786 S.E.2d 472
Va. Ct. App.2016Background
- Officers responded to a 911 hang-up from Doscoli’s apartment building and heard a male shouting profanities from inside.
- Doscoli emerged in boxer shorts, yelled at officers, retreated, locked his door, and continued to be loud and profane; an elderly resident (Dorn) had a fresh arm wound and appeared distressed.
- Officers attempted to question Dorn but Doscoli repeatedly interrupted and was warned he could be arrested for obstructing the officers; officers told him to keep the peace and lower his voice.
- After officers stepped away, they heard Doscoli shout and make obscene gestures from inside; when they returned, Doscoli rushed out, continued yelling, and was told he was under arrest for failure to maintain the peace.
- Doscoli resisted arrest: he fled into the apartment, slammed an officer into a wall, struggled, was tasered twice, slapped an officer, and smeared feces on the officer; officers found a scratch on an officer’s hand.
- At trial Doscoli was convicted of misdemeanor refusal to aid an officer (Va. Code § 18.2-463) and felony assault on a law enforcement officer (Va. Code § 18.2-57); he appealed arguing lack of probable cause and therefore a right to resist an unlawful arrest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers had probable cause to arrest Doscoli | Doscoli: his profanity was protected speech (not "fighting words"), so no probable cause to arrest; thus he could lawfully resist an unlawful arrest | Commonwealth: officers had probable cause based on Doscoli’s conduct (belligerence, interruption, loud profane behavior, preventing investigation) and could rely on statutes forbidding abusive conduct and obstruction | The court held the arrest was lawful: officers had probable cause based on conduct, not speech content; Doscoli had no right to resist |
| Whether the content of Doscoli’s speech was the basis for arrest | Doscoli: speech content is protected and insufficient to justify arrest | Commonwealth: trial court found arrests based on conduct (failure to keep the peace, obstruction), not the words themselves | Court affirmed: conviction did not rest on protected speech—the factual conduct supported probable cause |
Key Cases Cited
- McCain v. Commonwealth, 261 Va. 483 (probable-cause review de novo)
- Maryland v. Pringle, 540 U.S. 366 (probable cause assessed by totality of circumstances)
- Whren v. United States, 517 U.S. 806 (subjective intent irrelevant to probable-cause analysis)
- Michigan v. DeFillippo, 443 U.S. 31 (definition of probable cause to arrest)
- Hill v. Commonwealth, 264 Va. 541 (discussing common-law right to resist unlawful arrest and modern limits)
- Molinet v. Commonwealth, 65 Va. App. 572 (conduct—aggressive cursing and interference—can support obstruction arrest)