OFFICE OF THE
COMMONWEALTH’S ATTORNEY FOR THE CITY OF LYNCHBURG
MONUMENT TERRACE BUILDING
901 CHURCH STREET
LYNCHBURG, VIRGINIA 24504
(434) 455-3760
FAX (434) 846-5038
WWW.OCALYNCHBURG.COM
BETHANY A. S. HARRISON DIRECT PHONE NUMBER
(434) 455-3778
Commonwealth’s Attorney E-MAIL ADDRESS
February 9, 2023
[email protected] COMMONWEALTH’S ATTORNEY REPORT
Re: Use of Force December 13, 2022 109 Holmes Cr. Lynchburg, VA
Involving Aaron Roberts, III and Officer J. Foster
As Commonwealth’s Attorney for the City of Lynchburg, I was tasked with the
determination of whether the use of force by Lynchburg Police Department Officer J. Foster on
December 13, 2022 amounted to a criminal offense. The purpose of this investigation is not to
determine the appropriateness of any Lynchburg Police Department (LPD) policy, procedure, or
tactic but solely for the purpose of determining if a criminal act was committed during the arrest
of Aaron Roberts, III. In making my determination, I reviewed reports provided by the Virginia
State Police who investigated the matter, body worn camera (BWC) footage of the event, reports
prepared by LPD and other agency officers, photographs of the scene, Blue Ridge Regional Jail
medical records for Aaron Roberts, III, and interviews of involved parties including Officer J.
Foster and Aaron Roberts, III. Based upon the law and the evidence in this matter, it is my opinion
Officer J. Foster’s actions amounted to a justifiable use of deadly force and no criminal charges
are warranted.
Summary of the Facts
The following events are documented in police reports, witness interviews, and BWC
footage: On December 13, 2022 at 9:08 a.m., multiple law enforcement personnel from the
Lynchburg Police Department, U.S. Marshals Service, Federal Bureau of Investigations, and
Virginia State Police in a joint operation to serve outstanding arrest warrants arrived at 109 Holmes
Cr. in the City of Lynchburg. They had warrants to serve on Aaron Roberts, III for Possession of
a Firearm by a Convicted Felon, Brandishing a Firearm, and Violation of Protective Order. The
address on the warrant for Roberts was 109 Holmes Cr. Lynchburg, VA.
By 9:09 a.m., officers displaying their badges of authority with clearly marked tactical
equipment or clothed in department issued uniforms began knocking repetitively and loudly on
the door of 109 Holmes Cr. The townhome was equipped with a Ring camera doorbell as well as
a separate doorbell to the townhome. Both doorbells were pushed by the officers multiple times.
Clear, loud, and multiple announcements were made that included: “Police department, come to
the door!”, “Open the door or we are coming in!”, and “Aaron Roberts we have a warrant for your
arrest, open up!” Roberts was told that a specific officer was on scene that he trusted and told to
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call that officer if that made him more comfortable. The announcing officer loudly and repeatedly
announced his own phone number while instructing Aaron Roberts to call the officer and come
out where they could assure his safety. These announcements were also made over a loud speaker
from an officer’s marked patrol vehicle’s public address system that was parked near to the
entrance of the townhome. These announcements and loud knocking were done repeatedly at the
front door for 17 minutes before an 18-year-old female opened the front door. The female was
upset, crying, and asked to come away from the home which she did.
Officers entered the townhome to execute the arrest warrants. Officers repeatedly called
out to Roberts directing him to come out and announcing they were police. It was believed that
Roberts was in the attic. At 9:57 a.m. a cannister of oleoresin capsicum was deployed into the attic
to flush Roberts out. Officers determined shortly after this that the townhome shared an attic space
with 4 other townhomes in the same block with no firewall in between.
Officers entered the attic at 10:33 a.m. and located Roberts in the attic space above 115
Holmes Cr. Upon locating Roberts officers immediately yelled “show me your hands!” and “come
out!” At least 5 officers were in the attic at this point. Roberts was located to the left of the officers
under the slant of the pitched roof and behind multiple wooden beams. Roberts was positioned
sitting upright with his right side and shoulder facing the officers and his left side away from the
officers and out of view. Roberts kept his left hand and arm down around his legs for the entire
interaction with the officers. Officers could not see his left hand due to Roberts’ position and
refusal to follow instructions to show his hands.
When officers first called out to Roberts, he did not show his hands but instead said he
wanted to talk to his girlfriend and made a comment that he would kill himself. Roberts told
officers he did not have a phone. Roberts said he would communicate with a specific officer that
he trusted that was on scene. That officer was called into the attic. This officer also served as the
K9 handler and brought the dog into the attic with him. The K9 remained under the handler’s
control and was physically restrained by a harness and held by the handler’s left hand. The K9
handler used his cell phone to call Roberts’ girlfriend and put her on speaker phone. At this time
the other officers in the attic were positioned for safety with flashlights pointed at Roberts and
firearms out as they still did not know if he was armed.
In response to officers repeatedly telling Roberts to show the officers his hands and come
out from the attic, Roberts told the officers he was not moving and did not comply with these
directions. The interactions with Roberts lasted 19 minutes from the time officers discovered him
until the shot was fired by Officer J. Foster. During this period Roberts said “I want to die. I’m
not moving from this spot unless you’re carrying me.” and “I ain’t going in no handcuffs.” Roberts
was allowed to talk to his girlfriend who also attempted to convince Roberts to surrender
peacefully which Roberts refused.
