Officer didn’t have ‘immediate physical ability’ to make arrest

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A police officer was too far away from a defendant and didn’t have the “immediate physical ability” to arrest him, the Court of Appeals of Virginia has held, reversing the defendant’s conviction.

The officer first tried to arrest the defendant by telling him to stop from 20 yards away, but the defendant escaped. The defendant eluded a second arrest attempt from 50 yards away.

“Although the defendant here knowingly fled from a law-enforcement officer attempting to arrest him, the officer got no closer than 20 yards,” Judge Stuart A. Raphael pointed out. “Finding as a matter of law that this distance is too great to satisfy the statutory proximity requirement, we reverse the defendant’s conviction.”

Raphael was joined by Judge Frank K. Friedman in Hackett v. Commonwealth (VLW 023-7-280). Judge Junius P. Fulton III authored a concurring opinion.

The escapes

Lynchburg police officer M.D. Iazzi tried to arrest Jessi Ryan Hackett twice in one day on an outstanding felony warrant.

Iazzi was 20 yards away when he first informed Hackett he was under arrest; the officer was 50 yards away the second time. Hackett fled each time.

Hackett was later arrested and charged with misdemeanor fleeing from a law-enforcement officer under Code § 18.2-460(E). He moved to strike, arguing that the commonwealth failed to prove that Iazzi had the “immediate physical ability” to arrest him as required by statute.

The Lynchburg Circuit Court denied the motion and convicted him of the misdemeanor.

The statute

Pursuant to § 18.2-460(E), it a misdemeanor if a person “intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him,” which the statute first defines in subsection (E)(i) as fleeing after a law enforcement officer applies physical force to the person.

Alternatively, a violation of subsection (E)(ii) occurs when the officer communicates to the person that he is under arrest, the officer has the legal authority and the immediate physical ability to place the person under arrest, and a reasonable person who receives such communication knows or should know that he is not free to leave.

The question for the court was whether the commonwealth proved the elements required by subsection (E)(ii) since the officer didn’t “appl[y] physical force” to Hackett. Essentially, the case turned on what “immediate physical ability” means.

“Examining the text, context, and drafting history of Code § 18.2-460(E), as well as the caselaw construing this statute and its predecessor, we conclude that Officer Iazzi did not have the ‘immediate physical ability’ to arrest Hackett because, at 20 yards away, Hackett was outside of Iazzi’s ‘immediate span of control,’” Raphael wrote.

‘Immediate’

Raphael noted that Code § 18.2-460(E) doesn’t define “immediate” in the phrase “immediate physical ability.”

Black’s Law Dictionary defines immediate as “[o]ccurring without delay; instant”; [n]ot separated by other persons or things,” while Webster’s defines it in part as “occurring, acting, or accomplished without loss of time: made or done at once: INSTANT.”

And “immediate” means “[h]aving no person, thing, or space intervening, in place order, or succession. … In reference to place often used loosely of a distance which is treated as of no account,” per the Oxford English Dictionary.

“None of those definitions supports the Commonwealth’s position that Officer Iazzi had the immediate physical ability to arrest Hackett when Iazzi got no closer to him than 20 yards,” the judge said. “The time and space to close that distance prevented Iazzi from arresting him ‘without loss of time’ or ‘without intervening space’…  let alone ‘without delay’. …The 60 feet separating Iazzi from Hackett could not be ‘treated as of no account.’”

Statutory context

The judge said subsection (E)(i) of Code § 18.2-460 informed the meaning of subsection (E)(ii), by showing that “‘immediate physical ability’ to arrest requires close physical proximity between the officer and the defendant.” A violation of subsection (E)(i) requires the defendant to flee from the officer when the officer applies physical force to the person.

“The officer, of course, must be close enough to the defendant to apply such force,” Raphael noted.

Here, the judge said subsection E(ii) addresses the scenario where a defendant runs away before the officer makes physical contact.

“[A] defendant violates the statute by fleeing when ‘the officer communicates … that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave, (emphasis added)’” Raphael wrote. “Reading the two subsections together suggests that immediate physical ability to arrest in subsection (E)(ii)(a) requires that the officer be close enough to ‘appl[y] physical force to the person,’ even if the defendant gets away before the officer can successfully lay hands on him.”

Raphael also examined the statutory history of Code § 18.2-460 and concluded that Virginia “appears to be unique in requiring — as an element of the offense — that the officer have the ‘immediate physical ability’ to arrest the defendant.”

Case law

The judge rejected the commonwealth’s suggestion that its 2015 opinion in Joseph v. Commonwealth about “immediate span of control” was “mere dictum that has no bearing on the meaning of the immediate-physical-ability-to-arrest element in subsection E(ii)(a).”

The court acknowledged that the only issue in Joseph was “whether the statute required flight, not the meaning of immediate physical ability to arrest.”

“Under the interpanel accord doctrine, however, we are bound not only by ‘the literal holding of the case, but also … its ratio decidendi – the essential rationale in the case that determines the judgment,’” Raphael said.

The Joseph court defined and referred to flight by reference to running away from the officer’s “immediate span of control.” By doing so, Raphael said the court provided the essential rationale of the holding that bound the court to its definition of “fleeing.”

In 2020, the court repeated that formulation in Peters v. Commonwealth, where the officer had the “immediate physical ability” to arrest when they were close enough to taser and get on top of the defendant.

The commonwealth argued that Iazzi’s “immediate physical ability” to arrest Hackett was a factual determination to which the court owed deference to the trial determinations.

But Raphael said the court wasn’t required to identify the outer limit of immediate physical ability.

“Just as 100 yards would be too great a distance as a matter of law, we are satisfied that 20 yards — 60 feet — is also too far away as a matter of law to satisfy the ‘immediate’ proximity requirement,” the judge concluded.