After council's vote, Fatehi revokes city attorney authority to prosecute shoplifting charges

Yahoo

15-05-2025

NORFOLK, Va. (WAVY) — While Norfolk City Council made good on Mayor Kenny Alexander's pledge during his State of the City address to allow the city attorney to prosecute shoplifting cases, Commonwealth's Attorney quickly nixed the plan, revoking the city attorney's authority to do so.
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Fatehi sent a letter to City Attorney Bernard Pishko Wednesday saying he planned to revoke Pishko's ability to prosecute criminal cases in Norfolk Circuit Court as of 5 p.m. Friday, and put into place added oversight of General District Court charges being pursued there.
Following the Funds: Butler raises record amount in race to unseat Fatehi in Norfolk
Fatehi noted larceny cases in the city are down 17% over the first three months of 2025 compared to the same period a year ago, when they hit a five-year high. He said the city's new ordinance 'mirrors the state offense of concealment of merchandise.' He also said that while shoplifting statewide increased 35% from 2019-2023, it increased just 16% in the city over the same time period.
'These facts lead me to an unfortunate conclusion: That the recent sequence of events is the product of faulty reasoning, political posturing, or special-interest pressure,' Fatehi said. 'I further conclude that the public is understandably left concerned that the mayor and his allies on Council wish to control the criminal-prosecution process through the City Attorney's office because the City Attorney is their employee and serves at their pleasure. We have seen the politicization of prosecution at the federal level; I cannot countenance that happening in Norfolk.'
During his recent State of the City address, Alexander said that, 'in Norfolk, we intend to support businesses impacted by shoplifting by passing an ordinance that enables the city to prosecute shoplifting.'
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Alexander made that statement with Fatehi sitting front and center.
'Enforcing this crime under city code will allow Norfolk to take action where the Commonwealth has not,' Alexander said.
And that was the plan when City Council approved the ordinance, which would have allowed the city attorney's office to prosecute misdemeanor shoplifting cases — ones in which the value of the theft is less than $1,000. Fatehi's office currently prosecutes all felony shoplifting cases, and it can choose whether to prosecute misdemeanor crimes.
That's something Fatehi has said he doesn't have the resources to do, and he accused the mayor and council of not providing those resources to his office.
'If the mayor and council are truly concerned about the handling of misdemeanor shoplifting, they could do as Hampton has done and provide sufficient funding to their Commonwealth's Attorney to have a prosecutor in General District Court on those cases,' Fatehi said. 'I would note that, due to insufficient funding from their cities, the Commonwealth's Attorneys of Norfolk, Virginia Beach, Chesapeake, Suffolk, Portsmouth and Newport News do not staff misdemeanor shoplifting cases in General District Court or any of a number of other, more serious misdemeanor crimes.'
Fatehi also said any attempts by the city attorney's office to try cases with existing staff and use fines from cases to pay for added prosecution costs 'are a relic of mass incarceration, exacerbate the criminalization of poverty and throw poor people into debt traps, making them more likely to steal again, not less.'
The current Commonwealth's Attorney is being challenged in the upcoming Democratic primary by , a former federal prosecutor who Alexander has endorsed.
In a recent debate, Butler brought up Fatehi's opposition to a lower felony larceny threshold.
'My opponent, he has a different philosophy on things,' Butler said. 'The General Assembly has put the felony larceny level at $1,000, and my opponent has said he's not going to charge people unless its over $2,500.'
During the council meeting, Superward 7 councilmember Carlos Clanton said he supported the ordinance, recognizing the importance of addressing retail theft and supporting small businesses in the community.
'This ordinance provides Norfolk with a localized tool to deter and address shoplifting while ensuring that our city can manage these offenses with discretion and proportionality,' Clanton said. 'However, I remain committed to ensuring that our enforcement approach is fair and does not criminalize poverty or disproportionally impact youth and marginalized communities. I support the ordinance with the understanding that we will also explore diversion options, community service alternatives and restorative justice practices.'
Ward 2 councilwoman Courtney Doyle cited Police Chief Mark Talbot in stating a 6% rise in larcenies in 2024 versus 2023. Larcenies by auto were down 23%, but all other larcenies were up 30%, which she said he attributed to thefts at ABC stores.
Ward 5 councilman Tommy Smigiel said the city is reaching a point where some retailers are saying the theft-loss ratios are so big they cannot justify staying at their locations.
'The reality is the data, the information that we receive, and the people that we talk to, our civic leagues and the business owners are telling us what a big problem this is,' Smigiel said. 'So when you have a bike shop owner in Ocean View who just had a group of people … just walk in and steal bikes and walk right out with it, and they're not prosecuted, the bottom line for that small bike shop is killed right there.'
Read Fatehi's letter to City Attorney Bernard Pishko below:
Dear Mr. Pishko:
Last night the Mayor and Council created a City of Norfolk ordinance that mirrors the state offense of concealment of merchandise. I have great concerns about implementation of this ordinance and its impact on poor people.
First, I would note that Virginia already criminalizes this behavior under Virginia Code § 18.2‑103 in nearly identical form. As the Commonwealth's Attorney, I have always said that people must be held accountable for their crimes, whether violent or not, and that businesses who take appropriate measures to guard against shoplifting should be able to rely on the police and prosecutors to hold accountable people who steal.
Second, the facts demonstrate that shoplifting is not a bigger problem in Norfolk than it is in Virginia at large. According to data from the Norfolk Police and the Virginia State Police, while shoplifting in Virginia increased 35% statewide from 2019-2023, shoplifting in Norfolk increased only 16% over that time. Fluctuations in the rate of shoplifting in Norfolk are essentially tracking the rate of shoplifting across the Commonwealth, if not doing better. Shoplifting in Norfolk and in Virginia increased in 2023, but Norfolk Police Department data shows that shoplifting offenses in Norfolk are down 17% in the first quarter of this year compared to the first quarter of last year. If current trends continue, shoplifting in Norfolk will come in lower in 2025 than in 2019. The discussion of the ordinance did not include these numbers.
