(Editor’s note: The following was submitted by Hanover County Commonwealth’s Attorney R.E. “Trip” Chalkley III.)
The special session of the General Assembly, unusually, passed numerous new laws affecting law enforcement and the citizenry. Unless otherwise noted, these legislative changes will take effect on March 1, 2021. As always, I am only covering those changes that have the greatest impact on the law and the following is only a brief synopsis of the changes.
Law enforcement officers may not use deadly force unless the officer reasonably believes deadly force is immediately necessary to protect the officer or another person, other than the subject, from the threat of death or serious injury. If feasible, the officer should provide a warning to the subject that he will use deadly force. The law enforcement officer’s actions must be reasonable, given the circumstances and all other options have been exhausted or do not reasonably lend themselves to the circumstances. In determining whether deadly force was proper, the following factors shall be considered: The reasonableness of the officer’s belief and actions from the perspective of a reasonable law enforcement officer on the scene at that time and the totality of the circumstances.
Totality of the circumstances includes: i. The amount of time the officer had to make a decision, ii. Whether the subject possessed or appeared to possess a deadly weapon and refused to comply with the officer’s lawful order to surrender the object which was or appeared to be a deadly weapon; iii. Whether the officer engaged in certain de-escalation measures; iv. Whether actions by the officer, prior to using deadly force, increased the risk of a confrontation resulting in the use of deadly force; and v. the seriousness of the suspected crime.
The willful discharge of a firearm by an officer into or at a moving vehicle is prohibited unless such discharge is immediately necessary to protect the officer or another from death or serious bodily injury. The use of kinetic impact munitions, e.g. impact rounds, bean bag rounds, etc., is prohibited unless necessary to protect the officer or another from bodily injury.
The use of a neck restraint by an officer is prohibited unless such use is immediately necessary to protect the officer or another person from death or serious bodily injury. Also, any officer who, while in the performance of his official duties, witnesses another officer engaging or attempting to engage in the use of excessive force (any force that is objectively unreasonable given the totality of the circumstances) shall intervene, when feasible, to end the use or prevent further use of excessive force.
Any law enforcement officer who violates any of the above, knowingly, shall be subject to disciplinary action in addition to any other penalty authorized by law.
Effective March 1, 2021, no officer shall stop a motorcycle, moped, motorized skateboard, or scooter for the following violations: failure to display two visibly red tail lights, failing to display a high mount brake light, improper window tint, substantially obstructed view, nonworking exhaust system, noise from a vehicle not equipped with a muffler and exhaust system, driving outside the scope of a provisional license or learner’s permit, driving on a provisional license or learner’s permit while using a wireless telecommunications device, hand-held or not, smoking with a child in the vehicle, and failure to wear a seat belt. No evidence discovered as a result of a stop for these violations shall be admissible in any judicial proceeding, even if discovered or obtained with the operator’s consent.
Vehicles may be lawfully stopped only if there are no lighted headlights when required by law. The same applies if there are no brake lights. No officer may stop a motor vehicle due to an expired registration prior to the first day of the fourth month of the expiration date. The same prohibition applies to expired inspection stickers. No lawful stop until the first day of the fourth month after the original expiration date. Again, any evidence obtained as a result of a stop in violation of these statutes may not be used in any trial, hearing, or proceeding.
No officer may lawfully stop, search or seize any person, place or thing solely on the basis of the odor of marijuana. Again, any evidence recovered in violation of this statute may not be used in any judicial proceeding.
No officer shall seek, execute or participate in the execution of a “no-knock” search warrant. A search warrant, duly authorized, shall require that the officer be recognizable and identifiable as a uniformed officer and provide audible notice of his authority and purpose reasonably expected to be heard by the occupants of the place to be searched prior to the warrant’s execution. Upon entry and securing the location, prior to undertaking any search or seizure, the executing officer shall read and give a copy of the search warrant to the person to be searched or the owner of the place to be searched. If the location to be searched is unoccupied, the executing officer shall leave a copy suitably affixed to the place searched.
Search warrants shall be executed only in the daytime unless a judge or a magistrate, if a judge is not available, authorizes the execution at another time for good cause shown or if the search warrant is for the withdrawal of blood. An officer shall make reasonable efforts to locate a judge before seeking authorization to execute the warrant at another time and such efforts shall be documented in an affidavit and submitted to a magistrate when seeking such authorization. Evidence obtained in violation of the statue shall not be admitted into evidence.
Localities are permitted to create civilian review boards for law enforcement agencies. If created, such boards may review all internal investigations by a law enforcement agency and make binding disciplinary determinations. If created, such boards are given a wide range of powers, among them subpoena power for persons and documents.
Effective July 1, 2021, the ability of the Commonwealth to request that the jury determine an appropriate punishment is eliminated. After July 1, 2021, the defendant may request one of the following: a bench trial with a judge sentencing, a jury trial with a jury sentencing, or a jury trial with a judge sentencing. Currently, either the judge, the Commonwealth, or the defendant may request trial by jury and the jury will recommend an appropriate sentence.
A trial court in any criminal case may, with the agreement of both parties, after any plea or trial, with or without a determination of guilt, defer disposition upon such reasonable terms and conditions agreed upon by the parties and placed on the record, or if no agreement, imposed by the court. Final disposition may include conviction of the original charge(s), conviction of an alternative charge, or dismissal. Upon a violation of a term or condition, the court may enter a finding of guilt and make a final disposition.
Violation of possession of marijuana by an adult is now a prepayable offense (can be paid before court appearance).
Again, this is only a summary of certain legislation. It does not address all new statutes or every aspect of the laws noted.
Should any reader have questions about any changes in the laws, mentioned or not, please contact me at 365-6186. My sincere thanks to Senators Ryan McDougle and Siobhan Dunnavant and Delegates Scott Wyatt and Buddy Fowler for their efforts during the special session.
Lastly, my thanks to the citizens of Hanover County for allowing me the privilege to serve as their Commonwealth’s Attorney.