Can You Legally Resist Arrest In Florida?
- July 8th, 2020
- Bruce Denson
- Comments Off on Can You Legally Resist Arrest In Florida?
Is it legal to resist an unlawful arrest in Florida? What actions are the best to take when haven’t committed a crime but are being arrested? Ride along with Florida Criminal Defense attorney Bruce Denson as he explains what to do when facing an unlawful arrest.
Alright, let’s talk about the legalities and the realities of resisting arrest in Florida. So, in Florida, you can legally resist an unlawful arrest by non-violent means but you really don’t want to do that, okay? In the heat of the moment, on the street is not the time when you want to be making a legal decision that could have serious consequences.
If you’re being arrested, ask the officer are you being detained. If he says yes, submit to the arrest. The time to address that is later with an attorney, okay? So, you don’t want to take an action that is then going to make the officer on the street have to react to you because they’ve got a gun on their hip this could be a very bad decision that you make. So, if you are facing an unlawful arrest you have the legal right to resist it by a non-violent means but you don’t want to do that.
Can you legally resist an unlawful arrest in Florida? Yes
Should you? No.
Why? Because you are forcing two decisions to occur in a high-pressure situation that are better off being made later, or not being made at all.
First, you are making the determination in the heat of the moment whether an arrest is legal or not and taking an action that is going to cause an immediate reaction from the officer. There are two problems here:
- Your qualifications and state of mind to make that legal decision and,
- The officer’s response based on the circumstances and his/her experience.
On the street, at the moment, during an encounter with police is not the time for you to be making a legal judgment call. Let a lawyer do that later, in a calm, dispassionate manner. Let a person who is trained to be your advocate defend against your unlawful arrest in court. I am going to layout for you the technicalities of the lawfully resisting arrest below, but even knowing your rights, the street is not the place to flex them.
The second element of the encounter is the officer. You do not know who that officer is, what their training entailed, the officer’s racial bias (if any), or a myriad of other factors that go into their decision on how to respond to a person resisting arrest. But we do know that officers carry guns and sometimes in these situations they will draw and use them. Without considering whether they are right or wrong, why put yourself in that situation?
With all that said, let’s get into it. Resisting an Officer Without Violence is defined in Section 843.02, Florida Statutes, which provides:
Whoever shall resist, obstruct, or oppose any officer . . . without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.
The Florida Standard Jury Instructions layout the elements required 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 the process.
Common examples of Resisting an Officer Without Violence include:
- Refusing to be handcuffed, evading handcuffs, or tensing arms while being handcuffed.
- Interfering with an active police investigation.
- Not obeying lawful verbal commands like refusing to sit down or refusing to leave an area.
- Giving information deemed to be false or misleading during a lawful arrest or detention.
- Concealing evidence.
- Evading police when there is reasonable suspicion of criminal wrongdoing.
If you are charged with Resisting Arrest Without Violence, there are a few different ways to defend yourself against the charges. Here are some of the more common defenses:
- Disputing the allegation of resistance. This will be a factual determination for a jury as to whether you were actually resisting.
- If the tensing of arms is a reflex or the result of pain, the case can be defended on a lack of intent to resist.
- Contesting the officer’s allegation that the officer was engaged in a legal duty.
- Arguing to the court the officer had insufficient suspicion to justify detention.
- Proving the defendant did not know they were interacting with an officer. This happens with unmarked cars and plainclothes cops.
- Showing the police were using excessive force and your actions were in defense of the excessive force may be a defense.
- Evidence that the police did not tell you why you were being arrested may be a factor in determining whether your conduct was reasonable.
PENALTIES FOR RESISTING WITHOUT VIOLENCE
The maximum penalties for Resisting an Officer Without Violence are a first-degree misdemeanor, punishable by up to a year in jail or probation, and a $1,000 fine.
Most cases are resolved for far less than that.
If you or a loved one have been arrested, we can help. Contact The Denson Firm immediately for a Free Consultation.
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