The K9 handler told Roberts he would get closer to Roberts. This officer was in front of
the other officers in the attic with the K9 in his left hand and the cell phone being used to talk to
the girlfriend in the officer’s right hand. This officer was exposed as he approached Roberts and
narrated his movement to Roberts. Roberts claimed that he had no weapon but Roberts continued
to hide his left hand. As the K9 handler stepped closer, Roberts said “Please stop or I’m going to
blow my head out the frame. Please back up (officer’s name). I’m going to shoot myself man,
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please back up.” Another officer responded, “Man don’t do that.” Roberts responded, “You want
to shoot me. Shoot me. I ain’t got nothing else man.” The officer responded, “I don’t want to shoot
you.” Roberts continued, “All I asked you to do is back up man. You done walked up on me. Now
you gonna cause me to do it.” An officer said, “We just want to put cuffs on you and take you in.”
Roberts responded, “I’m gonna get down on my own! I’m not gonna move from this spot. I’m not
going to hurt nobody but I’m gonna be a dead corpse here.” During this Roberts waived his right
hand around repeatedly while talking. His left arm and hand remained down and out of view.
The officers asked again to see his other hand and even said they would put their guns away
if they could see his left hand. Roberts said, “Just shoot me bro. Just shoot me bro…Shoot me you
ain’t got no choice.” Roberts’ girlfriend was still on the cell phone attempting to calm Roberts
down. Roberts rebuffed her attempts.
At 11:01 a.m. the K9 handler told Roberts to crawl out from his location so that the officer
could put cuffs on Roberts and that the officer was coming to put him in handcuffs. The K9 handler
was now 7-8 feet away from Roberts. The K9 handler put the cell phone away and still held the
K9 harness in his left hand. As the K9 handler took a step forward toward Roberts, Roberts lifted
his left hand and arm where it was revealed he was holding a firearm in his left hand. Officer J.
Foster was positioned behind the K9 handler and to the side. The K9 handler and Officer Foster
reported that Roberts pulled the gun up and pointed the gun in the direction of the officers. Officer
Foster fired one round at Roberts and Roberts immediately fell backward and through the ceiling
of the townhome. An officer called out “he shot himself!” Officer Foster quickly responded that
he was the one who fired after he saw Roberts pull a gun.
Other officers were positioned in the townhome below Roberts. BWC captured Roberts’
fall through the ceiling where a black semi-automatic firearm was clearly seen in his left hand. He
fell straight down, hit a stair rail then released the weapon as his body turned toward the right
during the fall. The firearm was collected by Virginia State Police and was identified as a Glock
19 loaded with 14 rounds of ammunition. The firearm belonged to Roberts’ girlfriend and it is
believed he retrieved it from her bedroom dresser before he hid from law enforcement in the attic.
Roberts sustained minor lacerations to his left arm and left knee. There was a defect on
the wooden beam near where Roberts was positioned consistent with being struck by a projectile;
however, the projectile from Officer J. Foster’s gun was never found.
Legal Analysis
In a 2018 per curiam opinion, the United States Supreme Court summarized the controlling
legal standard as to when an officer may use deadly force:
[W]hether an officer has used excessive force “requires careful attention to the facts
and circumstances of each particular case, including the severity of the crime at
issue, whether the suspect possess an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight. The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. The calculus of reasonableness must embody allowance for the fact
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that police officers are often forced to make split-second judgements – in
circumstances that are tense, uncertain, and rapidly evolving – about the amount of
force that is necessary in a particular situation.”
Kisela v. Hughes, 584 U.S. ____ (2018) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
An officer is entitled to use deadly force to protect himself or others only if the amount of
force was not excessive and was reasonable in relation to the perceived threat:
The use of deadly force is an act of necessity and the necessity must be shown to
exist or there must be shown such reasonable apprehension of imminent danger, by
some overt act, as to amount to the creation of necessity. The right to kill in self-
defense begins when the necessity begins and ends when the necessity
ends…Imminent danger is defined as an immediate and perceived threat to one’s
safety or the safety of others.
Couture v. Commonwealth, 51 Va. App. 239 (2008).
I find that Officer J. Foster’s use of deadly force was not excessive and came from an
immediate threat to himself and other officers. Officers called out to Aaron Roberts for nearly 2
hours and used peaceable means to obtain his submission to arrest warrants. Roberts not only
refused to obey offers repeated commands to surrender and show both of his hands, he also made
threats to shoot himself and repeatedly stated he would not get out of the situation alive. Mr.
Roberts statements would lead any reasonable officer to believe he was armed and intended to
harm himself or take action to bring about a “suicide by cop” result.1 With those concerns in mind,
officers continued to try to obtain Roberts’ willful submission to authority. The K9 handler
narrated his intentions to approach Roberts and place him into handcuffs as he maintained control
of his K9 with his left hand and had nothing in his right hand. When the K9 handler took his first
step toward Roberts, Roberts pulled up his left arm and hand to reveal the firearm he possessed.
The K9 handler and Officer J. Foster saw the firearm and that it was pointed in the direction of the
officers in the attic. Officer J. Foster fired one round that resulted in Roberts immediately falling
through the ceiling onto the floor below where he was taken into custody. Officer J. Foster’s
actions were not excessive and were reasonable in relation to the perceived threat to himself and
other officers.
The body worn camera footage will not be released as Mr. Roberts faces pending criminal
charges from these events.
Bethany Harrison
Commonwealth’s Attorney
for the City of Lynchburg
1 Ralph H. de Similien, M.D., M.S., M.Ed., Adamma Okorafor, M.D., “Suicide by Cop: A Psychiatric
Phenomenon” The American Journal of Psychiatry Resident’s Journal 26 Jan 2017
https://psychiatryonline.org/doi/10.1176/appi.ajp-rj.2017.120107 Accessed 9 Feb. 2023.
