Definition of ‘Resisting’

Resisting an Officer Without Violence is any non-violent interference directed at a police officer who is acting pursuant to a legitimate law enforcement function.

The definition for Resisting is contained in Section 843.02, Florida Statutes, which provides:

Whoever shall resist, obstruct, or oppose any [law enforcement or probation] officer or other person legally authorized to execute process . . . In the law execution of a legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . .

In many criminal cases, Resisting an Officer Without Violence is a type of offense that is tacked on by police to supplement other charges.

Required Proof

To prove the charge at trial, the prosecution must establish the following four elements beyond a reasonable doubt:

The defendant resisted, obstructed, or opposed a law enforcement officer; At the time, the officer was engaged in the execution of legal process or the lawful execution of a legal duty; The officer was a person legally authorized to execute process; and At the time, the defendant knew that the person resisted, obstructed, or opposed was in fact an officer or other person legally authorized to execute process.

Examples of Resisting

Even seemingly minor actions by a suspect or arrestee can constitute ‘resistance’ within the meaning of Section 843.02. Common examples include:

Resistance by Words

Although, due to the First Amendment, speech alone is generally insufficient to constitute ‘resistance,’ Florida courts have identified several scenarios where words, coupled with additional factors, can support a criminal charge. For example:

Porter v. State, 582 So. 2d 41, 42 (Fla. 4th DCA 1991) (upholding conviction where a defendant acted as a “lookout” and verbally warned another suspect in order to prevent an officer’s imminent arrest;

Caines v. State, 500 So. 2d 728, 729 (Fla. 2d DCA 1987); Legnosky, 27 So. 3d at 797 (giving false name during a lawful arrest/detention);

Wilkerson v. State, 556 So. 2d 453, 456 (Fla. 1st DCA 1990); H.A.P. v. State, 834 So. 2d 237, 239 (Fla. 3d DCA 2002) (upholding convictions where a defendant’s verbal conduct is coupled a refusal to leave the scene of lawful search or arrest).

Penalties for Resisting Without Violence

Resisting an Officer / Arrest Without Violence is a first degree misdemeanor, punishable by up to one year in jail or 12 months of probation, and a $1,000 fine.

These penalties represent the statutory maximum that is available for the charge, and do not reflect the likely sentence that will be imposed in the vast majority of cases.

Minimal Criminal History

For many first-time offenders, a conviction for Resisting Without Violence will result in a permanent criminal record, and a likely term of probation. The probation sentence, if imposed, will typically range from 6 to 12 months.

If aggravating circumstance exist in a case, including highly disrespectful conduct or conduct that endangers safety, a prosecutor may seek jail, even for first-time offenders.

Extensive Criminal History

Extended jail sentences are a realistic possibility for individuals with extensive criminal histories, or who have engaged in similar conduct in the past.

Pretrial Intervention

Another serious consequence of a Resisting charge is that, in many Florida judicial circuits, prosecutors do not offer any type of diversionary option (including pretrial intervention) to dispose of the case. This means that, once charged, a defendant must either take the risk of litigating the case, or accepting the allegations and entering a plea.

Defenses to Resisting

There are multiple defenses available under Florida law to contest a charge of Resisting Without Violence. Some of the more common defenses include:

Disputed ‘Resistance’

To sustain a conviction for Resisting Without Violence, a defendant’s actions must amount to actual (not perceived) opposition or obstruction. This is a factual determination left for the jury. Often, the officer’s allegations do not rise to the level of actual resistance, or there is video or other evidence (witness testimony) contradicting the officer’s allegations.

Involuntary Reactions

To constitute the offense of resisting, the accused must have a “general intent” to “knowingly and willfully impede an officer in the performance of his or her lawful duties.” Polite v. State, 973 So. 2d 1107, 1112-13 (Fla. 2007) (citations omitted).

Thus, where a defendant tenses his or her arms merely as a result of the pain of being handcuffed, or moves his or her body reflexively due to discomfort or for injury avoidance, a conviction for resisting cannot be sustained.

Absence of Lawful Duty

Even where an accused “resists” an officer, that officer must be acting pursuant to a legal duty and must do so in a lawful manner. If there is no duty in play, then the charge cannot stand.

Thus, Florida courts have held that, where an officer engages a defendant in a consensual encounter (merely talking and not as part of an investigation), then the act of giving false information or identification by a defendant does not constitute Resisting Without Violence. St. James v. State, 903 So. 2d 1003 (Fla. 2d DCA 2005). For additional information on this topic, view our Resisting Arrest Motion to Dismiss.

Illegal Arrest or Detention

A defendant also has a recognized right to resist an officer without violence where the officer unlawfully arrests or detains the defendant. Harris v. State, 647 So.2d 206 (Fla. 1st DCA 1994); S.G.K. v. State, 657 So. 2d 1246, 1247 (Fla. 1st DCA 1995). This often occurs in situations where police confront a suspect without the requisite level of probable cause or reasonable suspicion.

In E.A.B vs. State, 851 So. 2d 308 (Fla. 2d DCA 2003), a police officer approached a defendant at a gas station and, without reasonable suspicion, began questioning the defendant about recent vehicle thefts in the area. The defendant then ran away. The court overturned the conviction, holding that the officer had insufficient suspicion to justify the defendant’s detention.

“On the Job” Police Actions

A conviction for Resisting Without Violence cannot be sustained where the police officer, at the time of the alleged resistance or obstruction, is engaged in mere “on the job” activities. Jay v. State, 731 So. 2d 774, 775 (Fla. 4th DCA 1999).

“On the job” activities” are ordinary investigative or administrative police functions not involving an imminent or ongoing “lawful execution of a legal duty.” K.A. v. State, 12 So. 3d 869, 871-72 (Fla. 4th DCA 2009); Jay, 731 So. 2d at 775.

