Can a Virginia police officer detain someone just to serve them with a protective order?

Plain-English summary

Richmond's Commonwealth's Attorney asked whether an officer may detain a person to serve a protective order or extend an otherwise lawful detention to complete service. The AG concluded that the general standard for an investigative detention applies: the officer needs reasonable, articulable suspicion of criminal activity. If that standard is not met, the detention or extension is unlawful.

The opinion describes a protective order as civil in nature even when a previous criminal violation led to its issuance. It also notes that an investigative stop is a seizure, however brief. A justified stop may last no longer than needed to address the suspected violation and related safety concerns. Whether reasonable suspicion exists depends on the circumstances of the particular encounter.

The AG identified other ways to serve an order, including approaching a person on the street, beginning a consensual encounter, or acting during a detention supported by independent lawful grounds. He quotes § 18.2-409 as one example of a separate criminal law. That provision concerns a person "acting jointly or in combination with any other person" to resist or obstruct legal process; the opinion does not omit that condition or say mere refusal to accept service violates the statute.

What this means for you

If you serve protective orders

The opinion says service of a civil order does not itself supply reasonable suspicion of criminal activity for an investigative detention. An officer may use a consensual encounter or another independent lawful basis for detention. The AG makes clear that the legal assessment turns on the facts of each encounter.

If you are a respondent

The opinion does not prevent service of a protective order. It addresses whether an officer may seize or continue to detain a person for service without reasonable, articulable suspicion of criminal activity.

Currency note

This opinion was issued in 2020. Check current law and later authority before applying it to a present encounter.

Common questions

May an officer extend a lawful stop solely to serve the order?
Only if the continued detention has a lawful basis under the reasonable-suspicion standard described in the opinion. A stop may not be prolonged beyond the time reasonably needed for its original purpose and related safety concerns without an independent justification.

Can an officer approach someone without detaining them?
Yes. The AG identifies an approach on the street or a consensual encounter as possible ways to serve the order.

Does § 18.2-409 criminalize any refusal of service?
The opinion does not say that. It quotes the statute as addressing a person "acting jointly or in combination with any other person" to resist or obstruct execution of legal process. It does not apply the statute to a particular respondent's conduct.

Background and statutory framework

The AG distinguished the obligation to serve a protective order from the constitutional limits on detention. The opinion quotes the rule from Terry v. Ohio: a brief investigative stop requires reasonable, articulable suspicion that criminal activity is afoot. It applies the same standard to a detention or extension undertaken while serving a protective order.

Citations and references

• Terry v. Ohio, 392 U.S. 1 (1968) (investigative stop standard)
• Va. Code § 18.2-409 (quoted example of a separate offense requiring joint action)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/20-002-McEachin-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

October 30, 2020

The Honorable Colette Wallace McEachin
Commonwealth's Attorney, City of Richmond
400 North 9th Street
Richmond, Virginia 23219-1998

Dear Ms. McEachin:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether a law enforcement officer may lawfully detain an individual for the purpose of serving a protective order issued pursuant to Chapter 9.1 of Title 19.2 of the Code of Virginia. You also ask whether an officer may lawfully extend the period of an otherwise-justified but unrelated detention for the purpose of serving such an order.

Applicable Law and Discussion

"A protective order is a judicial order generally issued to protect the health and safety of a person who is at risk of acts involving violence, force, or threat." Although a protective order may be granted based on a previous violation of criminal law, the protective order itself is civil in nature. Virginia law provides that, after a protective order has been issued and "the primary law-enforcement agency responsible for service and entry of protective orders" receives it, "the order shall be served forthwith upon the respondent."

Both of your questions about the lawfulness of a detention implicate the right to be free from unreasonable searches and seizures. Even where "the purpose of [a] stop is limited and the resulting detention [is] quite brief," an "investigatory stop ... constitutes a seizure" in the constitutional sense. "Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, a police officer may constitutionally conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." The reasonable suspicion standard requires "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Even when an investigatory stop is justified, that stop "may last no longer than is necessary" to address the suspected violation and related safety concerns, and a seizure that "is prolonged beyond the time reasonably required to complete th[at] mission" is "unlawful."

Applying these standards, whether an officer serving a protective order may detain or extend the detention of an individual depends on whether the officer has reasonable, articulable suspicion of criminal activity to justify the stop. Where the reasonable suspicion standard is not satisfied, a seizure is not lawful. Evaluating reasonable, articulable suspicion in the context of an investigatory stop is a highly fact-specific inquiry that depends on the particular circumstances of each situation.

Regardless of whether there is reasonable, articulable suspicion of criminal activity, it is important to note that law enforcement officials also possess other ways of serving a protective order. For example, an officer may "approach[] an individual on the street" or initiate an otherwise "consensual encounter." The same is true if an officer has other independent grounds to lawfully detain an individual. See, e.g., Va. Code Ann. § 18.2-409 ("Every person acting jointly or in combination with any other person to resist or obstruct the execution of any legal process shall be guilty of a Class 1 misdemeanor.").

Conclusion

Accordingly, it is my opinion that, where a law enforcement officer serves a protective order, the lawfulness of any detention is governed by the same general standard that applies in other cases: whether a law enforcement officer has reasonable, articulable suspicion of criminal activity.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General