                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and O’Brien
              Argued at Fredericksburg, Virginia
UNPUBLISHED




              DONALD DRAVELL ROBINSON
                                                                                           MEMORANDUM OPINION* BY
              v.            Record No. 1959-16-4                                            JUDGE TERESA M. CHAFIN
                                                                                                 JUNE 26, 2018
              LOUDOUN COUNTY


                                                   FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                                               Burke F. McCahill, Judge

                                           Rachel D. Robinson, Assistant Public Defender (Elizabeth Jean
                                           Lancaster, Deputy Public Defender, on briefs), for appellant.

                                           Jason L. Grace, Assistant Commonwealth’s Attorney for Loudoun
                                           County, for appellee.
               
               
                            Donald Dravell Robinson appeals his conviction of hindering a deputy sheriff in the

              performance of his or her duties, in violation of Loudoun County Ordinance § 654.09. On

              appeal, he argues the county ordinance is both unconstitutionally vague on its face and overbroad

              as applied to speech.1 For the reasons stated below, we disagree and affirm the judgment of the

              trial court.




                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                        The Commonwealth argues that the appeal should be dismissed for lack of jurisdiction
              because Loudoun County was not joined as a necessary party. However, the Commonwealth has
              represented the County at every stage of this case, and this Court sees no reason why the
              representation should not continue. In addition, the attorney for Loudoun County received notice
              of this pending appeal but took no action. See Ghameshlouy v. Commonwealth, 279 Va. 379,
              394, 689 S.E.2d 698, 705-06 (2010); Roberson v. Commonwealth, 279 Va. 396, 408, 689 S.E.2d
              706, 713 (2010); Woody v. Commonwealth, 53 Va. App. 188, 197, 670 S.E.2d 39, 44 (2008).
                                           Background

       On October 22, 2015, Loudoun County Deputies Christman, Keough, Smith, and Diaz

went to a residence in Ashburn to serve a felony arrest warrant on Robinson. Christman and

Keough knocked on the door and announced their presence. They observed Robinson looking

through the windows around the front door, but he refused to respond or open the door. After

approximately one half-hour, the deputies obtained permission from a supervisor to execute a

forced entry.

       Entry was made, and the residence was swept for occupants. Smith heard a “thud” and

the sound of leaves crunching coming from the back of the outside of the home. The deputies

and a canine unit located Robinson in a neighbor’s backyard hiding behind a fence. Robinson

was then arrested and served with the felony warrant. From the initial knock and announce to

the arrest, nearly an hour passed. Robinson was next taken before a magistrate and charged with

hindering a deputy sheriff in the performance of her duties in violation of Loudoun County

Ordinance § 654.09. Robinson was convicted by a jury of this charge and was sentenced to pay

a fine of $2,500. Robinson now appeals to this Court.

                                             Analysis

       Robinson’s assignments of error raise the purely legal questions of constitutional

interpretation and statutory construction. As such, this Court will review them under a de novo

standard of review. Lawlor v. Commonwealth, 285 Va. 187, 236, 738 S.E.2d 847, 875 (2013).

       The challenging party bears the heavy burden of proving that an act is unconstitutional.

Webb v. Commonwealth, 32 Va. App. 337, 347, 528 S.E.2d 138, 143 (2000). The presumption

that all laws are constitutional is “one of the strongest known to the law.” Id. “[E]very

reasonable doubt regarding the constitutionality of a legislative enactment must be resolved in

favor of its validity.” Marshall v. N. Va. Transp. Auth., 275 Va. 419, 428, 675 S.E.2d 71, 75

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(2008). “[I]f a statute or ordinance can be construed reasonably in a manner that will render its

terms definite and sufficient, such an interpretation is required.” Tanner v. City of Virginia

Beach, 277 Va. 432, 438-39, 674 S.E.2d 848, 852 (2009). “Accordingly, ‘only where the statute

in issue is “plainly repugnant” to a constitutional provision [should a court] declare it null and

void.’” Elizabeth River Crossings OpCo, LLC v. Meeks, 286 Va. 286, 301, 749 S.E.2d 176, 183

(2013) (quoting Jamerson v. Womack, 244 Va. 506, 510, 423 S.E.2d 180, 183 (1992)).

