Resisting without Violence
To be convicted of resisting an officer without violence, a violation of Florida Statute 843.02, the prosecutor with the State Attorney’s Office must prove the following elements beyond all reasonable doubt at trial:
- at the time of the resisting, the officer was engaged in the lawful execution of a legal duty; and
- the defendant’s action, through words, conduct or both, constitute a knowingly and willful obstruction or resistance of that lawful duty; and
- the defendant’s actions were done without doing violence.
In other words, the charge of obstruction or resistance without violence, a misdemeanor of the first degree, requires proof that the person resisted a law enforcement officer while the officer was conducting a “lawful execution of any legal duty.” Fla. Stat. § 843.02.
The plain language of Section 843.02, makes it a criminal offense for any person to resist a law enforcement officer, without violence, when the officer is engaged in a lawfully, executed, legal duty.
In other words, to sustain the conviction, the State was required to prove that the officer was engaged in the lawful execution of a legal duty. If not, then even if the Defendant did resist the officers’ command, the Defendnat has not committed the crime of resisting an officer without violence.
The common law rule remains that a person may resist an illegal arrest without violence. See Lobb v. State, 2020 WL 499708 (Fla. 2d DCA Jan. 31, 2020). K.Y.E. v. State, 557 So. 2d 956 (Fla. 2d DCA 1990).
Attorney for Resisting without Violence Crimes in Tampa, FL
If you were charged with willfully resisting, obstructing or opposing an officer in the execution of a legal duty without violence, in violation of Florida Statute 843.02, then contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.
The crime of resisting arrest or obstructing an officer without violence is a first-degree misdemeanor punishable by up to 12 months in jail and a $500 fine.
Related charges include willfully failing to obey a lawful order or direction of a law enforcement officer under Section 316.072(3), Florida Statutes, which requires the willful disobedience to a “lawful order.”
Call (813) 250-0500 to discuss your case.
The Difference Between Resisting vs. Opposing
By its terms, the resisting statute is not limited to situations where a person interferes with an officer’s arrest of that person. For this reason, the title of the crime is “resisting officer,” as opposed to “resisting arrest.”
The statute also applies any time a person resists an officer’s valid attempt to merely detain the person for the purpose of conducting an investigation. Just as a resisting an attempt to arrest must be the product of probable cause, a resisting predicated on an investigatory detention must be the product of founded suspicion. E.W. v. State, 873 So. 2d 485 (Fla. 1st DCA 2004).
Where the resisting follows a detention based upon founded suspicion, it is not always necessary for the suspected criminal activity to result in a charge or conviction. Id. at 488.
Requirements of the “Legal Duty”
In C.W. v. State, 76 So. 3d 1093, 1095 (Fla. 3d DCA 2011), the court describes the term “legal duties” in the context of the charge of resisting an officer to include the following:
- serving process;
- legally detaining a person; or
- asking for assistance in an emergency situation; or
- impeding officers’ undercover activities by acting as a “lookout” during the commission of a criminal act.
The court noted the list was not an exhaustive list but it helped demonstrate the “difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job.” Id.
In C.W., the police arrested a juvenile who refused to obey an order to move off of the street and on to the unpaved swale. The court noted that “[t]he officer’s initial request that C.W. move a de minimus distance out of the road was a reasonable part of the job as community safety officers. But the officers had no legal duty to insist on compliance and to enforce that insistence with arrest where the record shows that there were no circumstances warranting this.” Id. at 1095-96.
Another example of this distinction can be found in K.A. v. State, 12 So. 3d 869 (Fla. 4th DCA 2009), where the court found no evidence of trespass to justify arrest for refusing to leave a skating rink.
Example of Resisting or Opposing without Violence in Florida
Many resisting charges involve evidence of:
- resisting an investigatory investigation;
- running from the officer if the officer was justified in making the stop when the command to stop was issued and the defendant knew of the Officer’s intent to detain him;
- a Wardlow stop requires proof an initial flight in a high crime area followed by a knowing continuing defiance of a lawful order to stop (See C.E.L. v. State, 995 So. 2d 558 (Fla. 2d DCA 2008);
- resisting a lawful arrest; or
- protesting loudly and obnoxiously by refused to answer the officers’ questions and refusing to stop yelling after several warnings.
