When one first hears of the charge, “Resisting an Officer without Violence“, or as it is commonly referred to, “Resisting Arrest”, they are often perplexed; how can someone resist without any violence? The mere word resisting brings forth images of some physical act that prevents someone from taking a certain action. There is also a crime called Resisting Officer with Violence, which can serve to further confuse the average person.
We here at the Fort Lauderdale Criminal Defense Law Firm of Berman & Tsombanakis LLC have handled numerous cases with both of these crimes. In fact, sometimes people are charged with Resisting an Officer with Violence and again for Resisting an Officer without Violence. It would seem that if one is resisting with violence in one breath, how can they then not use violence within the next?
The crime of Resisting an Officer without Violence is composed of these elements; that a police officer is in execution of a lawful duty and that you (arrestee) interfered with that duty, but did so without violence. So what does this mean? It means that if a police officer tells you to step back from a situation and you refuse to do so, you are interfering with his ability to execute his duty. Another example is if a police officer is arresting someone and another person is on the scene yelling or trying to get near the arrestee, that person can be charged with Resisting an Officer without Violence.
That is not the only difference between these two seemingly similar crimes. Resisting an Officer without Violence is a first degree misdemeanor, with a maximum jail time of one year in county jail. In contrast, Resisting an Officer with Violence is a third degree felony, carrying five years in prison as a maximum sentence.
The law states that a person has a right to resist an unlawful arrest without violence. The Broward County Criminal Law Attorneys at Berman & Tsombanakis LLC, have gone to trial with this defense numerous times. What this means is if the police are acting in an illegal manner, meaning they are not in the execution of a legal duty, then you may resist the unlawful arrest without violence or physical force. For example, if an off duty police officer and you get into a car accident and he then tries to arrest you, you may resist the arrest without violence. In that capacity the officer is not executing a legal duty, he is a citizen in an accident. You may ask that other officers are called. However, that does not always work. If it appears that a police officer is going to arrest you no matter what, be cooperative to save yourself from more severe charges. You will have the opportunity to present your case in court to the judge or jury.
You are never allowed to resist an officer with violence, no matter what the situation. You cannot use the fact that the police officer was making an unlawful arrest as a defense to this crime, as you would to the misdemeanor counterpart. This is very important, so I will say it again, never use violence to resist an arrest. The mere flailing of your arms can constitute legal violence. Pulling or pushing away from an officer constitutes legal violence. The police do not need to have any injuries for this type of charge to prevail in court. A simple push past the officer has now escalated the incident to a felony level.
What if the police are beating me up, can’t I protect myself and fight back? Not accordingly to the law. It is very tough law and one that doesn’t always make sense, but remember these things next time you are in a disagreement with the police.