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Doscoli v. Commonwealth

Court of Appeals of Virginia

June 21, 2016



          Linda L. Czyzyk, Assistant Public Defender, for appellant.

          J. Christian Obenshain, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Chafin and Decker Argued by teleconference



         Timothy 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.

         I. Background

         Officer 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.

         Officer 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.

         In 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.[1] Officer Minix also discovered a scratch on his right hand from the confrontation.

         II. Analysis

         Doscoli's 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.

         We 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.

         "Under 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 ...

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