Resisting an Officer Without Violence, or With Violence
I hate to say this, but the truth must come out. If you've been charged with Resisting an Officer Without Violence, chances are your arrest was not a pleasant experience (you may have even visited a hospital for your injuries). Not obeying the lawful command of a law enforcement officer can turn into a night in jail on a misdemeanor arrest for Resisting an Officer Without Violence. Or, there's a felony version for resisting with violence, in other words, "physically resisting" an officer's lawful command. Thus, resisting charges come in two types, (1) felony "with" violence and (2) misdemeanor "without" violence.
Often, the misdemeanor resisting without violence is simply a failure to obey the lawful command of an officer. Such a charge can also take the form of lying to police officers. Oddly enough, sometimes its perfectly legal to lie to the police, sometimes it's a crime.
For example, in Burdess v. State, 724 So. 2d 604 (Fla. 5th DCA 1998), the defendant was convicted of resisting an officer without violence because he gave a false name to the police. The appeals court threw out the conviction because the false information didn't waste the officer's time in any way--no reports were prepared based on it, nor was any action taken in reliance on it, and information was corrected before it did any harm. For a more detailed discussion on the issues surrounding the truthfulness of information provided to the police, and how it may be either a resisting charge or a providing false information to an officer charge, check out my article entitled "Lying Is Not Illegal".
Forgive me if this seems too obvious, but for those of you not familiar with the criminal justice system, one of the best ways to discover how a criminal charge works is to take a look at the statute, section 843.02, and the jury instruction. Starting with the misdemeanor Resisting an Officer Without Violence, in order for the State to prove this case three (3) elements must each be proven beyond every reasonable doubt:
1) The Defendant resisted/obstructed/opposed the victim
2) At the time, the victim was engaged in the execution of legal process or the lawful execution of a legal duty, and
3) At the time the victim was an officer.
If the charge is a felony Resisting an Officer With Violence, section 2) and 3) remain the same, but section 1) changes as follows:
1) Defendant knowingly and willfully resisted/obstructed/opposed victim by [offering to do him violence][doing violence to him].
OFFICER ENGAGED IN A LAWFUL DUTY?
All resisting charges require the officer to be engaged in a lawful duty. You cannot be required to obey an officer's commands if he's not engaged in a lawful duty. So, if you're playing basketball with your cop friend, and he tells you to pass him the ball, you're not breaking the law by taking it to the hole yourself.
Most often, this issue arises out of police investigations, whereby a citizen is asked to answer a few questions--and when that citizen walks away and refuses--out come the handcuffs and an arrest for resisting an officer without violence charge. In M.M. v. State, the defendant was found guilty of Resisting an Officer Without Violence because he refused to stop walking when the cops told him to stop. 72 So.3d 328 (Fla. 4th DCA 2011) That conviction was overturned because the officer had no legal right to order M.M. to stop walking. For more details on this case, see my article "Talk Back to a Cop--Get Punched" (yes, M.M. was hit by the officer). In another Florida case, a juvenile refused to get out of the street after an officer told him repeatedly to do so. Rather than move out of the street, the juvenile shouted a few choice profanities back at the officer and, of course, was soon thereafter arrested. Now, most folks have enough decency to not curse at the police (or anyone, for that matter), so it shouldn't have come as a surprise to M.M. that his profanities would get him a ride to the jail. You know what they say, you can beat the rap, but you can't beat the ride. M.M. beat the rap, because the officer's command to get out of the street was not part of his "job", so the appellate court overturned his conviction. For more information on this case, click on my article "When Cops Aren't Doing Their Job".
NOT ANSWERING POLICE QUESTIONS IS NOT NECESSARILY RESISTING
As a practical matter, it can be difficult for citizens who know their rights--and know the officer is wrong--to obey an unlawful command of an officer. In M.M.'s case, the officer had no business telling him to get out of the street. A similar problem arises when police attempt to question citizens, but don't get the cooperation they expect.
In G.T. v. State, neighbors called the police because a group of teenagers were making too much noise. 121 So. 3d 141 (Fla. 4th DCA 2013). When the police arrived, they discovered the crowd of teenagers, as promised. A friend of G.T.'s was holding an empty bottle of beer, and this caused the police officer to shift into investigation mode (whatever that means). The officer questioned everybody, and everyone answered the officer's questions, except G.T. The officer asked G.T. her name, and she refused. So, you know where this is going, right? Surprise, surprise, G.T. was arrested for resisting an officer without violence. But, was the officer justified in his arrest of G.T.? The appeals court overturned her conviction because the officer had no legal right to request information from G.T. Technically, the officer only had the right to question the teenager with an empty beer bottle, not G.T. For a few more details on this case, check out my article "I Know My Rights".
WALKING AWAY FROM THE POLICE MAY, OR MAY NOT, CONSTITUTE RESISTING
Typically, we Americans share the right to NOT be bothered by the police. If the police are NOT doing their job, we can gently explain to them that we're running late, and thus we are not going to provide our ID, or let them pat us down for weapons. However, Florida courts have not been so kind to juveniles. Juveniles seem to have less rights, in that some courts have held that juveniles are required to speak to law enforcement when asked--even though an adult may legally reject the very same questions. For example, in one instance, a juvenile (17 years old) refused an officers request to "come over here". As you might expect, that refusal resulted in an arrest for resisting without violence, and the court upheld the conviction based upon law enforcement's duty to make sure children remain in school during school hours. Of course, a 17 year old is not required to attend school, and some kids are home schooled, so the court's decision made absolutely no sense. That being said, read my article "School Children Must Talk to Police" for more details on this shaky court decision.
Consider another 'walking away from the cops' case, Davis v. State, 973 So. 2d 1277. Officers responded to a 'suspicious incident' complaint from employees of a restaurant. When officers arrived, the employees claimed that defendant Davis was involved in the incident--but they never presented evidence of the actual incident! Davis refuses to cooperate, walks away, and gets arrested. The appellate court overturned the conviction because there was no evidence the police were engaged in the lawful execution of a legal duty when they initially detained Davis. The police didn't really know what they responded to at the restaurant. Thus, this type of resisting charge requires that the officers have a reasonable founded suspicion of criminal activity, mere hunches are not enough, and a citizen should be able to walk away without being arrested! Now, it can be a different story if, rather than walking away from the police, you run away. At times, running away from the police is legal, other times it is not. Oddly enough, it is both the flight from the police, combined with the area you're in--high crime area vs. low crime neighborhood--that will make a stop either legal or illegal (and thus, make the resisting charge either stick or get thrown out). My article entitled "Being in a Hurry Can Get You Arrested" lays out the details on such situations.
So, how does reasonable suspicion play into a resisting charge? It enables the officer to claim he's engaged in the lawful execution of his duties when he has a "reasonable suspicion" of foul play. What is it, you ask? A reasonable suspicion is “a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge.” McMaster v. State, 780 So.2d 1026, 1030 (Fla. 5th DCA 2001). “Reasonable suspicion” is a less demanding standard than probable cause, and the Fourth Amendment requires at least a minimal level of objective justification for stopping a citizen. An officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch' ” of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Got it? Some judges don't get it, so don't beat yourself up over this concept.
There are plenty more issues surrounding resisting charges, so if you've been arrested for resisting an officer, you should give criminal defense attorney John Guidry a call for a free analysis of your situation. You have no money to lose, just a few minutes on your cell phone, that's it. What a bargain! By the way, our law firm's phone number is 407.423.1117.