Florida Statute 843.02 provides that resisting an officer in the lawful execution of any legal duty without offering or doing violence to the officer is a first-degree misdemeanor (a crime punishable by up to 1 year in county jail).

In order to be found guilty of resisting, the State must prove that “(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009).

Legal Duty

In determining whether the officer was in the lawful execution of a legal duty, the court “must apply the legal standards governing the duty undertaken by the law enforcement officer at the” time of the defendant’s resistance — including the Fourth Amendment and any other relevant requirements of law. C.E.L. v. State, 995 So. 2d 558, 560 (Fla. 2d DCA 2008) (en banc) (citing Tillman v. State, 934 So. 2d 1263, 1271, 1274 (Fla. 2006)); see Burgess v. State, 313 So. 2d 479, 481 (Fla. 2d DCA 1975) (“While it is unnecessary that an arrestee be guilty of the crime for the arrest to be lawful, still there must be legal grounds for the arrest for it to be valid.” (internal citation omitted)); cf. B.M. v. State, 212 So. 3d 526, 530 (Fla. 2d DCA 2017) (“[T]he detective did not articulate a reasonable and well-founded suspicion that B.M. had committed a crime so as to conduct an investigatory stop. Accordingly, B.M. did not violate section 843.02 by defying the detective’s order to stop.”); D.L. v. State, 87 So. 3d 824, 825 (Fla. 2d DCA 2012) (noting that the State “failed to present sufficient evidence to show that the officers had a reasonable suspicion that D.L. was trespassing . . . and thus failed to show that the officers were engaged in the lawful execution of their duties when they detained him to investigate that charge”).

“Legal duty” includes “(1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or (4) impeding officers’ undercover activities by acting as a ‘lookout’ during the commission of a criminal act.” C.W. v. State, 76 So. 3d 1093, 1095 (Fla. 3d DCA 2011). An order to “move along” after the issuance of a traffic citation has been found not to be a part of a legal duty. Rodriguez v. State, 28 Fla. L. Weekly Supp. 268a (Fla. 11th Cir. Ct. 2020).

Additionally, simply fleeing from an officer, without more, is insufficient to support a Resisting an Officer Without Violence Charge. To be guilty of unlawfully resisting an officer, an individual who flees must know of the officer’s intent to detain him, and the officer must be justified in making the stop at the point when the command to stop is issued. Lackman v. State, 45 Fla. L. Weekly D2500a (Fla. 2d DCA 2020).

I.K. v. State

In this case, I.K. was arrested after he was found hiding in a closet in his residence. He was wanted for an alleged violation of his juvenile probation. Once found, he resisted their efforts to walk him towards the squad car.

However, at trial the State failed to adduce any proof that he was actually on probation, that a warrant for his arrest existed, or any other evidence that his arrest was lawful. I.K. v. State, 257 So. 3d 1163 (Fla. 2nd DCA 2018). As such, the conviction was reversed on appeal.

Call Adam Bantner Today!

If you, your child, or another friend or family member has been arrested in Tampa, Brandon, Hillsborough County, Polk County, or the surrounding areas on a charge of Resisting an Officer Without Violence, don’t trust your representation to just any attorney. Contact Resisting an Officer Without Violence attorney Adam Bantner and Valrico Law Group because we have the expertise to help you get the best result possible!

Call us at 813.397.3965 for your free consultation!