Virginia Double Jeopardy Law | When Jeopardy Attaches | Nolle Prosequi | Virginia Criminal Defense

The Double Jeopardy Clause provides one of the most important protections in criminal law: the government generally cannot prosecute a person twice for the same offense after jeopardy has attached.

But an important question arises in Virginia criminal cases:

When does jeopardy actually attach?

The answer depends upon the type of proceeding. In a traditional jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a bench trial, jeopardy generally attaches when the Commonwealth begins presenting evidence, ordinarily when the first witness is sworn.

This distinction becomes particularly important when the Commonwealth seeks a nolle prosequi, commonly called a “nol pros.” A nolle prosequi terminates the prosecution on the existing charging document, but it does not necessarily prevent the Commonwealth from prosecuting the defendant again.

The critical issue is whether jeopardy had already attached when the nolle prosequi was entered.

This article explains Virginia’s double jeopardy law, when jeopardy attaches, the effect of an acquittal or conviction, and the consequences of a nolle prosequi.

What Is Double Jeopardy in Virginia?

The Double Jeopardy Clause protects a criminal defendant against three principal forms of governmental action:

1. A second prosecution for the same offense after an acquittal;
2. A second prosecution for the same offense after a conviction; and
3. Multiple punishments for the same offense.

The protection comes from both the Fifth Amendment to the United States Constitution and Article I, § 8 of the Virginia Constitution.

The Supreme Court of Virginia has explained that “jeopardy” means the danger of conviction. Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 S.E.2d 709, 710 (1982).

Thus, simply having been charged with a crime does not necessarily mean that jeopardy has attached.

The timing of the proceeding matters.

When Does Jeopardy Attach in Virginia?

Jeopardy in a Jury Trial

In a Virginia jury trial, jeopardy generally attaches when:

1. The defendant is being tried on a valid charging instrument; and

2. The jury has been empaneled and sworn.

The seminal Virginia case is Rosser v. Commonwealth, 159 Va. 1028, 167 S.E. 257 (1933).

In Rosser, the Supreme Court of Virginia explained that when a defendant has been placed on trial before a court of competent jurisdiction, has been arraigned and pleaded, and the jury has been empaneled and sworn, the defendant is in jeopardy.

The Supreme Court later reaffirmed this principle in Martin v. Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991), stating that jeopardy attaches after the jury has been empaneled and sworn.

Practical rule

For a Virginia jury trial:

Jeopardy generally attaches when the jury is empaneled and sworn—not merely when the defendant is arraigned, enters a plea, or appears in court for trial.

This distinction can be extremely important.

For example, if the Commonwealth moves for a nolle prosequi immediately before the jury is sworn, the defendant ordinarily has not yet been placed in jeopardy.

If the jury has already been sworn, however, the analysis changes substantially.

When Does Jeopardy Attach in a Bench Trial?

The rule is different when the defendant waives a jury and proceeds with a trial before the judge.

In a Virginia bench trial, jeopardy attaches when the Commonwealth begins presenting its evidence.

Virginia cases generally describe the point as the time when the first witness is sworn.

In Rosser, the Supreme Court of Virginia explained:

“In a trial before a court without a jury the danger of conviction or jeopardy of an accused begins when the trial has reached the stage where the Commonwealth begins to introduce its testimony.”

Rosser v. Commonwealth, 159 Va. at 1036, 167 S.E. at 259.

The Supreme Court reaffirmed this rule in Martin v. Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991).

The Virginia Court of Appeals has repeatedly applied the same rule. See, e.g., Neff v. Commonwealth, 39 Va. App. 13, 17, 570 S.E.2d 277, 279 (2002).

Practical rule

For a Virginia bench trial:

Jeopardy generally attaches when the first witness is sworn and the Commonwealth begins presenting its evidence.

Merely calling a case for trial, conducting preliminary arguments, or having the defendant enter a plea does not necessarily mean that jeopardy has attached.

What About a Preliminary Hearing?

A preliminary hearing is different from a criminal trial.

Virginia appellate courts have held that jeopardy does not attach to a felony charge merely because the Commonwealth presents evidence at a preliminary hearing.

For example, in Neff v. Commonwealth, the Court of Appeals explained that a preliminary hearing is not the equivalent of a trial for purposes of double jeopardy.

Likewise, in Painter v. Commonwealth, 47 Va. App. 225, 233, 623 S.E.2d 401, 405 (2005), the Court of Appeals explained that dismissal of a felony warrant at a preliminary hearing for lack of probable cause does not constitute an acquittal of the felony.

This means that a defendant generally cannot argue that a failed felony preliminary hearing placed the defendant in jeopardy and therefore bars a later prosecution.

Important distinction

A preliminary hearing asks whether there is probable cause to believe that the defendant committed the offense.

A criminal trial determines whether the Commonwealth has proven the defendant’s guilt beyond a reasonable doubt.

Those are fundamentally different proceedings.

What Happens When a Defendant Is Acquitted?

An acquittal generally bars a subsequent prosecution for the same offense.

Virginia codifies this protection in Code § 19.2-292, which provides that a person acquitted on the facts and merits at a former trial may plead that acquittal as a bar to a second prosecution for the same offense.

The constitutional protection is even broader in certain circumstances.

An acquittal is not limited to a formal jury verdict stating “not guilty.” A ruling that actually resolves factual elements of the offense in the defendant’s favor may constitute an acquittal for double jeopardy purposes.

The Supreme Court of Virginia addressed this principle in Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 S.E.2d 709, 710 (1982).

The important question is whether the ruling represents a determination of the defendant’s factual guilt or innocence rather than merely a procedural termination of the case.

What Happens After a Conviction?

A second prosecution for the same offense following a conviction is likewise generally prohibited by the Double Jeopardy Clause.

The constitutional protection applies even when the defendant has not received a lengthy sentence or has not completed the sentence imposed.

The prohibition against double jeopardy is concerned with the government’s ability to subject a defendant to successive criminal prosecutions for the same offense.

Virginia’s statutory former-jeopardy provisions also recognize these protections.

What Is a Nolle Prosequi in Virginia?

A nolle prosequi is a formal discontinuance of a criminal prosecution.

Virginia Code § 19.2-265.3 provides:

“Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.”

Thus, a prosecutor does not have an unlimited unilateral right to terminate a criminal case through a nolle prosequi.

The Commonwealth must request the nolle prosequi, and the court must determine whether the statutory requirement of good cause has been satisfied.

The Supreme Court of Virginia addressed this statutory requirement in Roe v. Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526, 529 (2006).

Does a Nolle Prosequi Mean the Defendant Was Acquitted?

Generally, no.

This is one of the most important points in Virginia criminal procedure.

A nolle prosequi ordinarily does not constitute an adjudication that the defendant is innocent.

Instead, Virginia courts have described a nolle prosequi as a discontinuance that terminates the prosecution under the particular indictment or warrant.

In Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977), the Supreme Court of Virginia explained that a nolle prosequi is a discontinuance that discharges the accused from liability on the indictment to which the nolle prosequi is entered.

The Commonwealth may generally initiate a new prosecution for the same offense, subject to constitutional, statutory, and procedural limitations.

Does a Nolle Prosequi Bar a Later Prosecution?

The answer depends heavily upon when the nolle prosequi occurs.

Nolle Prosequi Before Jeopardy Attaches

When a nolle prosequi is entered before jeopardy attaches, it generally does not prevent the Commonwealth from prosecuting the defendant again.

This principle was recognized by the Virginia Court of Appeals in Cantrell v. Commonwealth, 7 Va. App. 269, 281, 373 S.E.2d 328, 333 (1988).

The same principle was applied in Cummings v. Commonwealth, 24 Va. App. 248, 253-54, 481 S.E.2d 493, 496 (1997).

In Cummings, the Commonwealth obtained a nolle prosequi before witnesses were sworn and before evidence was introduced. The Court of Appeals held that jeopardy had not attached and therefore the subsequent prosecution was not barred by double jeopardy.

Example

Assume:

• Defendant is indicted for malicious wounding.
• Defendant appears in circuit court.
• Defendant pleads not guilty.
• The Commonwealth asks for a nolle prosequi before the jury is empaneled and sworn.
• The court grants the motion.

Because jeopardy had not attached, the Commonwealth generally may later seek a new indictment and prosecute the defendant for the same offense.

The nolle prosequi terminated the original charging instrument, but it did not constitute an acquittal.

Nolle Prosequi After Jeopardy Has Attached

The analysis changes dramatically once jeopardy has attached.

In Rosser v. Commonwealth, the Commonwealth entered a nolle prosequi after a bench trial had already begun and the Commonwealth had presented part of its evidence.

The Supreme Court of Virginia held that jeopardy had attached.

The Court explained that after jeopardy attaches, the defendant possesses a right to have the trial proceed to a verdict or judgment unless a legally sufficient reason exists for terminating the proceeding.

The Court concluded that a nolle prosequi entered without the defendant’s consent after jeopardy attached operated as an acquittal unless there was a manifest and urgent necessity for terminating the trial.

Rosser v. Commonwealth, 159 Va. at 1032-37, 167 S.E. at 257-60.

What Is “Manifest Necessity”?

Once jeopardy has attached, the Commonwealth cannot simply terminate the trial whenever it becomes inconvenient and then start over.

The law recognizes, however, that certain circumstances may make continuation of the trial impossible or fundamentally unfair.

This concept is commonly referred to as manifest necessity.

For example, a genuinely deadlocked jury may constitute manifest necessity for declaring a mistrial.

The Supreme Court of Virginia addressed this situation in Miller v. Commonwealth, 217 Va. 929, 933, 234 S.E.2d 269, 272 (1977).

In Miller, the jury was unable to reach a verdict and was discharged. The Supreme Court held that the resulting mistrial did not bar a subsequent prosecution because a genuinely deadlocked jury presented a classic circumstance of manifest necessity.

The Virginia Court of Appeals has likewise recognized that a jury’s inability to reach a verdict may justify a mistrial without violating double jeopardy. See Page v. Commonwealth, 2003 Va. App. LEXIS 220.

Why the Defendant’s Consent Can Matter

A defendant’s position concerning termination of a trial can be extremely important.

Generally, when a defendant consents to a mistrial or termination of the proceeding, the defendant may have waived the protection against reprosecution that otherwise would apply.

By contrast, if the Commonwealth seeks to terminate a trial after jeopardy has attached over the defendant’s objection, the court must carefully consider whether the termination is justified by manifest necessity.

This is why defense counsel should pay close attention to the precise procedural posture of any Commonwealth motion to nolle prosequi.

A defendant should not assume that a nolle prosequi is simply a routine procedural event.

The timing can have constitutional consequences.

Virginia Code § 19.2-265.6 and Dismissal of Criminal Charges

Virginia has an additional statutory provision that is particularly important when analyzing dismissal of criminal charges.

Code § 19.2-265.6(B) provides:

“No dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice.”

This provision is extremely important because it provides a statutory framework for determining whether a dismissal prevents a later prosecution.

The statute creates two principal circumstances in which a dismissal can bar later prosecution:

1. Jeopardy attached at the earlier proceeding; or
2. The dismissal order expressly states that the dismissal is with prejudice.

Accordingly, defense counsel should carefully examine the actual language of the court’s dismissal order.

A dismissal is not necessarily equivalent to an acquittal, and the characterization of the order matters.

Nolle Prosequi Versus Dismissal With Prejudice

A nolle prosequi and a dismissal with prejudice should not automatically be treated as the same thing.

A nolle prosequi generally terminates the particular charging instrument and allows the Commonwealth, subject to applicable legal restrictions, to initiate a new prosecution.

A dismissal with prejudice, by contrast, expressly prevents the Commonwealth from prosecuting the charge again.

Virginia Code § 19.2-265.6 expressly recognizes this distinction.

The Virginia Court of Appeals has also emphasized that courts must examine the substance and timing of a dismissal rather than simply rely on the label used by the trial court.

See Roe v. Commonwealth, 271 Va. 453, 628 S.E.2d 526 (2006).

A Nolle Prosequi Can Have Other Consequences

Even when a nolle prosequi does not create a double-jeopardy bar, it does not necessarily mean that the Commonwealth has no constitutional or statutory problems.

For example, repeated nolle prosequis can raise speedy-trial issues.

The Virginia Court of Appeals has recognized that a nolle prosequi can potentially contribute to prejudicial delay implicating the defendant’s speedy-trial rights.

See Duggins v. Commonwealth, 59 Va. App. 785, 792, 722 S.E.2d 629, 632 (2012); Griffin v. Commonwealth, 2024 Va. App. LEXIS 122.

The fact that jeopardy did not attach does not automatically mean that the Commonwealth has unlimited authority to delay prosecution.

Double jeopardy and speedy trial are separate constitutional protections.

A Nolle Prosequi Also Affects the Charging Instrument

Virginia courts have described the effect of a nolle prosequi as essentially wiping the slate clean as to the original charging document.

In Arnold v. Commonwealth, 18 Va. App. 218, 221-22, 443 S.E.2d 183, 185 (1994), aff’d en banc, 19 Va. App. 143, 450 S.E.2d 161 (1994), the Court of Appeals explained that a nolle prosequi terminates the original indictment and underlying warrant.

The Commonwealth therefore must use the appropriate procedure to initiate a new prosecution.

As Miller explained, a new charging document is required when the Commonwealth seeks to proceed again after a nolle prosequi.

Does a Nolle Prosequi Reset the Speedy-Trial Clock?

Generally, a nolle prosequi can have a significant effect on the statutory speedy-trial calculation under Code § 19.2-243 because the Commonwealth is proceeding under a new charging instrument.

Virginia appellate courts have recognized that, for purposes of the statutory speedy-trial calculation, the period is generally calculated from the new indictment after the original charge has been nolle prossed.

See Arnold v. Commonwealth, 18 Va. App. 218, 221-24, 443 S.E.2d 183, 185-86 (1994).

But that does not necessarily eliminate constitutional speedy-trial concerns.

The constitutional speedy-trial analysis is different and can take into account delay associated with the earlier prosecution.

Thus, defense counsel should analyze statutory speedy trial and constitutional speedy trial separately.

Common Virginia Double Jeopardy Scenarios

Scenario 1: Nolle Prosequi Before Jury Is Sworn

The Commonwealth asks for a nolle prosequi after the defendant has pleaded not guilty but before the jury is empaneled and sworn.

Result: Jeopardy generally has not attached. A later prosecution is ordinarily permissible.

Scenario 2: Nolle Prosequi After Jury Is Sworn

The jury has been empaneled and sworn. The Commonwealth then asks for a nolle prosequi over the defendant’s objection.

Result: Jeopardy has attached. The court must consider whether there is a legally sufficient reason, such as manifest necessity, for terminating the prosecution without a verdict.

Scenario 3: Nolle Prosequi During a Bench Trial

The defendant waived a jury. The Commonwealth swears its first witness and begins presenting evidence. The Commonwealth then seeks a nolle prosequi.

Result: Jeopardy has attached.

This is the situation addressed directly by Rosser v. Commonwealth.

Scenario 4: Nolle Prosequi Before Any Witness Is Sworn

The defendant has waived a jury, but the Commonwealth has not yet sworn a witness or introduced evidence.

The Commonwealth moves for a nolle prosequi.

Result: Jeopardy generally has not attached.

See Martin v. Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991); Cummings v. Commonwealth, 24 Va. App. 248, 481 S.E.2d 493 (1997).

Scenario 5: Jury Deadlock

The jury is properly sworn and begins deliberating but cannot reach a unanimous verdict.

The judge declares a mistrial because of the deadlock.

Result: A subsequent prosecution is generally permitted because a genuinely deadlocked jury constitutes manifest necessity.

See Miller v. Commonwealth, 217 Va. 929, 933, 234 S.E.2d 269, 272 (1977).

What Should a Virginia Defense Attorney Look For?

When analyzing a possible double-jeopardy issue, defense counsel should establish the procedural history with precision.

The following questions are particularly important:

1. Was there a valid charging instrument?

Determine whether the defendant was proceeding on an indictment, information, warrant, or other charging document.

2. Was the defendant arraigned?

Determine whether the defendant entered a plea.

3. Was the case a jury trial or bench trial?

This determines the point at which jeopardy attaches.

4. If it was a jury trial, had the jury been empaneled and sworn?

This is usually the critical moment.

5. If it was a bench trial, had the Commonwealth begun presenting evidence?

Determine whether a witness had been sworn and whether the Commonwealth had begun its case.

6. Why was the prosecution terminated?

Was it:

• A nolle prosequi?
• A dismissal?
• An acquittal?
• A mistrial?
• A continuance?
• A dismissal for a legal defect?
• A dismissal based upon a factual determination?

The reason for the termination can be dispositive.

7. Did the defendant consent?

The defendant’s consent can materially affect the double-jeopardy analysis.

8. Was there manifest necessity?

If jeopardy had attached, determine why the trial was terminated.

9. What does the court’s order actually say?

Particularly after a dismissal, the exact language of the order may matter under Code § 19.2-265.6.

10. Are there independent speedy-trial problems?

Even when double jeopardy does not prevent reprosecution, the Commonwealth may still face statutory or constitutional speedy-trial limitations.

The Bottom Line on Double Jeopardy in Virginia

The most important rule is straightforward:

In a Virginia jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a Virginia bench trial, jeopardy generally attaches when the Commonwealth begins presenting evidence, ordinarily when the first witness is sworn.

Before that point, a nolle prosequi ordinarily does not prevent the Commonwealth from prosecuting the defendant again.

After jeopardy attaches, however, the defendant acquires a constitutional right to have the proceeding resolved through a verdict or judgment unless a legally sufficient basis exists for terminating the trial.

A nolle prosequi entered after jeopardy has attached can therefore implicate the Double Jeopardy Clause.

The leading Virginia cases include:

• Rosser v. Commonwealth, 159 Va. 1028, 167 S.E. 257 (1933);
• Miller v. Commonwealth, 217 Va. 929, 234 S.E.2d 269 (1977);
• Greenwalt v. Commonwealth, 224 Va. 498, 297 S.E.2d 709 (1982);
• Martin v. Commonwealth, 242 Va. 1, 406 S.E.2d 15 (1991);
• Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 (1988);
• Arnold v. Commonwealth, 18 Va. App. 218, 443 S.E.2d 183 (1994);
• Cummings v. Commonwealth, 24 Va. App. 248, 481 S.E.2d 493 (1997); and
• Neff v. Commonwealth, 39 Va. App. 13, 570 S.E.2d 277 (2002).

