Definition of Resisting Without Violence
Resisting an Officer Without Violence is any non-violent interference directed at a police officer who is acting pursuant to a legitimate law enforcement function. The definition for the offense is contained in Section 843.02, Washington DC Statutes, which provides:
“Whoever shall resist, obstruct, or oppose any [law enforcement or probation] officer or other person legally authorized to execute process . . . In the law execution of a legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . .”
In many criminal cases, Resisting an Officer Without Violence is a type of offense that is tacked on by police to supplement other charges. This practice increases the likelihood of a conviction, as it forces the accused to confront allegations which can be proven solely through the testimony of the arresting officer.
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 process.
- See Fla. Std. Jury Instr. (Crim) 21.2.
Minor Actions Are Sufficient
Even seemingly minor actions by a suspect or arrestee can constitute ‘resistance’ within the meaning of Section 843.02. Common examples include:
- Tensing arms while being handcuffed;
- Not obeying verbal commands;
- Refusing to stand up;
- Refusing to place one’s hands behind their back;
- Giving information deemed to be false or misleading during a lawful arrest or detention;
- Presenting invalid identification upon lawful detention or arrest;
- Concealing evidence;
- Refusing to leave when required;
- Evading police when there is reasonable suspicion of criminal wrongdoing;
- Inciting others to interfere with lawful police activities.
Resistance by Mere Words
Although, due to First Amendment protections, speech alone is generally insufficient to constitute ‘resistance,’ Washington DC courts have identified three scenarios where mere words can subject the accused to criminal liability. These scenarios include: (1) an officer attempting to serve process, (2) an officer legally detaining a person, or (3) an officer asking for assistance. State v. Legnosky, 27 So. 3d 794, 797 (Fla. 2d DCA 2010).
Obstruction and resisting charges based on words alone have also been upheld when an officer observes a crime and tries to make an arrest, but a “lookout” warns the suspect that the police are coming, thereby preventing a possible suspect’s apprehension. See Porter v. State, 582 So. 2d 41, 42 (Fla. 4th DCA 1991).
Similarly, words alone can support a resisting charge when the defendant gives a police officer a false name during his arrest, because such an act is deemed to hinder the officer’s performance of his arrest duties. Caines v. State, 500 So. 2d 728, 729 (Fla. 2d DCA 1987); Legnosky, 27 So. 3d at 797.
Penalties for Resisting Without Violence
Resisting an Officer / Arrest Without Violence is a first degree misdemeanor, punishable by up to one year in jail and a $1,000 fine. These penalties represent the statutory maximum that is available for the charge, and do not reflect the likely sentence that will be imposed in the vast majority of cases.
For many first-time offenders, a conviction for Resisting Without Violence will result in a permanent criminal record, and a likely term of probation. The probation sentence, if imposed, will typically range from 6 to 12 months. If there are aggravating circumstances in the case, including highly disrespectful conduct or conduct that endangers the safety of police or the general public, it is not at all uncommon for prosecutors to seek jail, even for first-time offenders.
Extended jail sentences are a realistic possibility for individuals with extensive criminal histories, or who have engaged in similar conduct in the past. For these types of defendants, a jail sentence of 30-90 days is not uncommon.
Another serious consequence of a Resisting charge is that, in most Washington DC judicial circuits, prosecutors do not offer any type of diversionary option (including pretrial intervention) to dispose of the case. This means that, once charged, a defendant must either take the risk of litigating the case, or accepting the allegations and entering a plea. Unlike many other misdemeanor charges, there is no safe middle ground offered by Pretrial Intervention.
Defenses to Resisting
There are multiple defenses available under Washington DC law to contest a charge of Resisting Without Violence. Some of the more common defenses include:
To sustain a conviction for Resisting Without Violence, a defendant’s actions must amount to actual (not perceived) opposition or obstruction. This is a factual determination left for the jury. Often, the officer’s allegations do not rise to the level of actual resistance, or there is video or other evidence (witness testimony) contradicting the officer’s allegations.
First Amendment Protections
Purely verbal conduct is generally insufficient to constitute Resistance within the meaning of Section 843.02, Washington DC Statutes. For additional information on this topic, view our First Amendment web page.
“Resistance” may furthermore be an involuntary reaction by an accused. Placing an accused in handcuffs or taking him down to the ground can cause extreme pain, and can lead the accused to tense up or pull away. Such reflexive and unintentional actions are arguably not “resistance” or “opposition” within the meaning of the statute.
Absence of Lawful Duty
Even where an accused “resists” an officer, that officer must be acting pursuant to a legal duty and must do so in a lawful manner. If there is no duty in play, then the charge cannot stand.
