CAV: “Reasonable reliance” defense applied to court order

A jury should have been allowed to consider whether it was reasonable for the defendant, charged with possessing a firearm while subject to a protective order, to believe that a JDR court had dissolved the order.

Background

While Appellant Nicholas Davis was parked at a McDonald’s restaurant, a sheriff’s deputy observed an AR-15 rifle on the backseat of his car. The deputy then learned that Davis was the subject of a protective order, but Davis told the deputy, “That was dismissed.” Nevertheless, the deputy arrested Davis for possession of a firearm while subject to a protective order.

Eight months earlier, Davis’s wife, L. Zuniga, got a protective order from the juvenile & domestic relations court that prohibited Davis from having any contact with Zuniga or their minor child. The protective order also stated:

“Pursuant to Code of Virginia § 18.2-308.1:4, [Davis] shall not purchase or transport any firearm while this order is in effect…. Either party may at any time file a motion with the court requesting a hearing to dissolve or modify this order; however, this order remains in full force and effect unless and until dissolved or modified by the court.”

At a subsequent status hearing, the judge signed an order reflecting that “Petitioner wishes to non-suit all petitions” and “all petitions [are] dismissed.” (Emphasis added). Following Davis’s arrest, Zuniga requested by letter that the JDR court dismiss the protective order, saying both parties thought the order had already been “dropped” at the prior hearing. The JDR court then entered an order dissolving the protective order.

A Davis’s criminal trial, Zuniga testified at that she decided to dissolve the protective order and dismiss the other petitions because “we both agreed to work on our marriage and to fix everything for the baby.” She asked the JDR judge if “everything” against Davis could “be dropped,” and the JDR judge responded that “[a]ll matters against [Davis] have been dropped.” Davis and Zuniga left the courthouse together, took a family vacation, and remained reconciled at the time of trial.  Davis testified that he didn’t know that the protective order was still in effect until his arrest.

At the conclusion of the evidence, Davis moved to strike because he reasonably relied on information from the JDR court that the protective order was dismissed. The circuit court denied the motion: “We don’t have any official agency giving advice to the defendant as to not having to comply with the terms of the protective order ….” The circuit court also declined to offer a jury instruction on the affirmative defense of reasonable reliance, ruling that the JDR order was unambiguous and didn’t address the protective order.

During deliberations, the jury asked: “If we believe [Davis] thought the protective order was dismissed …, would that constitute reasonable doubt and nullify the weapons possession charge?” The court responded: “The jury has to apply the instructions submitted ….” The jury found Davis guilty and recommended a one-dollar fine.

Reasonable reliance

A due process defense is available to a defendant on trial for reasonably and in good faith doing that which he was told he could do. Here, the court denied Davis’s request for a “reasonable reliance” instruction because it interpreted Miller v. Commonwealth, 25 Va. App. 727 (1997), not to apply to a JDR judge as a “government official” who could give an affirmative assurance that the protective order was dismissed.

The protective order was entered in the JDR court and subject to enforcement and modification there. The JDR judge, who was making a statement about the status of the protective order, is therefore a source legally sufficient to implicate due process concerns. Thus, the circuit court erred in finding that the JDR judge couldn’t be a “government official” for purposes of the reasonable reliance defense.

Additionally, Davis’s undisputed evidence of an affirmative assurance was legally sufficient to support giving an instruction. Zuniga specifically requested dismissal of the protective order, and the JDR judge responded that all matters were dropped. Although the order stating that all petitions were dismissed didn’t specifically reference the protective order, other evidence corroborated the judge’s verbal assurance.  Davis and Zuniga left the JDR hearing together freely, without intervention from law enforcement that Davis was violating a protective order.

When Davis was later found in possession of the firearm and asked about the protective order, he told police that it had been dismissed. Zuniga’s December 2016 motion to dismiss the protective order stated that both she and Davis thought it had already been dissolved. In contrast to Claytor v. Commonwealth, 62 Va. App. 644 (2013), Davis relied not only on the JDR court’s order, but more importantly, on that court’s verbal dismissal of all matters after Zuniga specifically requested dismissal of the protective order. Similar to Miller, Davis sought and received an affirmative assurance that the protective order was no longer active and, therefore, he was no longer subject to its express prohibition against possessing a firearm. The issue of whether his reliance on this affirmative assurance from a government official was reasonable and in good faith is a question of fact to be determined by the jury, based on the totality of the circumstances.

Reversed and remanded.

Davis v. Commonwealth, Record No. 0825-17-4, May 15, 2018. CAV (O’Brien), from Fauquier Cir. Ct. (Parker). Kevin J. Gerrity for Appellant; Eugene Murphy for Appellee. VLW No. 018-7-126, 8 pp.