When a Virginia judge verbally orders sheriff's deputies to take a sentenced defendant into custody for a number of hours, with no written order, is that direction binding and is the sheriff's office protected from liability?

Plain-English summary

The Sheriff of Chesterfield County had a practical question. Sometimes a judge in court, immediately on pronouncing sentence, verbally tells the deputies to take the defendant into custody for some number of hours, without producing a written commitment order or disposition notice on the spot. Two questions: is the verbal order binding, and are the deputies protected from liability if something happens to the defendant in custody?

The AG answered yes to both:

1. Binding effect. Verbal orders from a court are no less binding than written ones. The Supreme Court of Virginia in Robertson v. Commonwealth, 181 Va. 520 (1943), explained that courts issue many oral orders "in the trial of a case" and disobeying them would "tend to embarrass or defeat the administration of justice." Sufficiently specific oral orders are enforceable through the court's contempt power.

Va. Code § 19.2-307 still contemplates that a written order will eventually be entered (Wilson v. Commonwealth, 40 Va. App. 250 (2003)), but in the interval between verbal pronouncement and written entry, the verbal order has full effect. The AG suggested practical safeguards: contemporaneous notes in the jail's regularly maintained business records, and witness verification by sheriff's officials.

2. Liability. Sheriffs have qualified sovereign immunity for discretionary functions when their actions don't violate clearly established rights a reasonable person would know. Johnson v. Caudill, 475 F.3d 645 (4th Cir. 2007); Harlow v. Fitzgerald, 457 U.S. 800 (1982). The statutory duty of the sheriff's office to feed and care for prisoners continues to apply. Liability can attach if officials are aware of a "significant risk to a prisoner's health or safety" and act or fail to act with "deliberate indifference" (Farmer v. Brennan, 511 U.S. 825 (1994)).

Section 8.01-195.3 of the Virginia Tort Claims Act provides further protection: it grants immunity from tort liability for claims based on an officer's act or omission "in the execution of a lawful order of any court." Patten v. Commonwealth, 262 Va. 654 (2001).

The AG included an important constitutional caveat in a footnote: a judge cannot order pre-trial detention for "purely punitive" reasons (Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988)) unrelated to a legitimate non-punitive purpose, and cannot impose confinement on a convicted defendant "unmoored from the sentence for a specific offense." Podracky v. Commonwealth, 52 Va. App. 130 (2008), citing United States v. Wiltberger, 18 U.S. 76 (1820). Examples of legitimate non-punitive grounds include revocation of pretrial bail for good cause shown (Dorsey v. Virginia, 32 Va. App. 154 (2000)) and summary contempt punishment.

Currency note

This opinion was issued in 2010. 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.

The basic framework (verbal orders are binding, qualified immunity applies, deliberate indifference is the constitutional limit) remains stable. Specific statutes governing jail operations, sheriff staffing, and tort claims have been amended over time. A sheriff facing a specific scenario should consult current statutory text and recent case law before acting.

Common questions

Why is a verbal order from a judge enforceable without paperwork?
Because oral commands by courts in the course of judicial proceedings are part of how trials function. Robertson v. Commonwealth recognized that "in the trial of a case the court gives many orders and commands which are not reduced to writing or directed in writing to the person who is bound to obey them." Defying such oral orders interferes with administration of justice.

Should the sheriff insist on a written order?
The AG suggested it's prudent for the jail to document the verbal order in business records and have a witness from the sheriff's office present, but doing so isn't a precondition to validity. Ultimately the court should reduce the order to writing under § 19.2-307, but the sheriff doesn't have to wait for the paperwork to take the defendant into custody.

What if the judge's verbal order seems wrong or excessive?
The footnote in this opinion is important. The AG warned that a court is "without authority to impose punishment unmoored from the sentence for a specific offense" the person has been convicted of. If the verbal order is for reasons "purely punitive and unrelated to a legitimate non-punitive purpose," it could violate constitutional due process. Practical sheriffs facing facially unlawful orders should consult with the Commonwealth's Attorney or county attorney.

What protects deputies from being sued if something happens to the defendant?
Three layers:

1. Qualified immunity under federal law (Harlow, Johnson) protects officials from civil damages when their actions don't violate clearly established statutory or constitutional rights a reasonable person would have known.
2. Section 8.01-195.3 of the Virginia Tort Claims Act provides additional immunity for acts in execution of a lawful court order (Patten).
3. Common law has long protected officers acting under lawful court orders (Coverdell).

What's "deliberate indifference"?
A constitutional standard from Farmer v. Brennan for Eighth Amendment claims about jail conditions. Officials know of a substantial risk to a prisoner's health or safety and disregard it. It's a high bar; mere negligence doesn't reach it. But it's not absolute immunity, and a sheriff who actually knew a prisoner was at serious risk and did nothing could face liability.

Does this opinion say what kinds of orders fall under the Tort Claims Act protection?
It says claims "based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court" get the immunity. The order has to be lawful. An unlawful order doesn't trigger the protection.

Background and statutory framework

Verbal orders and their enforceability come from Robertson v. Commonwealth, 181 Va. 520 (1943), which held oral orders are binding on the parties to whom they are directed and can be enforced through contempt powers. Contempt powers apply to both written orders and "oral orders, commands and directions."

Section 19.2-307 ultimately requires a written judgment. Wilson v. Commonwealth, 40 Va. App. 250 (2003), and McBride v. Commonwealth, 24 Va. App. 30 (1997), interpret that requirement in the context of courts not of record: the court must "memorialize its judgment by setting forth [the] plea, [the court's] verdict or findings and the adjudication and sentence." The verbal order operates pending entry of the written judgment.