Rarely can a person’s words alone rise to the level of an obstruction. Obstructive conduct rather than offensive words are normally required to support a conviction under § 843.02. Id. See, e.g., Rodriguez v. State, 16 So. 3d 317 (Fla. 2d DCA 2009).
In D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D1477a], the court summarized the following general proposition applicable to section 843.02, based on Florida case law:
If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely, if ever, rise to the level of an obstruction.
Thus, obstructive conduct rather than offensive words are normally required to support a conviction under this statute.
Florida Statute Section 843.02
Florida Statute 843.02 provides, in part:
Whoever shall resist, obstruct or oppose any officer as defined in Section 943.10(1), (2), (3), (6), (7), (8), or (9);. . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer shall be guilty of a misdemeanor of the first degree.
Florida Jury Instruction 21.2, Resisting Officer Without Violence, states, in part:
To prove the crime of resisting officer without violence, the State must prove the following four elements beyond a reasonable doubt:
- The Defendant resisted, obstructed or opposed the victim.
- At the time, the victim was engaged in the lawful execution of a legal duty.
- At the time, the victim was an officer.
- At the time, the Defendant knew the victim was an officer.
When Did the Arrest Occur?
In many of these cases, it must be determined when a formal arrest occurred. At common law, an arrest was “the apprehending or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected crime.” 4 William Blackstone, Commentaries on the Laws of England 286 (U. Chicago ed. 1979) (1765).
In Thomas v. State, 583 So.2d 336, 338 (Fla. 5th DCA 1991) (Cowart, J.), the court found:
An arrest is the act of legal authority taking actual physical custody of a citizen and is a restraint on that citizen’s liberty but it is an error to assume that is the purpose of the arrest. It is not. The purpose of an arrest or apprehension and resulting detention is to cause the detained person to be identified and to be forthcoming to answer some demand, charge, or accusation against him.
Traditionally it was said that an arrest, under Florida law, had four elements:
- a purpose or intention to effect an arrest under real or pretended authority;
- an actual or constructive seizure or detention of one person by another having present power to control the person arrested;
- a communication by the person making the arrest to the person whose arrest is sought of an intention or purpose then and there to effect an arrest; and
- an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest him.
See, e.g., Parnell v. State, 221 So.2d 129 (Fla. 1969); Melton v. State, 75So.2d 291 (Fla. 1954).
The formula changed after the opinion was issued in the United States Supreme Court decision in California v. Hodari D., 499 U.S. 621 (1991), because an arrest is a seizure for Fourth Amendment purposes. See Hodari D., 499 U.S. at 624 (referring to arrest as the “quintessential ‘seizure of the person’ ”).
Other limits on this formula include United States Supreme Court cases recognizing that the “laws of arrest” are the constitutional law of the State of Florida, by virtue of the express command of Article I, section 12 of the Florida Constitution. See Perez v. State, 620 So.2d 1256 (Fla. 1993).
In Hodari D., the Court noted that an arrest is effected whenever there is a submission to arresting authority by, or the actual application of physical force to, the person to be arrested. Hodari D., 499 U.S. at 626.
Likewise, in G.M. v. State, 19 So.3d 973, 978 (Fla. 2009), the court held that “either the person must be physically subdued by a police officer or the person must submit to the officer’s show of authority.”
Requirements Related to the Lawfulness of the Order
Section 843.02 requires resistance or obstruction of the “lawful” execution of a legal duty. See § 316.072(3), Fla. Stat. (1999), § 843.02, Fla. Stat. (1991).
As elements of the offenses, the “lawfulness” of the officer’s actions are determinations for the jury under Florida law, and the jury instruction regarding that offense must explain the applicable law to the jury so that they may apply the facts of the case to make a final determination on the “lawfulness” element. Brown v. State, 36 So. 3d 826, 828-32 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D1208a].