Virginia Code provisions particularly relevant to the analysis include Code §§ 19.2-265.3, 19.2-265.6, 19.2-292, and 19.2-294.

Ultimately, a double-jeopardy analysis should focus not merely on whether a case was “dismissed” or “nolle prossed,” but on what happened, when it happened, whether jeopardy had attached, why the proceeding ended, and whether the defendant consented to its termination.

Frequently Asked Questions About Double Jeopardy in Virginia

When does jeopardy attach in Virginia?

In a Virginia jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a bench trial, jeopardy generally attaches when the Commonwealth begins presenting evidence, ordinarily when the first witness is sworn.

Does a nolle prosequi prevent a new prosecution in Virginia?

Usually not if the nolle prosequi occurs before jeopardy attaches. A nolle prosequi generally terminates the existing charging instrument but does not constitute an acquittal.

Can the Commonwealth nolle prosequi a case after the jury is sworn?

The Commonwealth may request a nolle prosequi, but once jeopardy has attached, terminating the prosecution without a verdict can create a double-jeopardy problem unless there is a legally sufficient justification, such as manifest necessity.

Does a nolle prosequi mean I was acquitted?

Generally, no. A nolle prosequi is ordinarily a discontinuance rather than an adjudication of factual innocence.

Can the Commonwealth indict me again after a nolle prosequi?

Generally, yes, if jeopardy had not attached and there is no other statutory or constitutional bar to reprosecution.

Does a preliminary hearing create double jeopardy?

Generally, no. A felony preliminary hearing is not a trial for purposes of attaching jeopardy to the felony charge.

Does a dismissal always prevent reprosecution?

No. Under Code § 19.2-265.6(B), a dismissal generally does not bar subsequent prosecution unless jeopardy attached or the dismissal order expressly states that it is with prejudice.

Can repeated nolle prosequis violate a defendant’s rights?

Potentially. Even if jeopardy did not attach, repeated termination and reinitiation of prosecutions may raise statutory or constitutional speedy-trial issues or other constitutional concerns.

Virginia Criminal Defense Takeaway: If the Commonwealth seeks to nolle prosequi a criminal charge, defense counsel should determine whether jeopardy has attached before consenting or objecting to the termination of the case. In many cases, the precise point at which the jury was sworn or the first witness was sworn can determine whether the Commonwealth may prosecute the defendant again.

The post Double Jeopardy in Virginia: When Does Jeopardy Attach and What Happens After a Nolle Prosequi? appeared first on Attorneys of Goff Voltin.

Can you legally use force to protect another person in Virginia? Yes. Virginia recognizes the common-law defense of defense of others, which may permit a person to use reasonable force—including, in appropriate circumstances, deadly force—to protect another person from an imminent threat of death or serious bodily harm.

The defense, however, is not unlimited. Virginia courts have developed specific requirements for when a defendant may claim that he or she acted lawfully to protect another person.

The Virginia Court of Appeals recently addressed the defense of others in Person v. Commonwealth, 2026 Va. App. LEXIS ___ (Mar. 24, 2026), emphasizing that a proper defense-of-others jury instruction must address both the defendant’s reasonable belief that the person being defended was free from fault and the defendant’s reasonable belief that the other person faced serious bodily harm. The case represents an important recent development in Virginia self-defense law.

What Is the Defense of Others in Virginia?

The defense of others is a criminal defense that applies when a person uses force to protect another person from an unlawful and imminent threat.

It is closely related to Virginia’s law of self-defense, but there is an important distinction:

• Self-defense protects the defendant from an unlawful threat directed at the defendant.
• Defense of others protects another person from an unlawful threat.

Virginia courts have recognized that the right to defend another person is generally commensurate with that person’s own right of self-defense.

In Foster v. Commonwealth, 13 Va. App. 380, 385-86, 412 S.E.2d 198, 201-02 (1991), the Court of Appeals explained that a person claiming defense of others may do so only when the person being defended would have been legally entitled to defend himself or herself. The court recognized that the privilege may extend to the use of deadly force when the defendant reasonably believes that the other person faces an imminent threat of death or serious bodily harm and the person being defended was not at fault in creating the situation.

Is Defense of Others Specifically Written Into the Virginia Code?

Unlike some jurisdictions, Virginia’s general defense-of-others doctrine is primarily a common-law defense, rather than a single statute defining the defense.

Virginia’s criminal statutes nevertheless expressly recognize self-defense and defense-of-others principles in particular contexts.

For example, Virginia Code § 18.2-57 contains provisions concerning assault and battery and specifically recognizes reasonable and necessary force used for self-defense or defense of others in certain circumstances involving school personnel.

Virginia Code § 18.2-282, which addresses pointing, holding, or brandishing a firearm or similar object, also expressly provides that the statute does not apply to a person engaged in excusable or justifiable self-defense.

The absence of a single general “defense of others” statute does not mean that the defense is unavailable. Virginia courts have repeatedly recognized the defense under Virginia common law.

The Three Most Important Questions in a Virginia Defense-of-Others Case

When analyzing a defense-of-others claim, three questions are particularly important:

1. Was the person being defended free from fault in provoking the confrontation?
2. Did the defendant reasonably believe that the other person faced an imminent threat of death or serious bodily harm?
3. Was the force used reasonably necessary under the circumstances as they appeared to the defendant?

The answers depend heavily upon the specific facts and, particularly, what the defendant reasonably perceived at the time force was used.

1. The Person Being Defended Must Be Free From Fault

One of the most important limitations on the defense of others is that the person being protected generally must have been without fault in provoking the confrontation.

In Foster, the Court of Appeals held that a defendant may invoke defense of others only when he or she reasonably believes, based upon the circumstances confronting the defendant, that the person being defended was without fault in provoking the fight. 13 Va. App. at 386, 412 S.E.2d at 202.

This is an important distinction.

The question is not necessarily whether the person being defended was actually free from fault.

Instead, the defendant’s reasonable perception of the circumstances matters.

That distinction became particularly important in the Court of Appeals’ 2026 decision in Person v. Commonwealth.

Person v. Commonwealth: A Significant 2026 Defense-of-Others Decision

In Person, the defendant challenged jury instructions relating to defense of others after being convicted of second-degree murder and use of a firearm in the commission of murder.

The Court of Appeals explained that a proper defense-of-others instruction must incorporate two concepts:

1. the defendant reasonably believed that the person being defended was free from fault; and
2. the defendant reasonably believed that the person being defended was in danger of great bodily harm or death.

The Court concluded that an instruction addressing only the “free from fault” requirement was incomplete because the jury also needed to consider the defendant’s reasonable perception of the danger facing the other person.

That is significant for Virginia criminal defense attorneys because it reinforces that the defense-of-others inquiry is not limited to whether the person being protected actually behaved properly.

The defendant’s perspective matters.

The Court of Appeals relied upon McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978), for the principle that a defendant may act upon the reasonable appearance of danger and that the question whether danger was reasonably apparent must be evaluated from the defendant’s viewpoint at the time of the incident.

The Supreme Court of Virginia heard the Commonwealth’s appeal of Person in September 2026. Accordingly, practitioners should monitor the case for further clarification of Virginia’s defense-of-others law.

2. The Defendant Must Reasonably Believe the Other Person Faces an Imminent Threat

A defendant cannot simply use force against someone because he or she believes that person is generally dangerous.

Virginia law requires an imminent threat.

In Lynn v. Commonwealth, 27 Va. App. 336, 353, 499 S.E.2d 1, 9 (1998), the Court of Appeals explained that a person may be justified in using deadly force to defend another where the defendant reasonably believes that the person being defended faces an imminent threat of serious bodily harm or death and that the person being defended was not at fault in creating the necessity for the use of deadly force.

This requirement can be especially important in cases involving threats, arguments, or confrontations where the alleged victim has not yet actually attacked anyone.

Words Alone May Not Be Enough

Virginia’s self-defense cases generally require more than a generalized fear of future harm.

The Supreme Court of Virginia has explained that there must be an act indicating present peril and an imminent danger of the threatened harm being carried out.

See Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001).

Thus, a threat to harm someone at some unspecified time in the future ordinarily presents a different legal question from an immediate act demonstrating that the threat is about to be carried out.

The same principle applies when the defendant claims defense of another.

The Court of Appeals has explained that the right to defend another is commensurate with the person’s own right of self-defense, meaning that the requirement of an overt act demonstrating imminent danger also applies to defense of others.

But “Imminent” Does Not Mean the Victim Must Already Have Been Injured

A common misconception is that a person must wait until another person is actually struck, shot, stabbed, or otherwise injured before intervening.

That is not the law.

The relevant question is whether the defendant reasonably believed that an imminent threat existed under the circumstances as they appeared to the defendant at the time.

For example, a defendant may have a stronger defense when he or she observes someone:

• raising a firearm;
• reaching for what appears to be a firearm;
• advancing aggressively while making a credible threat to kill;
• choking or strangling another person;
• attacking another person with a knife;
• attempting to inflict serious bodily injury; or
• engaging in conduct that reasonably indicates that an immediately threatened assault is about to occur.

The precise circumstances matter.

3. The Defendant’s Reasonable Perception Matters

Virginia law does not judge self-defense or defense of others solely with hindsight.

The defendant’s perception of the circumstances is important.

In McGhee v. Commonwealth, the Supreme Court of Virginia stated:

“A defendant may always act upon reasonable appearance of danger.”

219 Va. at 562, 248 S.E.2d at 810.

The Court further explained that whether danger was reasonably apparent must be determined from the defendant’s viewpoint at the time the defendant acted.

This principle is particularly important in defense-of-others cases.

Suppose, for example, a defendant sees a person aggressively confronting the defendant’s mother and hears the person threaten to shoot her. The defendant then sees the person make a movement that reasonably appears to be an attempt to retrieve a firearm.

If the defendant intervenes and uses force, the Commonwealth cannot simply argue after the fact that the person did not actually possess a firearm.

The legal question is whether the defendant reasonably perceived an imminent threat based upon the circumstances as they appeared at the time.

The difference between an actual firearm and an object that reasonably appears to be a firearm can therefore be extremely important.

4. The Amount of Force Must Be Reasonable

Defense of others does not give a person unlimited authority to use violence.

The amount of force must correspond to the threat perceived by the defendant.

Generally, nondeadly force may be used to repel an unlawful threat of bodily harm when the force is reasonably necessary.

Deadly force, however, requires a significantly greater threat.

Virginia cases recognize that deadly force may be justified in defense of another when the defendant reasonably believes the other person faces an imminent threat of death or serious bodily harm.

Lynn, 27 Va. App. at 353, 499 S.E.2d at 9.

This makes proportionality a critical issue in many defense-of-others cases.

For example, the legal analysis may be very different when:

• a defendant pushes someone away from another person;
• a defendant punches someone who is attacking another person;
• a defendant tackles someone who is attempting to shoot another person; or
• a defendant shoots someone whom the defendant reasonably believes is about to kill another person.

The severity and immediacy of the perceived threat matter.

5. Defense of Others Is an Affirmative Defense

Virginia courts have characterized defense of others as an affirmative defense.

This means the defendant is asserting that the otherwise criminal act was legally justified under the circumstances.

Importantly, the defense is not limited to cases involving family members.

Virginia appellate decisions recognize that the doctrine can apply when a defendant intervenes to protect another person, although Virginia cases have specifically recognized the privilege in the context of protecting family members.

See Foster, 13 Va. App. at 385, 412 S.E.2d at 201.

The critical inquiry is the legal entitlement of the person being defended—not simply the relationship between that person and the defendant.

6. When Is a Defendant Entitled to a Defense-of-Others Jury Instruction?

This is one of the most important procedural issues in a Virginia criminal case.

A defendant is entitled to have the jury instructed on a defense theory when there is sufficient evidence supporting the theory.

Virginia appellate courts have repeatedly held that a defendant is entitled to an instruction supported by more than a scintilla of evidence.

In Robb v. Commonwealth, the Court of Appeals reiterated that a defendant is entitled to an instruction on his theory of defense when the evidence provides more than a scintilla of evidence supporting that theory.

The evidence must be viewed in the light most favorable to the party requesting the instruction.

That means the trial judge should not simply decide which witness is more credible and eliminate the defense because the Commonwealth has presented contradictory evidence.

Credibility generally is a matter for the jury.

Why This Matters

A defense-of-others case may involve sharply conflicting evidence.

For example:

Commonwealth’s evidence:

The defendant attacked the alleged victim for no reason.

Defense evidence:

The defendant saw the alleged victim threatening his mother and reasonably believed the mother was about to be seriously injured.

If the defense evidence provides more than a scintilla of evidence supporting the defense, the defendant may be entitled to have the jury instructed on defense of others.

The jury—not the judge—then decides whether the defendant’s version of events is credible.

Virginia appellate decisions have recognized this principle in cases involving defense-of-others instructions.

7. Defense of Others and Family Members

Virginia courts have specifically recognized the right to defend family members.

In Foster, the Court of Appeals cited Virginia Supreme Court decisions recognizing that a person may be privileged to use force in defense of family members. Those cases include:

• Newberry v. Commonwealth, 191 Va. 445, 459, 61 S.E.2d 318, 324 (1950);
• Green v. Commonwealth, 122 Va. 862, 871, 94 S.E. 940, 942 (1918); and
• Hodges v. Commonwealth, 89 Va. 265, 272, 15 S.E. 513, 516 (1892).

Foster, 13 Va. App. at 385, 412 S.E.2d at 201.

This can be particularly important in cases involving a defendant who intervenes when a parent, spouse, child, or other family member is being threatened or attacked.

But family relationship alone does not establish the defense.

The defendant still must satisfy the legal requirements concerning reasonable belief, imminence, fault, and the reasonableness of the force used.

8. Defense of Others Is Different From Revenge or Retaliation

One of the most important distinctions in a criminal defense case is the difference between protection and retaliation.

Defense of others is intended to stop an imminent threat.

It does not ordinarily justify violence after the danger has ended.

Virginia courts have repeatedly emphasized the importance of imminence in self-defense cases. The right to defend oneself or another begins when the necessity for defensive action begins and ends when that necessity ends.

Accordingly, evidence that a defendant continued attacking someone after the threat had ended can substantially undermine a defense-of-others claim.

Conversely, evidence that the defendant stopped using force once the threat was neutralized can support the argument that the defendant’s conduct was defensive rather than retaliatory.

9. Threats to Shoot Can Be Important Evidence

Threats involving firearms can be particularly significant.

Virginia Code § 18.2-282 makes it unlawful to point, hold, or brandish a firearm—or an object similar in appearance—in a manner that reasonably induces fear of being shot or injured. The statute expressly recognizes an exception for excusable or justifiable self-defense.

Although § 18.2-282 is not itself the general defense-of-others statute, the statute illustrates an important principle in Virginia law: the reasonable perception of a firearm-related threat can have significant legal consequences.

In a defense-of-others case, evidence that the alleged aggressor:

• claimed to have a gun;
• threatened to shoot someone;
• displayed what appeared to be a gun;
• reached toward a location where a firearm was believed to be located; or
• acted in a manner reasonably suggesting an imminent shooting

may be highly relevant to whether the defendant reasonably perceived an imminent threat of death or serious bodily injury.

Again, the defendant does not necessarily lose the defense simply because a firearm was later discovered not to exist.

The critical issue can be what the defendant reasonably believed at the time.

10. The 2026 Person Decision Is Important for Jury Instructions

The recent Person v. Commonwealth decision deserves particular attention from Virginia criminal defense attorneys.

The Court of Appeals explained that a defense-of-others instruction should not merely tell the jury that the defendant must reasonably believe the person being defended was free from fault.

The instruction must also address the defendant’s reasonable belief that the other person faced imminent serious bodily harm or death.

In other words, a proper instruction should address the two central components of the defense:

First: Did the defendant reasonably believe the person being defended was free from fault in provoking the confrontation?

Second: Did the defendant reasonably believe that person was in imminent danger of death or serious bodily harm?

The Court concluded that omitting the second component could make the instruction incomplete.

Because the Supreme Court of Virginia heard the Commonwealth’s appeal in September 2026, the ultimate appellate status of the doctrine should be monitored.

A Practical Defense-of-Others Analysis

When evaluating a Virginia criminal case involving defense of another person, defense counsel should carefully examine the evidence surrounding several questions.

1. Who was being protected?

Was the alleged victim of the defendant’s conduct:

• a parent;
• child;
• spouse;
• sibling;
• friend;
• stranger; or
• another person?

The relationship may provide important context, but the legal test ultimately focuses on whether the person was legally entitled to defend himself or herself.

2. What did the defendant know?

The defendant’s knowledge at the moment force was used can be critical.

What had the defendant:

• seen?
• heard?
• been told?
• observed immediately before intervening?

3. What did the alleged aggressor do?

The defense should identify the specific acts—not simply general hostility.

For example:

• Was there a weapon?
• Was there a threat to kill?
• Was the person advancing?
• Was the person striking someone?
• Was the person choking someone?
• Was the person reaching for a weapon?
• Was the person preventing the other person from escaping?

4. Was the threat imminent?

The defense should identify precisely what made the danger immediate rather than merely speculative or future.

5. Was the protected person at fault?

What did the defendant reasonably know about the circumstances that led to the confrontation?

6. Was the defendant’s response reasonable?

Was the force used reasonably necessary under the circumstances as they appeared to the defendant?

7. When did the threat end?

Did the defendant stop using force when the danger ended?

This can be particularly important when evaluating whether the conduct was defensive or retaliatory.

Frequently Asked Questions About Defense of Others in Virginia

Is defense of others a defense to assault in Virginia?

Yes. Virginia recognizes defense of others as a common-law affirmative defense. Depending upon the circumstances, lawful defensive force can negate criminal liability for an assaultive act.

The precise analysis depends upon the nature of the force used, the threat faced by the other person, and whether the defendant’s actions were reasonably necessary.

Can I defend a family member in Virginia?

Yes. Virginia courts have expressly recognized the privilege to use force in defense of family members. Foster v. Commonwealth, 13 Va. App. 380, 385, 412 S.E.2d 198, 201 (1991).

The fact that the person is a family member, however, does not automatically establish the defense.

