RICHMOND, Va. – Virginia lawmakers plan to take up dozens of criminal justice reforms during a special legislative session this week, but one proposal in particular is expected to spark an intense battle: a push to change a law that allows police to charge people with felony assault even if the arresting officers are not seriously hurt.
A bill by Senate Democrats would downgrade the charge of assault and battery on a law enforcement officer from a felony to a misdemeanor.
The proposal is one of an array of reforms drafted in Virginia since the May 25 killing of George Floyd by Minneapolis police prompted a nationwide protest movement. Lawmakers will also consider bills to ban the use of police chokeholds and no-knock warrants, enhance the ability of courts to expunge criminal records, and eliminate jury sentencing except when requested by defendants.
Sen. Scott Surovell, the chief sponsor of the assault and battery bill, said it would eliminate the current mandatory minimum sentence of six months in jail and change the law so the charge can only be brought as a felony if an officer has a visible physical injury. Surovell said he is also considering adding provisions requiring that another officer - not the arresting officer - investigate the circumstances and that a prosecutor approve the charge.
Critics of the current law say police overuse the charge, particularly in cases where they fear the person they arrested will claim police brutality.
"It is a charge that tends to arise whenever officers get into a tussle with someone," Surovell said. Virginia's legislature made the charge a felony in 1997, at a time when states around the country and Congress were passing "tough on crime" laws. The enhanced penalty for assaulting law enforcement officers also applies to judges, magistrates, corrections officers, firefighters and emergency medical services personnel.
Marie Dantio, of Alexandria, was arrested in 2013 when she went to a church in the middle of the night to try to see a priest. Dantio, who has mental health issues and was homeless at the time, said she did not immediately respond to Fairfax County police officers who responded to a trespassing call.
Dantio said the officers pushed her to the ground. One officer alleged Dantio injured her hand. Dantio said she spent two months in jail and eventually pleaded guilty to misdemeanor assault in exchange for dropping the felony assault charge. She said she lost her job as a nurse's aide because of her arrest.
"I feel very sad," Dantio said. "I know I didn't do it."
Lt. Erica Webb, a spokeswoman for Fairfax County police, declined to comment on Dantio's claims or the extent of the officer's injury.
"While taking Ms. Dantio into custody, she assaulted an officer, causing an injury," Webb wrote in an email.
States around the country have a patchwork of laws covering assaults on law enforcement officers. Some states allow the charge to be brought as both a misdemeanor or a felony, depending on the circumstances, while other states don't have a separate law, but allow for enhanced penalties for assaults on police, according to the National Conference of State Legislatures.
The proposal to downgrade the charge in Virginia is expected to face fierce opposition from police and Republican lawmakers.
Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said the nationwide protests since Floyd's killing have shown "unprecedented levels? of anger toward police.
"We should be doing more to protect officers instead of sending a message that assaulting them is not a serious offense," Schrad said.
Republican Minority Leader Sen. Tommy Norment said he finds it "unfathomable" that Democrats are calling for reduced penalties, given the repeated violent clashes between police and demonstrators during recent protests in Richmond.
"Very candidly, for those who are advocating it - particularly in the current lawless atmosphere - I wonder what they have been smoking," he said.
Norment is sponsoring a bill that would increase the mandatory minimum sentence of six months to a year in jail. For assaults on police during a state of emergency, the mandatory minimum would jump to two years.
Stephen Hill was charged by Alexandria police last year as he sat outside a grocery store drinking wine. Hill, an Army veteran who served in Afghanistan, said he was intoxicated at the time and struggling with substance abuse and post-traumatic stress disorder.
Hill said he was moving slowly, intending to follow a police command to leave, when an officer grabbed his arm. He had a broken collarbone, but was not wearing his sling. He said he winced in pain and struggled as the officers handcuffed him behind his back.
Hill said he briefly grabbed onto the officer's duty belt to stabilize himself. The officer then smashed his face against the side of the patrol car, breaking his nose, he said.
"I had no intention whatsoever to do anything bad," Hill said
A spokesman for the Alexandria Police Department declined to immediately comment on Hill's account.
Hill said he agreed to plead guilty to a reduced charge of disorderly conduct because he faced a minimum of six months in jail on the felony assault charge.
“Once the offer was presented, I had no business risking the rest of my life with a felony on my record,” he said.