Hodge v. Commonwealth (2015) Va. Supreme Court

Points of Interest:

Does the Virginia Supreme Court find among other things that a Special Conservator of the Peace is in fact a law enforcement officer within the Code of Virginia when the term law enforcement officer is used vaguely and without legal connotation?

  • “The language does not have any bearing on whether Allen is or is not a “law­ enforcement officer” for purposes of Code § 18.2-460(A). Indeed, the Order of Appointment constitutes evidence that Allen was a “law-enforcement officer.” When coupled with evidence that he was on patrol pursuant to his employment, it is sufficient to show that he was acting as such during the incident.
  • “By per curiam order, the Court of Appeals denied her petition. Hodge v. Commonwealth, Record No. 0894-13-2 (December 30, 2013). The Court of Appeals found that Allen was a law-enforcement officer pursuant to his Order of Appointment and Code § 19.2-13, and the Commonwealth was not required to prove that Allen was carrying his badge to prove his status.”
  • “Consequently, the “lawful” performance of duties is not an affirmative element of the offense under Code § 18.2-460(A) that the Commonwealth must prove. See Zinone v. Leels Crossing Homeowners Ass’n. 282 Va. 330 337[ 714 S.E.2d 922 925 (2011). (“[W]hen the General Assembly has used specific language in one instance but omits that language or uses different language when addressing a similar subject elsewhere in the Code we must presume that the difference in the choice of language was intentional.); accord Brown v. Commonwealth (2012) 284 Va. 538 545 733 S.E.2d 638 641.

James R. Thorne, Appellant v. United States, Appellee (2012) D.C. Court of Appeals

Points of Interest:

1.) Special Conservator of the Peace Employed by a Private Entity; Off-Duty:

James Roger Thorne appeals from his convictions for Carrying a Pistol Without a License (“CPWL”) in violation of D.C.Code § 22–4504 (2009 Supp.), Possession of an Unregistered Firearm (“UF”) in violation of D.C.Code § 7–2502.01 (2009 Supp.), and Unlawful Possession of Ammunition (“UA”) in violation of D.C.Code § 7–2506.01 (2009 Supp.). Mr. Thorne is employed by the Alexandria Security Patrol Corporation, which secured for him two Virginia-court appointments as a “special conservator of the peace” (“SCOP”). As an SCOP, Mr. Thorne has some authority to act in a law enforcement capacity, including the power to make arrests and to carry a gun, while he is “engaged in the performance of his duties” for the Alexandria Security Patrol Corporation.

2.) Criminal Conduct Charged:

Turning to the criminal conduct charged, the record reflects that police approached Mr. Thorne on the street in the District on August 25, 2010, at 4:20 a.m., to see if he had any information about a recent report of gunshots. The police discovered that he was in possession of a loaded firearm. Mr. Thorne was then placed under arrest and was subsequently charged with CPWL, UF, and UA.

3.) Carrying a Pistol w/o a License:

We begin our analysis with the CPWL charge. D.C.Code § 22–4504 states: “No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law.” The Code then exempts a number of officials from this broad prohibition, most relevant to this case: “marshals, sheriffs, prison or jail wardens, or their deputies, policemen or other duly appointed law enforcement officers.” D.C.Code § 22–4505. The term “law enforcement officer” is not defined.3

“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used.” Varela v. Hi–Lo Powered Stirrups, Inc., 424 A.2d 61, 64–65 (D.C.1980) (citing United States v. Goldenberg, 168 U.S. 95, 102–03, 18 S.Ct. 3, 42 L.Ed. 394 (1897)). We first look to see if the statutory language “is plain and admits of no more than one meaning”; we must construe the words in a statute “according to their ordinary sense and with the meaning commonly attributed to them.” Davis v. United States, 397 A.2d 951, 956 (D.C.1979).

4. General Duties & Broad Authority:

As discussed in our case law, the ordinary understanding of policemen and law enforcement officers is that these terms describe professionals with “general duties and broad authority.” Franklin v. United States, 271 A.2d 784, 785 (D.C.1970); see also Klopfer v. District of Columbia, 25 App.D.C. 41, 44 (D.C.Cir.1905) (distinguishing “a special policeman for a special purpose” as someone “not subject to the performance of the general duties of a policeman, in the ordinary sense of that term”). Those general duties include the authority to carry a firearm at all times, see Bsharah, 646 A.2d at 999 (distinguishing between policemen, who are authorized to carry guns at all times, and special police officers, “who are authorized to carry firearms only when they are on duty”), and the authority to make arrests even when they are off duty, see Bauldock v. Davco Food, Inc., 622 A.2d 28, 34 (D.C.1993) (recognizing that an off-duty police officer retains his authority to make arrests from his status as a Metropolitan Police Department officer)