Can I use deadly force to protect another person in Virginia?

Potentially, yes. Deadly force may be justified when the defendant reasonably believes that the other person faces an imminent threat of death or serious bodily harm and the person being defended was not at fault in creating the necessity for the deadly force. Lynn v. Commonwealth, 27 Va. App. 336, 353, 499 S.E.2d 1, 9 (1998).

Does the person I am protecting have to actually be innocent?

Not necessarily.

Virginia law focuses importantly on the defendant’s reasonable belief, based upon the circumstances as they appeared to the defendant, that the person being defended was free from fault.

The distinction between actual fault and the defendant’s reasonable perception of fault is particularly important after Person v. Commonwealth.

Do I have to wait until someone is actually attacked?

No.

The law requires an imminent threat, not necessarily an injury that has already occurred. But generalized fear or a speculative future threat ordinarily is insufficient. Virginia cases require an overt act or circumstances indicating immediate danger. See Sands v. Commonwealth, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001).

Can I receive a defense-of-others jury instruction if the Commonwealth disagrees with my version of events?

Potentially, yes.

The defendant generally must present more than a scintilla of evidence supporting the defense. If that threshold is met, the evidence is viewed in the light most favorable to the defendant when determining whether the instruction is warranted.

The jury then decides the credibility of competing accounts.

Conclusion: Defense of Others Is a Fact-Specific Virginia Criminal Defense

The defense of others in Virginia is a powerful but carefully limited criminal defense.

The central question is not simply whether the defendant believed that someone needed help. The law asks whether, under the circumstances as they appeared to the defendant, the defendant reasonably believed that the other person was free from fault and faced an imminent threat of death or serious bodily harm, and whether the defendant used force reasonably necessary to protect that person.

Virginia’s appellate decisions—including Foster, Lynn, McGhee, and the recent Person decision—demonstrate that the defendant’s perspective can be critical.

For criminal defendants, the details surrounding the confrontation can therefore make an enormous difference. What the defendant saw, what the alleged aggressor said and did, what the defendant knew about the circumstances, whether a weapon was involved, whether the protected person was provoking the confrontation, and whether the defendant’s response was proportional to the perceived threat may all become important evidence.

If you have been charged with assault, malicious wounding, aggravated malicious wounding, manslaughter, murder, or another Virginia offense arising from an attempt to protect another person, the availability of a defense-of-others instruction and the underlying affirmative defense should be carefully evaluated by experienced Virginia criminal defense counsel.

The post Defense of Others in Virginia: When Can You Legally Use Force to Protect Another Person? appeared first on Attorneys of Goff Voltin.

What is a reasonable expectation of privacy under Virginia law? When does government conduct constitute a search under the Fourth Amendment? And how has Virginia law changed as police increasingly use cell phones, GPS technology, automatic license plate readers, cameras, and other digital surveillance tools?

These questions arise frequently in Virginia criminal cases.

The Fourth Amendment generally prohibits unreasonable searches and seizures by the government. But before a court can decide whether a search was reasonable, it must first determine whether a “search” occurred at all.

In many cases, that question turns on whether the individual had a reasonable expectation of privacy in the place, property, information, or activity that the government examined.

Virginia courts continue to apply the traditional reasonable-expectation-of-privacy framework developed by the United States Supreme Court in Katz v. United States, while also recognizing that the Fourth Amendment protects certain property interests independently of the privacy analysis. Recent cases involving Flock cameras and digital search warrants demonstrate that the application of these principles can become particularly complicated when law enforcement uses modern technology.

What Is a “Reasonable Expectation of Privacy”?

The United States Supreme Court established the modern reasonable-expectation-of-privacy framework in Katz v. United States, 389 U.S. 347 (1967).

Under Katz, the Fourth Amendment protects people—not simply physical places. A government intrusion generally constitutes a search when it invades an individual’s reasonable expectation of privacy.

Virginia courts describe the inquiry using a two-part test.

First, the person challenging the search must demonstrate that he or she personally had an expectation of privacy in the place or thing searched.

Second, that expectation of privacy must be objectively reasonable—meaning it must be an expectation that society is prepared to recognize as legitimate.

The Virginia Court of Appeals has repeatedly applied this framework. See Rideout v. Commonwealth, 62 Va. App. 779, 786, 753 S.E.2d 595 (2014); Sanders v. Commonwealth, 64 Va. App. 734, 743-44, 772 S.E.2d 15 (2015); Salahuddin v. Commonwealth, 67 Va. App. 190, 202-03, 795 S.E.2d 125 (2017).

The analysis therefore is not simply whether a person wanted something to remain private. The question is whether the privacy interest is one the Constitution protects.

The Two-Part Test

1. Did the person actually expect privacy?

The first question is subjective.

For example, a person generally has a strong expectation of privacy inside his or her home. A person generally does not have the same expectation in something knowingly exposed to the public.

Virginia courts look at the circumstances surrounding the government’s intrusion to determine whether the individual actually manifested an expectation of privacy.

2. Is that expectation objectively reasonable?

The second question is objective.

The expectation must have a recognized legal or societal foundation. The United States Supreme Court has explained that this foundation can arise from concepts of real or personal property law or from understandings recognized and permitted by society.

Minnesota v. Carter, 525 U.S. 83, 88 (1998); United States v. Jones, 565 U.S. 400, 406-07 (2012).

Virginia courts have adopted this approach. See Rideout, 62 Va. App. at 786; Sanders, 64 Va. App. at 744.

A Person Does Not Have a Reasonable Expectation of Privacy Everywhere

One of the most important points in Virginia search-and-seizure law is that Fourth Amendment protection does not extend equally to every location or every piece of information.

The home occupies a special position under the Fourth Amendment.

By contrast, information or property knowingly exposed to public view generally receives substantially less protection.

For example, the Virginia Court of Appeals has held that a person driving a vehicle on a public street with a license plate in plain view has no reasonable expectation of privacy that the vehicle and license plate will not be seen by other people—including police officers.

That principle recently played a significant role in Robinson v. Commonwealth, 2026 Va. App. LEXIS 83 (Apr. 7, 2026).

Property Rights Still Matter

It is important not to assume that Katz completely replaced the traditional property-based approach to the Fourth Amendment.

It did not.

The Supreme Court later explained in United States v. Jones, 565 U.S. 400 (2012), that Katz “supplements, rather than displaces” the traditional property-based understanding of the Fourth Amendment.

That distinction can be important.

For example, physically intruding upon a constitutionally protected “person[], house[], paper[], or effect[]” to obtain information can constitute a search even when a traditional reasonable-expectation-of-privacy analysis might produce a different result.

Virginia courts recognize this distinction.

In Cromartie v. Billings, 298 Va. 284, 837 S.E.2d 247 (2020), the Supreme Court of Virginia held that a police officer’s physical entry into a person’s vehicle for purposes of gathering information constituted a search under Jones.

Similarly, in Highlander v. Virginia Department of Wildlife Resources, 2025 Va. App. LEXIS 137, the Virginia Court of Appeals applied Jones and Florida v. Jardines, 569 U.S. 1 (2013), to hold that physically opening a camera and removing its storage card to obtain photographs constituted a search.

Thus, the question is not always simply:

“Did the person have a reasonable expectation of privacy?”

The court may also ask whether the government physically intruded upon constitutionally protected property to obtain information.

The Home and Curtilage Receive Especially Strong Protection

The Fourth Amendment expressly identifies the home as one of the areas protected against unreasonable searches.

The protection generally extends beyond the four walls of the house to certain areas immediately surrounding the residence known as curtilage.

Virginia courts have repeatedly recognized the importance of curtilage.

In Stickle v. Commonwealth, 66 Va. App. 149, 783 S.E.2d 266 (2016), the Virginia Court of Appeals explained that curtilage is historically understood as an extension of the home that is sufficiently intertwined with the residence that it receives similar Fourth Amendment protection.

The United States Supreme Court likewise emphasized the special constitutional protection afforded to the home and its curtilage in Florida v. Jardines, 569 U.S. 1 (2013).

And in Collins v. Virginia, 584 U.S. 586 (2018), the Supreme Court rejected an attempt to use the automobile exception as justification for entering the curtilage of a home to search a vehicle.

This means that the mere fact that police believe they have probable cause to search a vehicle does not necessarily give them unrestricted authority to enter protected areas surrounding a home.

What About Things Visible From the Street?

The fact that property is located on someone’s premises does not automatically create a reasonable expectation of privacy.

Virginia courts consider whether the property or activity was exposed to public observation.

In older cases, for example, Virginia courts have recognized that portions of a property plainly visible from public areas may carry a diminished expectation of privacy.

The distinction can be important in cases involving driveways, front porches, vehicles, license plates, packages, surveillance cameras, and other property that may be exposed to public view.

The basic principle is straightforward:

The Fourth Amendment generally does not prohibit police from observing what a member of the public could lawfully observe from a place where the public is entitled to be.

But that principle has limits.

Police cannot necessarily convert a limited ability to observe something into a technological ability to conduct comprehensive, retrospective surveillance of a person’s movements.

That distinction has become increasingly important in modern Fourth Amendment litigation.

Technology Is Changing the Reasonable-Expectation-of-Privacy Analysis

Modern surveillance technology presents difficult Fourth Amendment questions because technology can allow the government to collect information on a scale that would have been practically impossible when the Fourth Amendment was adopted.

The United States Supreme Court addressed this problem in United States v. Jones, Riley v. California, 573 U.S. 373 (2014), and Carpenter v. United States, 585 U.S. 296 (2018).

The Court has recognized that technological capability cannot automatically eliminate constitutional privacy protections.

GPS Tracking and Long-Term Surveillance

In United States v. Jones, police installed a GPS tracking device on a vehicle and monitored the vehicle’s movements for approximately 28 days.

The Supreme Court held that physically attaching the GPS device to the vehicle constituted a search because the government physically intruded upon the vehicle to obtain information.

Jones, 565 U.S. at 404-05.

Several justices also recognized a separate privacy concern involving prolonged monitoring of a person’s movements.

The significance of that principle became clearer in Carpenter.

Cell-Site Location Information

In Carpenter v. United States, the Supreme Court considered government access to historical cell-site location information.

The government obtained records that could reveal where Carpenter’s cell phone had been over an extended period.

The Supreme Court held that obtaining the historical cell-site information constituted a Fourth Amendment search.

The Court emphasized that the records created an extensive and detailed record of the individual’s physical movements.

Importantly, the Court rejected the argument that Carpenter automatically lost Fourth Amendment protection merely because the information was held by a third-party telecommunications provider.

The Court characterized historical cell-site location information as sufficiently revealing that ordinary application of the traditional third-party doctrine was inappropriate.

Carpenter, 585 U.S. at 310-16.

The U.S. Supreme Court’s 2026 Decision in Chatrie

The law concerning digital surveillance received another major development in 2026.

In ** Chatrie v. United States, 609 U.S. ___ (2026)**, the United States Supreme Court considered a so-called geofence warrant.

The case arose from a Virginia bank robbery.

Police obtained a warrant directing Google to provide information about cell phones located within a 150-meter radius of the crime scene around the time of the robbery.

Google’s Location History records could pinpoint a phone’s location approximately every two minutes.

The Supreme Court held that obtaining this Location History information was a Fourth Amendment search because individuals have a reasonable expectation of privacy in their cell-phone location information.

The decision is significant for several reasons.

Short-term surveillance can implicate the Fourth Amendment

The government argued, among other things, that the information obtained in Chatrie covered only approximately two hours.

The Supreme Court rejected the idea that Fourth Amendment protection begins only after government surveillance reaches some particular duration.

The Court explained that even short-term monitoring can reveal significant information about a person’s associations and activities.

Accordingly, the Court held that the fact that the surveillance period was relatively short did not eliminate the Fourth Amendment issue.

Information held by a technology company may still be private

Chatrie also rejected the argument that a person necessarily loses Fourth Amendment protection merely because a technology company possesses the information.

The Court applied the reasoning of Carpenter and concluded that Google Location History is not “truly shared” in the ordinary sense simply because Google possesses the information necessary to provide its services.

The fact that information is maintained by a third party therefore does not automatically eliminate a reasonable expectation of privacy.

But Chatrie did not resolve every geofence issue

The Supreme Court held that obtaining the location information constituted a search, but it did not decide every question concerning whether the particular geofence warrant satisfied the Fourth Amendment’s probable-cause and particularity requirements.

The Court remanded those issues to the Fourth Circuit.

That distinction is important when discussing the current state of the law.

Flock Cameras and Automatic License Plate Readers in Virginia

Virginia has now directly addressed another modern surveillance technology: Flock automatic license plate reader cameras.

The issue arose in ** Robinson v. Commonwealth, Record No. 1912-24-1 (Va. App. Apr. 7, 2026)**.

Norfolk had installed 172 Flock cameras at intersections on public roadways. The cameras captured still photographs of vehicles and license plates and retained the information for 30 days. Police could search the database by vehicle characteristics, location, and time.

The defendant argued that accessing the database constituted a warrantless search because the system could be used to identify where his vehicle had traveled.

The Virginia Court of Appeals rejected that argument on the facts presented.

The court held that the defendant did not have a reasonable expectation of privacy in the physical characteristics of his vehicle or license plate while driving on public streets.

The court distinguished Carpenter because the Norfolk Flock system did not provide the same comprehensive surveillance capability as the historical cell-site information in Carpenter.

The Flock cameras captured intermittent still images of vehicles on public streets rather than continuously tracking an individual everywhere he or she went.

The court emphasized, however, that its decision was based on the current capabilities and operation of the Norfolk Flock system.

The court expressly declined to speculate about whether future technological developments could create a sufficiently comprehensive record of an individual’s movements to trigger Fourth Amendment protection.

This is an important limitation.

The holding does not mean that every conceivable form of automatic license plate reader surveillance is automatically outside the Fourth Amendment.

Instead, Robinson reinforces the principle that courts must examine the scope, duration, precision, and nature of the information actually collected.

Digital Search Histories Present a Different Question

A particularly interesting issue recently arose in ** Clements v. Commonwealth, Record No. 2032-24-4 (Va. App. Aug. 11, 2026)**.

Police obtained what is commonly called a reverse-keyword warrant.

Rather than identifying a known suspect and asking Google to search that person’s account, investigators asked Google to identify accounts that had searched for a particular address during a specified period.

The warrant ultimately identified a single Google account, which investigators then associated with Clements.

Clements argued that the warrant violated the Fourth Amendment.

The Virginia Court of Appeals affirmed his convictions, but the important point is why.

The majority expressly declined to decide whether reverse-keyword warrants are constitutional.

Instead, the majority held that the good-faith exception to the exclusionary rule applied because the officers obtained judicial authorization at a time when there was no controlling authority governing reverse-keyword warrants.

One judge separately concluded that the warrant was constitutionally defective but agreed that the good-faith exception prevented suppression.

That separate opinion is particularly significant because it recognized that search queries can reveal information about what a person is attempting to learn, where the person may be going, and what the person may believe or fear.

Thus, Clements demonstrates an important distinction:

A court may recognize that novel digital surveillance raises serious Fourth Amendment questions without necessarily deciding those constitutional questions in the particular case before it.

The Third-Party Doctrine Is Not an Automatic Answer

Law enforcement sometimes argues that a person has no reasonable expectation of privacy in information voluntarily provided to a third party.

That principle is associated with cases such as Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Miller, 425 U.S. 435 (1976).

But Carpenter and Chatrie demonstrate that the third-party doctrine has important limits in the digital age.

The Supreme Court has recognized that certain categories of information are so revealing—and are generated as an unavoidable or ordinary consequence of modern technology—that merely allowing a company to possess the information does not necessarily eliminate Fourth Amendment protection.

In Chatrie, for example, the Supreme Court expressly rejected application of the ordinary third-party doctrine to Google Location History.

Therefore, the question in a modern Virginia search case cannot always be answered simply by asking:

“Did the defendant give the information to a third party?”

The court may also need to consider what information was collected, how it was generated, how revealing it is, how extensively it can be used, and whether treating it as voluntarily exposed would effectively permit comprehensive government surveillance.

The Nature of the Information Matters

The cases demonstrate that courts increasingly examine not merely whether information was technically visible or accessible, but what the information allows the government to learn.

Compare:

• A license plate visible on a public road;
• A photograph of a vehicle traveling on a public street;
• A person’s location at one particular moment;
• A month or year of historical location information;
• The contents of a cell phone;
• A person’s Google Location History;
• A person’s internet search history; and
• A comprehensive record of a person’s movements and associations.

These categories can raise very different Fourth Amendment questions.

The Supreme Court’s modern cases recognize that digital information can expose what the Court has described as the “privacies of life.”

In Riley v. California, the Court held that searching the digital contents of a cell phone generally requires a warrant, even though the physical phone itself is a relatively small object.

The reason is the extraordinary quantity and sensitivity of information contained in modern smartphones.

Riley, 573 U.S. at 393-97, 403-04.

A Reasonable Expectation of Privacy Is Not the Same as “Standing”

Another important concept in Virginia criminal cases is the defendant’s ability to challenge the search.

A person generally cannot suppress evidence merely because police violated someone else’s Fourth Amendment rights.

The defendant must establish a personal Fourth Amendment interest in the place, property, or information searched.

This is why courts ask whether the defendant personally possessed a reasonable expectation of privacy.

For example, a person ordinarily cannot challenge a search of another person’s house merely because incriminating evidence was found there.

Likewise, a person cannot automatically challenge the search of property that belongs exclusively to someone else.

The Fourth Amendment is a personal right.

What Happens After a Court Finds a Search?

Determining that government conduct constituted a search does not necessarily end the analysis.

The next question is whether the search was reasonable.

As a general rule, a warrantless search is presumptively unreasonable unless an established exception to the warrant requirement applies.

Virginia courts recognize this general rule. See Bryant v. Commonwealth, 72 Va. App. 179, 187-88, 843 S.E.2d 383 (2020).

There are numerous exceptions, including circumstances involving:

• Consent;
• Exigent circumstances;
• Searches incident to a lawful arrest;
• The automobile exception;
• Plain view;
• Certain inventory searches;
• Certain administrative or regulatory searches; and
• Other recognized exceptions to the warrant requirement.

Accordingly, a defendant who establishes that government conduct was a search must ordinarily proceed to the next question: Was the search conducted pursuant to a warrant or a valid exception to the warrant requirement?

