STATE OF FLORIDA, APPELLANT,
v.
ROBERT WALTER BARNARD, APPELLEE
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Florida appeals the dismissal of charges against Barnard for resisting arrest with violence. The trial court found the deputies were not in lawful performance of duty because they arrested Barnard in his home without a warrant. The appellate court reversed, holding that even if an arrest is technically illegal, a person cannot lawfully resist arrest by uniformed officers known to be law enforcement.
A person is not justified in using force to resist arrest by uniformed law enforcement officers known or reasonably appearing to be law enforcement officers, even if the arrest is technically illegal under Payton v. New York. Therefore, the trial court's dismissal based on the deputies not being in lawful performance of duty was reversed.
[1] The use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer is unlawful, notwithstanding the te…
[2] A defendant cannot resist arrest with violence when confronted by uniformed officers who have probable cause to believe the defendant committed a felony, even if the arre…
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Join FLexlaw to unlock all legal intelligence“the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest”
Establishes the controlling rule that even technically illegal arrests cannot be resisted when the officer is known to be law enforcement
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Join FLexlaw to unlock all legal intelligenceBarnard was charged with resisting arrest with violence. Deputies in uniform, acting on an official complaint that Barnard threatened persons with a f…
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ORFINGER, Judge.
Appellee was charged with two counts of resisting arrest with violence under section 843.01, Florida Statutes (1979). The trial court granted appellee’s motion to dismiss under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, on the ground that neither deputy sheriff involved in the arrest was “in the lawful performance of [his] duty at the time of the incident.” The State appeals. The issue on appeal is whether the finding by the trial court that the deputies were not in the lawful performance of their duties is sufficient here to sustain the dismissal of the charges of resisting arrest with violence. We reverse.
The sworn motion sets forth a factual recitation upon which appellee bases his contention that the attempted arrest of appellee was illegal1 because it was made in appellee’s home and without a warrant, relying on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Ap-pellee’s motion also recited facts which appellee says clearly shows that there was no resistance with violence. The State traversed the factual recitations so we face only the question of law, viz: does a war-rantless felony arrest in a defendant’s home justify the use of force to resist such arrest?
The correct rule on the subject has been stated in Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978):
Thus, after July 1, 1975, section 843.01 must be read in pari materia with section 776.051;2 the end result being that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.
Id. at 1326.
The officers were in uniform when the arrest was made. They had received an official complaint that appellee had threatened persons with a firearm; thus they had probable cause to believe that appellee had committed a felony. They first talked to appellee outside his home and advised him that he was under arrest and he turned and ran into his home. The officers followed and the incident giving rise to these charges took place. Since appellee was not justified in using force against the uniformed officers whom he knew to be law enforcement officers who had come to arrest him, Payton, does not control the result here. Although appellee also asserted in his motion that there was no violence, these facts were traversed by the State, so the court cold not grant the motion on that ground. State v. Pettis, 397 So. 2d 1150 (Fla. 5th DCA 1981).
The order granting the motion and discharging defendant is reversed and the cause is remanded for further proceedings consistent herewith.
REVERSED and REMANDED.
DAUKSCH, C. J., and SHARP, J., concur. . Appellee asserts, in effect, that since the arrest without a warrant was illegal, the officers were therefore not in the lawful performance of their duties.
. § 776.051(1), Fia.Stat. (1979):
A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Tillman v. State, 934 So. 2d 1263 (Fla. 2006)…pari materia with section 776.051(1) to hold that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful regardless of whether the arrest is technically illegal. Id. (citing State v. Barnard, 405 So. 2d 210 (Fla. 5th DCA 1981), and Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)). The Fifth District explained that it had extended this rule to the crime of battery on a law enforcement [*1268] officer defined by section 784.07 and had applied it to…
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Espiet v. State, 797 So. 2d 598 (Fla. 5th DCA 2001)…he charge of resisting without violence. Accordingly, we reverse Espiet’s conviction for that charge. However, as to Count II, aggravated assault on a law enforcement officer with a firearm, we must affirm that conviction based on State v. Barnard, 405 So. 2d 210 (Fla. 5th DCA 1981), which is a decision that was neither cited by the parties in their briefs nor argued to this court during oral argument. Nevertheless, the State has cited it in its Motion for Rehearing and we conclude that it should be applied…
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Clauson Conway Taylor v. State, 740 So. 2d 89 (Fla. 1st DCA 1999)…ant was not charged with resisting arrest. The information merely alleged that he resisted, obstructed, or opposed the officer in the performance of a lawful duty. Deputy Gootee did not enter the defendant’s home to arrest him. Cf. State v. Barnard, 405 So. 2d 210 (Fla. 5th DCA 1981). To the contrary, he was merely trying to coax the defendant outside so that he could speak with him. The alleged resistance or opposition to Deputy Gootee was based on the fact that the defendant shoved the officer to prevent hi…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Payton v. New York, 445 U.S. 573 (U.S. 1980)
- Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)
- State v. Pettis, 397 So. 2d 1150 (Fla. 5th DCA 1981)