Mr. Thorne is not a policeman or other duly appointed law enforcement officer under the ordinary sense of those terms because, outside of specific times when he is working, he does not have general police authority or authorization to carry a gun. His Order of Appointment from the City of Alexandria limits his authority as a conservator of the peace to times when he “is engaged in the performance of duties ․ at or on the premises described in the application.” Similarly, his Order of Appointment from Fairfax County limits his authority to times when he “is engaged in the performance of duties ․ for the use in services contracted by Alexandria Security Patrol only.” In addition, both orders specifically limit his ability to carry a firearm to times when he is on duty. Mr. Thorne never presented evidence regarding the scope of his work hours for the Alexandria Security Patrol Corporation, but we can infer from the language of his two appointments that he was not expected to be on duty twenty-four hours per day, seven days a week, otherwise there would be no reason to include language limiting his authority as an SCOP to times when he was “engaged in the performance of his duties.”6

5. The Exception to the Rule:

Even though our statutes and precedent are clear that policemen and law enforcement officers are those with general law enforcement authority and responsibility, we have also recognized that certain professionals who are given police powers “while on duty and in [their] prescribed area of authority, must of necessity possess certain powers that are accorded to policemen.” Franklin, 271 A.2d at 785.

Accordingly, we have read into the section 22–4505 exemption for “policemen and other duly appointed law enforcement officials” a narrow exemption for professionals with temporally limited law enforcement authority, so long as they are acting within the scope of their duties. See Shivers v. United States, 533 A.2d 258, 260 (D.C.1987) ( “Appellant established that he is a special police officer․ He is thus entitled to carry a pistol without a license under the exception ․ but ‘only to the extent that he acts in conformance with the regulations governing special officers.’ ” (citing Timus v. United States, 406 A.2d 1269, 1272 (D.C.1979))); see also Singleton v. United States, 225 A.2d 315, 316 (D.C.1967) (” ‘[S]pecial policemen are public officers when performing their public duties.’ ” (quoting Nat’l Labor Relations Bd. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947))).

6. For argumentative reasons only, Does the Court theorize travel to and from?

Mr. Thorne does not fall under the additional, narrow exception for individuals with limited law enforcement authority because he was not acting within the scope of his employment when he was arrested. Mr. Thorne stipulated that he was not on duty for the Alexandria Security Patrol Corporation at the time of his arrest. Additionally, he stipulated that he was not traveling to or from work when he was arrested. In other words, he had no work-related reason to be carrying a gun at the time of his arrest. Because Mr. Thorne is neither a law enforcement officer with general authority nor an individual with limited law enforcement authority who is acting within the scope of his authority, he is not considered a law enforcement officer for purposes of D.C.Code § 22–4505.

7.) Thorne & LEOSA:

Mr. Thorne argues that, even if he is not exempt from prosecution for CPWL, UF, and UA under the D.C.Code, he is exempt under the federal Law Enforcement Officers Safety Act (LEOSA). As with the D.C.Code provisions, we review this question of statutory interpretation de novo. See McNeely, 874 A.2d at 387. LEOSA says, “an individual who is a qualified law enforcement officer and who is carrying the identification required ․ may carry a concealed firearm.” 18 U.S.C. § 926B. “Qualified law enforcement officer” is defined in turn, as “an employee of a governmental agency” who meets a number of other requirements. 18 U.S.C. § 926B (c).8 As discussed, supra, “[t]he words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.” Davis, 397 A.2d at 956 (citations omitted). The “ordinary sense” of “governmental agency” is an agency that is a component of the government.

Finally, Mr. Thorne points to a case from New York State, in which the Supreme Court (i.e., the trial court) ruled that an elected Pennsylvania constable who functioned as an “independent contractor” but nonetheless was paid directly by the government, was entitled to LEOSA’s protection. See New York v. Rodriguez, N.Y. Sup.Ct., N.Y. County, Nov. 3, 2006, Zweibel, J., indictment No. 06–2917. This case is factually distinguishable and unpersuasive.


The D.C. Court of Appeals was willing to apply a narrow exemption for a Virginia appointed Special Conservator of the Peace employed by a private entity from D.C. Laws requiring a permit to carry a handgun so long as that person could stipulate they were acting within the “scope of their duties,” to include traveling to and from work. The Court given the facts of the case had no other option, but to convict Mr. Thorne under the crime(s) charged. This is a very well written legal opinion based on the law and the facts at hand.

