Tag Archives: Board Certified Attorney

You Can Tell a Cop “No” (In Some Circumstances)

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

While it’s not always a smart move, legally speaking, you don’t always have to obey the commands of a law enforcement officer. Whether to exercise this right, as with many things, is a discretionary choice and, in most circumstances, it is wise to simply comply.

However, law enforcement sometimes will make unreasonable and illegal requests. In such circumstances, it is perfectly legal to simply walk away and to ignore those commands. Now, that may still get you arrested and you may still have to the best attorney you can to get you out of the pickle (we recommend the The Bantner Firm), but you should eventually be vindicated in your actions.

Resisting an Officer With Violence

Let’s get the easy one out of the way first; it is almost never legal to resist an officer with violence. If an officer is engaged in any legal duty at all, you cannot resist that command, order, arrest, etc. with violence. Even if the arrest is illegal and not based on probably cause, you cannot resist that arrest with violence. Fla. Stat. 843.01 makes resisting with violence a third-degree felony punishable by up to five years in prison. Additionally, it goes without saying that resistance with violence will greatly enhance your chance of getting injured or killed. Just don’t do it.

Resisting an Officer Without Violence

In order to convict a defendant of resisting, obstructing, or opposing an officer without violence pursuant to Fla. Stat. 843.02 the State must prove:

  • (1) The officer was engaged in the lawful execution of a legal duty; and
  • (2) The actions of the defendant resisted, obstructed, or opposed the officer in the performance of that legal duty.

“Legal duty”, as contained in the first element above, 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.” There is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job. McCollough v. State, FLWSUPP 2612MCCU, (Fla. 10th Cir. Ct. 2017) (internal citations omitted).

McCollough v. State

You may be asking yourself why a blog post on resisting an officer without violence has a picture of a cute kid on the shoulders of her father. Well, in McCollough, the defendant was arrested for resisting without violence for refusing to take his child off of his shoulders at the direction of law enforcement.

Again, this is one of those situation where it probably would have been better to simply take the child down but, the father was perfectly within his rights to refuse to do so. Here’s why:

McCollough was exercising his court-ordered supervised visitation. The supervisors suspected McCollough was about to walk-off with his child. The supervisors alerted law enforcement and they responded to investigate a possible child abduction. However, it was quickly ascertained that an abduction was not occurring or about to occur. At that point, any legal duty of investigation had been concluded.

However, tensions were still relatively high and McCollough was in an agitated state. The officers requested that McCollough put the child down out of fear that the child would fall off his shoulders; but there wasn’t any evidence that they child was in any sort of real danger of an injury occurring. McCollough refused to put the child down and the officers then forced him to do so and arrested McCollough. Only in Polk County.

The appellate court held that “[I]f the instructions (orders) occurred after the officers were aware that no criminal activity was taking place, then Appellant was not detainable and could walk away from the officers. In other words, once any reasonable suspicion of a crime had been eliminated, there was no valid reason to detain the Appellant. At that point, the officers were merely “on the job” and not “performing a legal duty””. As such, the court ruled that the trial court should have granted the motion for judgment of acquittal and dismissed the case. It reversed and remanded the case for the conviction to be set aside and a judgment of acquittal to be entered.

Polk County Criminal Defense Attorney

If you find yourself or a loved one on the wrong side of the law, give board certified criminal trial attorney Adam L. Bantner, II a call today. You can reach us at 813.397.3965 to set up your free consultation at either our Brandon or Tampa office.