The Current Rule in Virginia

As of 2026, the law concerning reasonable expectations of privacy can be summarized through several principles.

1. The Fourth Amendment protects people, not merely places.

The government may violate the Fourth Amendment by obtaining private information even when it does not physically enter a traditional protected location.

2. A defendant must establish a personal privacy interest.

The person challenging the search must demonstrate an expectation of privacy in the thing or place searched, and that expectation must be objectively reasonable.

3. Property rights remain independently important.

The Katz privacy framework did not eliminate the traditional property-based Fourth Amendment protection.

Physical intrusion into a constitutionally protected person, house, paper, or effect can itself constitute a search.

4. The home and curtilage receive particularly strong protection.

The government generally cannot use an exception applicable to vehicles or public places as a substitute for lawful access to a home or its curtilage.

5. Public exposure reduces—but does not necessarily eliminate—Fourth Amendment protection.

Information knowingly exposed to public observation generally receives less protection.

But technology that allows the government to aggregate publicly observable information into a detailed and comprehensive record may raise different constitutional questions.

6. Modern technology requires a fact-specific analysis.

Virginia courts have recognized that new surveillance technology does not always fit neatly within older Fourth Amendment precedents.

The relevant questions can include the amount of information collected, the duration of surveillance, the precision of the information, the government’s ability to reconstruct a person’s movements, and the degree to which the information reveals private aspects of a person’s life.

7. Third-party possession does not automatically destroy privacy.

Carpenter and Chatrie establish important limits on the proposition that information loses Fourth Amendment protection merely because a technology company or other third party possesses it.

8. Flock camera surveillance currently receives different treatment from comprehensive cell-phone tracking.

Under Robinson, the current Norfolk Flock system does not constitute a Fourth Amendment search merely because police use the system to identify a vehicle traveling on public roads.

But Robinson is expressly tied to the capabilities of the system at issue in that case.

9. Digital searches continue to present unresolved constitutional questions.

Clements demonstrates that Virginia courts are now confronting novel forms of digital investigation, including reverse-keyword warrants.

The Virginia Court of Appeals did not decide the constitutional validity of those warrants, leaving the issue open for future litigation.

Why the Reasonable Expectation of Privacy Matters in a Virginia Criminal Case

When police obtain evidence through a search, the first question should not necessarily be whether the police had probable cause.

The threshold question may be:

Was there a search at all?

That question can determine whether the Fourth Amendment applies in the first place.

If the government conduct constituted a search, the analysis continues.

Was there a warrant?

If there was a warrant, did it establish probable cause?

Was the warrant sufficiently particular?

Did the officers stay within the warrant’s scope?

If there was no warrant, did an exception to the warrant requirement apply?

And if the search violated the Fourth Amendment, does an exception to the exclusionary rule—such as the good-faith exception—affect whether the evidence will actually be suppressed?

These questions frequently require a detailed examination of exactly what the police did, what information they obtained, how they obtained it, and what privacy interest the defendant possessed in that information.

Frequently Asked Questions About Reasonable Expectations of Privacy in Virginia

Do I have a reasonable expectation of privacy in my home?

Yes. The home receives the highest level of Fourth Amendment protection. Government entry and searches of a home generally require a warrant unless a recognized exception applies.

Do I have a reasonable expectation of privacy in my vehicle?

Yes, but the expectation of privacy in a vehicle is generally less than the expectation of privacy in a home. The precise circumstances matter.

Do I have a reasonable expectation of privacy in my driveway?

It depends on the circumstances. Courts distinguish between areas exposed to public observation and protected areas of a home’s curtilage.

Does police surveillance of my vehicle violate the Fourth Amendment?

Not necessarily. In Robinson v. Commonwealth, the Virginia Court of Appeals held that the Norfolk Flock system, as it operated in that case, did not constitute a Fourth Amendment search. But the scope and capabilities of the surveillance system matter.

Do I have privacy rights in my cell-phone location information?

Yes. Under Carpenter and the U.S. Supreme Court’s 2026 decision in Chatrie, individuals have a Fourth Amendment privacy interest in certain cell-phone location information.

Do I lose my Fourth Amendment rights because Google or another company has my information?

No. Carpenter and Chatrie demonstrate that third-party possession does not automatically eliminate Fourth Amendment protection for highly revealing digital information.

Is everything I search on Google protected by the Fourth Amendment?

The answer is not yet completely settled under Virginia law. Clements v. Commonwealth involved a reverse-keyword warrant directed at Google search records, but the Virginia Court of Appeals resolved the case through the good-faith exception rather than deciding the underlying constitutional validity of reverse-keyword warrants.

Conclusion

The law governing reasonable expectations of privacy in Virginia is continuing to evolve.

The traditional Katz framework remains important: a defendant generally must demonstrate a personal expectation of privacy that society recognizes as reasonable. But Katz is not the only test. Property-based Fourth Amendment protections remain independently significant, particularly where police physically intrude upon constitutionally protected property.

At the same time, modern technology has forced courts to confront questions that could not have been contemplated when many of the foundational Fourth Amendment cases were decided.

The most important recent cases illustrate the tension.

In Robinson, the Virginia Court of Appeals held that Norfolk’s current Flock camera system did not constitute a search because it captured publicly observable vehicle information and did not create the type of comprehensive surveillance record considered in Carpenter.

In Chatrie, however, the U.S. Supreme Court held that police conducted a Fourth Amendment search by obtaining Google Location History, emphasizing that highly revealing digital location information remains protected even when it is held by a third party and even when the period examined is relatively short.

And in Clements, the Virginia Court of Appeals confronted a new form of digital surveillance—a reverse-keyword warrant—but expressly left the constitutional question unresolved because the good-faith exception decided the case.

The lesson is that “public,” “private,” and “third-party” are no longer sufficient descriptions by themselves to resolve many modern Fourth Amendment questions.

The precise nature of the information, how the government obtained it, the technology used, the scope and duration of the surveillance, and the privacy interests implicated can all matter.

For anyone facing criminal charges in Virginia, a careful Fourth Amendment analysis should therefore begin by identifying exactly what the government searched, how it searched it, and what information the search revealed.

This article is for informational purposes only and does not constitute legal advice. The application of Fourth Amendment law depends on the specific facts and circumstances of each case.

The post Reasonable Expectation of Privacy in Virginia: When Does the Fourth Amendment Protect You From a Government Search? appeared first on Attorneys of Goff Voltin.

What changed?

• No more than 0.3 percent total THC; and
• No more than two milligrams of total THC per package.

Two milligrams per package—not per serving

Can stores sell their remaining inventory?

What penalties can retailers face?

Can vape-shop clerks face criminal charges?

Does this make possession of every higher-THC product a crime?

Did a lawsuit stop the change?

When will recreational marijuana retail sales begin?

Facing a THC-related charge or enforcement action?

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Can you be convicted of a crime if a government official told you that your conduct was lawful? Under certain circumstances, Virginia law recognizes a constitutional due process defense for a person who reasonably and in good faith relies on an affirmative assurance from a government official that the conduct is permitted.

This defense is sometimes described as a reasonable reliance defense, an official-assurance defense, or a form of entrapment by estoppel. In Virginia, however, the defense is grounded in the Due Process Clause, not in the traditional defense of entrapment.

The Virginia Court of Appeals addressed this issue directly in Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018). The decision is particularly important because it recognized that a judge can be the government official whose affirmative assurance gives rise to the defense.

For Virginia criminal defendants, the case raises an important question:

When can a person rely on what a government official tells them about whether certain conduct is legal?

What Is the Due Process Reasonable-Reliance Defense in Virginia?

Virginia courts have recognized that, in limited circumstances, a criminal prosecution may violate due process when the defendant reasonably and in good faith relied upon an affirmative assurance from a government official that the defendant’s conduct was lawful.

The defense is based on a fundamental principle of due process: it can be fundamentally unfair to criminally punish a person for doing something that the government itself affirmatively told that person was lawful.

In Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997), the Court of Appeals explained that the defense applies when a defendant is prosecuted for “reasonably and in good faith doing that which he was told he could do.” The court reasoned that applying the criminal law against someone who reasonably relied upon the advice of a state actor can raise constitutional due process concerns.

The defense does not mean that a person is generally entitled to rely upon any statement made by any government employee. Virginia law imposes specific requirements.

The Three Requirements for the Virginia Reasonable-Reliance Defense

Virginia courts have identified three basic requirements.

Under Branch v. Commonwealth, 42 Va. App. 665, 593 S.E.2d 835 (2004), and the cases following it, a defendant must establish:

1. The defendant was assured that the conduct giving rise to the criminal charge was lawful;
2. The assurance came from a government official who was legally responsible for defining permissible conduct concerning the offense; and
3. The defendant’s reliance on the assurance was reasonable and in good faith.

See Branch, 42 Va. App. at 671, 593 S.E.2d at 837; Miller, 25 Va. App. at 738-39, 745, 492 S.E.2d at 488-89, 491.

The defendant bears the burden of establishing the affirmative defense. The first question is therefore whether the information received from the government was legally sufficient to implicate the Due Process Clause. The second question generally involves the factual issue of whether the defendant’s reliance was reasonable and in good faith.

The Government Must Give an Affirmative Assurance

One of the most important limitations on this defense is that mere silence, ambiguity, or a defendant’s personal interpretation of government conduct is generally not enough.

The government official must provide an affirmative assurance that the conduct is lawful.

In Miller, the defendant was a convicted felon who possessed a muzzle-loading rifle after his probation officer told him he could possess such a firearm for hunting. The Court of Appeals held that the probation officer was a legally sufficient source of information because the officer had responsibility concerning the defendant’s conduct as a probationer.

The important distinction is between:

• “The government told me I could do this.”
• “I believed the government had not prohibited me from doing this.”

The first may implicate the reasonable-reliance defense. The second ordinarily does not.

The Court of Appeals emphasized this distinction in Claytor v. Commonwealth, 62 Va. App. 644, 751 S.E.2d 686 (2013). There, the court explained that the defense is available only when the defendant seeks to determine whether the conduct is lawful and receives an affirmative assurance that it is lawful.

The distinction remains important today. In Northcraft v. Commonwealth, the Court of Appeals reiterated that the defense fails when the defendant cannot establish that a government official actually gave an affirmative assurance that the conduct was lawful.

Who Qualifies as a “Government Official”?

The source of the information is equally important.

Virginia courts have described the relevant government official as a person or governmental body “charged by law with responsibility for defining permissible conduct with respect to the offense at issue.”

That requirement prevents a defendant from asserting a constitutional defense based upon virtually any statement made by a government employee.

For example, the relevant question may be whether the official had legal authority or responsibility concerning the particular conduct at issue.

Probation Officers

In Miller, the defendant’s probation officer provided the relevant assurance.

The Court of Appeals concluded that the probation officer was a legally sufficient source because the officer’s responsibilities necessarily involved advising and supervising the defendant concerning permissible conduct.

Judges

The most significant development came in Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).

In Davis, the defendant was charged with possessing a firearm while subject to a protective order in violation of Virginia Code § 18.2-308.1:4(B).

The defendant maintained that he reasonably relied upon information from the Fairfax Juvenile and Domestic Relations District Court indicating that the protective order was no longer in effect.

The trial court refused to recognize the defense, reasoning in part that a judge was not the type of “government official” contemplated by Miller.

The Court of Appeals disagreed.

Davis v. Commonwealth: A Judge Can Provide the Relevant Government Assurance

The facts in Davis are particularly important.

The defendant presented evidence that, during proceedings concerning the protective order, the JDR judge stated that “all matters” had been dropped and entered an order indicating that the petitions had been dismissed.

The trial court concluded that the judge could not qualify as the government official contemplated by Miller.

The Court of Appeals reversed.

The court explained that judges have the responsibility to interpret and apply the law. Because the protective order had been entered in the JDR court and was subject to enforcement and modification there, the judge was a legally sufficient source of information concerning the status of that protective order.

The Court of Appeals concluded that the JDR judge could constitute a “government official” for purposes of the reasonable-reliance defense.

The court further held that the defendant had presented sufficient evidence of an affirmative assurance to warrant a jury instruction.

Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).

This holding is significant beyond protective-order cases. It recognizes that the identity and legal authority of the government official must be evaluated in the context of the particular law involved.

Reasonable Reliance Is a Question for the Jury

Importantly, establishing that a government official made an affirmative assurance does not automatically establish the defense.

The defendant must also show that his or her reliance was reasonable and in good faith.

In Davis, the Court of Appeals explained that this issue is a factual determination based upon the totality of the circumstances.

That means the court may consider circumstances such as:

• What exactly did the government official say?
• Was the defendant specifically asking whether the conduct was lawful?
• Was the statement affirmative or merely ambiguous?
• Did the official have authority concerning the subject matter?
• What did the defendant know at the time?
• Did the defendant have reason to doubt the official’s statement?
• Did the defendant rely upon the statement before engaging in the conduct?
• Were there contradictory statements or documents?
• Was the defendant’s interpretation reasonable under the circumstances?

The question is not simply whether the defendant claims to have misunderstood the law.

The question is whether the government affirmatively provided information upon which the defendant reasonably and in good faith relied.

Davis and Protective Orders

Davis provides an especially useful example because protective orders can create complicated questions concerning the defendant’s legal status.

A person may believe that a protective order has been dismissed, modified, or otherwise terminated. If the person receives an affirmative statement from the court responsible for the order indicating that the order is no longer in effect, the circumstances may potentially implicate the due process defense.

This is particularly significant in cases involving Virginia Code § 18.2-308.1:4, which criminalizes certain firearm possession by a person subject to a qualifying protective order.

The Davis decision does not establish that every misunderstanding concerning a protective order constitutes a defense. Instead, it recognizes that a defendant may be entitled to present a reasonable-reliance defense when there is evidence that the defendant actually sought information concerning the status of the order and received an affirmative assurance from the government official responsible for the order.

The Difference Between Mistake of Law and Government-Induced Mistake

Ordinarily, a person’s ignorance of the law is not a defense to a criminal charge.

The reasonable-reliance doctrine is different.

The defendant is not simply arguing:

“I did not know the law.”

Instead, the defendant is arguing:

“I sought information from the government concerning whether my conduct was lawful, and the government affirmatively told me that it was.”

That distinction is at the heart of the due process doctrine.

As the Virginia Court of Appeals explained in Miller, the constitutional concern arises because the government should not ordinarily be permitted to mislead a person into believing conduct is lawful and then prosecute that person for engaging in the very conduct the government represented was permissible.

See Miller v. Commonwealth, 25 Va. App. 727, 735-39, 492 S.E.2d 482, 486-89 (1997).

This Is Not the Same as Traditional Entrapment

The reasonable-reliance defense should not be confused with traditional entrapment.

Traditional entrapment generally concerns government inducement to commit a crime that the defendant otherwise was not predisposed to commit.

The Virginia reasonable-reliance defense focuses on something different: the government’s affirmative representation concerning the legality of the defendant’s conduct.

The issue is therefore not necessarily whether the government persuaded the defendant to commit a crime.

Instead, the issue is whether the government affirmatively assured the defendant that the conduct was lawful, and whether the defendant reasonably and in good faith relied upon that assurance.

Some jurisdictions refer to similar doctrines as “entrapment by estoppel,” “official reliance,” or an “official statement” defense. Virginia cases generally analyze the doctrine under the Due Process Clause and the reasonable-reliance framework established in Miller and Branch.

What Does Not Usually Establish the Defense?

Virginia cases demonstrate several important limitations.

A Defendant’s Personal Interpretation Is Not Enough

In Claytor, the defendant relied upon his interpretation of a court order concerning his driving privileges. The Court of Appeals distinguished that situation from Miller because the defendant had not received an affirmative assurance that his conduct was lawful.

General Government Information May Not Be Enough

A government employee providing general information does not necessarily have authority to provide a legally binding assurance concerning the specific criminal prohibition at issue.

The question is whether the person providing the information was legally responsible for defining permissible conduct concerning that offense.

Silence Is Not the Same as an Affirmative Assurance

The fact that a government employee did not tell someone that conduct was prohibited generally does not establish that the government affirmatively told the person that the conduct was lawful.

The distinction between affirmative assurance and mere absence of a warning is critical.

What Evidence Can Be Important?

Because reasonable reliance is heavily fact-dependent, preserving evidence concerning the government assurance can be extremely important.

Depending upon the circumstances, relevant evidence may include:

• Court orders;
• Transcripts of hearings;
• Recorded court proceedings;
• Written correspondence from government officials;
• Emails;
• Letters;
• Probation records;
• Conditions of probation;
• Protective-order documents;
• DMV records;
• Written instructions from government agencies;
• Witness testimony concerning statements made by government officials; and
• Evidence demonstrating that the defendant specifically asked whether the conduct was lawful.

The exact language used by the government official can be critical.

For example, there is an important difference between:

“I don’t know.”

and:

“Yes. You are permitted to do that.”

The second statement is much more likely to constitute the type of affirmative assurance contemplated by the Virginia cases.

The Defendant Has the Burden

The reasonable-reliance defense is an affirmative defense.

Under Miller, Branch, Davis, Park, and subsequent cases, the defendant bears the burden of establishing the defense.

The defendant therefore must produce evidence sufficient to establish the necessary components of the doctrine.

At the same time, Virginia law recognizes an important procedural protection concerning jury instructions.

In Davis, the Court of Appeals explained that when there is more than a scintilla of evidence supporting the affirmative defense, the defendant is entitled to have the jury instructed on the defense.

Thus, the trial court should not simply decide whether the defendant’s reliance was ultimately reasonable and in good faith when that issue is properly supported by the evidence. Where the evidence supports the defense, the jury may be required to decide the factual question.

The Three-Part Test: A Practical Guide

When evaluating a potential reasonable-reliance defense in a Virginia criminal case, the analysis can be reduced to three questions:

1. Was there an affirmative assurance?

Did a government official actually tell the defendant, expressly or through an official action, that the conduct was lawful?

2. Did the official have the appropriate authority?

Was the person or governmental body legally responsible for defining or administering the law governing the defendant’s conduct?

3. Was the defendant’s reliance reasonable and in good faith?

Considering all of the circumstances, was it reasonable for the defendant to rely upon what the government official said or did?

If all three questions can be supported by the evidence, the case may present a viable Virginia due process reasonable-reliance defense.