United States Court of Appeals, District of Columbia Circuit

Robert L. Ord, Appellant v. District of Columbia, Appellee     December 2009



Appellant, a Virginia Special Conservator of the Peace authorized to carry weapons within the Commonwealth, brought suit against the District of Columbia alleging that it lacked probable cause to secure an arrest warrant against him for allegedly violating D.C. firearms laws. Because appellant was never arrested, the district court treated his suit as a preenforcement challenge and, finding that appellant failed to demonstrate that he faces a genuine and imminent risk of prosecution, dismissed it for lack of standing. For the reasons set forth in this opinion, we reverse.

In 2007, the Virginia Circuit Court of Orange County appointed appellant Robert Ord a Special Conservator of the Peace (SCOP). That order authorized Ord to carry firearms while acting in the course of his duties. It also designated him a “Qualified Law Enforcement Officer” with respect to certain provisions of Virginia and federal law, including the federal Law Enforcement Officers Safety Act of 2004. Known as LEOSA, that statute allows officers to carry concealed firearms notwithstanding contrary state law. See 18 U.S.C. § 926B.

Ord owns Falken Industries, a private security company holding a Detective Agency License issued by the D.C. Metropolitan Police Department (MPD). Since 2006, Falken has provided private security services within the District of Columbia. In 2008, sowing the seeds of this litigation, Falken contracted to provide armed security at a District of Columbia Head Start school. Because certain aspects of that contract required MPD approval, Ord discussed it with an MPD officer and submitted requested paperwork. Although Ord was told that “all things looked ‘OK,’ ” Appellant’s Aff. ¶ 16, he learned a few days later that the MPD had arrested Falken employees stationed at the school for carrying weapons without permits. An MPD officer then told Ord that a warrant had been issued for his arrest for violating D.C.Code § 7-2502.01(a), which prohibits carrying a firearm without a license. The next day Ord noticed several MPD officers near Falken’s Virginia headquarters.

After learning of the warrant, Ord’s attorney contacted the D.C. Office of the Attorney General (OAG), supplied evidence of Ord’s SCOP status, and demanded nullification of the warrant because of Ord’s exemption from the District of Columbia’s firearms law. Although an OAG official initially indicated that the office would “not go forward with this warrant,” Compl. ¶ 26, OAG changed its position several hours later, informing counsel that it might enforce the warrant. Ord’s attorney immediately asked the D.C. Superior Court to quash the warrant. Again reversing course and shortly before a scheduled hearing, OAG declared a nolle prosequi. Ord was never arrested.

42 U.S.C. 1983:

Fearing future prosecution and claiming injury from the arrest warrant, Ord brought suit in federal district court, seeking damages for a Fourth Amendment violation under 42 U.S.C. § 1983. According to Ord, MPD officers knew not only that Ord is an SCOP, but also that SCOP status exempts him from section 7-2502.01(a)’s ban on possessing weapons in the District of Columbia. He cited section 7-2502.01(b), which provides that “any law enforcement officer or agent of the government of any state or subdivision thereof” is exempt from the statute if he is “authorized to possess a firearm, while on duty in the performance of official authorized functions.”

Alleging that the MPD may arrest him in the future in order to intimidate him from competing with off-duty MPD officers for private security contracts, Ord also sought declaratory and injunctive relief.

Specifically, Ord asked the court to declare him (1) a “law enforcement officer or agent of the government of any state or subdivision thereof” for the purposes of D.C. law and (2) exempt from D.C.Code § 7-2502.01(a) and “other such District of Columbia firearms regulations wherein law enforcement officers or agents are exempt therefrom.”   Compl. ¶ 48-49.   Finally, Ord asked the court to enjoin the District of Columbia from enforcing or prosecuting “such laws” against him.  Id. ¶ 50.


Pre-enforcement Challenge:

Where a plaintiff has yet to face prosecution under a statute he seeks to challenge, the Supreme Court, in Babbitt v. United Farm Workers, requires that he establish Article III standing by (1) “alleg[ing] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and (2) demonstrating that “there exists a credible threat of prosecution thereunder.”  442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). In Navegar, Inc. v. United States, however, we held that plaintiffs must show more than a “credible threat” of prosecution:  they must demonstrate an “imminent” threat.  103 F.3d at 999;  see also Parker v. District of Columbia, 478 F.3d 370, 375 (D.C.Cir.2007), aff’d in part sub nom. District of Columbia v. Heller, — U.S. —-, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008);  Seegars v. Gonzales, 396 F.3d 1248, 1255 (D.C.Cir.2005). To prove that a threat is both credible and imminent, we require plaintiffs to demonstrate that their prosecution results from a special law enforcement priority, namely that they have been “singled out or uniquely targeted by the ․ government for prosecution.”  Parker, 478 F.3d at 375.

