Resisting an Officer Without Violence
In Florida, resisting arrest without violence is a misdemeanor offense. A person commits this offense if he or she nonviolently obstructs a law enforcement officer in the course of his or her legal duty, for example, during an arrest. If violence is used, the offense becomes a felony. If you have been charged with misdemeanor resisting arrest in Florida, you should contact an experienced lawyer immediately to make sure your rights are protected.Elements of the Offense
To convict a person for resisting an officer without violence, the prosecution must prove that:
- The defendant knowingly and willfully resisted, obstructed, or opposed a law enforcement officer;
- The officer was engaged in the execution of legal process or in the lawful execution of a legal duty;
- The officer was legally authorized to execute process; and
- The defendant knew at the time that the person he or she was resisting was an officer or a person authorized to execute process.
Resisting an officer can mean many things. Often, resisting means failing to obey an officer’s commands. It may also include struggling with the officer, pulling away while being handcuffed, hiding evidence, evading police, encouraging others to interfere with police activities, or giving false or misleading information during an arrest. It is important to remember that to constitute a misdemeanor resisting an officer offense, the resistance must not be violent.
Resistance by words is generally not sufficient for a conviction because of the First Amendment protection of free speech. Obstructive conduct is almost always required. However, there are a few situations in which mere words are enough. This may include giving a false name during an arrest or being a lookout to warn that the police are coming, thereby preventing a possible arrest.Penalties
Resisting an officer without violence is a first degree misdemeanor in Florida and is punishable by:
- Up to one year’s imprisonment;
- Up to six months probation; and
- A fine of up to $5,000.
There are many possible defenses available for misdemeanor resisting an officer. The illegal arrest defense means that a person has the right to resist, without violence, an unlawful arrest or detention. This defense often applies if an officer arrests someone without probable cause.
Involuntary reactions may also be a defense. For example, if during handcuffing, an arrestee is thrown to the ground and moves his arms away from the cuffs to protect himself during the fall, this involuntary action does not rise to the level of resisting an officer.
It is also a defense if the officer was not carrying out a legal duty at the time of the resistance. For example, if an officer and another person have a consensual encounter, and the person gives false information or fails to cooperate, this does not constitute obstructing an officer because it was not part of an investigation.
Another defense is showing that the officer used excessive force. Florida law never permits a person to resist an officer with violence, but people may defend themselves against excessive force in an arrest.
Finally, a defendant may show that he or she lacked knowledge that the arresting officer was a police officer. This often applies when an officer is off duty or is acting undercover.
If you have been charged with misdemeanor resisting an officer, an experienced attorney can help you argue your best defenses. Please call West Palm Beach criminal defense attorney William Wallshein at 561-533-1221 to schedule a free consultation.