       Our “first task is to determine whether the enactment reaches a substantial amount of

constitutionally protected conduct.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494 (1982). If it does not, then Robinson’s overbreadth challenge fails. Id. Our next

task is to “examine the facial vagueness challenge and, assuming the enactment implicates no

constitutionally protected conduct, should uphold the challenge only if the enactment is

impermissibly vague in all of its applications.” Id. at 494-95.

                                           A. Overbreadth

       To begin our analysis, we consider whether Loudoun County Ordinance § 654.09 is

unconstitutionally overbroad. An enactment will be deemed unconstitutionally overbroad if it is

“designed to burden or punish activities which are not constitutionally protected, but the statute

includes within its scope activities which are protected by the First Amendment.” Parker v.

Commonwealth, 24 Va. App. 681, 690, 485 S.E.2d 150, 154 (1997) (quoting Woolfolk v.

Commonwealth, 18 Va. App. 840, 851, 447 S.E.2d 530, 536 (1994)). If an enactment prohibits

both speech and conduct, “the overbreadth of the statute must . . . be substantial . . . in relation to

the statute’s plainly legitimate sweep.” Id. at 690, 485 S.E.2d at 155 (quoting Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973)). Furthermore, courts are particularly hesitant to invalidate

a statute as facially overbroad when the conduct prohibited “falls within the scope of otherwise

valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls

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over harmful, constitutionally unprotected conduct.” Broadrick, 413 U.S. at 615; see also

Singson v. Commonwealth, 46 Va. App. 724, 745-46, 621 S.E.2d 682, 692 (2005). Reviewing

courts should resort to the invocation of the overbreadth doctrine only in the limited situations

where there is “a realistic danger that the statute itself will significantly compromise recognized

First Amendment protections of parties not before the court for [the statute] to be facially

challenged on overbreadth grounds.” Woolfolk, 18 Va. App. at 852, 447 S.E.2d at 536 (quoting

City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)). The judicial invalidation of

an enactment on the grounds of overbreadth is “strong medicine” that should not be “casually

employed.” United States v. Williams, 553 U.S. 285, 293 (2008) (citation omitted).

       First, we must “construe the challenged statute” as “it is impossible to determine whether

a statute reaches too far without first knowing what the statute covers.” Id. Our assessment must

be based on the actual text of the ordinance and any judicially imposed limiting constructions.

Boos v. Barry, 485 U.S. 312, 329 (1988).

       The ordinance at issue in this case, Loudoun County Ordinance § 654.09, states, “No

person shall resist, hinder or obstruct any Deputy Sheriff in making an arrest, in serving a

warrant, order, notice or process or in the performance or discharge of any of his or her duties.”

       Robinson argues on appeal that the facially “broad, sweeping language” in the Loudoun

County ordinance “prohibits any conduct, including speech, that ‘resists, hinders, or obstructs’

any deputy in the performance of any of his duties.” As such, Robinson contends that the

language “criminalizes the behavior of protestors or activists; the questions posed to deputies by

bystanders, the press, or the accused; and the speech and expression of individuals who may not

know they are encountering a deputy.” He further argues that the ordinance “criminalizes

protected behavior because it contains no limitation or narrowing language to proscribe only




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unprotected speech,” such as a requirement that an action be accomplished by “threat, force, or

intimidation or that it be accomplished without accident, just cause, or lawful purpose.”

        We find no merit in Robinson’s contention that a substantial amount of protected speech

is implicated by the ordinance. The plain language of Loudoun County Ordinance § 654.09 is

clear and unambiguous, targeting only constitutionally unprotected actions and speech –

specifically, intentional conduct that “impedes, obstructs, or slows” a deputy who is performing

his or her duties.

        “When the language of a statute is unambiguous, we are bound by the plain meaning of

that language. Furthermore, we must give effect to the legislature’s intention as expressed by the

language used unless a literal interpretation of the language would result in a manifest

absurdity.” Kozmina v. Commonwealth, 281 Va. 347, 349-50, 706 S.E.2d 860, 862 (2011)

(quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174,

178 (2007)). “Additionally, ‘the plain, obvious, and rational meaning of a statute is to be

preferred over any curious, narrow, or strained construction.’” Id. at 350, 706 S.E.2d at 862

(quoting Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007)).