Acknowledging that our case law demands more than does United Farm Workers, we have nonetheless continued to require plaintiffs to demonstrate that enforcing the law against them represents a “ ‘special priority’ for the government.”

Ord argues that he has satisfied our preenforcement standing requirements because the previous warrant for his arrest demonstrates that enforcing the law against him is a “special priority” of the District of Columbia.   Challenging the district court’s conclusion that the warrant’s nullification was “strong evidence that the District [did] not presently intend to prosecute” him, Ord, 573 F.Supp.2d at 94-95, Ord argues that D.C.’s only motivation for quashing the warrant was to prevent judicial review of his claimed exemption from the District’s firearms laws.

Ord also claims that the MPD memorandum supports his fear of future prosecution, emphasizing its statement that “SCOP[s] who [are] not covered by 18 U.S.C. § 926B and carr[y] firearm[s] in the District of Columbia will be subject to all relevant criminal penalties.”   Mem. of Victor Brito.

The District of Columbia’s position with regard to Ord’s standing has evolved during this litigation.   In the district court, it “ma[de] much ado about the fact that the Office of the Attorney General declared a nolle prosequi of the Information in support of the warrant” and insisted that this action negated any inference of a credible and imminent threat of future prosecution.  Ord, 573 F.Supp.2d at 93.   On appeal, however, the District of Columbia now agrees with Ord that “his showing regarding the likelihood that [future] prosecution [will] occur [is] sufficient” because “Ord’s allegations that the District applied for an arrest warrant against him [are] sufficient to show ․ a special priority.”   Appellee’s Br. 24.

Ord’s injury stems from his inability to travel to D.C. and carry on his security business here while armed without fear of prosecution. That injury is imminent because the District of Columbia has made clear its specific intention to prosecute him.

While I was once able to enter the District of Columbia with my firearm as a police officer, I can no longer do so for fear of my unlawful arrest. It is impossible for me to go from one location in Virginia where I need my firearm to perform my duties to another location in the District of Columbia. I have no means to secure and leave my gun somewhere when I enter the District of Columbia.

Appellant’s Aff. ¶ 30.  Moreover, Ord’s request for relief-a declaratory judgment and an injunction prohibiting the District of Columbia from enforcing its firearms laws against him-makes sense only if he actually intends to return to D.C. while armed to service his clients. We thus conclude that Ord has standing to bring his preenforcement claim.

The District of Columbia contends that Ord’s preenforcement challenge is insubstantial because “under binding precedent, Ord has a Fourth Amendment claim as to a future arrest only if the invalidity of such an arrest is obvious.”   Appellee’s Br. 12.   In support, the District of Columbia relies on Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), in which the Supreme Court held that an arrest for violating an ordinance later found to be unconstitutionally vague did not run afoul of the Fourth Amendment.

We disagree that DeFillippo and Barwood foreclose all debate on Ord’s allegations.   Neither decision addresses the precise question Ord raises:  whether a warrant or arrest would lack probable cause where the responsible officer, knowing that the arrestee is exempt from the criminal statute, nonetheless files an affidavit in bad faith-an allegation we must take as true at this stage of the litigation.   Indeed, unlike the issues addressed in DeFillippo and Barwood, the question here bears directly on the existence of probable cause, for it requires an inquiry into whether “facts and circumstances within the officer’s knowledge [could be] sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.”  DeFillippo, 443 U.S. at 37, 99 S.Ct. 2627.   Moreover, even were we to agree with the District of Columbia that Ord’s allegations ultimately fail to state a Fourth Amendment claim-a question we leave for the district court to resolve in the first instance-that would provide no basis for finding that Ord’s claim is so insubstantial as to deprive the district court of jurisdiction.


This issue is easy. The District does not challenge Ord’s standing to bring his damages claim, and for good reason. To begin with, Ord has plainly alleged injury in fact. According to his complaint, an MPD officer caused a warrant to issue for Ord’s arrest on the basis of a false affidavit and without probable cause, forcing him to abandon lucrative armed security contracts within the District of Columbia. Ord has also sufficiently alleged causation:  the arrest warrant prevented him from entering D.C., which in turn required him to abandon the contracts. Finally, an award of damages would obviously redress his injuries.

