In a Virginia city that has both a police department and a sheriff's office, who serves protective orders?

Plain-English summary

Alexandria Sheriff Dana Lawhorne asked the AG to settle a recurring jurisdictional question: in a Virginia city that has both a police department and a sheriff's office, which agency is the "primary law-enforcement agency" that the Code repeatedly says must serve protective orders?

The AG's answer: the police department. The Code uses the phrase "primary law-enforcement agency" in six separate protective-order statutes (§§ 16.1-253.1, 16.1-253.4, 16.1-279.1, 19.2-152.8, 19.2-152.9, 19.2-152.10), and the Code does not define the phrase. A 2011 AG opinion construed the phrase in the mental-health emergency-custody context to mean "the police department of the town as the 'primary law enforcement agency of the jurisdiction' when a town is served by its own police department." The General Assembly's "failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view," and the same term should carry the same meaning in similar statutory schemes (citing the U.S. Supreme Court's Northcross v. Bd. of Education, 412 U.S. 427 (1973)). So the police department's responsibility extends to protective orders too.

The conclusion gets additional support from § 15.2-1704(B), which generally says a police officer has no authority in civil matters but specifically allows service of the family-abuse protective orders in §§ 16.1-253.1, -253.4, and -279.1. And § 15.2-1704(A) lets police officers serve the criminal-justice-related orders in §§ 19.2-152.8, -152.9, and -152.10 as part of their general enforcement authority. The statutory text already contemplates police service.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Six protective-order statutes (three under Title 16.1 dealing with family-abuse protective orders, three under Title 19.2 dealing with criminal protective orders) each direct that, when the order is issued, it "shall be forwarded to the primary law-enforcement agency responsible for service and entry of protective orders." None of them defines that phrase, and no Virginia appellate decision has.

Virginia localities can structure their law enforcement in different ways. Counties and cities must elect sheriffs (with certain limited exceptions for some cities). Section 15.2-1701 lets any locality "provide for the organization of its authorized police forces." Where a locality has both, § 15.2-1701 effectively gives the police chief "the chief law-enforcement officer of that locality."

The 2011 AG opinion (Op. No. 11-123) addressed the same phrase in the context of magistrate orders for emergency custody and temporary detention. The AG concluded then that, where a town has its own police department, "the police department of the town" is the "primary law enforcement agency of the jurisdiction." A 2004 AG opinion (Op. Va. Att'y Gen. 155) had reached a similar conclusion in a related context. The General Assembly has reused the phrase without amending it, which under standard statutory-construction principles signals acquiescence.

Section 15.2-1704(B) reinforces the result: it says police officers generally have no authority in civil matters, but then specifically excepts service of the family-abuse protective orders in §§ 16.1-253.1, -253.4, and -279.1. The General Assembly anticipated police service of those orders. And § 15.2-1704(A) supplies the authority for police to serve the Title 19.2 criminal protective orders as well.

Sheriffs retain extensive duties in Virginia, including jail custody, court security, civil process, and law enforcement in counties without a police department. In jurisdictions with both, however, the police department, not the sheriff, services protective orders.

Common questions

Q: I'm petitioning for a protective order in a Virginia city. Who serves it on my abuser?
A: Per this 2020 opinion, in a city with both a police department and a sheriff's office, the city police department is the agency responsible for service and entry of the order. Your petition and the issued order will normally be routed to the police through the clerk of court.

Q: I'm a Virginia sheriff in a city. Can I refuse to serve protective orders?
A: The opinion says these orders go to the police department in jurisdictions with both. That said, agencies can and often do cooperate, and a sheriff's deputy could serve an order through inter-agency cooperation if local protocol allows. The statutory designation, however, points to the police department.

Q: What about counties?
A: The opinion specifically addresses cities with both a police department and a sheriff. In a county where the sheriff is the only law-enforcement agency (no county police department), the sheriff is the "primary law-enforcement agency" by default. Virginia has a handful of counties with separate police departments; the same analysis would presumably apply there as in cities.

Q: Does this change anything for the abuser being served?
A: Mostly no. Service still works the same way procedurally: the order is delivered, entered into the Virginia Criminal Information Network, and enforced through normal channels. The opinion clarifies which agency does the work in cities with both, it does not change the substance of the protection.

Q: Why does this matter to me as a citizen?
A: Mostly it matters to advocates and victims who want to know who to call to check on service. If you have a protective order in a city with both a police department and a sheriff, the police department's records or warrant section is the primary point of contact for service status.

Q: What if the police department refuses or delays?
A: Domestic violence advocates and the issuing court can escalate. Some jurisdictions have specific protective-order service units within the police department. Long delays can also be addressed in the contempt-and-enforcement framework, since the issuing court retains authority to ensure its orders are served.

