Fla. Stat. § 843.02. To support a conviction pursuant to § 843.02, the state must prove: "(1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty." Slydell v. State, 792 So.2d 667, 671 (Fla.Dist.Ct.App. 2001); S.G.K. v. State, 657 So.2d 1246, 1247 (Fla.Dist.Ct.App. 1995). In this case, our inquiry focuses on the second requirement because there is no question that deputy Becht was in the process of conducting a traffic stop for the purpose of issuing a citation, and thus, he was engaged in the lawful execution of a legal duty.
Durruthy was charged with resisting, obstructing, or opposing an officer in violation of Fla. Stat. § 843.02, but the charges ultimately were dropped. Subsequently, Durruthy filed a complaint against the City of Miami and Pastor, alleging claims under 42 U.S.C. § 1983 for unlawful arrest and excessive force, in violation of the Fourth Amendment, as well as various state law claims. Pastor moved for summary judgment on the ground that she was entitled to qualified immunity. Pastor argued that not only did she have probable cause to arrest Durruthy for violating § 843.02, but she also had probable cause to arrest him for violating Fla. Stat. § 316.130, Fla. Stat. § 316.072, and § 54-2 of the Miami City Code.
Applying the United States Supreme Court precedent in Wardlow and adhering to the plain language of section 843.02, we conclude that the plain language of section 843.02 does not support the distinction set forth by the Third District in D.T.B. that would require reasonable suspicion to arise before the flight begins. In reaching this conclusion, we first explain the reasoning of Wardlow and the elements of section 843.02. Next, we explore the divergent conclusions reached by the Second District in the instant case and the Third District in D.T.B. Finally, we explain why we are compelled to approve the reasoning of the Second District.
An officer unquestionably is in the lawful execution of a legal duty when he acts to detain a person based on reasonable suspicion pursuant to Wardlow. There is no reason that a person who knowingly defies an officer's lawful command to stop in such circumstances should be absolved from responsibility under section 843.02. In recognizing this, we do not imply that every act of flight from the police is a crime. Instead, we simply acknowledge (a) that knowing defiance of a lawful police order is within the scope of section 843.02 and (b) that investigatory detentions pursuant to Wardlow are fully lawful. Under section 843.02, lawful police action based on Wardlow should not be treated differently than lawful police action based on other grounds.
Nellie argues that her statement to Banas that everything was fine was per se insufficient under section 843.02 to constitute obstruction. In this regard, courts have held that, with limited exceptions, physical conduct must accompany offensive words to support a conviction under this statute.State v. Dennis, 684 So.2d 848, 849 (Fla. 3d DCA 1996);D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995);Wilkerson v. State, 556 So.2d 453, 456 (Fla. 1st DCA),rev. den., 564 So.2d 1088 (Fla. 1990). However, the record reflects that Nellie, in addition to stating these words to Banas, physically blocked his path when he went over to investigate Sheldon's physical condition. As such conduct satisfies the second prong of section 843.02, we affirm.
N.H. was charged with resisting an officer, in violation of § 843.02, Fla. Stat. Section 843.02 reads in pertinent part: " Whoever shall resist, obstruct, or oppose any officer . . . in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree. . . ." (Emphasis added). On its face, the statute is unambiguous. It is intended to apply to any situation where a person willfully interferes with the lawful activities of the police. Nothing indicates that it applies only when police are arresting a suspect, nor does the case law support such a narrow construction of the statute. See Jacobson v. State, 476 So.2d 1282, 1287 (Fla. 1985) ("section 843.02 . . . does not require that the officer be attempting to arrest the suspect") citing Kaiser v. State, 328 So.2d 570 (Fla. 3d DCA 1976) (charge of resisting officer with violence, section 843.01, proper when officer has legal right to detain suspect for questioning). See also Simeon v. State, 778 So.2d 455 (Fla. 4th DCA 2001) (providing false information to non-arresting officer…
This case demonstrates two common difficulties in applying section 843.02 to verbal conduct that allegedly "resist[s], obstructs[s], or oppose[s] any officer . . . in the lawful execution of any legal duty." § 843.02. First, in the heat of the moment, it is sometimes difficult to distinguish protected speech from fighting words. Second, in evaluating a citizen's verbal response to a police officer, it is important to distinguish between a police officer "in the lawful execution of any legal duty" and a police officer who is merely on the job. It is understandable that a police officer in good faith may see an obstruction where another citizen sees an appropriate protest.
The sole issue stated in appellant's brief is whether "appellant's arrest for opposing or obstructing a police officer was illegal because section 843.02, Florida Statutes, is overbroad in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Section 9, of the Florida Constitution." Section 843.02 provides as follows:
We realize an argument could be made that the officer was an "other person" under section 843.02 attempting to engage in a lawful citizen's arrest. See, e.g., Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962). Nevertheless, we have found no case applying section 843.02 to criminalize resisting a private citizen's attempt to arrest without violence, and we do not read section 843.02 to establish such an offense.