Why Davis v. Commonwealth Matters

Davis v. Commonwealth is an important Virginia criminal case because it makes clear that the reasonable-reliance defense is not limited to statements from probation officers or similar officials.

The case establishes that, depending upon the circumstances, a judge may be the government official whose affirmative assurance is sufficient to invoke the defense.

The decision also reinforces an important principle of due process: criminal liability can raise constitutional concerns when the government affirmatively tells a person that conduct is lawful and the person reasonably and in good faith relies upon that representation.

The defense remains narrow. A defendant cannot simply claim ignorance of the law or point to an ambiguous government document. There must be an affirmative assurance from an appropriate government source, followed by reasonable and good-faith reliance.

But when those circumstances exist, the government’s own representations may become a critical part of the criminal defense.

Frequently Asked Questions About Virginia’s Reasonable-Reliance Defense

Can I use a government official’s statement as a defense to a Virginia criminal charge?

Potentially. Virginia recognizes a due process defense where a defendant reasonably and in good faith relies upon an affirmative assurance from a government official that the defendant’s conduct was lawful.

What is the Virginia case about reasonable reliance on government advice?

The leading cases include Miller v. Commonwealth, 25 Va. App. 727 (1997); Branch v. Commonwealth, 42 Va. App. 665 (2004); and Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).

Can I rely on what a judge tells me?

Under Davis, a judge can qualify as the relevant government official when the judge has responsibility for the legal matter at issue. In Davis, the judge’s statements concerning the status of a protective order were sufficient to implicate the reasonable-reliance defense.

Is ignorance of the law a defense in Virginia?

Generally, no. The reasonable-reliance defense is different because it involves an affirmative assurance from the government concerning the legality of the defendant’s conduct.

Does the government have to tell me that my conduct is legal?

The Virginia cases emphasize the need for an affirmative assurance. A defendant’s subjective interpretation of an ambiguous government action generally is not enough.

Who has the burden of proving reasonable reliance?

The defendant bears the burden of establishing the affirmative defense.

Does reasonable reliance automatically result in dismissal of the charges?

Not necessarily. The defense depends upon the particular facts and circumstances, including the source and content of the government’s assurance and whether the defendant’s reliance was reasonable and in good faith.

Conclusion

Virginia’s reasonable-reliance defense provides an important constitutional protection in the unusual circumstance where a person acts based upon an affirmative assurance from the government that the conduct is lawful.

The doctrine developed through Miller and Branch and was significantly clarified by Davis v. Commonwealth. Davis confirms that a judge can qualify as the relevant government official when the judge has authority over the legal matter at issue.

For anyone charged with a Virginia criminal offense after relying upon information provided by a court, probation officer, law-enforcement officer, governmental agency, or other authorized government official, the precise words used, the authority of the person who provided the information, and the circumstances surrounding the defendant’s reliance can be critically important.

A person should not assume that a government statement automatically creates a defense. But neither should a potential due process defense be overlooked simply because the defendant technically violated the language of a criminal statute.

When the government itself has affirmatively assured a person that particular conduct is lawful, Virginia law recognizes that due process may limit the government’s ability to prosecute that person for relying upon its own assurance.

Key Virginia Authorities

• Davis v. Commonwealth, 68 Va. App. 725, 813 S.E.2d 547 (2018).
• Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997).
• Branch v. Commonwealth, 42 Va. App. 665, 593 S.E.2d 835 (2004).
• Palmer v. Commonwealth, 48 Va. App. 457, 632 S.E.2d 611 (2006).
• Claytor v. Commonwealth, 62 Va. App. 644, 751 S.E.2d 686 (2013).
• Park v. Commonwealth, 74 Va. App. 635, 871 S.E.2d 629 (2022).
• Northcraft v. Commonwealth (Va. Ct. App. 2023).

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Can you use force to defend yourself in Virginia? Yes. Virginia law recognizes self-defense as a defense to criminal charges arising from the use of force, including assault, malicious wounding, aggravated malicious wounding, and homicide. However, whether self-defense applies depends upon the circumstances of the particular incident.

Virginia courts generally divide self-defense into two categories: justifiable self-defense and excusable self-defense. The distinction can be critical because it determines whether a person who was involved in a confrontation may lawfully use force to protect himself or herself.

Virginia self-defense law also considers several important questions:

• Who started the confrontation?
• Did the defendant reasonably believe that he or she was in danger?
• Was the danger imminent?
• Was the defendant facing death or serious bodily injury?
• Was the force used proportional to the threat?
• Did the defendant retreat?
• Did the defendant clearly communicate a desire to end the confrontation?
• Did the incident occur inside the defendant’s home?

Because these questions are highly fact-specific, a self-defense claim should be evaluated carefully by an experienced Virginia criminal defense attorney.

What Is Self-Defense Under Virginia Law?

Self-defense is an affirmative defense to a criminal charge. A defendant asserting self-defense is generally required to introduce evidence sufficient to raise a reasonable doubt about his or her guilt. The Commonwealth ultimately retains the burden of proving guilt beyond a reasonable doubt.

The Virginia Court of Appeals recently reaffirmed this principle in Gilbert v. Commonwealth, explaining that a defendant claiming self-defense must produce evidence sufficient to create a reasonable doubt about guilt.

The Virginia Supreme Court has similarly explained that self-defense is not an independent criminal offense or statutory exception. Instead, it is a legal justification or excuse for otherwise criminal conduct.

That distinction matters. A person may admit that he or she intentionally struck, stabbed, shot, or otherwise injured another person while maintaining that the conduct was legally justified because it was necessary to protect against an unlawful attack.

Virginia Recognizes Two Forms of Self-Defense

Virginia law recognizes two forms of self-defense:

1. Justifiable self-defense
2. Excusable self-defense

The difference generally concerns whether the defendant was at fault for starting or provoking the confrontation.

Justifiable Self-Defense

Justifiable self-defense applies when the defendant was without fault in provoking or bringing about the confrontation.

Virginia courts have described justifiable self-defense as occurring when a person, without fault in provoking the difficulty, acts under a reasonable apprehension of death or serious bodily harm. Jones v. Commonwealth, 71 Va. App. 70, 94 (2019); Bell v. Commonwealth, 66 Va. App. 479, 487 (2016).

When a person is free from fault, Virginia law does not impose the same retreat requirements that apply to someone who helped create the confrontation.

The Virginia Court of Appeals has explained that a person acting in justifiable self-defense may stand his or her ground and use reasonable force, including deadly force when legally warranted. Foote v. Commonwealth, 11 Va. App. 61, 67-68 (1990).

Excusable Self-Defense

Excusable self-defense applies when the defendant was at some level of fault in creating or provoking the confrontation, but subsequently attempts to withdraw from the confrontation.

Virginia courts describe excusable self-defense as arising when a person who was at some fault in bringing about the difficulty:

1. retreats as far as possible;
2. communicates a desire for peace; and
3. uses force because of a reasonably apparent necessity to preserve his or her life or avoid great bodily harm.

See Avent v. Commonwealth, 279 Va. 175, 199-200 (2010); Bell v. Commonwealth, 66 Va. App. 479, 487 (2016).

This distinction can become extremely important in cases involving fights, bar altercations, road-rage incidents, neighborhood disputes, and other confrontations where both people may have contributed to the escalation.

Do You Have to Retreat in Virginia?

It depends on the circumstances.

Virginia is sometimes described as a “stand your ground” state, but that phrase can oversimplify Virginia’s common-law self-defense rules.

A person who is without fault in creating the confrontation generally does not have a duty to retreat before defending himself or herself. Virginia courts have expressly distinguished justifiable self-defense from excusable self-defense on this issue.

The analysis changes when the defendant was at fault in starting or provoking the confrontation.

For excusable self-defense, the defendant generally must retreat as far as possible, attempt to abandon the fight, and make known a desire for peace before using force in response to the attack.

The Court of Appeals emphasized this distinction in Jones v. Commonwealth. There, the court concluded that the defendant’s own conduct contributed to the confrontation and that his failure to retreat prevented him from relying on excusable self-defense.

Therefore, the question is not simply:

“Did the defendant retreat?”

The more important questions are:

Was the defendant at fault in creating the confrontation?

and

If so, did the defendant subsequently retreat and attempt to end the confrontation?

What Is the “Overt Act” Requirement?

One of the most important concepts in Virginia self-defense law is the requirement that the defendant face an imminent threat.

Virginia law does not generally permit a person to use force based solely upon a generalized fear that someone might eventually hurt him or her.

The Virginia Supreme Court has explained that an individual claiming self-defense must demonstrate an “overt act or other circumstance” creating an immediate threat to safety. Hines v. Commonwealth, 292 Va. 674, 679 (2016).

Similarly, in Commonwealth v. Sands, 262 Va. 724, 729 (2001), the Supreme Court of Virginia explained that there must be an act indicating present peril and providing reasonable grounds to believe that serious bodily harm is about to occur.

A mere fear that another person intends to cause serious injury is generally insufficient if the circumstances do not demonstrate an immediate threat.

Example

Consider two situations.

Situation One: A person reaches into his waistband, produces a firearm, and points it toward the defendant.

That evidence could potentially constitute an overt act demonstrating an imminent threat.

Situation Two: A person previously threatened the defendant several days earlier, and the defendant encounters that person in public and shoots him because the defendant believes he might eventually be attacked.

The second situation presents substantially different self-defense issues because the threat may not have been immediate or imminent.

Virginia courts have repeatedly emphasized that self-defense cannot be based solely upon speculation or a generalized fear of future harm.

When Can Deadly Force Be Used in Self-Defense?

Deadly force receives particularly careful scrutiny under Virginia law.

To justify the use of deadly force in self-defense, the defendant generally must have reasonably feared death or serious bodily injury.

The Virginia Court of Appeals reiterated this requirement in Gilbert v. Commonwealth in 2026. The court explained that a defendant seeking to justify lethal force must reasonably fear death or serious bodily harm and must be confronted with an imminent danger demonstrated by an overt act or other circumstance creating an immediate threat to safety.

The analysis therefore has both a subjective and objective component.

Subjective Component

The defendant must actually have believed that he or she was in danger.

Objective Component

That belief must also have been reasonable under the circumstances as they appeared to the defendant at the time.

Virginia courts have explained that the reasonableness of the perceived danger is evaluated from the defendant’s perspective at the time of the incident. Hines v. Commonwealth, 292 Va. 674, 679 (2016).

This does not mean that every fear asserted by a defendant automatically establishes self-defense. The circumstances must support the reasonableness of the defendant’s perception of imminent danger.

The Amount of Force Must Be Reasonable

Self-defense does not provide unlimited permission to use force.

The amount of force used must be reasonable in relation to the threat presented.

The Virginia Court of Appeals has recognized that a person may use reasonable force when he or she reasonably apprehends bodily harm from another person. Diffendal v. Commonwealth, 8 Va. App. 417, 421 (1989).

For example, the circumstances surrounding a minor physical confrontation may not justify the use of deadly force.

Conversely, an attack involving a firearm, knife, strangulation, or other conduct capable of causing death or serious bodily injury can present very different circumstances.

The question is ultimately whether the force used was reasonably necessary under the circumstances as they appeared to the defendant at the time.

Self-Defense and Firearms

Virginia self-defense cases frequently involve firearms.

Simply possessing or displaying a firearm does not automatically establish self-defense. The critical question is why the firearm was used and whether the circumstances reasonably indicated an imminent threat of death or serious bodily injury.

In Jones v. Commonwealth, for example, the Court of Appeals rejected a self-defense theory where the defendant returned to his vehicle, armed himself, and then shot the victim. The court concluded that the evidence did not establish a sufficient overt act demonstrating an imminent threat at the time the defendant used deadly force.

This illustrates an important distinction:

Defending yourself against an immediate attack is different from arming yourself and initiating a confrontation because you believe an attack might occur.

The precise facts matter enormously.

Virginia’s Castle Doctrine

Virginia also recognizes important protections for a person defending himself or herself in his or her home.

Virginia’s “castle doctrine” has deep roots in Virginia common law. In Hines v. Commonwealth, the Supreme Court of Virginia recognized the principle that a person assaulted in his own home is not required to retreat and may use necessary force to repel the aggressor.

The Court of Appeals has continued to recognize the significance of the castle doctrine. See Lienau v. Commonwealth, 77 Va. App. 629 (2019).

The fact that an incident occurs inside a person’s home, however, does not mean every use of force is automatically lawful.

The circumstances of the encounter remain important, including:

• who entered the home;
• whether the entry was lawful;
• whether the person was an invited guest;
• whether the person was attacking the homeowner;
• whether the homeowner reasonably perceived an imminent threat; and
• whether the force used was reasonably necessary.

What If the Other Person Was Unarmed?

A person does not necessarily need to see a firearm or other weapon before claiming self-defense.

The issue is whether the circumstances reasonably caused the defendant to believe that he or she faced imminent death or serious bodily injury.

The courts evaluate the circumstances from the defendant’s perspective at the time of the incident, while still requiring objective reasonableness.

For example, an unarmed person could potentially inflict serious bodily injury through physical force, strangulation, kicking, or other conduct.

On the other hand, the mere fact that someone is angry, threatening, or verbally confrontational does not automatically establish a lawful basis for deadly force.

The distinction is between an immediate threat of serious harm and a generalized fear of what might happen.

What If I Started the Fight?

Starting or provoking a confrontation can significantly affect a self-defense claim.

Virginia courts have repeatedly emphasized that a person who contributes to the confrontation may not claim justifiable self-defense in the same manner as someone who was completely without fault.

In Jones v. Commonwealth, the Court of Appeals explained that even relatively small acts of conduct can constitute “fault” if the fact finder determines that the defendant contributed to the affray.

That does not necessarily mean that someone who was initially at fault loses every possible self-defense argument.

Virginia recognizes excusable self-defense, which can apply when a person who helped create the confrontation subsequently retreats as far as possible, communicates a desire for peace, and then uses force because of a reasonably apparent necessity to protect himself or herself.

Accordingly, the sequence of events can be critical.

A criminal defense attorney should examine what happened before, during, and immediately after the physical confrontation.

Can Self-Defense Apply to Assault and Battery?

Yes.

Self-defense is not limited to homicide cases.

Virginia courts have recognized self-defense in cases involving assault and battery, unlawful wounding, malicious wounding, aggravated malicious wounding, attempted murder, and other criminal offenses involving the use of force.

For example, Virginia Code § 18.2-57 criminalizes assault and battery, but the existence of a criminal statute prohibiting assault does not eliminate traditional defenses such as lawful self-defense.

Whether self-defense applies depends upon the facts surrounding the alleged assault.

What Is the Burden of Proof for Self-Defense in Virginia?

This is an important issue that is sometimes misunderstood.

The defendant does not have the ultimate burden of proving innocence.

Instead, self-defense is an affirmative defense, and the defendant has a practical burden of producing sufficient evidence to raise a reasonable doubt regarding guilt.

Once sufficient evidence of self-defense is presented, the Commonwealth retains the ultimate burden of persuasion.

The Court of Appeals addressed this distinction in Taylor v. Commonwealth, explaining that the defendant has a burden of producing evidence sufficient to raise a reasonable doubt, but the ultimate burden of persuasion remains with the Commonwealth.

This distinction is particularly important when considering jury instructions.

If the evidence supports a self-defense theory, the jury must be properly instructed regarding the applicable law and the Commonwealth’s burden of proof.

What Evidence Can Support a Self-Defense Claim?

Self-defense cases frequently turn on evidence that establishes what happened during the seconds or minutes immediately surrounding the use of force.

Potentially important evidence may include:

Surveillance Video

Security-camera footage can be extremely important in determining:

• who approached whom;
• whether someone appeared to have a weapon;
• whether someone made an aggressive movement;
• whether the defendant attempted to retreat;
• how quickly the confrontation developed; and
• what happened immediately before the use of force.

Virginia appellate courts have considered video evidence when evaluating self-defense claims.

Witness Testimony

Witnesses may provide evidence concerning:

• threats;
• physical attacks;
• the identity of the initial aggressor;
• attempts to disengage;
• statements made during the confrontation; and
• the defendant’s behavior immediately before the incident.

Physical Evidence

Physical evidence can also be significant, including:

• photographs of injuries;
• medical records;
• damaged clothing;
• broken objects;
• weapons;
• shell casings;
• blood evidence; and
• photographs or measurements of the scene.

911 Calls and Other Recordings

Emergency calls, body-worn-camera footage, cellphone recordings, and other contemporaneous evidence may provide information about what occurred and what the participants said immediately afterward.

Self-Defense Is Often a Question of Fact

Whether a defendant acted in self-defense frequently depends upon disputed factual questions.

The fact finder may have to determine:

• whether the defendant actually feared harm;
• whether that fear was reasonable;
• whether the threat was imminent;
• whether the defendant was at fault;
• whether the defendant attempted to retreat;
• whether the defendant communicated a desire for peace; and
• whether the amount of force used was reasonable.

Virginia courts repeatedly recognize that whether the circumstances are sufficient to create a reasonable doubt regarding self-defense is generally a question of fact.

That makes credibility and the presentation of evidence especially important in self-defense cases.

Defense of Another Person

Virginia also recognizes a related defense involving the protection of another person.

The Court of Appeals has explained that the right to defend another person is generally commensurate with the right of self-defense. A person claiming defense of others must have a reasonable basis to believe that the person being defended was entitled to use self-defense and was not at fault in provoking the confrontation. Foster v. Commonwealth, 13 Va. App. 380, 385-87 (1991).

Thus, someone who intervenes in a fight involving a spouse, child, friend, or even another person may potentially assert a defense of others—but the legal requirements must be carefully examined.

Common Misconceptions About Self-Defense in Virginia

“If someone hits me first, I can do whatever I want.”

Not necessarily.

The response must be reasonably related to the threat. The fact that another person initiated physical contact does not automatically justify unlimited force.

“If someone threatens me, I can shoot them.”

Not necessarily.

A threat may be evidence supporting a self-defense claim, but deadly force generally requires a reasonable fear of imminent death or serious bodily injury and an overt act or other circumstance demonstrating an immediate threat.

“Virginia has stand-your-ground laws, so I never have to retreat.”

That is an oversimplification.

A person who is without fault in creating the confrontation generally has no duty to retreat. But a person who helped create the confrontation may need to satisfy the requirements of excusable self-defense, including retreat and communicating a desire for peace.

