The Supreme Court of Virginia heard arguments on whether the civil doctrine of illegality bars a man's tort claim after he took a gun while in police custody and shot himself, and separately whether the deputy's conduct during detention could support a finding of gross negligence.

At oral argument Tuesday, counsel for Sheriff Harris and Deputy Setlock said Dennis Howard conceded he committed the illegal act of possessing a firearm and that the only question for the court is voluntariness. "Did he violate the felon-in-possession statute? No question," said John O'Hara, counsel for the sheriff and deputy, pressing that the Court of Appeals erred by remanding for evidence of "unsound mind" when Howard had repeatedly said he acted intentionally.

The Commonwealth of Virginia, as amicus, told the court that civil intent is a separate and lower standard than criminal mens rea and that criminal-procedure mechanisms that could negate criminal punishment do not automatically defeat civil illegality. "Civil intent requires only that a person intended his actions," said Graham K. Bryant, Deputy Solicitor General for the Commonwealth, arguing that the Court of Appeals improperly injected criminal culpability analysis into the civil illegality inquiry and that existing precedent (including Osman) forecloses reliance on the criminal statute cited by the lower court.

Dennis Howard's counsel, Ashley T. Davis, urged the justices to affirm the Court of Appeals, saying the case was decided on summary judgment and the factual record must be viewed in the light most favorable to Howard. Davis emphasized mental-capacity questions and disputed that a party's courtroom statement equates to an undisputed legal concession that should foreclose relief: "We respectfully ask this court to affirm the decision from the Court of Appeals," Davis said, arguing reasonable jurors could find insanity, incompetence, duress or coercion and that the court of appeals correctly reversed summary judgment on illegality and gross negligence.

Several justices pressed both sides on discrete points the attorneys acknowledged are unresolved in the record. Counsel for the sheriff and deputy cited video evidence and prior pleadings to say Howard negotiated with deputies and acted with "deliberative choice," while counsel for Howard stressed the procedural posture: the case reached the circuit court on motions for summary judgment and some pretrial jury instructions were exchanged but never used at trial. The court and counsel also discussed a criminal-procedure statute cited by the Court of Appeals (referred to in argument as " 271.6" or similar), with counsel for Howard acknowledging that specific statute was not raised below and was addressed by the Court of Appeals sua sponte.

On gross negligence, Howard's counsel pointed to the video and to statements by deputies to argue a jury could find indifference to Howard's safety, noting remarks on the recording such as "we won today" as an example of officer demeanor. Counsel for the sheriff and deputy replied the gross-negligence inquiry must consider the totality of circumstances and that some acts taken while Howard was in custody demonstrated care, including efforts to adjust vehicle ventilation and other steps after deputies observed Howard was agitated.

No decision was issued from the bench. The arguments concluded and the court will issue an opinion at a later date.

(Reporting note: the argument transcript shows this matter was argued on motions for summary judgment and involved references to prior pleadings, joint appendix citations, video evidence, and a Court of Appeals remand.)