You May Legally Resist an Illegal Arrest

           In the case of C.W. versus the State of Florida, a juvenile, whose initials were "C.W.," was arrested for the crime of resisting arrest without violence.  The relevant facts of this case are that:


"[C.W. was] standing in the road, a couple of feet from the swale, and refusing to move off of the street when the officer asked him to, although the record also shows that there was no traffic on the street at the time. The record does reveal that C.W. was talking to another boy, his cousin, when they saw the police car slowly approaching. The officers veered slightly around the kids, and asked them to move out of the roadway. When they did not, the officers parked, approached the boys and ordered them to move out of the road and onto the unpaved swale. At this point, the record shows that C.W refused to step out of the street and used profanity. The officers then arrested him."


          Florida's Third District Court of Appeal reversed C.W.'s conviction for resisting arrest without violence and in the course of doing so noted that an individual cannot be convicted of this crime unless the prosecutor is able to prove both that:


          1.  The officer was engaged in the lawful execution of a legal duty; and


          2.  The defendant's action constituted obstruction or resistance of that lawful duty.


          But what exactly is a "legal duty?"  Under Florida law, legal duties include such things as:


          1.  Service of process;


          2.  Legally detaining a person; or


          3.  Asking for assistance in an emergency situation; or


          4.  Impeding an officer's undercover activities by acting as a "lookout" during the commission of a crime.


          In this case, the appellate court ruled in C.W.'s favor because:


          1.  The officers were not engaged in the lawful execution of a legal duty when they initially asked C.W. to step out of the street.


          2.  Although the officers' initial request that C.W. move a small distance out of the road was a reasonable part of their job as community safety officers, they had no legal duty to insist that C.W. comply with their request and to enforce their insistence by arresting him when the surrounding circumstances failed to warrant such action.


          3.  There was no evidence that C.W. actually interfered with traffic, and the mere possibility that he might eventually interfere with traffic was insufficient to justify the officers' actions.


          The court concluded by stating that "[i]f an arrest is not lawful, then a defendant cannot be guilty of resisting it . . . the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence."

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