“Self-defense only applies when someone is killed.”

Incorrect.

Self-defense may apply to a variety of criminal charges involving the use of force, including assault and battery, unlawful wounding, malicious wounding, aggravated malicious wounding, and homicide.

“If I was scared, that automatically means I acted in self-defense.”

No.

Virginia law considers both the defendant’s actual perception of danger and whether that perception was reasonable under the circumstances.

Frequently Asked Questions About Self-Defense in Virginia

Is self-defense a complete defense to a Virginia criminal charge?

Potentially. If the evidence establishes justifiable or excusable self-defense, the defense can result in an acquittal. Virginia courts have recognized that a valid self-defense claim can completely defeat criminal liability for the conduct at issue.

Do I have to prove self-defense?

The defendant has a burden of producing sufficient evidence to raise a reasonable doubt regarding guilt. The defendant does not bear the ultimate burden of proving innocence; the Commonwealth retains the ultimate burden of persuasion.

Can I defend myself with a firearm in Virginia?

A firearm may be used in lawful self-defense when the circumstances satisfy the requirements for the use of deadly force. Merely possessing or displaying a firearm does not establish self-defense.

Can I use deadly force to protect my property?

Self-defense and defense of property are distinct legal concepts. The justification for using deadly force generally requires the type of imminent threat to human life or serious bodily injury recognized under Virginia self-defense law.

Does Virginia have a castle doctrine?

Yes. Virginia recognizes a common-law castle doctrine providing important protections to people defending themselves in their homes. Hines v. Commonwealth, 292 Va. 674 (2016).

What if I was involved in a fight?

Being involved in a fight does not automatically eliminate self-defense, but the circumstances that led to the fight become extremely important. If you provoked or initiated the confrontation, the distinction between justifiable and excusable self-defense may become critical.

Can I defend someone else?

Yes, Virginia recognizes the defense of others. The requirements are closely related to those governing self-defense. Foster v. Commonwealth, 13 Va. App. 380 (1991).

The Bottom Line: Self-Defense Cases Turn on the Specific Facts

Virginia self-defense law is highly fact-specific.

The central questions usually involve fault, imminence, reasonableness, proportionality, retreat, and the circumstances as they appeared to the defendant at the time force was used.

A successful self-defense claim may result in an acquittal even when the defendant intentionally used force against another person. But the defense must be evaluated against Virginia’s specific legal requirements.

If you have been charged with assault and battery, malicious wounding, aggravated malicious wounding, attempted murder, murder, manslaughter, or a firearm offense arising from an alleged act of self-defense, the evidence surrounding the confrontation should be examined immediately.

Video footage, 911 recordings, photographs, witness statements, medical records, physical evidence, and statements made by the alleged victim can all become important in determining whether the evidence supports a claim of self-defense.

Key Virginia Self-Defense Cases

• Gilbert v. Commonwealth, ___ Va. App. ___ (2026) — recent discussion of justifiable and excusable self-defense, imminent danger, reasonable fear, and the defendant’s burden of production.
• Taylor v. Commonwealth, 2023 Va. App. LEXIS ___ (2023) — discusses the burden of production and the Commonwealth’s ultimate burden of persuasion.
• Hines v. Commonwealth, 292 Va. 674, 791 S.E.2d 563 (2016) — imminent danger and Virginia’s castle doctrine.
• Jones v. Commonwealth, 71 Va. App. 70 (2019) — fault, retreat, overt acts, and justifiable versus excusable self-defense.
• Bell v. Commonwealth, 66 Va. App. 479 (2016) — justifiable and excusable self-defense and the defendant’s burden of production.
• Commonwealth v. Sands, 262 Va. 724 (2001) — imminent danger and the requirement for an overt act indicating present peril.
• Foote v. Commonwealth, 11 Va. App. 61 (1990) — distinction between justifiable and excusable self-defense and retreat.
• Foster v. Commonwealth, 13 Va. App. 380 (1991) — self-defense and defense of others.

Virginia Code: Virginia’s assault and battery statute is found at Va. Code § 18.2-57, while other criminal charges potentially implicated by a self-defense incident include unlawful or malicious wounding under Va. Code § 18.2-51 and Virginia’s homicide statutes in Title 18.2, Chapter 4.

This article is intended for general informational purposes and does not constitute legal advice. The outcome of any self-defense case depends upon the specific facts and applicable law.

The post Self-Defense in Virginia: When Is the Use of Force Legally Justified? appeared first on Attorneys of Goff Voltin.

Virginia juvenile transfer hearings can have enormous consequences. When a juvenile is charged with a felony, Virginia law may allow the Commonwealth to ask the Juvenile and Domestic Relations District Court to transfer the case to the circuit court, where the juvenile may be prosecuted and sentenced as an adult.

The primary statute governing discretionary juvenile transfers is Virginia Code § 16.1-269.1(A). The statute establishes a transfer hearing process that requires the juvenile court to determine whether the Commonwealth has established probable cause and, if so, whether the juvenile should remain in the juvenile justice system or be transferred to circuit court.

A transfer hearing is therefore much more than a procedural step. It can determine whether a young person remains subject to Virginia’s juvenile justice system or faces prosecution in the adult criminal justice system.

What Is a Juvenile Transfer Hearing in Virginia?

A juvenile transfer hearing is a hearing in the Juvenile and Domestic Relations District Court at which the court determines whether a qualifying juvenile should remain under juvenile court jurisdiction or be transferred to the circuit court for prosecution.

Under Va. Code § 16.1-269.1(A), the Commonwealth may request a transfer hearing when:

1. The juvenile was 14 years of age or older at the time of the alleged offense;
2. The juvenile is charged with an offense that would be a felony if committed by an adult; and
3. The Commonwealth’s Attorney moves for a transfer hearing before the case is heard on the merits.

The juvenile court must then conduct a transfer hearing. If the statutory requirements are satisfied, the court has the authority to retain jurisdiction or transfer the case to the appropriate circuit court.

The Virginia Courts’ District Court Judges’ Benchbook describes a § 16.1-269.1(A) transfer hearing as a two-step process: first, the court determines whether probable cause exists; second, if probable cause exists, the court considers the evidence relevant to whether the juvenile should be transferred.

What Must the Commonwealth Prove at a Virginia Transfer Hearing?

A transfer is subject to several statutory requirements.

1. Proper Notice

The juvenile and the juvenile’s parent, guardian, legal custodian, person standing in loco parentis, or attorney must receive notice as required by Va. Code §§ 16.1-263 and 16.1-264.

Notice is important because Virginia appellate courts have recognized that the statutory notice requirements in juvenile proceedings can implicate significant due-process and jurisdictional concerns. See, e.g., Williams v. Commonwealth, 25 Va. App. 419, 489 S.E.2d 731 (1997).

2. Probable Cause

The juvenile court must find probable cause to believe that the juvenile committed the alleged delinquent act—or a lesser-included delinquent act that would constitute a felony if committed by an adult.

This is an important distinction.

A transfer hearing is not a trial on guilt or innocence. The probable-cause question is whether the evidence establishes the statutory threshold necessary for the transfer process to continue.

Under the current statute, the court must make the probable-cause determination before considering the transfer report. Va. Code § 16.1-269.2(B) specifically provides that the court may not consider the transfer report until a finding has been made concerning probable cause.

3. Competency

The juvenile must be competent to stand trial.

The statute presumes that the juvenile is competent, and the party asserting incompetency has the burden of rebutting that presumption by a preponderance of the evidence. Va. Code § 16.1-269.1(A)(3).

4. The Juvenile Must Be an Improper Person to Remain in Juvenile Court

This is often the central issue at a discretionary transfer hearing.

The court must determine, by a preponderance of the evidence, that the juvenile is not a proper person to remain within the jurisdiction of the juvenile court.

The statute then identifies a series of factors that the court must consider.

Importantly, the statute states that these factors are not exclusive.

What Factors Does a Virginia Judge Consider at a Transfer Hearing?

Virginia Code § 16.1-269.1(A)(4) identifies numerous factors relevant to the transfer decision.

1. The Juvenile’s Age

The court considers the juvenile’s age.

There can be an important practical difference between a juvenile who is barely 14 and a juvenile who is approaching 18. The age of the juvenile can also affect the amount of time available for treatment and rehabilitation within the juvenile justice system.

2. The Seriousness and Number of Alleged Offenses

The court considers the seriousness and number of alleged offenses.

The statute specifically directs the court to consider:

• Whether the offense was aggressive, violent, premeditated, or willful;
• Whether the offense involved a person or property;
• Whether death or bodily injury resulted;
• Whether the offense carries a potential maximum punishment greater than 20 years if committed by an adult;
• Whether a firearm or other dangerous weapon was used; and
• The nature of the juvenile’s participation in the alleged offense.

Virginia law gives greater weight to offenses against persons, particularly where death or bodily injury resulted.

The juvenile’s individual role can therefore be important. The court is not limited to looking at the title of the charge. The statute expressly requires consideration of the juvenile’s participation in the alleged offense.

3. Whether the Juvenile Can Receive Effective Treatment Before Aging Out of the System

The court considers whether the juvenile can remain in the juvenile justice system long enough to receive effective treatment and rehabilitation.

This factor can be particularly important because juvenile jurisdiction is time-limited.

The question is not simply whether treatment exists. The court must consider whether there is sufficient time for that treatment to be effective within the juvenile system.

4. Services and Dispositional Alternatives

The court considers the availability and appropriateness of services and dispositional alternatives in both systems.

This means the defense may need to present evidence concerning available juvenile services, treatment programs, educational opportunities, counseling, substance-abuse treatment, mental-health services, residential programs, family support, and other potential interventions.

The transfer hearing therefore can involve much more than the facts of the underlying criminal allegation.

5. Prior Juvenile and Criminal History

The court considers the juvenile’s record and history in Virginia and other jurisdictions.

The statute specifically identifies:

• Prior contacts with juvenile or circuit courts;
• Prior periods of probation;
• Prior commitments to juvenile correctional centers;
• Previous residential and community-based treatment;
• Whether prior adjudications or commitments involved serious bodily injury; and
• Whether the current allegation represents a repetitive pattern of similar adjudicated offenses.

A juvenile with little or no prior record therefore presents a substantially different factual picture from a juvenile with an extensive history of prior adjudications and unsuccessful interventions.

6. Whether the Juvenile Has Previously Absconded

The court considers whether the juvenile has previously absconded from the legal custody of a juvenile correctional entity in Virginia or elsewhere.

7. Intellectual Disability or Mental Illness

The statute directs the court to consider the extent, if any, of the juvenile’s intellectual disability or mental illness.

This makes appropriate psychological, educational, and developmental information potentially significant in a transfer proceeding.

8. School Record and Education

The juvenile’s school record and education are also statutory considerations.

Evidence regarding academic performance, attendance, special education services, disciplinary history, educational progress, and other school-related circumstances may therefore be relevant.

9. Mental and Emotional Maturity

The court must consider the juvenile’s mental and emotional maturity.

This is distinct from chronological age. Two juveniles of the same age may present very different developmental circumstances.

10. Physical and Developmental Maturity

The court must also consider the juvenile’s physical condition and physical maturity.

11. Evidence of Trafficking or Sexual Victimization

Virginia law contains an additional factor concerning juveniles who may themselves have been victims.

The court must consider evidence that the juvenile was a victim of felonious criminal sexual assault or trafficking by the alleged victim before or during the alleged offense, when the alleged offense was a direct result of that victimization.

The statute expressly states that this provision should be construed to prioritize successful treatment and rehabilitation of juvenile victims of human trafficking and sex crimes who commit acts of violence against their abusers.

This provision was added by the General Assembly in 2024 and became effective July 1, 2024. The Virginia District Court Judges’ Benchbook explains that the amendment also requires the transfer report to contain relevant information supporting such an allegation.

The Transfer Report Can Be Critical

Virginia Code § 16.1-269.2 requires a written study and report before a discretionary transfer hearing.

The report addresses the statutory transfer factors and must also include an assessment of any affiliation with a criminal street gang as defined by Virginia law.

The juvenile and the Commonwealth are entitled to access the report and other reports or data concerning the juvenile that are available to the court.

There is an important procedural protection: the court may not consider the transfer report until after the probable-cause determination.

This creates an important distinction between the evidence relevant to probable cause and the evidence relevant to whether the juvenile should be transferred.

Can a Juvenile’s Statements at a Transfer Hearing Be Used Against the Juvenile?

Generally, statements made by the juvenile at a transfer hearing are protected from use against the juvenile in subsequent criminal proceedings following the transfer.

Virginia Code § 16.1-269.2(A) provides that statements made by the juvenile at the transfer hearing are not admissible over objection in subsequent criminal proceedings, except for impeachment purposes.

That protection is important, but it does not mean that every statement made during the transfer process is necessarily without consequence.

The decision whether a juvenile should testify or otherwise provide evidence at a transfer hearing requires careful consideration of the particular case, including the distinction between the transfer hearing and a later trial.

What Happens If the Juvenile Court Transfers the Case?

If the Juvenile and Domestic Relations District Court transfers the case, the juvenile may appeal the transfer decision.

Under Va. Code § 16.1-269.4, the juvenile has 10 days after the juvenile court’s final decision to file a notice of appeal to the appropriate circuit court.

The Commonwealth also has a statutory right to appeal a juvenile court’s decision to retain jurisdiction when the Commonwealth’s Attorney determines that an appeal is in the public interest. Under § 16.1-269.3, that appeal must also be noted within 10 days.

These deadlines are critical.

A transfer order should therefore be reviewed immediately to determine whether an appeal should be filed and whether additional evidence should be presented in circuit court.

What Happens in Circuit Court After an Appeal?

Virginia Code § 16.1-269.6 establishes the procedure following an appeal of a transfer decision.

When practicable, the circuit court must conduct a hearing within 45 days after receiving the case from the juvenile court.

The circuit court may consider additional evidence concerning the transfer issue and determines whether there has been substantial compliance with § 16.1-269.1.

The statute specifically provides that the circuit court does not redetermine whether the juvenile court had sufficient evidence to find probable cause.

The circuit court can ultimately:

1. Remand the case to the juvenile court; or
2. Advise the Commonwealth’s Attorney that an indictment may be sought.

If the juvenile remains continuously in secure detention, the statute provides for release if the required hearing on the merits has not occurred within the statutory period, subject to extensions for good cause.

What Are the Consequences of Being Transferred to Circuit Court?

The consequences of transfer can be significant.

Once a juvenile is transferred and ultimately prosecuted as an adult, the case proceeds under the adult criminal justice system, subject to the special statutory provisions applicable to juveniles tried in circuit court.

Virginia Code § 16.1-271 provides that a juvenile convicted as an adult is treated as an adult in subsequent criminal proceedings and that adult procedures apply, including adult bail, preliminary-hearing procedures, trial procedures, and sentencing as an adult.

Transfer can therefore affect much more than the location of the case.

It can affect:

• The court in which the case is prosecuted;
• The procedures governing the prosecution;
• Potential sentencing exposure;
• Bail;
• The juvenile’s future treatment in the criminal justice system;
• The juvenile’s criminal-record consequences; and
• The juvenile court’s jurisdiction over future conduct.

Under § 16.1-269.6, an order authorizing the Commonwealth to seek an indictment can divest the juvenile court of jurisdiction over the transferred case and certain related allegations.

A Transfer Hearing Is Not the Same as a Trial

One of the most important things for parents and juveniles to understand is that a transfer hearing is not a trial on the merits.

The court is not deciding whether the juvenile should ultimately be found guilty beyond a reasonable doubt.

Instead, the court first addresses probable cause and then addresses whether the juvenile should remain within the juvenile justice system.

That means the defense strategy at a transfer hearing can be different from the strategy used at trial.

A successful transfer hearing defense may involve presenting evidence concerning:

• The juvenile’s age and development;
• Family circumstances;
• School performance;
• Mental health;
• Intellectual or developmental limitations;
• Prior treatment;
• Rehabilitation;
• Available treatment programs;
• Lack of significant prior delinquency;
• The juvenile’s role in the alleged offense;
• Circumstances surrounding the alleged offense;
• Community support;
• Educational opportunities;
• Employment or vocational plans;
• Substance-abuse treatment when appropriate;
• Counseling;
• Probation compliance;
• Residential treatment options; and
• Other evidence demonstrating why continued juvenile jurisdiction may be appropriate.

The statutory factors make clear that the transfer decision is broader than simply asking how serious the alleged offense is.

What Does Virginia Law Say About Appellate Review of a Transfer Decision?

Virginia appellate decisions recognize the significant discretion involved in transfer decisions.

In Schwartz v. Commonwealth, the Court of Appeals explained that a circuit court reviewing a transfer decision considers whether there has been substantial compliance with the transfer statute and that appellate review of the transfer decision is governed by an abuse-of-discretion standard.

The Virginia courts have also emphasized the importance of complying with the statutory procedures governing juvenile transfers.

In Burfoot v. Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996), the Court of Appeals addressed the jurisdictional consequences associated with juvenile transfer proceedings and the statutory requirements for transferring a juvenile into the circuit court system.

Similarly, Virginia appellate decisions have recognized that the juvenile court must conduct the required transfer proceedings before circuit court jurisdiction over a juvenile can properly arise under the statutory transfer scheme. See Hughes v. Commonwealth, 35 Va. App. 390, 545 S.E.2d 528 (2001).

The practical lesson is that counsel should carefully examine both the substance of the transfer decision and the procedure used to reach it.

Mandatory Transfers and Discretionary Transfer Hearings Are Different

Not every juvenile felony proceeds through the same transfer procedure.

Virginia Code § 16.1-269.1 contains separate provisions for certain serious offenses involving juveniles who are 16 years of age or older.

For certain offenses—including specified murder, malicious wounding, robbery, carjacking, rape, forcible sodomy, and other serious offenses—the juvenile court conducts a preliminary hearing under subsections B or C rather than the ordinary discretionary-transfer procedure.

If probable cause is found in those circumstances, the charge may be certified to the grand jury.

However, the 2024 amendments created an important exception involving juveniles who can demonstrate that they were victims of qualifying sexual assault or trafficking and that the alleged offense was a direct result of that victimization.

The precise procedure depends upon the offense, the juvenile’s age, and which subsection of § 16.1-269.1 applies.

