This story was reported and written by Radio IQ
Virginia legislators passed a bill this session that would’ve given those with behavioral, neurological or cognitive health issues protections when in confrontations with the police.
But Youngkin vetoed the effort. Now in summer working groups, some still hope to see problem addressed.
Peter Francisco is a Lieutenant Commander in the U.S. Coast Guard. He’s got a 24-year-old autistic and legally blind son.
Two years ago, after his son became aggressive, Francisco called the police for help. When the cops arrived, they tackled his son, but an officer’s face was scratched in the scuffle. And while he was sent to an inpatient facility instead of arrested, there was a felony warrant waiting for his son when Francisco got him back home months later.
While the charges were eventually dropped, Franciso said his son can’t get into some training programs because of the arrest record.
"Everyday families like us are forced to balance 911 for help with concern their loved one might get arrested, jailed or injured because of that police response," Francisco told a House committee earlier this year. “Because of that, I know that sometimes people will not call for help when they should."
"I know I’m not likely to,” he added.
Francisco said Delegate Vivan Watts’ bill could have helped. The effort would’ve allowed defendants in similar cases to claim behavioral or mental impairment as an affirmative defense.
It passed with some bipartisan support, but Youngkin called it "unnecessary" and "overly broad" in his veto message. But Watts and other members of the Virginia Behavioral Health Commision hope they can gain more support for the effort this summer.
“It gives the opportunity for law enforcement to do their job and the individual not to be saddled with a felony charge,” Watts told Radio IQ. She said she even amended the bill during the session after early versions offered immunity for defendants when they'd qualify. She said sheriffs opposed that language, but backed off when the dispute was moved to the courtroom instead of the field.
Now, she's willing to do whatever it takes to get the law over the finish line.
“What procedures are you going to be that much more comfortable with that everybody is able to represent fairly what the situation was,” Watts said of her offer to stakeholders.
Among those stakeholders is Rob Poggenklass with Justice Forward Virginia. He's been advocating for these changes for years and said his research so far has suggested Virginia could be the first to offer such protections — but that's in part because the felony charge folks end up with is unique to Virginia.
"In some states [assaulting a police officer] has never been a felony," he said. "If it is going to be a felony, there needs to be significant bodily injury, not just a scratch or a bruise, which is what we often see in these charges."
And there's also a felony assaulting an officer charge for those who intentionally set out to hurt a cop.
As for Youngkin's veto, Poggenklass thinks the governor was referencing law changes made a few years back which allow the entry of mental health evidence into trial. A lawyer could use that evidence to suggest there was not intent behind the crime because of that mental health issue.
"It just hasn't been effective," Poggenklass said. "Getting an expert to say, 'This person didn't intend to commit the assault,' is extremely difficult because the person and condition are tied so closely together."
"If their condition is what made them commit the crime, you can't separate the condition from the person," he said.
In the meantime, Watts and others on the committee are asking its staff to research the training provided to local police officers in situations where someone is in crisis.
“What can we do more effectively, how many law enforcement officers are trained?" Watts said. "What is the availability of sending out both law enforcement and someone who is trained in mental health?”
That research is expected to culminate in new legislation in 2025.
