Resisting an Officer Without Violence
By: Renee Dial
Something interesting can happen to you in Florida that seems to violate the laws of physics, you can be arrested for resisting arrest without having been under arrest. The commonly used phrase is actually incorrect as Florida Statute 843.02 is labeled “Resisting officer without violence to his or her person”.
To better understand the statute let’s use a hypothetical: Jimmy is fishing on the side of the road and not disobeying any laws. An officer comes over to Jimmy and orders Jimmy to stop fishing. Jimmy casts his line again despite the officer ordering him to stop fishing. The officer then places Jimmy under arrest for resisting an officer without violence. Normally this happens when Jimmy gets belligerent with the officer. Read More
The first part in analyzing whether Jimmy’s arrest is proper is to ascertain what lawful duty the officer was executing. At first read there was no reason for the officer to order Jimmy to stop fishing and one cannot imagine what legal duty the officer was executing. With no further facts Florida Courts have consistently held the above mentioned scenario an illegal stop and that the officer was not executing a legal duty.
The Court in C.W. v. the State of Florida 76 So.3d 1094 (Fla. 3d DCA 2011) held that the police lacked reasonable suspicion of any crime and that there was no traffic on the road that would give rise to a legal duty for the officer to order C.W. to get off of the road. Since there was no underlying offense of interfering with traffic there was no legal duty that the officer was executing and therefore no legal duty to be executed and no legal order to follow.
The Court, in Parker v. State, 18 So.3d 555, 557 (Fla. App., 2008), held that in order to establish a prima facie case of resisting arrest without violence the State must show that the officer had an “articulable well founded suspicion of criminal activity.” The Court further stated that “Flight, in itself, is insufficient to support a reasonable suspicion of criminal activity.”
Let’s use the same hypothetical but with a slight change in facts: Now assume that there is a sign next to or around Jimmy that says “No Fishing” that was posted by a governmental entity. Now when the officer tells Jimmy to stop fishing the officer is there as a law enforcement officer and has a duty to enforce the law and order Jimmy to stop fishing.
With the added fact, if Jimmy casts his line and is belligerent towards the officer Jimmy can be charged with resisting an officer without violence. The resisting is not to an arrest the resisting is to the officer’s authority and the execution of a legal duty.
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