Norfolk attorneys in turf war over authority to prosecute shoplifting cases

Yahoo

15-05-2025

A feud between Norfolk's city attorney and the city's top prosecutor over whose office should handle misdemeanor shoplifting cases has quickly escalated into a political turf war with both sides claiming chief authority.
The Norfolk City Council unanimously approved a code change Tuesday that will let the City Attorney's Office prosecute misdemeanor shoplifting cases after Mayor Kenny Alexander complained Commonwealth's Attorney Ramin Fatehi wasn't bringing charges.
Fatehi issued a swift rebuke the next day, saying he would revoke the city attorney's authority to prosecute any misdemeanors in Circuit Court and would implement additional oversight of charges pursued in District Court. He painted the move as power grab by city lawmakers that would disproportionately be used to target poor people.
But Norfolk City Attorney Bernard Pishko is now arguing Fatehi lacks the legal power to forbid his office from prosecuting misdemeanor shoplifting cases in Circuit Court.
'You lack the resources to attend to many of the issues our citizens face on a daily basis, and your prosecutors could not replicate the relationship we have with our code enforcement officers,' Pishko wrote in a letter sent Thursday.
Under Virginia law, commonwealth's attorneys — elected constitutional officers — must prosecute all felonies in their jurisdictions. But prosecutors have discretion on misdemeanor crimes, and Fatehi says the state does not provide funding for attorneys to handle misdemeanor case loads.
Virginia state code says city attorney's offices in the commonwealth can prosecute misdemeanor cases, so long as the city council wants them to and the elected commonwealth's attorney signs off on it.
The Code of Virginia section reads: 'City and town attorneys, if so authorized by their local governing bodies, and with the concurrence of the attorney for the commonwealth for the locality, may prosecute criminal cases charging either the violation of city or town ordinances, or the commission of misdemeanors within the city or town.'
Fatehi said under that law, his office has the authority to permit the city attorney's office to prosecute state and city misdemeanors. As of 5 p.m. Friday, he said he will revoke the city attorney's permission to prosecute any offenses punishable by jail or fine in Circuit Court. Further, he plans to scrutinize all cases the city attorney's office pursues in District Court, requiring them to provide monthly reports about all criminal cases they staff.
However, Pishko said in his letter city code directs the city attorney to prosecute all city code violations, and the Code of Virginia says municipal corporations shall have all powers granted to it by its charter. Thus, Pishko said Fatehi's referenced state code section was superseded by another state code section.
The matter could see the two attorneys duke it out in court. In his letter, Pishko asked Fatehi to rescind his decision and said doing so would eliminate the need for a seeking a declaratory judgement.
Fatehi said the two parties met in person Thursday but were unable to reach an agreement.
'I remain ready to have a serious discussion on how to avoid the criminalization of poverty, but until I see a meaningful change in the position of the City Attorney or his employer, my letter stands,' Fatehi said in an email.
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Amanda Howie, administrator for the Virginia Association of Commonwealth's Attorneys, said she could not recall a top prosecutor in another Virginia locality ever attempting to forbid a city or county attorney from prosecuting cases. She did not know whether Fatehi's moves were legal.
The feud kicked off when Alexander announced a plan for the City Attorney's Office to begin prosecuting misdemeanor shoplifting cases at his annual State of the City event.
Fatehi said he lacked the state or city funding to staff the prosecution of misdemeanor shoplifting cases, and the city has ignored requests for more funding.
He also called the move politically motivated — Fatehi is facing a June 17 Democratic primary challenge by John Butler, a former federal prosecutor. Butler has been endorsed by Alexander and City Council members Jeremy McGee, Tommy Smigiel and Courtney Doyle.
Most prosecutor's offices in Hampton Roads take at least on some misdemeanor cases, such as DUIs, some domestic assaults and cases involving violence in schools.
For many other misdemeanors, police officers organize the case against the defendants, just as they do with traffic cases. Though the officers are considered witnesses rather than prosecutors, they must essentially prosecute their own cases without a lawyer.
It's a common practice when prosecutors are not available for whatever reason, said Rob Poggenklass, the executive director of Justice Forward Virginia, a state criminal justice reform group.
In Norfolk, for example, the Norfolk Police Department can — and does — still make arrests in misdemeanor shoplifting cases, but must handle the cases on its own.
When prosecutors in Hampton and Newport News backed away from handling misdemeanor marijuana possession cases in 2012, police began handling the cases on their own.
But because drug possession could be difficult to prosecute, police were having difficulties handling such cases. The Hampton City Council in 2014 created a position within the City Attorney's Office to take on the marijuana cases, the Daily Press reported at the time.
In 2016, the Newport News City Council granted their Commonwealth's Attorney two new positions in return for agreeing to prosecute the misdemeanor marijuana cases once again.
Several Norfolk residents who spoke at the council's Tuesday meeting expressed concern the move to pursue more misdemeanor shoplifting charges would harm the city's most vulnerable people.
Poggenklass said more prosecutions would only hurt marginalized Norfolk residents and would not deter the act of stealing. He said city officials should instead be investigating why residents are stealing and providing structural supports to eliminate the need for the crime.
Trevor Metcalfe, 757-222-5345, [e-mail]
Peter Dujardin, 757-897-2062, [e-mail]