Why the Transfer Hearing Matters So Much

For a juvenile charged with a serious felony, the transfer hearing may be one of the most consequential hearings in the entire case.

The hearing can determine whether the case remains in the juvenile court system or proceeds toward prosecution in circuit court.

It can also affect the juvenile’s future exposure to the criminal justice system.

For that reason, a transfer hearing should not be treated as a routine preliminary proceeding.

Counsel should begin preparing for the transfer issue early, including obtaining the juvenile’s records, evaluating the statutory factors, investigating treatment options, reviewing the Commonwealth’s evidence, examining the transfer report, and identifying witnesses and documentary evidence that may be relevant to the court’s decision.

Frequently Asked Questions About Virginia Juvenile Transfer Hearings

What is a transfer hearing under Virginia Code § 16.1-269.1?

A transfer hearing is a proceeding in Juvenile and Domestic Relations District Court to determine whether a juvenile charged with a qualifying felony should remain in juvenile court or be transferred to circuit court for criminal proceedings.

How old does a juvenile have to be for a discretionary transfer in Virginia?

Generally, the juvenile must have been at least 14 years old at the time of the alleged offense and must be charged with an offense that would constitute a felony if committed by an adult. The Commonwealth must request the transfer hearing. Va. Code § 16.1-269.1(A).

Does the juvenile automatically go to circuit court?

No. In a discretionary transfer under § 16.1-269.1(A), the juvenile court must conduct the statutory hearing and determine whether the juvenile should be transferred or whether the juvenile court should retain jurisdiction.

Does the judge consider the juvenile’s age?

Yes. Age is specifically identified as one of the factors the court must consider.

Does the judge consider the juvenile’s criminal history?

Yes. The statute expressly requires consideration of the juvenile’s prior contacts with juvenile and circuit courts, probation history, correctional commitments, treatment history, and other relevant history.

Can mental health affect a Virginia transfer hearing?

Yes. The statute specifically identifies intellectual disability and mental illness as factors the court must consider.

Can school records matter at a transfer hearing?

Yes. The juvenile’s school record and education are expressly listed among the statutory factors.

Can the juvenile appeal a transfer decision?

Yes. Under Va. Code § 16.1-269.4, a juvenile may appeal a discretionary transfer decision to the circuit court within 10 days after the juvenile court’s final decision.

What happens if the Commonwealth appeals a decision to retain the juvenile in juvenile court?

Under Va. Code § 16.1-269.3, the Commonwealth’s Attorney may appeal a decision to retain the case if the Commonwealth’s Attorney determines that the appeal is in the public interest. The notice of appeal must be filed within 10 days.

Can statements made during a transfer hearing be used at an adult trial?

Under Va. Code § 16.1-269.2(A), statements made by the juvenile at the transfer hearing generally may not be used against the juvenile in subsequent criminal proceedings following transfer, over objection, except for impeachment.

What should a parent do if a child is facing a transfer hearing?

A parent should understand that the transfer hearing can have consequences far beyond the immediate hearing. The juvenile’s attorney should promptly review the charges, probable-cause evidence, transfer report, prior history, school records, treatment history, mental-health and developmental information, and potential juvenile and adult-system alternatives.

Conclusion: Virginia Juvenile Transfer Hearings Require Early Preparation

Virginia Code § 16.1-269.1 is the central statute governing discretionary transfer hearings for juveniles charged with felony offenses.

The statute requires the court to consider substantially more than the seriousness of the criminal allegation. The juvenile’s age, history, education, maturity, physical and mental condition, treatment prospects, available services, prior record, and circumstances surrounding the alleged offense can all be relevant.

Because a transfer can move a juvenile case from the Juvenile and Domestic Relations District Court into the adult criminal justice system, the transfer hearing deserves careful preparation and litigation.

For parents and juveniles facing a potential transfer in Virginia, one of the most important questions is not simply “What is the juvenile charged with?” but also:

“What evidence demonstrates that this juvenile should—or should not—remain within the juvenile justice system?”

That question is at the heart of Virginia’s transfer statute.

Virginia juvenile transfer cases are highly fact-specific. Anyone facing a transfer hearing should consult with a Virginia juvenile defense attorney promptly because the applicable procedures, deadlines, and potential consequences depend upon the juvenile’s age, the offense charged, and the procedural posture of the case.

Primary Virginia Authorities

• Va. Code § 16.1-269.1 — Trial in circuit court; preliminary hearing; direct indictment; remand.
• Va. Code § 16.1-269.2 — Statements at transfer hearing; transfer report; bail.
• Va. Code § 16.1-269.3 — Retention by juvenile court; Commonwealth’s appeal.
• Va. Code § 16.1-269.4 — Transfer to circuit court; juvenile’s appeal.
• Va. Code § 16.1-269.6 — Circuit court review following transfer appeal.
• Va. Code § 16.1-271 — Consequences of conviction as an adult.
• Burfoot v. Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996).
• Schwartz v. Commonwealth, 32 Va. App. 64, 526 S.E.2d 833 (2000).
• Hughes v. Commonwealth, 35 Va. App. 390, 545 S.E.2d 528 (2001).
• Williams v. Commonwealth, 25 Va. App. 419, 489 S.E.2d 731 (1997).

Sources: The current Code of Virginia provisions governing juvenile transfer are available through the Virginia General Assembly’s Code of Virginia and the Virginia Courts’ District Court Judges’ Benchbook.

The post Virginia Juvenile Transfer Hearings Under Va. Code § 16.1-269.1: What Happens When a Juvenile Is Tried as an Adult? appeared first on Attorneys of Goff Voltin.

 Virginia child abuse and neglect law has long recognized that a parent does not necessarily commit neglect simply because a child is not under constant adult supervision. In 2023, the Virginia General Assembly amended the statutory definition of an “abused or neglected child” to expressly address children who engage in appropriate independent activities without adult supervision.

The amendment to Virginia Code § 16.1-228(2) is sometimes described as Virginia’s “free-range parenting” law. The statute now expressly provides that certain age-appropriate independent activities, standing alone, do not constitute child abuse or neglect.

This change is important for parents, guardians, teachers, law-enforcement officers, child protective services investigators, and attorneys involved in Virginia child abuse and neglect cases.

What Does Virginia Code § 16.1-228(2) Say?

Virginia Code § 16.1-228(2) defines an abused or neglected child, in relevant part, as a child whose parent or other person responsible for the child’s care “neglects or refuses to provide care necessary for his health.”

The statute now contains an important limitation concerning independent activities:

No child whose parent or other person responsible for his care allows the child to engage in independent activities without adult supervision shall for that reason alone be considered to be an abused or neglected child.

The statute further provides that the independent activities must be appropriate based upon the child’s age, maturity, and physical and mental abilities, and the lack of supervision cannot constitute conduct that is “so grossly negligent as to endanger the health or safety of the child.”

The statute specifically identifies several examples of independent activities, including:

• Traveling to or from school or nearby locations by bicycle or on foot;
• Playing outdoors; and
• Remaining at home for a reasonable period of time.

Virginia Code § 16.1-228(2) also states that the provision does not limit the provisions of Va. Code § 16.1-278.4.

The 2023 Amendment to Virginia’s Child Neglect Law

The current language originated with Senate Bill 1367 during the 2023 Virginia General Assembly session.

SB 1367 was introduced by Senator Jill Holtzman Vogel and was titled: 

“Child abuse or neglect; definition, child engaging in independent activities without supervision.”

The bill amended both Va. Code § 16.1-228 and Va. Code § 63.2-100, thereby addressing the definition used in Virginia’s juvenile and domestic relations court statutes as well as the corresponding definition used in the social-services statutes.

The legislation became Chapter 568 of the 2023 Acts of Assembly and was approved by the Governor on March 26, 2023. It became effective July 1, 2023.

The Legislative History Is Important

The legislative history demonstrates that the General Assembly was attempting to provide greater statutory clarity concerning children engaging in reasonable independent activities.

The Department of Planning and Budget’s fiscal impact statement described SB 1367 as legislation that would clarify that a child should not be considered abused or neglected merely because a parent permits the child to engage in reasonable independent activities without adult supervision.

The fiscal impact statement specifically identified activities such as traveling to or from school or nearby locations, playing outdoors, remaining at home for a reasonable period, and remaining in a vehicle under specified safe conditions. It also stated that the legislation “codifies current practice” concerning reports alleging physical neglect based upon inadequate supervision.

The 2023 Virginia Legislative Summary similarly described the bill as clarifying that appropriate independent activities, without adult supervision, do not by themselves constitute abuse or neglect.

The Final Language Was Narrower Than Some Earlier Versions

The legislative history is particularly interesting because the language changed during the legislative process.

An early version of the legislation proposed broader language concerning independent activities. One version would have expressly included remaining in a vehicle under certain temperature and safety conditions and used a “willful and wanton” standard for the parent’s lack of supervision.

The final legislation enacted a different formulation. The final version provides that the lack of supervision cannot constitute conduct that is “so grossly negligent as to endanger the health or safety of the child.” It also omitted the vehicle example that appeared in earlier versions.

That distinction matters when interpreting the statute. The enacted language—not an earlier bill draft—is the law.

What Does the Amendment Actually Change?

The amendment does not create a blanket right for parents to leave children unsupervised.

Instead, the statute creates an important limitation on when the absence of adult supervision may constitute child neglect.

There are essentially three questions:

1. Is the child engaging in an independent activity?

The statute recognizes that children may sometimes be permitted to do things without direct adult supervision.

Examples include walking or bicycling to school or nearby locations, playing outside, and remaining at home for a reasonable period of time.

2. Is the activity appropriate for the particular child?

The statute requires consideration of the child’s:

• Age;
• Maturity;
• Physical abilities; and
• Mental abilities.

This means that the same activity may be appropriate for one child but inappropriate for another.

The statute therefore focuses on the individual child and the circumstances, rather than establishing a universal age at which a child may be left alone.

3. Does the lack of supervision rise to the level of gross negligence?

Even when a child is engaged in an otherwise independent activity, the statutory protection does not apply when the parent’s conduct is “so grossly negligent as to endanger the health or safety of the child.”

Consequently, the amendment does not eliminate the possibility of a neglect finding based upon inadequate supervision.

Instead, it establishes that appropriate independent activity, standing alone, is not sufficient to establish abuse or neglect.

There Is No Specific “Age to Stay Home Alone” in Virginia Law

One common misconception is that Virginia law establishes a specific minimum age at which a child may legally stay home alone.

Section 16.1-228 does not establish such a bright-line age.

Instead, the statute directs attention to the child’s age, maturity, and physical and mental abilities, as well as the circumstances surrounding the lack of supervision.

Therefore, simply asking whether a child is “old enough” to be home alone does not necessarily answer the legal question.

The more important inquiry is whether the particular circumstances demonstrate neglect under the statutory standard. 

The Amendment Does Not Eliminate Virginia’s Child Neglect Laws

The independent-activities provision must be read together with the rest of § 16.1-228.

Virginia law continues to define an abused or neglected child to include a child whose parent or other person responsible for the child’s care fails or refuses to provide care necessary for the child’s health.

The statute also separately addresses situations involving physical or mental injury, substantial risks of death or impairment, abandonment, sexual abuse, lack of parental care, certain dangerous persons in the home, and human trafficking.

The independent-activities provision therefore should not be interpreted as eliminating Virginia’s broader child-protection laws.

Instead, it addresses a particular category of allegations: whether a parent’s decision to allow a child to engage in an age-appropriate independent activity without direct adult supervision, standing alone, constitutes neglect.

Virginia Courts Have Long Recognized That Actual Injury Is Not Required

Virginia appellate decisions interpreting § 16.1-228(2) provide important context.

Virginia courts have held that the statutory definition of an abused or neglected child does not necessarily require proof that the child actually suffered physical injury or impairment.

In D. Farrell v. Warren County Department of Social Services, 59 Va. App. 342, 364 (2012), the Court of Appeals explained that the statutory definitions do not require proof of actual harm or impairment.

The Court of Appeals has continued to rely upon that principle in subsequent cases. See, e.g., Ruyekia Silver v. Norfolk Department of Human Services, No. 0830-20-1 (Va. Ct. App. 2021) (unpublished).

The distinction is important.

The 2023 amendment did not change the general principle that Virginia child-neglect proceedings may be based upon circumstances that create a sufficient threat to a child’s health or safety.

Instead, the amendment specifically provides that appropriate independent activities without adult supervision do not, for that reason alone, establish abuse or neglect. 

Virginia Child Protective Services Regulations Also Address Independent Activities

Virginia’s administrative regulations governing child protective services contain language consistent with the statutory amendment.

22 VAC 40-705-30 provides that a child whose parent or other person responsible for the child’s care allows the child to engage in independent activities without adult supervision is not, for that reason alone, considered an abused or neglected child when the activities are appropriate based upon the child’s age, maturity, and physical and mental abilities and the lack of supervision is not so grossly negligent as to endanger the child’s health or safety.

The regulation also identifies walking or bicycling to school or nearby locations, playing outdoors, and remaining at home for a reasonable period as examples.

This is significant because child protective services investigations are governed not only by the statute but also by the Department of Social Services’ regulatory framework. 

What Does This Mean for Parents?

For Virginia parents, the 2023 amendment provides statutory recognition that children can develop independence without every instance of limited supervision being treated as child neglect.

For example, the statute expressly contemplates circumstances in which a child may:

• Walk or bicycle to school;
• Walk or bicycle to a nearby location;
• Play outside without an adult directly supervising the child; or
• Remain at home for a reasonable period of time.

But the statute does not make these activities automatically lawful in every circumstance.

The child’s age, maturity, physical and mental abilities, the nature of the activity, the surrounding circumstances, and the level of risk remain important.

What Does This Mean for Child Protective Services Investigations?

The amendment is also important when a parent becomes the subject of a Virginia Child Protective Services investigation based upon alleged inadequate supervision.

A report that a child was left without direct adult supervision does not necessarily establish abuse or neglect.

The investigation should consider the statutory language and the circumstances of the particular child.

Relevant questions may include:

• How old was the child?
• What was the child’s level of maturity?
• What physical and mental abilities did the child possess?
• What activity was the child engaged in?
• How long was the child without direct supervision?
• Was the child able to contact a parent or another responsible adult?
• Was the child in a familiar or unfamiliar environment?
• Were there known dangers or hazards?
• Did the circumstances create a significant risk to the child’s health or safety?
• Was the parent’s conduct merely a decision to allow appropriate independence, or did it rise to the level of gross negligence?

Those facts can be critical in determining whether the statutory definition of abuse or neglect has been satisfied.

The 2023 Amendment Should Be Read Narrowly

Although the amendment is sometimes characterized as a “free-range parenting” law, the actual statutory language is more precise.

It does not establish an unrestricted right to leave children unsupervised.

It does not establish a specific age at which children may stay home alone.

It does not prevent Virginia Child Protective Services from investigating allegations involving inadequate supervision.

And it does not eliminate the possibility that a parent’s conduct can constitute neglect when the circumstances create a sufficient danger to the child’s health or safety.

Instead, the amendment establishes a specific statutory principle:

A child is not considered abused or neglected merely because a parent allows the child to engage in an appropriate independent activity without adult supervision.

The statute then places boundaries around that principle by requiring consideration of the child’s age, maturity, physical and mental abilities and by excluding conduct that is so grossly negligent as to endanger the child’s health or safety.

How Virginia’s Independent-Activities Law May Apply in a Child Neglect Case

When an allegation of child neglect is based upon inadequate supervision, the facts should be examined carefully rather than relying solely upon the fact that the child was left without an adult physically present.

For example, there can be a substantial legal difference between:

A parent allowing an older, mature child to walk a short distance to school and

a parent placing a young child in a dangerous circumstance without adequate protection.

The first situation may fall squarely within the independent-activities provision. The second may raise entirely different concerns under Virginia’s child-neglect laws.

The statutory analysis is therefore highly fact-specific.

A Related Change in 2026

Virginia’s General Assembly has continued to amend provisions relating to children and juvenile and domestic relations district court jurisdiction.

For example, House Bill 667 in 2026 amended §§ 16.1-228, 16.1-241, and 63.2-100 in connection with a narrow expansion of juvenile-court jurisdiction involving certain unmarried noncitizens between ages 18 and 21 who have been abused, abandoned, or neglected. That legislation became Chapter 711? [This should not be confused with HB 942’s Chapter 711.] The important point for purposes of § 16.1-228(2) is that the 2023 independent-activities language remains part of the current statutory definition.

Likewise, legislation considered in 2026 concerning legally authorized substances demonstrates that the General Assembly continues to examine the intersection of parental conduct, child welfare, custody, and neglect law. The final version of HB 942, however, did not amend the current independent-activities language in § 16.1-228(2). HB 942 ultimately became Chapter 711 and addressed custody and visitation provisions in §§ 16.1-278.15 and 20-124.2.

Thus, when discussing the independent-activities portion of § 16.1-228(2), the key legislative change remains SB 1367, Chapter 568 (2023). 

Conclusion: Virginia Law Recognizes Appropriate Childhood Independence

Virginia law recognizes that parents do not have to provide constant, direct adult supervision of a child at every moment.

Since July 1, 2023, Va. Code § 16.1-228(2) expressly provides that a child who is permitted to engage in appropriate independent activities without adult supervision is not, for that reason alone, an abused or neglected child.

The statute identifies walking or bicycling to school or nearby locations, playing outdoors, and remaining at home for a reasonable period as examples.

At the same time, the law does not provide parents with unlimited discretion. The activity must be appropriate based upon the child’s age, maturity, and physical and mental abilities, and the parent’s conduct cannot be so grossly negligent as to endanger the child’s health or safety.

For parents facing a Virginia CPS investigation, child neglect allegation, or juvenile and domestic relations district court proceeding, the precise circumstances surrounding the child’s supervision can therefore be critically important.

An allegation that a child was “left alone” is not necessarily the end of the legal analysis. The question is whether the evidence satisfies Virginia’s statutory definition of an abused or neglected child.

If you or your family is facing a child protective services investigation or a Virginia child abuse or neglect charge, it is important to speak with an experienced Virginia attorney about the specific facts of the case.

The post Virginia’s Definition of an Abused or Neglected Child: Understanding Va. Code § 16.1-228(2) appeared first on Attorneys of Goff Voltin.

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.