Citations and references

Statutes:

• Va. Code § 15.2-1701 (Police force authority)
• Va. Code § 15.2-1704 (Police chief; civil matters)
• Va. Code § 16.1-253.1 (Family abuse preliminary protective order)
• Va. Code § 16.1-253.4 (Family abuse emergency protective order)
• Va. Code § 16.1-279.1 (Family abuse protective order)
• Va. Code § 19.2-152.8 (Emergency protective order)
• Va. Code § 19.2-152.9 (Preliminary protective order)
• Va. Code § 19.2-152.10 (Protective order)

Cases:

• Richard L. Deal & Assocs. v. Commonwealth, 224 Va. 618, 299 S.E.2d 346 (1983) (Virginia Supreme Court; legislative acquiescence in AG interpretation)
• Northcross v. Bd. of Education, 412 U.S. 427 (1973) (U.S. Supreme Court; identical terms in similar statutes carry the same meaning)

Prior AG opinions:

• 2004 Op. Va. Att'y Gen. 155
• 2011 Op. Va. Att'y Gen. No. 11-123

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/20-037-Lawhorne-issued.pdf

Original opinion text

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

December 11, 2020

The Honorable Dana Lawhorne
Sheriff, City of Alexandria
2003 Mill Road
Alexandria, Virginia 22314

Dear Sheriff Lawhorne:

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

Issue Presented

You seek clarification about which law-enforcement agency is responsible for executing protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8, 19.2-152.9, and 19.2-152.10 of the Code of Virginia. Specifically, you ask: If a city has both a police department and a sheriff's office, which agency is the "primary law-enforcement agency" responsible for service of such orders?

Background

The Code of Virginia provides that when a protective order is issued under one of the above provisions, the order shall be forwarded to the "primary law-enforcement agency" for service.[1] The term "primary law-enforcement agency" is not defined in the Code and has not been addressed by any appellate courts in Virginia.

Discussion

The Attorney General has previously been asked to issue opinions about the meaning of the term "primary law-enforcement agency."[2] Most recently, in a 2011 opinion dealing with the use of that term in mental health evaluation and treatment statutes, the Attorney General concluded that "when a magistrate orders a law enforcement agency to execute an order subjecting a person to emergency custody or temporary detention, or providing for the transportation of such persons, the magistrate should specify the police department of the town as the 'primary law enforcement agency of the jurisdiction' when a town is served by its own police department."[3]

In reaching this conclusion, the Attorney General noted that

Virginia law affords localities options with respect to law enforcement. Generally, every county and city is required to elect a sheriff. The duties of a sheriff include the duty to enforce the law, to assist in the judicial process, and to oversee the custody and maintenance of all prisoners confined in the jail. In addition, Virginia Code § 15.2-1701 authorizes any locality [i.e., any county, city, or town] ... to "provide for the organization of its authorized police forces." If a locality opts to have a police department, the chief of police serves as the chief law-enforcement officer of that locality and the police force is given the primary law-enforcement responsibility for that jurisdiction.[4]

"'The legislature is presumed to have had knowledge of the Attorney General's interpretation of ... statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view.'"[5] Further, when an identical term is used in two similar statutory schemes, it should generally be presumed that the terms are used in the same sense.[6] Based on these principles of statutory construction, the "primary law enforcement agency" responsible for the service of protective orders in a city that has both a sheriff's office and a police department is the police department.

This conclusion is further supported by the Code. Virginia Code § 15.2-1704(B) specifically states that a police officer generally has no authority in civil matters.[7] However, one of the enumerated exceptions in the statute is an allowance that a police officer may serve protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, and 16.1-279.1.[8] Police officers are not restricted to only serving those orders of protection issued under Title 16.1: Code § 15.2-1704(A) also permits police officers to serve orders of protection issued under §§ 19.2-152.8, 19.2-152.9 and 19.2-152.10 in exercising their authority to enforce state laws.

Conclusion

Accordingly, it is my opinion that, in a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8, 19.2-152.9, and 19.2-152.10 of the Code of Virginia.

With kind regards, I am,

Sincerely yours,

Mark R. Herring
Attorney General

1. See Va. Code Ann. §§ 16.1-253.1(B); 16.1-253.4(E); 16.1-279.1(C); 19.2-152.8(E); 19.2-152.9(B); and 19.2-152.10(D). These and all other citations to the Code of Virginia herein are from the electronic version of the Code on LexisNexis and are current through the 2020 Regular Session, and 2020 Special Session I, c. 1 of the General Assembly.

2. See 2011 Op. Va. Att'y Gen. No. 11-123, available at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions/30-resource/opinions/64-2011-official-opinions#october; see also 2004 Op. Va. Att'y Gen. 155.

3. 2011 Op. Va. Att'y Gen. No. 11-123, at 4.

4. Id. at 2 (internal footnote numbers omitted). Virginia Code § 15.2-1701 provides that "[w]hen a locality provides for a police department, the chief of police shall be the chief law-enforcement officer of that locality."

5. 2004 Op. Va. Att'y Gen. 155, 157 (quoting Richard L. Deal & Assocs. v. Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983).

6. See, e.g., Northcross v. Bd. of Education, 412 U.S. 427, 428 (1973).

7. Va. Code Ann. § 15.2-1704(B).

8. Va. Code Ann. § 15.2-1704(B)(ii).