoli's residence and
which was potentially a domestic assault situation. The
residence was one of two apartments, whose doors opened into
a common area. While the officers were still in the street,
prior to approaching the house, they could hear a male yell
"fuck" from inside Doscoli's residence. When
the officers entered the common area, Doscoli came out of his
apartment into the common area wearing only what appeared to
be boxer shorts and yelled, "Get the hell out of
here." When the officers told Doscoli that they needed
to speak to the other person in the residence, he ran into
his apartment and slammed the door and locked it. The
officers could hear Doscoli continue to use profanity inside
the apartment. An elderly man, Fentress Dorn, opened the door
and attempted to speak to the officers but Doscoli
continually interrupted Officer Minix with yelling and
cursing. Officer Minix testified Doscoli was "being
confrontational through the whole . . . time [the officers]
were trying to speak to [Dorn]." At that point, Officer
Minix advised Doscoli that "if [Doscoli] continued to
interrupt [his] investigation, [he] was going to place
[Doscoli] under arrest for obstruction of justice." The
officers were, nonetheless, unable to separate Dorn and
Doscoli to speak to them separately. Officer Minix testified
that both Doscoli and Dorn had recent wounds on their arms.
Additionally, Dorn was red around the top of his chest and
was sweating. Officer Minix testified that he was concerned
for Dorn because of the fresh wound on his arm and because
Doscoli was acting extremely hostile toward Dorn by not
allowing him to talk. Dorn's assurances that he had not
been assaulted, however, led the officers to conclude they
could get no more information from the men.
Minix then instructed Doscoli that he needed to "shut
the door, lower his voice and maintain the peace."
Doscoli shut the door, and the officers waited for several
minutes on the exterior porch common area to make sure
Doscoli did maintain the peace. The officers then left the
porch and walked down the street. From the street, the
officers heard Doscoli yell "fuck them, " saw
Doscoli pull back the curtain from the window and make a
profane hand gesture, and then heard Doscoli yell "fuck
you" loud enough to be heard in the street through a
closed window. As the officers returned to the common area,
Doscoli rushed out of his apartment into the common area and
began yelling profanities at the officers. At that point,
Officer Minix told Doscoli that he was under arrest for
failure to maintain the peace. Officer Minix testified that
he believed Doscoli breached the peace by yelling at the
officers and then stepping outside his apartment into the
common area to scream profanities.
resisting arrest, Doscoli fled into the apartment, slammed
Officer Minix into the wall, and struggled against the
officers' attempts to grab his arms. Officer Minix was
forced to discharge his Taser twice against Doscoli, who
nonetheless continued to fight. As Officer Minix continued to
try to subdue Doscoli, Doscoli slapped the officer on the
side of the face. The officer later discovered that Doscoli
had smeared his own fecal matter on Officer Minix's face,
head, and uniform front. Officer Minix also discovered a scratch
on his right hand from the confrontation.
sole argument on appeal is that the officers lacked probable
cause to arrest him because the profanity he unleashed
against the officers did not rise to the level of
"fighting words" and was thus protected by the
First Amendment. Consequently, Doscoli argues, because the
officers had no probable cause to arrest him, he was entitled
to use force to resist the unlawful arrest.
review de novo whether a police officer had probable
cause to make an arrest. McCain v. Commonwealth, 261
Va. 483, 489, 545 S.E.2d 541, 545 (2001). Likewise,
"when the issues are the lawfulness of an arrest and the
reasonableness of force used to resist an unlawful arrest,
the ultimate questions involve law and fact and are reviewed
de novo on appeal." Brown v. City of
Danville, 44 Va.App. 586, 603, 606 S.E.2d 523, 532
(2004) (quoting Brown v. Commonwealth, 27 Va.App.
111, 117, 497 S.E.2d 527, 530 (1998)). This Court is bound by
the trial court's findings of historical fact unless
plainly wrong or without evidence to support them. McGee
v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259,
261 (1997) (en banc). We additionally give due
weight to the inferences reasonably drawn by the court and by
local law enforcement officers. Id.
the common law, a citizen generally is permitted to use
reasonable force to resist an illegal arrest."
Commonwealth v. Hill, 264 Va. 541, 546, 570 S.E.2d
805, 808 (2002) (holding there is no corresponding right to
resist an unlawful detention). However, the act of resisting
arrest is fraught with the danger of violence and serious
injury to both the officer and the arrestee. See id.
at 548, 570 S.E.2d at 808-09. Encouraging an arrestee to
resist what he considers an unlawful arrest "lead[s] to
great mischief with respect to encouraging resistance to, and
to endangering, arresting officers." United States
v. Simon, 409 F.2d 474, 477 (7th Cir. 1969) ("We
recognize that law enforcement officers are frequently called
on to make arrests without warrants and should not be held,
so far as their personal security is concerned, to a nicety
of distinctions between probable cause and lack of probable
cause in differing situations of warrantless arrests.").
Consequently, in our modern society, "[c]lose questions
as to whether an officer possesses [probable cause] must be
resolved in the courtroom and not fought out on the
streets." McCracken v. Commonwealth, 39 Va.App.
254, 276, 572 S.E.2d 493, 504 (2002) (en banc)
(quoting Hill, 264 Va. at 548, 570 S.E.2d at 809);
New Hampshire v. Haas, 596 A.2d 127, 130 (N.H. 1991)
("A society which seemingly becomes more complex ...