The post ASSAULT AND BATTERY OF A LAW ENFORCEMENT OFFICER IN VIRGINIA: Can Self-Defense Be Used Against a § 18.2-57(C) Charge? appeared first on Attorneys of Goff Voltin.

Flock cameras have become increasingly common in Virginia. These automated license plate reader cameras—often called ALPRs—photograph vehicles traveling on public roads and use computer technology to record license plate numbers, vehicle characteristics, and the location and time of the photograph.

Law enforcement agencies frequently use Flock cameras to investigate burglaries, stolen vehicles, shootings, homicides, missing persons, and other crimes. But the technology also raises an important constitutional question:

Can police collect and search information about where your vehicle travels without first obtaining a search warrant?

As of September 2026, the answer under Virginia law is generally yes, but with significant statutory restrictions—and the Fourth Amendment question remains dependent upon the scope and nature of the surveillance.

A recent published decision from the Virginia Court of Appeals, Robinson v. Commonwealth, is currently the most important Virginia appellate decision addressing the constitutionality of Flock cameras. The case held that the particular Flock system used by the City of Norfolk did not constitute an unreasonable search under the Fourth Amendment. However, the decision also emphasized that the constitutional analysis is fact-specific and could change if ALPR technology becomes sufficiently comprehensive to create a detailed chronicle of a person’s movements.

What Are Flock Cameras?

Flock Safety cameras are a form of automatic license plate recognition technology, or ALPR.

Virginia law defines an “automatic license plate recognition system” as a system using high-speed cameras and computer algorithms to convert images of license plates, vehicles, or both into computer-readable information. Va. Code § 2.2-5517(A).

The information can include considerably more than a license plate number. Under Virginia law, “system data” can include:

• License plate images;
• Vehicle images;
• Vehicle characteristics;
• Date and time of the image;
• Location of the image; and
• Peripheral images from which additional analytical information may be extracted.

Va. Code § 2.2-5517(A).

In other words, Flock technology creates a searchable record showing that a particular vehicle was observed at a particular location at a particular time.

That capability is what makes the technology useful to law enforcement—and what creates the privacy concerns surrounding it.

Is It Legal for Police to Use Flock Cameras in Virginia?

Generally, yes.

Virginia has expressly authorized law-enforcement agencies to use automatic license plate recognition systems, subject to substantial restrictions.

Virginia Code § 2.2-5517 now establishes a comprehensive statutory framework governing the use of ALPR systems by law enforcement.

Among other things, Virginia requires ALPR systems used by law enforcement to satisfy specific technological and security requirements. Vendors must certify that Virginia system data will not be improperly sold or shared and that system data can be purged after 21 days. Va. Code § 2.2-5517(B).

The statute also limits the purposes for which law enforcement may use the technology.

When Can Virginia Police Use Flock Cameras?

Under Va. Code § 2.2-5517(D), law enforcement may use an ALPR system:

1. As part of a criminal investigation where there is reasonable suspicion that a crime was committed;
2. As part of an active investigation involving a missing or endangered person or a person associated with human trafficking; or
3. To receive notifications concerning certain persons or property, including missing persons, persons with outstanding warrants, persons associated with human trafficking, stolen vehicles, and stolen license plates.

The statute also requires information necessary to create an audit trail to be entered when the system is queried.

Most importantly, the statute provides that an agency may not query or download system data unless the information relates to one of the statutorily permitted purposes. Va. Code § 2.2-5517(D).

This is an important distinction.

The fact that a Flock camera is legally installed does not mean that a police officer has unlimited authority to search the resulting database for any reason.

Virginia Law Also Limits How Long Flock Data Can Be Kept

Virginia has imposed a relatively short statutory retention period.

Under Va. Code § 2.2-5517(E), system data generally must be destroyed after 21 days.

Audit-trail data must generally be destroyed after two years.

There is an important exception when the information is part of an ongoing investigation, prosecution, or civil action. In that circumstance, the information can be retained until the matter has reached its final disposition, including applicable appeals and habeas proceedings.

This means that the 21-day rule is not an absolute prohibition against retaining evidence connected to a criminal case.

Can Police Share Flock Camera Information?

Virginia law places substantial restrictions on sharing ALPR information.

Under Va. Code § 2.2-5517(F), system data and audit-trail data generally are not subject to disclosure under the Virginia Freedom of Information Act.

Law-enforcement agencies generally cannot sell the information or simply disseminate it to other governmental, private, commercial, or federal databases.

There are, however, statutory exceptions permitting sharing for specified law-enforcement purposes, with prosecutors, with criminal defendants and their attorneys for discovery, pursuant to court orders or subpoenas, and for certain emergency and missing-person purposes.

This is particularly significant for criminal-defense attorneys.

A defendant may have a statutory right to obtain Flock information when that information is relevant to the criminal case.

Virginia Requires Police Departments to Audit Flock Use

Virginia law also requires law-enforcement agencies using ALPR systems to adopt written policies governing their use.

Those policies must address:

• User training;
• Permitted purposes;
• Database accuracy;
• Procedures for confirming notifications;
• Restrictions on downloading information;
• Internal auditing;
• Retention and destruction;
• Data sharing; and
• Security procedures.

The statute requires internal auditing at least every 30 days. Va. Code § 2.2-5517(H).

Law-enforcement agencies must also report information concerning their use of ALPR systems to the Virginia State Police, including the number of cameras, the number and purposes of queries, databases with which the information was compared, vehicle stops resulting from notifications, other agencies with access, and identified instances of unauthorized use.

Agencies must publicly post their ALPR policies and annual reports, subject to statutory exceptions for sensitive information. Va. Code § 2.2-5517(I)-(K).

Flock Camera Alerts Do Not Automatically Give Police Reasonable Suspicion to Stop a Vehicle

This is another important protection in Virginia law.

Suppose a Flock camera alerts police that a vehicle may be stolen.

The notification itself does not automatically constitute reasonable suspicion to stop the vehicle.

Virginia Code § 2.2-5517(M) provides that before stopping a vehicle based upon an ALPR notification, an officer must either:

1. Develop independent reasonable suspicion for the stop; or
2. Confirm that the license plate or identifying characteristics of the vehicle actually match the information that generated the notification.

This provision can be extremely important in a motion to suppress.

A defense attorney should therefore examine not only why police searched the Flock database, but also what information they relied upon before stopping the vehicle.

What Happens If Police Violate Virginia’s Flock Camera Law?

The statute has teeth.

A person who willfully and intentionally queries, accesses, or uses an ALPR system for an unauthorized purpose—or improperly sells, shares, or disseminates the information—can be guilty of a Class 1 misdemeanor.

More importantly for criminal defendants, Va. Code § 2.2-5517(O) provides an exclusionary remedy.

Evidence obtained as the result of a violation of subsection D, F, L, or M is not admissible by the Commonwealth in a criminal or civil proceeding.

The statute expressly provides that the evidence may nevertheless be admitted by a defendant in a criminal proceeding or by a civil litigant other than the Commonwealth.

Thus, a violation of Virginia’s ALPR statute can potentially provide a separate statutory basis for challenging evidence—independent of the Fourth Amendment.

The Fourth Amendment and Flock Cameras

The constitutional question is more complicated.

The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The fundamental question in a surveillance case is whether the government’s conduct constitutes a search and, if so, whether that search is reasonable.

The Supreme Court has recognized that people can have a reasonable expectation of privacy in information even when the information relates to conduct occurring in public.

That principle is particularly important when technology allows the government to collect information on a scale that would have been impossible through traditional police observation.

United States v. Knotts

In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court considered police use of a beeper to track an object traveling on public roads.

The Court concluded that there was no Fourth Amendment violation under the facts of that case because the movements were exposed to public view.

That case provides substantial support for the government’s position concerning traditional license-plate readers.

But Knotts predates modern networked surveillance technology.

The Supreme Court has subsequently recognized that technology can change the constitutional analysis.

Carpenter v. United States

In Carpenter v. United States, 585 U.S. 296 (2018), the Supreme Court considered government access to historical cell-site location information.

The Court held that obtaining extensive historical location information was a Fourth Amendment search requiring a warrant.

The important point was not simply that the information came from a public place.

Instead, the Court focused on the extraordinary quantity and sensitivity of the information.

Historical cell-site data could create an “intimate window” into a person’s life by revealing movements and associations over an extended period.

The Supreme Court concluded that the government had effectively obtained a comprehensive record of the person’s movements.

That principle creates the potential constitutional problem for Flock cameras.

Leaders of a Beautiful Struggle v. Baltimore Police Department

The Fourth Circuit considered a similar issue in Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021) (en banc).

Baltimore operated an aerial surveillance program that could monitor vehicles and people across a large portion of the city.

The Fourth Circuit concluded that the surveillance program violated the Fourth Amendment because the extensive collection of movement information could reveal intimate details about people’s habits and associations.

The court applied the principles of Carpenter to the aerial surveillance system.

The case is particularly important in Virginia because Virginia is within the Fourth Circuit.

The Most Important Virginia Case: Robinson v. Commonwealth

In April 2026, the Virginia Court of Appeals issued a published opinion directly addressing the constitutionality of Flock cameras.

The case is Robinson v. Commonwealth, Record No. 1912-24-1 (Va. Ct. App. Apr. 7, 2026).

The case arose from a series of burglaries in Norfolk.

Norfolk had installed 172 Flock cameras at intersections throughout the city. The cameras captured photographs of vehicles and license plates and recorded information including the license plate number, vehicle make, model, color, and distinctive characteristics. At the time involved in the case, the information was stored for approximately 30 days.

Police investigating a burglary received information that a white BMW SUV with distinctive black rims might have been involved.

An officer searched the Flock database using the vehicle’s characteristics and a limited time period. The system returned an image of a white BMW with black rims and its license plate.

Police then used the license plate to identify the registered owner.

The defendant argued that the warrantless Flock search violated the Fourth Amendment.

The Virginia Court of Appeals rejected that argument.

The Court Held That the Flock Search Was Not a Fourth Amendment Search

The Court of Appeals emphasized that a license plate and the exterior characteristics of a vehicle are exposed to public view.

The court relied in part on Knotts, concluding that the defendant had no reasonable expectation of privacy in those characteristics while driving on a public road.

The court also emphasized the limited nature of Norfolk’s Flock system.

According to the court, the cameras did not continuously monitor every movement of the defendant’s vehicle. Instead, the cameras captured intermittent still images at various locations.

The court distinguished Carpenter and Leaders of a Beautiful Struggle, reasoning that those cases involved substantially more comprehensive surveillance.

The Norfolk Flock system, the court concluded, did not create the equivalent of “near perfect surveillance.”

Accordingly, the court held that the police did not need a search warrant to access the Flock information in the circumstances presented in Robinson.

But Robinson Does Not Mean That All Flock Searches Are Constitutional

This is perhaps the most important point from the decision.

The Court of Appeals expressly recognized that the Fourth Amendment analysis is fact-specific.

The court relied upon Bennett v. Commonwealth, 212 Va. 863, 865 (1972), for the principle that whether a governmental intrusion is reasonable depends upon the particular facts and circumstances.

The court specifically stated that its decision was based upon the current Flock system in Norfolk.

The court declined to decide whether future Flock technology could become sufficiently comprehensive to create a constitutionally protected record of a person’s movements.

That qualification could become extremely important.

A system containing a handful of cameras that captures an occasional photograph is constitutionally different from a system capable of reconstructing virtually every trip a person makes over weeks, months, or years.

The Constitutional Line May Be Surveillance, Not the Camera

This distinction provides an important framework for analyzing future Flock cases.

A single photograph of a vehicle driving down a public street is difficult to distinguish from what an officer could observe with his or her own eyes.

But consider a hypothetical system that could determine:

• Where your vehicle goes every day;
• Where you work;
• Where you sleep;
• Which doctors you visit;
• Which churches you attend;
• Which political meetings you attend;
• Which people you regularly visit;
• Which businesses you frequent; and
• Your complete travel history over several months.

At some point, the argument becomes much stronger that the government is no longer merely observing something exposed to public view.

Instead, it is creating a detailed historical record of a person’s movements and associations.

That is the constitutional concern recognized in Carpenter and Leaders of a Beautiful Struggle.

The Federal Courts Have Also Considered Flock Cameras

The Eastern District of Virginia has addressed Flock cameras in two significant cases.

In United States v. Martin, 753 F. Supp. 3d 454 (E.D. Va. 2024), the federal court considered Flock information obtained in the Richmond area.

The court concluded that the Flock system at issue did not violate the defendant’s reasonable expectation of privacy.

The Virginia Court of Appeals later relied upon Martin in Robinson.

The Eastern District of Virginia subsequently considered the Norfolk Flock system in Schmidt v. City of Norfolk.

In January 2026, the federal court granted summary judgment to the City of Norfolk, concluding that the Norfolk ALPR system did not violate the plaintiffs’ Fourth Amendment rights based upon the facts presented.

The court nevertheless recognized the underlying constitutional concern: at some point, sufficiently comprehensive ALPR surveillance could potentially become unconstitutional.

Privacy Concerns Remain Even If the Technology Is Currently Constitutional

The constitutional analysis and the privacy analysis are not necessarily identical.

Something can be legal under the Fourth Amendment while still raising serious privacy concerns.

Flock cameras create a database of vehicles traveling through a community. Unlike an individual police officer who happens to see a vehicle, a computerized system can make those observations searchable.

That distinction matters.

A police officer standing on a street corner might see a vehicle drive past.

A searchable database can potentially answer questions such as:

“Where has this vehicle been?”

That capability can dramatically increase the government’s ability to reconstruct people’s activities.

Virginia’s new statutory framework recognizes this concern by imposing limits on retention, sharing, auditing, permissible uses, and access.

Flock Cameras and the Virginia Freedom of Information Act

Another interesting aspect of Virginia’s law is that ALPR data is not subject to ordinary disclosure under the Virginia Freedom of Information Act.

Va. Code § 2.2-5517(F) expressly excludes system data and audit-trail data from FOIA disclosure.

At the same time, Virginia requires law-enforcement agencies to publicly post their ALPR policies and annual reports.

This creates an important balance: the public may obtain information about how an agency uses the technology, even though the underlying database generally is not publicly available.

What Should a Criminal Defense Attorney Investigate in a Flock Case?

When Flock information appears in a Virginia criminal prosecution, defense counsel should not simply assume that the information is admissible because the vehicle was traveling on a public road.

Several questions should be investigated.

1. Why was the Flock database searched?

Was there an actual criminal investigation?

Was there reasonable suspicion that a crime had occurred?

Was the query related to a missing person, stolen vehicle, warrant, or another statutory purpose?

2. What exactly did the officer search?

The statutory definition of “query” is broad.

It includes searches based upon:

• Full or partial license plates;
• Vehicle characteristics;
• Date;
• Time;
• Location; and
• Other searchable information.

Va. Code § 2.2-5517(A).

3. What time period was searched?

A two-hour search surrounding a particular crime is significantly different from a search covering months of historical travel.

The latter may present substantially stronger Fourth Amendment arguments under Carpenter.

4. How many cameras were involved?

A handful of cameras may produce isolated observations.

A dense network of cameras covering virtually every road could create a much more comprehensive picture of a person’s movements.

5. How much data was available?

Defense counsel should determine the retention period applicable to the particular system at the time of the search.

6. Was the query properly documented?

Virginia law requires an audit trail.

The audit information can include the date and time of the query, the information used to conduct the search, the purpose of the search, the associated case or call number, and the identity of the user. Va. Code § 2.2-5517(A).

7. Was the information shared with another agency?

Virginia law imposes restrictions on sharing ALPR information.

The defense should determine whether information was transferred to another law-enforcement agency or database and whether the transfer complied with § 2.2-5517.

8. Was a vehicle stop based solely on a Flock notification?

If so, § 2.2-5517(M) should be examined carefully.

A Flock notification alone does not automatically constitute reasonable suspicion for a vehicle stop.

What Is the Current Status of Flock Cameras in Virginia?

As of September 2026, the best summary of Virginia law is:

Flock cameras and other ALPR systems are legal in Virginia, but their use is heavily regulated.

Under the Fourth Amendment, the Virginia Court of Appeals has held that the particular Norfolk Flock system considered in Robinson did not require a warrant because it captured intermittent photographs of vehicles traveling on public roads rather than creating comprehensive surveillance of the defendant’s movements.

Federal courts in Virginia have reached similar conclusions concerning the Richmond and Norfolk systems.

But the constitutional question is not permanently settled for every possible ALPR system or every possible Flock search.

The courts have repeatedly emphasized the importance of the scope, duration, density, and nature of the surveillance.

Moreover, Robinson was included on the Virginia appellate courts’ list of Court of Appeals decisions that had been appealed to the Supreme Court of Virginia.

That makes the issue one to watch closely.

The Bottom Line

Are Flock cameras legal in Virginia? Yes.

Can Virginia police use Flock cameras without obtaining a warrant every time? Under current Virginia appellate law, generally yes, when the system and search are comparable to those considered in Robinson.

But that does not give law enforcement unlimited authority.

Virginia Code § 2.2-5517 establishes significant restrictions on:

• When ALPR systems may be searched;
• How the information may be used;
• How long information may be retained;
• How information may be shared;
• How officers may rely upon ALPR notifications;
• How agencies must audit their systems; and
• What happens when officers violate the statute.

And the Fourth Amendment remains an important safeguard.

The key constitutional question may ultimately be not whether a license plate is visible in public, but whether the government’s use of technology has transformed isolated public observations into a comprehensive record of a person’s movements and associations.

For now, Robinson v. Commonwealth provides strong authority supporting the constitutionality of the Norfolk Flock system as it existed in that case. But the decision itself recognizes that the answer could change as the technology—and the extent of government surveillance—changes.

For anyone charged with a crime where Flock camera evidence played a role, the question should therefore not simply be “Was there a Flock camera?”

The more important questions are:

Why was the database searched? What exactly did police search? How much historical information was obtained? How many cameras were involved? How long was the information retained? Was the search authorized under Virginia Code § 2.2-5517? And did the government’s use of the technology cross the constitutional line from observing public activity to conducting comprehensive surveillance?

Those questions can make the difference between admissible evidence and evidence that should be excluded.

This article is intended for general informational purposes and does not constitute legal advice. The law governing automated license plate readers and Flock cameras is developing rapidly, and the outcome of a particular case depends upon the specific facts and circumstances.

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