RICHMOND, Va. (WRIC)- Some Virginia Democrats want to lessen the charge for assaulting an officer but others call the policy anti-police.

The story of an onion ring has become the go-to example for legislators who argue the change is overdue.

Defense Attorney Vernida Chaney said her client, a young Hispanic woman who had recently been treated for mental health issues, was at a Dunkin Donuts in 2013 when she encountered Fairfax Police. Fresh out of the hospital, Chaney said the woman needed help getting home and became distressed when officers weren’t able to assist.

When the woman threw her Styrofoam container, Chaney said a piece of flying food landed her client a felony charge of assaulting a police officer, which carries a mandatory minimum of 6 months in prison.

“The officer testified that it was a small piece, a sliver of cooked onion that actually hit the officer on his uniform badge,” Chaney said.

Chaney said this charge, as well as two others related to the incident, were later reduced to a misdemeanor in court. She said, while this is not an uncommon outcome for cases like this, the incident shows the need for change.

“In the defense community, we have seen this statute be weaponized and overtly abused,” Chaney said.

SOURCE: Virginia State Police

According to Virginia State Police’s Uniform Crime Reporting (UCR) Program, nearly 70 percent of the 1,939 assaults on officers reported in 2019 did not result in any injury to the officer. About 2 percent, or 39, resulted in a major injury such as a broken bone, severe laceration or possible internal damage.

Democratic Sen. Scott Surovell (D-Fairfax) said cases that don’t result in any injury to the officer should be ‘defelonized’ and treated as a misdemeanor from the start, as these incidents were before state law changed in 1997. Surovell’s bill–expected to be introduced in the special session that kicks off on August 18th– would lessen the charge for non-injury incidents and eliminate the mandatory minimum for all assaults on officers.

“To be clear, nobody is talking about getting rid of malicious prosecution for somebody that causes a serious injury to law enforcement. That is the law, that will always be the law and that felony will always be available if an officer suffers a serious injury,” Surovell said.

Surovell said this change could level the playing field for the public.

“This is the only offense on the books where the police officer is both the victim, the investigating officer, the main witness and makes the charging decision,” Surovell said. “Basically all of the checks and balances that normally accompany a charge don’t exist in these scenarios, which is why you get a lot of these charges which probably shouldn’t be brought.” 

Surovell said that officers sometimes use the charge in cases where they could be accused of excessive force.

Chaney claims, after her client’s food hit the officer, she was ‘aggressively’ pushed into a glass window, causing her to spit blood. This turned into a second assault charge.

Chaney said these charges often shift the focus of the incident and pressure defendants to enter a plea deal, rather than risk a mandatory minimum sentence.

James City County Police Chief Brad Rinehimer, a board member of the Virginia Association of Chiefs of Police, pushed back on the point that checks and balances don’t exist in these cases. He argued that a judge or magistrate has to sign off on the charge after reviewing the facts.

Rinehimer said these legal protections also apply to judges, firefighters and EMTs when they’re on the job. He said changing the standard for officers alone sends the wrong message.

“I’ve never seen this level of anger, animosity and violence towards law enforcement simply because they wear a badge,” Rinehimer said. “My concern is that changing this to a misdemeanor is only going to encourage more assaults against officers.”

Surovell said he has the votes to pass this bill in the Senate during the special session. House Democratic Caucus Chair Charniele Herring (D-Alexandria) said she supports removing mandatory minimums in general. She said she couldn’t speak to the support of her caucus until the final draft of the bill is released.

Del. Rob Bell (R-Charlottesville) said House Republicans adamantly oppose ‘defelonizing’ these assaults, though the caucus doesn’t have the votes to block it along party lines.

“We’re asking our law enforcement officers to engage in very difficult times and we think this is a terrible time to reduce the protections that they have,” Bell said.