Follow My Commands, or Go To Jail

running model.jpgNobody likes to be bossed around, but plenty of people enjoy being bossy. Most of these bossy folks work for the government. The good thing about bossy people is that you don’t necessarily have to listen to them. Sure, you may be fired if the person bossing you around is your supervisor at work. Or, you may die of a rare disease if you don’t listen to a doctor ordering you to undergo some medical procedure. But, it is a tad odd that a kid that just graduated from a couple of months at a police academy can order you around–or you’re going to jail. Law enforcement is one of the few professions in which their commands will land you in jail if you don’t obey. Technically, this disobedience is called resisting an officer without violence. What an awesome power, right? Do as I say, or go to jail. Um, do you think this power gets abused? Well, what government power doesn’t get abused?

So, it’s a crime to disobey an officer’s legal commands. I’ve seen resisting charges simply because a citizen doesn’t respond fast enough to an officer’s commands. Don’t exit the car fast enough–arrested for resisting. Don’t get off the phone fast enough when an officer wants to talk to you–going to jail for resisting. Don’t feel like sticking around and talking to the police–you better start feeling like it, or you may be heading to jail. A “resisting” charge transforms a minor delay into a criminal act. Now, there are all sorts of defenses to a resisting charge, and more often than not, this charge is heaped on top of bogus charges just to make sure something sticks. When I see a resisting an officer without violence charge, I know bogosity is lurking nearby.

For example, let’s take a look at Perez v. State, 138 So. 3d 1098 (1st DCA 2014). Perez was found guilty of resisting an officer without violence (among other things). Law enforcement believed that evidence of a burglary may have been located at a certain house, so the officers decided to conduct a “knock and talk” on the home, a procedure in which the cops simply knock on a front door, and hope that the occupants will speak to them. In this case, when the police rolled up, Perez and another individual headed out the back door. The cops ran toward him, and Perez decided to stop in the yard (the other guy jumped the fence and got a little further away). Perez was found guilty of not obeying law enforcement’s command to stop running. Was this really a crime? Well, let’s take a look.

Resisting an officer without violence is a violation of Florida Statute section 843.02, stating that “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 . . . . “. In essence, the prosecutor 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 combination thereof, constituted obstruction or resistance of that lawful duty.” Id. With that being said, is there anything wrong with avoiding the police? Must we citizens always make ourselves available to Big Brother? No, of course not. And as such, “flight, standing alone, is insufficient to form the basis of” a resisting without violence charge. Id. So, the court overturned Perez’ conviction, noting that “to be guilty of the offense, 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.” Id.

In Perez, the officers certainly implied that they told Perez to “stop”, but implying such is not enough. There was no firm evidence of the command. The court notes that Florida courts have a long history of overturning resisting an officer convictions under “orders to stop”, here’s a few examples straight out of the Perez case, for your enjoyment:

Clark v. State, 976 So. 2d 1225, 1225-26 (Fla. 4th DCA 2008) (conviction for resisting an officer without violence thrown out because, although the appellant ran when unmarked police vehicles pulled into the parking lot of a pool hall, the officer did not tell the appellant to stop)

O.B. v. State, 36 So. 3d 784, 788 (Fla. 3d DCA 2010) (resisting an officer without violence conviction overturned because there was no evidence that the appellant heard any order to stop)

S.B. v. State, 31 So. 3d 968, 970 (Fla. 4th DCA 2010) (the State failed to prove every element of the offense of resisting an officer where, although the appellant fled upon seeing the officers, there was no command to stop by the officers at the time the appellant fled)

But, take a look at State v. Garcia, 126 So. 3d 419, 419-20 (Fla. 2d DCA 2013) (resisting conviction was legit because police exited a van wearing “Sheriff” vests and yelling “Sheriff’s Office,” Garcia failed to cease his headlong flight in response to the officers’ directions for him to do so, all while the officers were chasing him)