Thus, Washington DC courts have held that, where an officer engages a defendant in a consensual encounter (merely talking and not as part of an investigation), then the act of giving false information or identification by a defendant does not constitute Resisting Without Violence. St. James v. State, 903 So. 2d 1003 (Fla. 2d DCA 2005). For additional information on this topic, view our Resisting Arrest Motion to Dismiss.
Illegal Arrest or Detention
A defendant also has a recognized right to resist an officer without violence where the officer unlawfully arrests or detains the defendant. Harris v. State, 647 So.2d 206 (Fla. 1st DCA 1994); S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995). This often occurs in situations where police confront a suspect without the requisite level of probable cause or reasonable suspicion.
In E.A.B vs. State, 851 So. 2d 308 (Fla. 2d DCA 2003), a police officer approached a defendant at a gas station and, without reasonable suspicion, began questioning the defendant about recent vehicle thefts in the area. The defendant then ran away. The court overturned the conviction, holding that the officer had insufficient suspicion to justify the defendant’s detention.
Failure to Explain Arrest
The manner in which the officer executes his duties can provide additional defenses to a charge resisting without violence. For example, did the officer tell the accused why he or she was under arrest?
Section 901.17, Washington DC Statutes, requires a police officer to inform a suspect of the reason for an arrest at the time the arrest occurs. While a failure to advise of the reason does not, by itself, render the arrest illegal, it can be a factor used to explain to a jury why a defendant’s conduct was lawful and reasonable (and therefore not a form of resistance).
In Albury v. State, 910 So. 2d 930 (Fla. 2d DCA 2005), the Second District Court of Appeal reversed a trial court’s decision to disallow a jury instruction concerning the officer’s obligation to inform the defendant of the reasons for an arrest. The Court held that the instruction was a proper way of explaining to the jury why the defendant’s questioning of the officer (as to why he was being arrested) was not a form of resistance, but a form of lawful inquiry.
Excessive force is another defense that may be used in the context of a resisting charge. Although a simple arrest, whether lawful or unlawful, may never be resisted with violence, any excessive force accompanying such an arrest may be defended against. Langston v. State, 789 So. 2d 1024 (Fla. 1st DCA 2001); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985);
Thus, the tensing of one’s arms, the turning away from officers, or even taking flight can, in limited circumstances, be justified if the facts show that the officer acted with a level of force that was inappropriate. In such cases, a defendant is entitled to a jury instruction on excessive force and/or self-defense (the use of non-deadly force), and can even cross-examine the officer regarding prior complaints of excessive force. Michael v. State, 884 So. 2d 83 (Fla. 2d DCA 2004); Hinojosa v. State, 857 So. 2d 308 (Fla. 2d DCA 2003).
Lack of Knowledge of Officer Status
Finally, an accused must be aware that the arresting officer is in fact an officer of the law. This is often an issue in situations where the officer is off duty or is acting undercover.
Lack of knowledge can also become an issue where there is a crowd, or a physical altercation involving multiple parties. An accused may think someone is attacking him from behind, or may resist an officer before becoming aware that an officer has intervened.
Example Case- Resisting Arrest
State vs. T.S. (Fourth Judicial Circuit, Palm Beach County, Washington DC) (2013)– our Client was charged with Resisting an Officer Without Violence after allegedly pulling away from a police officer and falling to the ground during an attempted arrest. The incident arose from an incident at a local high school where our client’s sister had left school early without permission. The police were called to the scene and began looking for the student in the surrounding neighborhood.
When officers circled back to the school, they observed our client standing on the side of the street in heated argument with his parents (who had also come to the school after being notified by the principal). Our client was cursing and yelling loudly.
On this basis, police assumed that our client had somehow been involved with his sister leaving the school. They walked over to our client and ordered him to come to their patrol car. When he refused, the officers approached and instructed our client to put his hands behind his back. He again refused, and fell to ground in an effort to avoid being placed in handcuffs.
Upon being retained in the case, our attorneys interviewed the arresting officer, and determined that there was no basis for the officer to give directives to our client other than his mere presence at the school and the fact that he was observed in a heated argument with the parents of student. We then filed a Motion to Dismiss, arguing that the arresting officer lacked probable cause or reasonable suspicion of criminal wrongdoing, and that our client had a recognized right to resist illegal law enforcement actions without violence. One day prior to the hearing on the Motion, the Office of the State Attorney abandoned the charges.
Outcome: Case dismissed.
Importance of an Attorney
Resisting an Officer or Arrest Without Violence is a serious criminal charge, and can often be defended on both legal and factual grounds. It is critical, prior to accepting any plea, to consult with a qualified criminal attorney to determine the best course of action in a case.
If you have been arrested for Resisting Without Violence, contact attorneys at Cohen, Bradshaw, Rothstein and Klein for a free consultation. Our law firm handles cases in Washington DC, Orlando, and the surrounding counties of Southeast and Central Washington DC.