Qualified immunity protections trace to Harlow v. Fitzgerald, 457 U.S. 800 (1982), as applied in the Fourth Circuit in Johnson v. Caudill, 475 F.3d 645 (2007). The opinion notes the general duty to feed and care for prisoners is a statutory duty of the sheriff's office.

The deliberate indifference standard for prisoner safety claims comes from Farmer v. Brennan, 511 U.S. 825 (1994). It applies under both the Eighth Amendment (convicted prisoners) and Fourteenth Amendment due process (pretrial detainees).

The Tort Claims Act immunity in § 8.01-195.3 was applied in Patten v. Commonwealth, 262 Va. 654 (2001). It codifies long-standing principles that officers carrying out a lawful court order are protected from suit. Coverdell v. Dep't of Soc. & Health Servs., 834 F.2d 758 (9th Cir. 1987), surveys the federal cases.

The footnote on punitive pretrial detention reflects Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988): pretrial detention is unconstitutional if "imposed with an express intent to punish" or "not reasonably related to a legitimate non-punitive governmental objective." Podracky, 52 Va. App. 130 (2008), addressed the related point that punishment power belongs to the legislature, not the courts (quoting Chief Justice Marshall in Wiltberger, 18 U.S. at 95).

Citations

• Va. Code Ann. § 19.2-307
• Va. Code Ann. § 8.01-195.3
• Robertson v. Commonwealth, 181 Va. 520, 531, 25 S.E.2d 352, 356 (1943)
• Wilson v. Commonwealth, 40 Va. App. 250, 253, 578 S.E.2d 831, 832 (2003)
• McBride v. Commonwealth, 24 Va. App. 30, 34-35, 480 S.E.2d 126, 128 (1997)
• Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir. 2007)
• Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
• Farmer v. Brennan, 511 U.S. 825 (1994)
• Patten v. Commonwealth, 262 Va. 654, 553 S.E.2d 517 (2001)
• Coverdell v. Dep't of Soc. & Health Servs., 834 F.2d 758 (9th Cir. 1987)
• Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)
• Dorsey v. Virginia, 32 Va. App. 154, 162-63, 526 S.E.2d 787, 791-92 (2000)
• Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010)
• Podracky v. Commonwealth, 52 Va. App. 130, 143, 662 S.E.2d 81, 88 (2008)
• United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-069-Proffitt.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 30, 2010

The Honorable Dennis S. Proffitt
Sheriff, County of Chesterfield
Post Office Box 7
Chesterfield, Virginia 23832

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Proffitt:

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

Issues Presented

You inquire regarding the legality of a court's pronouncement of sentence that includes the verbal direction to sheriff's deputies to take a defendant into custody for a specified number of hours, when such direction is given without the court's written order or other document. You inquire further concerning any potential liability the sheriff's office might incur when it complies with such an order.

Response

It is my opinion that such verbal direction is equivalent to a written order and therefore is binding upon the sheriff's office and that sheriff's deputies carrying out such orders enjoy the same qualified sovereign immunity they have when others are in their custody.

Background

You present a scenario in which an individual has been sentenced to some period of incarceration for a criminal offense and, upon pronouncement of the sentence, the Court issues a verbal order sentencing the convicted defendant to detention for a period of hours in a holding cell, without a written committal order, disposition notice, or any other written document.

Applicable Law and Discussion

An order of the court that is delivered verbally is no less binding than a written order upon the party to whom it is directed. "In the trial of a case the court gives many orders and commands which are not reduced to writing or directed in writing to the person who is bound to obey them." Disobeying such an oral order would "tend to embarrass or defeat the administration of justice." Where a court's oral order is sufficiently specific, it may be enforced through the court's contempt powers. Contempt powers apply to both a court's written orders as well as to its "oral orders, commands and directions."

Virginia Code § 19.2-307 contemplates the ultimate entry of a written order. In the context of a sentence by a court not of record, that statutory provision has been held to require such a court to "memorialize its judgment by setting forth '[the] plea, [the court's] verdict or findings and the adjudication and sentence.'" Although a court's order as to the defendant's sentence ultimately should be reduced to writing, for purposes of the period following delivery of the verbal order and prior to production of a written judgment, it may be prudent to include in the jail's regularly maintained business records contemporaneous notes detailing such verbal directions, and to have the verbal order witnessed by officials of the sheriff's office.

You indicate a concern for civil or criminal liability of sheriffs' deputies should something occur to the individual while detained in the sheriff's custody under the circumstances you describe. As a general proposition, the liability of the sheriff is the same, whether the period of incarceration is lengthy or short. While the duty to feed and care for all prisoners confined in the county jail remains the statutory duty of the office of the sheriff, government officials employed by the sheriff's office and engaged in discretionary functions are generally shielded from liability for civil damages, provided their actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware. Notwithstanding this qualified immunity from liability, however, to the extent that officials with the sheriff's office are aware of a significant risk to a prisoner's health or safety, and act or fail to act with deliberate indifference to such risk, liability may be found if the jailer denies constitutionally guaranteed humane conditions of confinement.

I further note that § 8.01-195.3 provides immunity from tort liability under the Virginia Tort Claims Act when the claim is "based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court." This provision provides a further shield from liability. This statutory provision codifies longstanding principles of immunity for officers who carry out a lawful order.

Conclusion

Accordingly, it is my opinion that a verbal order to take a defendant who has been sentenced to incarceration into custody is a binding order upon the sheriff's office and that the sheriff's office is generally shielded from liability when it takes persons into custody pursuant to such orders.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General