The Constitution is an amazing document. Over the zillions of years that human beings have been on planet Earth, rarely have powerful government leaders agreed to limit their own power. Our Constitution was one of the first documents in human history that imposes significant boundaries on what our Government can–and cannot–do to We the People.
Our discussion today involves how a resisting an officer without violence charge can implicate our Fourth Amendment rights to be free from an unreasonable seizure. Let me explain.
The Fourth Amendment right to be free from unreasonable seizures includes the right to avoid face-to-face confrontations with police, except when the imposition is supported by sufficient justification. A free society cannot allow police to randomly detain citizens without any objective basis for suspecting them of wrongdoing, and then justify the intrusion by claiming that the citizen was possibly underage, or consented to the seizure. See Robert J. Burnett, Comment: Random Police-Citizen Encounters: When is a Seizure a Seizure? 33 Duq. L. Rev. 283 (Winter 1995).
So, have you ever tried avoiding the police? It’s not easy to do, right? In our real life case for today, my only recommendation would be that you not use profanity at an officer in response to their requests. Profanity is rude. These officers have a tough enough job already, without the public that they’re trying to protect cursing at them. And, who can feel sorry for someone dumb enough to use profanity at an officer, and then somehow be surprised when they find themselves arrested??? Alright, on with the story.
In Miami, Officer Lassiter was responding to a BOLO (Be On the Look Out) for a black male, when he noticed a black female (juvenile who we refer to by the initials P.B.) walking in area. P.B. v. State, 95 So.3d 944 (Fla 3rd DCA 2012). It was a school day, and Lassiter figured that P.B. should have been in school–not walking around outside. The officer exited his car, told P.B. to stop and “come over here”. Rather than stopping, P.B. responded with an expletive and didn’t break stride. Now, in my 20 years of criminal defense work here in Orlando, it is my experience that a response to law enforcement which involves profanity will lead to several things: a Battery on a Law Enforcement Officer charge, a Resisting an Officer with Violence charge, and some medical bills for the beat down administered by the offended officer. It’s just a stupid tax, if you will. I’m not suggesting that it’s the right thing to do–it’s not, and our officers should show some restraint when confronted with stupidity and disrespect. We do, after all, have some freedom of speech left.
P.B. curses at the officer, so the officer grabs P.B. and places her in the back of his patrol car. She failed around, cursed, screamed, and kicked the car windows. Basically, resisting the entire time. And, in this case of “loose lips sink ships”, P.B. then threatened to kill the officer, telling the officer that “I’ve got two brothers in prison for murder and when they get out they’re going to come get you…They’re going to have you killed.” Yep, stupid statement number two for P.B., though we’re at least beginning to see the kind of family life that might lead a girl to have such a bad attitude. Anyway, those words allowed the officer to tack on a felony charge of threat against a public servant.
Now we’re back to the very question that we ask in every resisting an officer without violence charge: was the officer engaged in the lawful execution of a legal duty? If so, did P.B.’s actions constitute an obstruction to that duty? We know that P.B. was under the age of 18, and thus the police do have some authority to investigate whether or not juveniles are absent from school without authorization. Under this logic, the court upheld the resisting an officer without violence charge, finding that it was a lawful duty of Officer Lassiter to check P.B.’s absence from school.
I don’t agree with the opinion in this case, as I don’t believe law enforcement may stop kids who are doing nothing wrong just because it’s school time for some. What about home schooled kids? Must they be stopped by every police officer all day? Senior Judge Schwartz didn’t agree with the majority opinion either, as he believed the stop to be unlawful because “section 1003.21 Florida Statutes (2009), requires attendance at school only of children between the ages of six and fifteen; P.B. did not look as if she were under fifteen; indeed, she was seventeen….He therefore could not have been acting in the lawful performance of any duty when she resisted him without violence.” Id at 948. The majority opinion seems to state that a 17 year old kid must stop and talk to police during school hours, even though they’re not–technically–required to be in school at such an age. Add one more bad opinion to the list….