Police actions fall within the ambit of a “lawful execution of a legal duty” only when they are:

Serving process; Legally detaining a person; or Asking a person for assistance with an ongoing emergency.

A.R. v. State, 127 So. 3d 650, 654 (Fla. 4th DCA 2013); R.E.D. v. State, 903 So. 2d 206, 207 (Fla. 3d DCA 2004).

Thus, in Jay v. State, 731 So. 2d 774 (Fla. 4th DCA 1999), a defendant observed a person he recognized as an undercover officer attempting to lure two female prostitute suspects into the officer’s car. Upon seeing the officer , the defendant walked up to the two females and stated, “don’t get in the car, he’s a cop.”

On these facts, the Fourth District determined that the defendant could not have committed the offense of “resisting” because, at the time of the alleged obstruction or resistance, the officer was not legally detaining any person or making an arrest. Id. at 776. The lack of a formal detention meant that the officer’s actions were merely “on the job,” and not in the “lawful execution of a legal duty.” Id.

In K.A. v. State, 12 So. 3d 869, 871-72 (Fla. 4th DCA 2009), police arrived in the parking lot of a skating rink to disperse a large crowd. When individuals began to leave, the defendant yelled repeatedly “why are you leaving,” “they can’t do anything about it.”

On these facts, the the Fourth District reversed the defendant’s conviction, finding that police were merely “on the job” because they had not developed reasonable suspicion and were not serving process or detaining a person. Id.

See also R.E.D. v. State, 903 So. 2d 206 (Fla. 3d DCA 2004) (reversing conviction and determining officers to be merely “on the job” where a defendant warned two unnamed males of the police presence).

Excessive Force

Excessive force is another defense that may be used in the context of a resisting charge. Although a simple arrest, whether lawful or unlawful, may never be resisted with violence, any excessive force accompanying such an arrest may be defended against. Langston v. State, 789 So. 2d 1024 (Fla. 1st DCA 2001); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985);

Thus, the tensing of one’s arms, the turning away from officers, or even taking flight can, in limited circumstances, be justified if the facts show that the officer acted with a level of force that was inappropriate. In such cases, a defendant is entitled to a jury instruction on excessive force and/or self-defense (the use of non-deadly force), and can even cross-examine the officer regarding prior complaints of excessive force. Michael v. State, 884 So. 2d 83 (Fla. 2d DCA 2004); Hinojosa v. State, 857 So. 2d 308 (Fla. 2d DCA 2003).

Lack of Knowledge of Officer Status

To support a conviction for Resisting Without Violence, the accused must be aware that the arresting officer is in fact an officer of the law. Harris v. State, 935 So. 2d 1259, 1262 (Fla. 5th DCA 2006); Cooper v. State, 742 So. 2d 855, 857-58 (Fla. 1st DCA 1999).

Lack of knowledge of an officer’s status is often an issue in situations where the officer is off duty, in plain clothes, in an unmarked police car, or is acting undercover.

Failure to Explain Arrest

The manner in which the officer executes his duties can provide additional defenses to a charge resisting without violence. For example, did the officer tell the accused why he or she was under arrest?

Section 901.17, Florida Statutes, requires a police officer to inform a suspect of the reason for an arrest at the time the arrest occurs. While a failure to advise of the reason does not, by itself, render the arrest illegal, it can be a factor used to explain to a jury why a defendant’s conduct was lawful and reasonable (and therefore not a form of resistance).

In Albury v. State, 910 So. 2d 930 (Fla. 2d DCA 2005), the Second District Court of Appeal reversed a trial court’s decision to disallow a jury instruction concerning the officer’s obligation to inform the defendant of the reasons for an arrest. The Court held that the instruction was a proper way of explaining to the jury why the defendant’s questioning of the officer (as to why he was being arrested) was not a form of resistance, but a form of lawful inquiry.

Example Case- Resisting Arrest

State vs. T.S. (Fourth Judicial Circuit, Duval County, Florida) (2013)– our Client was charged with Resisting an Officer Without Violence after allegedly pulling away from a police officer and falling to the ground during an attempted arrest. The incident arose from an incident at a local high school where our client’s sister had left school early without permission. The police were called to the scene and began looking for the student in the surrounding neighborhood.

When officers circled back to the school, they observed our client standing on the side of the street in heated argument with his parents (who had also come to the school after being notified by the principal). Our client was cursing and yelling loudly.

On this basis, police assumed that our client had somehow been involved with his sister leaving the school. They walked over to our client and ordered him to come to their patrol car. When he refused, the officers approached and instructed our client to put his hands behind his back. He again refused, and fell to ground in an effort to avoid being placed in handcuffs.

Upon being retained in the case, our attorneys interviewed the arresting officer, and determined that there was no basis for the officer to give directives to our client other than his mere presence at the school and the fact that he was observed in a heated argument with the parents of student. We then filed a Motion to Dismiss, arguing that the arresting officer lacked probable cause or reasonable suspicion of criminal wrongdoing, and that our client had a recognized right to resist illegal law enforcement actions without violence. One day prior to the hearing on the Motion, the Office of the State Attorney abandoned the charges.

Outcome: Case dismissed.

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Importance of an Attorney

Resisting an Officer or Arrest Without Violence is a serious criminal charge, and can often be defended on both legal and factual grounds. It is critical, prior to accepting any plea, to consult with a qualified criminal attorney to determine the best course of action in a case.

If you have been arrested for Resisting Without Violence, contact Hussein & Webber, PL for a free consultation. Our law firm handles cases in Jacksonville, Orlando, and the surrounding counties of Northeast and Central Florida.