ASSAULT AND BATTERY OF A LAW ENFORCEMENT OFFICER IN VIRGINIA: Can Self-Defense Be Used Against a § 18.2-57(C) Charge?

Hampton Roads & Williamsburg Criminal Defense | Virginia Code § 18.2-57(C)

Assault and Battery of a Law Enforcement Officer in Virginia

An arrest can turn into a criminal charge of its own in a matter of seconds. Under Virginia Code § 18.2-57(C), assaulting or battering a police officer, sheriff’s deputy, correctional officer, or other protected official is a felony — and in the Hampton Roads and Williamsburg area, prosecutors in Williamsburg, James City County, York County, and Newport News treat these charges seriously. But not every physical reaction to a law enforcement encounter is a crime. Virginia law recognizes a narrow, well-defined right to use reasonable force in self-defense, including in response to an officer’s own excessive or unlawful use of force. This post breaks down the statute, the self-defense doctrine that applies to it, and the Virginia case law that shapes how these cases are actually won or lost in court.

What Does Virginia Code § 18.2-57(C) Prohibit?

Virginia’s general assault and battery statute, § 18.2-57, carries an enhanced penalty provision in subsection C for assaults committed against certain public safety and justice-system personnel. The statute applies when a person commits an assault or assault and battery against another person “knowing or having reason to know” that the victim is acting in one of several protected roles, including:

•       A law-enforcement officer (as defined in the statute — municipal and county police, sheriff’s deputies, ABC special agents, conservation and DMV enforcement officers, and others)
•       A judge or magistrate
•       A correctional officer or jail officer
•       A firefighter or volunteer firefighter, or emergency medical services personnel
•       Persons supervising individuals in the custody of the Department of Corrections or Department of Juvenile Justice

A conviction under § 18.2-57(C) is ordinarily a Class 6 felony, punishable by one to five years in prison (or, in the court’s discretion, up to twelve months in jail and/or a fine of up to $2,500). If the assault causes bodily injury, the mandatory minimum jail time increases. A felony conviction also carries collateral consequences — loss of firearm rights, immigration exposure, and lasting effects on employment and licensing — that make these cases worth fighting hard.

Self-Defense as a Defense to an Assault-on-an-Officer Charge

Virginia law does not strip a person of the right of self-defense simply because the person they struck, pushed, or pulled away from was a police officer. Virginia courts have long recognized that “the law of self-defense is the law of necessity,” and that principle applies with equal force to encounters with law enforcement. Foote v. Commonwealth, 11 Va. App. 61, 66, 396 S.E.2d 851, 856 (1990). Two overlapping doctrines tend to come up in these cases:

1. Ordinary Self-Defense Against Excessive Force

An officer making a lawful arrest is entitled to use reasonable force to effect it — but no more. When an officer’s force goes beyond what the situation requires, Virginia recognizes a person’s right to use reasonable, proportionate force to protect themselves from that excess. The Court of Appeals has repeatedly held that a defendant is entitled to a self-defense jury instruction whenever the evidence raises a factual question about “the reasonableness of the force used [or] the reasonableness of the perceived threat.” Foster v. Commonwealth, 13 Va. App. 380, 384, 412 S.E.2d 198, 200 (1991).

2. The Right to Resist an Unlawful Arrest

Separately, Virginia has historically allowed a person to use reasonable force to resist an unlawful arrest — one made without probable cause or legal authority. This defense is narrow and fact-intensive: the burden is on the defendant to show the arrest itself was unlawful, and even then, the force used to resist it must still be reasonable. See Beale v. Commonwealth, Record No. 2180-11-4 (Va. Ct. App. Aug. 20, 2013) (unpublished); Burch v. Commonwealth, Record No. 1101-13-4 (Va. Ct. App. Oct. 14, 2014) (unpublished).

The Reasonableness Standard: How Much Force Is Too Much?

Self-defense is an affirmative defense in Virginia. Once a defendant raises it, they are treated as admitting the physical act occurred, and the question becomes whether the force used was legally justified. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Virginia courts apply a consistent proportionality rule:

“The amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat.” — Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991)

Courts also look to how the confrontation began. A person who “expects to be attacked should first employ the means in his power to avert the necessity of self-defence,” and the right of self-defense does not arise until that has been done. Hash v. Commonwealth, 88 Va. 172, 192, 13 S.E. 398, 405 (1891). And the right of self-defense “begins where the necessity begins and ends where it ends.” Thomason v. Commonwealth, 178 Va. 489, 498, 17 S.E.2d 374, 378 (1941).

In practice, this means a shove or an arm pull to break free from an overly tight grip is a very different case than a punch thrown after the officer has already backed off. Judges and juries in Williamsburg, James City County, York County, and Newport News courts scrutinize the sequence of events closely — who escalated, when, and by how much.

What This Means If You’ve Been Charged

Because self-defense is fact-specific and the burden falls on the defense to raise sufficient evidence to create reasonable doubt, these cases are won or lost on the details: body camera footage, witness accounts, medical records, and the precise sequence of contact between the officer and the accused. An early, thorough investigation — before body camera footage is purged or witnesses’ memories fade — is often the difference between a felony conviction and a dismissal, reduction, or acquittal.

If you or a family member has been charged with assault and battery of a law enforcement officer under § 18.2-57(C) anywhere in the Hampton Roads or Williamsburg area, the facts of the arrest itself matter as much as the charge on the paper. An attorney familiar with local courts and prosecutors can evaluate whether the officer’s own use of force opens the door to a self-defense argument.

Frequently Asked Questions

Is assault on a police officer always a felony in Virginia?

Under § 18.2-57(C), assault and battery against a law-enforcement officer (as opposed to simple assault, which does not require physical contact) is typically charged as a Class 6 felony. A simple assault (without battery) against a protected official can still be charged under this section, but the felony enhancement generally attaches to assault and battery causing contact.

Can I claim self-defense if I was resisting an arrest I thought was unfair?

Believing an arrest is unfair is not the same as the arrest being legally unlawful, and a subjective belief alone will not support a self-defense instruction. Virginia courts require evidence that either the officer’s force was objectively excessive or that the arrest itself lacked legal authority — and even then, the response must be proportionate.

What is the difference between self-defense and resisting arrest in Virginia?

Resisting arrest and obstruction of justice (§ 18.2-460) generally involve non-violent interference with an officer’s duties. Self-defense is a distinct legal defense raised in response to an assault charge, and it requires proof that the force used was a reasonable, proportionate reaction to an unlawful arrest or the officer’s own excessive force — not simply an attempt to avoid being taken into custody.