We are equally unpersuaded by the District of Columbia’s argument that Ord’s claim for damages caused by the warrant is so insubstantial as to deprive the district court of jurisdiction.   According to the District of Columbia, Ord’s claim is frivolous because he was never arrested.   The Fourth Amendment, D.C. insists, protects only against unreasonable “searches” and “seizures,” and “there is no seizure without actual submission.”  Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).


For the foregoing reasons, we reverse the dismissal of Ord’s claims and remand to the district court for further proceedings consistent with this opinion.

District Court Final Opinion: JOHN D. BATES, District Judge

4th Amendment Claim:

As the D.C. Circuit explained, under circuit law, plaintiff “must demonstrate that the statutes are so unambiguous that a reasonable officer could not believe that Ord is subject to the firearms laws.” Id. (citing Doe, 445 F.3d at 461, 467-69). Plaintiff cannot do so.

Although he contends that both the Law Enforcement Officer Safety Act (“LEOSA”), 18 U.S.C. § 926B, and D.C.Code § 7-2502.01(b) exempt him, as a SCOP, from the District’s firearms registration requirement, see D.C.Code § 7-2502.01, plaintiff never claims that these laws are unambiguous, let alone “so unambiguous that a reasonable officer could not believe” Ord is subject to the registration requirement. Ord, 417 Fed.Appx. at 2. In its previous opinion, this Court explained that there was “no evidence” that plaintiff was exempt under LEOSA and that it was “unable to determine” whether he was exempt under D.C.Code § 7-2502.01(b). Ord, [Docket Entry 27] at 8, 9. Plaintiff fails to clear up the ambiguity surrounding any potential exemption under LEOSA or § 7-2502.01(b).

Plaintiff does raise a new argument that corporations that employ SCOPs are in a similar position to the Amtrak police department, whose officers LEOSA specifically exempts. See 18 U.S.C. § 926B(f). That Congress created a specific statutory exemption in LEOSA for Amtrak officers, however, says nothing as to whether plaintiff, as a SCOP, is an “employee of a government agency.” Id. § 926B(b). Hence, plaintiff has not shown that he is unambiguously exempt from the District’s firearms registration requirement pursuant to LEOSA.

Plaintiff’s arguments with regard to D.C.Code § 7-2502.01(b) fare no better. In this Court’s prior opinion, it explained that it “has been unable to determine whether … the fact that [plaintiff] is a law enforcement officer only for the narrow emergency custody and involuntary detention of individuals with mental illness purpose” makes him, as required by § 7-2502.01(b), a “law enforcement officer or agent of the government of any state or subdivision thereof.”

For purposes of that statute, whether an individual is a “duly appointed law enforcement officer[]” turns on whether an individual’s “primary responsibility as a `police officer’ [i]s the protection of life” as opposed to the protection of property. United States v. Savoy,D.C.Super. Ct.Crim. No. F-5748-98 (2001). Putting to one side the problem of relying on a District of Columbia Superior Court opinion regarding a separate statute, nothing in plaintiff’s filings clarify whether his primary responsibility is to protect property or to protect life.1 But in any event, he has not done so. Moreover, even if plaintiff were to satisfy the “law enforcement officer” language of § 7-2502.01(b), it is entirely unclear, and plaintiff certainly does not clarify, whether, as a SCOP, he is sufficiently an “officer or agent of the government.” D.C.Code § 7-2502.01(b) (emphasis added). Plaintiff simply has not met his burden of showing “that the statutes are so unambiguous that a reasonable officer could not believe that Ord is subject to the firearms law.” Ord, 417 Fed.Appx. at 2.

There is no reason for this Court to retain jurisdiction over plaintiff’s remaining claims. “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.”


For the reasons explained above, the Court will grant defendant’s motion for summary judgment as to plaintiff’s federal claims and decline to exercise supplemental jurisdiction as to plaintiff’s District of Columbia-law claims. A separate Order accompanies this Memorandum Opinion.

-The Court addresses issues it finds easy to address, and declines to enter judgement on issues it cannot or will not address more specifically the legal language within D.C. Code “Duly Appointed Law Enforcement Officer.” They explain how LEOSA does not apply to non-governmental employed and or appointed conservators of the peace. This case was the first matter dealing with conservators of the peace carrying weapons within D.C.

Frias v. Commonwealth (2000) Va. Court of Appeals

Points of Interest:

Decision involves the carriage of weapon(s) on school property by registered ‘armed security’ officers. Does NOT directly deal with Special Conservators of the Peace, but is nonetheless an interesting case reference.