Third, I staff and appropriately prosecute all felony shoplifting cases, seeking felony convictions in some and measured reductions to misdemeanors — which carry penalties of up to 12 months in jail — in others according to the facts of each case, victim, and accused. Last night's city ordinance concerns itself only with misdemeanors, i.e. thefts of under $1,000.
If the Mayor and Council are truly concerned about the handling of misdemeanor shoplifting, they could do as Hampton has done and provide sufficient funding to their Commonwealth's Attorney to have a prosecutor in General District Court on those cases. I would note that, due to insufficient funding from their Cities, the Commonwealth's Attorneys of Norfolk, Virginia Beach, Chesapeake, Suffolk, Portsmouth, and Newport News do not staff misdemeanor shoplifting cases in General District Court or any of a number of other, more serious misdemeanor crimes. In those cases and in those cities, shopkeepers, victims, and officers must present their cases without a prosecutor and hope for the best.
I have spent years pointing out that Norfolk, like the other Seven Cities, has done 'criminal justice on the cheap.' To address this issue at the state level, I was one of the lead advocates for the Virginia Access to Justice Act in the last General Assembly session, which would have funded multiple additional lawyers in my office and permitted me to staff all misdemeanor cases. I asked the City of Norfolk for assistance in lobbying for this effort, but they elected not to do so.
Now, rather than provide adequate funding for my office, Council has passed an ordinance that duplicates existing state law with the specific purpose of having your office prosecute misdemeanor shoplifting.
I note that, according to your statement to the Virginian-Pilot, you intend to offset the additional cost of staffing misdemeanor shoplifting cases by fining the accused and by collecting an increased share of court costs courtesy of using a city ordinance over a state statute. Fines and mandatory court costs are a relic of mass incarceration, exacerbate the criminalization of poverty, and throw poor people into debt traps, making them more likely to steal again, not less.
I would further note with disappointment that the Mayor has not discussed his concerns with me regarding shoplifting or any other policy or substantive matter within my authority. In fact, since I took office, the Mayor and I have had only one substantive meeting, which took place in the late summer of 2022, and then only at my insistence. As duly-elected representatives of our citizens, our citizens expect us to work together, I would hope that we could do better; I stand ready to have a dialogue with the Mayor and always have.
These facts lead me to an unfortunate conclusion: That the recent sequence of events is the product of faulty reasoning, political posturing, or special-interest pressure. I further conclude that the public is understandably left concerned that the Mayor and his allies on Council wish to control the criminal-prosecution process through the City Attorney's Office because the City Attorney is their employee and serves at their pleasure. We have seen the politicization of prosecution at the federal level; I cannot countenance that happening in Norfolk.
As the elected Commonwealth's Attorney and the Chief Minister of Justice for Norfolk, I have an independent duty to the citizens of our city to ensure one system of justice for all and to avoid the failed policies of the past, and the General Assembly has vested me with certain powers to do so.
Under Virginia Code § 15.2-1627, I have the duty to staff all felony offenses and the discretion to staff any other criminal offense that carries a fine of $500 or more or the possibility of jail time. While I wish to staff all misdemeanors, I am not able. Were the Council to provide me with the necessary funding and prosecutors, I would gladly do so, including for misdemeanor assaults, vandalism, larcenies from automobiles, destruction of property, reckless driving, and shoplifting.
Virginia Code § 15.2-1542 grants me the authority to permit your office to prosecute state and city misdemeanors. That Code section requires my permission because I am the people's duly elected prosecutor and should therefore exercise oversight over others who receive the power to make people convicted criminals.
My predecessors have for many years given your office permission to prosecute state and city misdemeanors at your discretion, and, at your request and in a spirit of cooperation, I gave you my permission to do so in turn, both in Circuit Court and in General District Court.
Pursuant to the authority the General Assembly has vested in me as Commonwealth's Attorney under Virginia Code §§ 15.2‑1627 and 15.2-1542, I revoke, effective at 5:00 on Friday, May 16, 2025, the permission I have previously granted to you to prosecute in Circuit Court all offenses punishable by jail or fine, including violations of the Virginia Code and city ordinances. Please forward me a list of all cases, discovery materials, and other relevant information so that my office may handle these cases going forward.
In General District Court, I have no choice but to scrutinize your office's work on misdemeanor shoplifting cases and will be looking more closely at your prosecutions in other areas to ensure that they are consistent with the values of our citizens. As a condition of your continued privilege to prosecute state code and city ordinance cases in the General District Court under Virginia Code §§ 15.2-1627 and 15.2-1542, you will send reports to my office on the first business day of each month of the criminal cases you have chosen to staff, the disposition of any cases concluded or discontinued, and certifications that you have complied with your obligations under Brady v. Maryland and Giglio v. United States and the Virginia Crime Victim and Witness Rights Act.
Should a citizen feel as if they did not receive fair justice in General District Court, they have the right to appeal under Virginia Code § 16.1-132, and I will staff the prosecution of that appeal in Circuit Court and determine independently whether justice was done in the court below.
I regret that I must take these steps, as we all have more important matters on which to focus, such as violent crime and the continued assault by the Trump administration on civil liberties, the social safety net, victim services, and crime-prevention measures. That said, the public trust leaves me no choice but to take action.
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