First Amendment Protections in Obstruction or Resisting Cases
The First Amendment generally protects verbal protests of police actions, and “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” L.A.T. v. State, 650 So. 2d 214, 217 (Fla. 3d DCA 1995).
Courts faced with similar issues have distinguished protected verbal conduct from conduct which may interfere with or impede a law enforcement officer in the execution of their legal duties. See e.g. D.A.W. v. State, 945 So. 2d 624, 627 (Fla. 2d DCA 2006).
In W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000), the court distinguished between protected speech and conduct that interferes with or impedes officers from performing their duties.
The lawfulness of the order is affected by First Amendment free speech protections. When the lawfulness of the order is an issue, the criminal defense attorney should request a jury instruction explaining those protections that are appropriate to assist the jury in determining whether the order was lawful under the circumstances.
The trial court’s failure to provide the requested jury instruction also affected the jury’s determination of a “lawful execution of any legal duty” for the resisting without violence charge.
Florida law recognizes an individual’s right to resist without violence an officer conducting an unlawful arrest. Lee v. State, 368 So. 2d 395, 396 (Fla. 3d DCA 1979) (citing Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978); Adlington v. State, 350 So. 2d 1148 (Fla. 3d DCA 1977)).
When the Defendant contests the lawfulness of the officer’s arrest, the trial court’s instruction that “a detention and/or arrest constitutes a lawful execution of a legal duty” improperly took the “lawfulness” element of the offense away from the jury. See Macon v. State, 854 So. 2d 834, 835-36 (Fla. 5th DCA 2003).
If the court refuses to give the jury the requested instruction regarding the Defendant’s First Amendment free speech rights as it related to the “lawfulness” of the officer’s actions, the trial court does not properly instruct the jury on the applicable law, and does not allow the jury to properly resolve all the issues in the case.
The Chandler Jury Instruction on First Amendment Protections in Resisting Cases
The jury instruction from Chandler states:
However, verbal conduct is protected by the First Amendment. Mere words cannot amount to disorderly conduct unless they are fighting words or words, known to be false, reporting some physical hazard where such a report creates a clear and present danger of bodily harm to others, such as shouting “fire” in a crowded theater.
“Fighting words” are those which are likely to cause the average person to whom they are addressed to fight.
If in your consideration of the issue of protected speech you have a reasonable doubt on the question of whether or not the defendant did nothing more than what is protected by the First Amendment, you must find the defendant not guilty.
However, if from the evidence you are convinced beyond a reasonable doubt that the defendant did more than what is protected by the First Amendment, you should find her guilty if all the elements of the charge have been proved.
See Chandler v. State, 744 So. 2d 1058, 1060 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2172a].
When the Lawful Duty is an Arrest
“[W]hen the duty being performed by the officer is an arrest, the lawfulness of the arrest is an essential element of the offense.” M.W. v. State, 51 So.3d 1220, 1222 (Fla. 2nd DCA 2011) [36 Fla. L. Weekly D111c].
If an arrest is unlawful, it follows that no charge of obstructing that arrest without violence can prevail. It does not matter that the person charged with the obstruction is a third party, not the person who was being subjected to the unlawful arrest. See Smiley v. State, 354 So2d 922 (2nd DCA 1978).
When the Lawful Duty is an Investigatory Stop
For an investigatory stop to be lawful, an officer must have a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1967).
Absent reasonable suspicion or probable cause, an individual has a right to ignore the police and go about his business; his refusal to cooperate alone, does not furnish an objective justification needed for a lawful detention or seizure. Illinois v. Wardlow, 501 U.S. 429, 437 (2000).
A reasonable suspicion can be determined from the totality of the circumstances. State v. Rizo, 463 So. 2d 1165, 1167 (Fla. 3d DCA 1984). The inquiry to determine whether a stop is reasonable is based solely on facts known to the officer before the stop. See Travers v. State, 739 So. 2d 1262, 1263 (Fla. 2d DCA 1999).
This article was last updated on Friday, September 18, 2020.