        The plain meaning of the Loudoun County ordinance is directed at regulating conduct

that may impede the scope of an investigation or threaten the safety of a deputy or the public. As

such, the activities encompassed by the ordinance are not protected by the First Amendment.

Loudoun County Ordinance § 654.09 “falls within the scope of . . . valid criminal laws that

reflect legitimate state interests in maintaining comprehensive controls over harmful,

constitutionally unprotected conduct.” Singson, 46 Va. App. at 745-46, 621 S.E.2d at 692.

Accordingly, we hold that Loudoun County Ordinance § 654.09 is not substantially overbroad,

and we will not strike it down as unconstitutional and facially overbroad. Furthermore, if any




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overbreadth does exist, it can be cured on a case-by-case basis. See Broadrick, 413 U.S. at

615-16.

       Robinson further contends that Loudoun County Ordinance § 654.09 is unconstitutionally

overbroad as it applies to him in this particular case. We find this argument is without merit.

Contrary to Robinson’s argument, we note that Robinson’s actions undeniably show an effort to

“resist, hinder, or obstruct” the law enforcement officers in the course of their duties. For

example, Robinson’s refusal to answer the door (despite peering out the window at the officers)

turned what would have been a routine serving of an arrest warrant into an incident that lasted

nearly an hour. Robinson’s conduct necessitated a forcible entry in which the officers had to

break down the door to enter the residence in order to be able to arrest him. Additionally,

Robinson’s attempt to elude the officers by fleeing out another door of the residence into a

neighbor’s yard resulted in the need to utilize a canine unit to locate him on the adjacent

property, where he was hiding behind a fence. The trial court noted that there were no

statements issued by Robinson that bolstered charges against him. However, Robinson’s actions

in this case are not protected by the First Amendment, and in short, his actions – not his speech –

violated the plain language of the ordinance.

                                           B. Vagueness

       Robinson next contends that the ordinance at issue is vague as to what conduct is

prohibited, and thus, violates the Due Process Clause of the Fourteenth Amendment.

Specifically, Robinson argues that individuals are expected to know what “questions or

hesitations” are “too much” for any particular deputy. Using Robinson’s logic, an individual

“must ask no questions and make absolutely no hesitations regardless of circumstance, language

barrier, physical capability, intelligence or consciousness.”




                                                -6-
       “A criminal statute is deemed unconstitutionally vague if it ‘fails to give a person of

ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’” Tjan

v. Commonwealth, 46 Va. App. 698, 707, 621 S.E.2d 669, 673 (2005) (quoting Bouie v.

Columbia, 378 U.S. 347, 351 (1964)). When there is a facial challenge to the vagueness of a

law, the complainant must show that the law is “impermissibly vague in all of its applications.”

Hoffman Estates, 455 U.S. at 495. “One ‘who engages in some conduct that is clearly proscribed

cannot complain of the vagueness of the law as applied to the conduct of others.’” Boyd v. Cty.

of Henrico, 42 Va. App. 495, 519, 592 S.E.2d 768, 780 (2004) (quoting Hoffman Estates, 455

U.S. at 495). Consequently, we must “examine the complainant’s conduct before analyzing

other hypothetical applications of the law.” Commonwealth v. Hicks, 267 Va. 573, 581, 596

S.E.2d 74, 78 (2004) (quoting Hoffman Estates, 455 U.S. at 495).

       In this case, Robinson failed to answer the door when the deputies came to the residence

to serve the warrant. He fled when the deputies resorted to a forced entry after half an hour of

attempting a forceless entry. Robinson then hid from the deputies on a neighbor’s property. He

undoubtedly intended to impede, hamper, and delay the deputies in the performance of their

duties. Because the ordinance clearly prohibits Robinson’s conduct, Robinson’s vagueness

challenge fails.

                                           Conclusion

       Having concluded that Loudoun County Ordinance § 654.09 is not unconstitutionally

overbroad or vague, Robinson’s conviction is affirmed.

                                                                                         Affirmed.




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