NATALIE NICOLOSI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Natalie Nicolosi was convicted of battery on a law enforcement officer after striking a police officer working an off-duty security job at a nightclub. The appellate court reversed, holding that the State failed to prove the officer was engaged in a lawful duty at the time of the battery, as the officer was performing purely private security functions unrelated to any criminal activity or investigation.
The court held that the State failed to prove the officer was engaged in a lawful duty. While police officers may be engaged in lawful duties while working off-duty jobs (such as assisting in criminal investigations or apprehending suspects), in this case the officer was performing purely private security functions for the nightclub's admission policy with no connection to any criminal activity or investigation. Therefore, the conviction for battery on a law enforcement officer must be reversed.
[1] A conviction for battery on a law enforcement officer requires proof that the officer was engaged in the performance of a lawful duty.
[2] An officer's off-duty status does not limit their right to exercise police authority in the presence of criminal activity.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A conviction for battery on a law enforcement officer requires proof that the officer was 'engaged in the performance of a lawful duty' not just 'on the job.'”
Establishes the governing legal standard that mere employment status as a police officer is insufficient; the officer must be actively performing lawful duties.
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Join FLexlaw to unlock all legal intelligenceNicolosi, a college student, was denied admission to a nightclub by a uniformed police officer working an off-duty security job because she lacked pro…
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PALMER, J.
Natalie Nicolosi (“Nicolosi”) appeals her judgment and sentence which were imposed by the trial court after a jury found her guilty of committing the crime of battery on a law enforcement officer in violation of sections 784.03(l)(a) 1. and 784.07(2)(b) of the Florida Statutes (1999). She challenges her conviction arguing that the State failed to sustain its burden of proving the elements of the offense. We agree.
A conviction for battery on a law enforcement officer requires proof that the officer was “engaged in the performance of a lawful duty” not just “on the job.” See Taylor v. State, 740 So. 2d 89 (Fla. 1st DCA 1999). See also Jay v. State, 731 So. 2d 774 (Fla. 4th DCA 1999) (holding that, in a case involving resisting an officer without violence, undercover police officer was not performing a legal duty where officer was not detaining or attempting to detain defendant for a crime he had committed). A police officer can be engaged in a lawful duty when working an off-duty job, such as where the officer is assisting in the investigation of an alleged shoplifter, see State v. Hartzog, 575 So. 2d 1328 (Fla. 1st DCA), rev. denied, 581 So. 2d 1308 (Fla.1991), where the police officer is assisting other officers who are struggling to maintain custody of a man they had arrested; see State v. Robinson, 379 So. 2d 712 (Fla. 5th DCA 1980); and where the officer is trying to apprehend a shoplifter; see Hughes v. State, 400 So. 2d 533 (Fla. 1st DCA) rev. denied, 411 So. 2d 382 (Fla.1981). As the court in Robinson aptly noted, an officer’s off-duty status is “not a limitation upon his right to exercise police authority in the presence of criminal activity.” 379 So. 2d at 715. In this case, the State failed to prove that the victim was “engaged in a lawful duty” at the time of the battery.
To that end, the relevant facts, taken in the light most favorable to the State,1 reveal the following situation. Nicolosi was a college student who was turned away from the nightclub because of her failure to produce adequate identification for admission. Nicolosi’s victim was a police officer in uniform who was working at an off-duty job at the nightclub. Among other things, the police officer was responsible for checking identification. Nicolosi repeatedly attempted, on at least ten occasions over a period of about one hour, to obtain admission to the nightclub in spite of the officer’s decision to deny her admission. When she still refused to leave, the officer issued her a trespass warrant.2 She returned again, called the officer names and either slapped or hit him. She was promptly and appropriately arrested. No criminal activity or investigation of criminal activity on the part of Nicolosi prior to the battery was proven, nor was there proof of any other activities of an official police nature, as opposed to activities exclusively for the interest of the private employer. Given the absence of evidence that the officer was engaged in a lawful duty at the time of the battery, we must reverse the judgment of guilt as to the offense of battery on a law enforcement officer, and remand with instruction to impose a judgment and sentence for simple misdemean-or battery. See § 784.03(l)(a) 1. Fla. Stat.(1999).
VACATED and REMANDED.
THOMPSON, C.J., and HARRIS, J., concur. . See Orme v. State, 677 So. 2d 258 (Fla.1996).
. At trial, the court ruled that the trespass warrant was of no force or effect because the area involved in the dispute was a public sidewalk. No challenge to that determination has been raised.
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Tillman v. State, 807 So. 2d 106 (Fla. 5th DCA 2002)…lence,2 require the state to prove that the officer was lawfully performing or engaged in a duty at the time of the battery or resistance. Numerous cases have acknowledged that this element is essential for both crimes. See, e.g., Nicolosi v. State, 783 So. 2d 1095 (Fla. 5th DCA 2001) (essential element of battery on a law enforcement officer is that officer was engaged the in the performance of a lawful duty); Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981) (essential element of resisting arrest with violen…
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Bryan v. State, 865 So. 2d 677 (Fla. 4th DCA 2004)…imprisonment of 3 years. There is no dispute that the victims were law enforcement officers. The more difficult question is whether they were engaged in the lawful performance of their duties at the time of the incident. We find Nicolosi v. State, 783 So. 2d 1095 (Fla. 5th DCA 2001), helpful in resolving this issue. In Nicolosi, the fifth district reversed a conviction for battery on a law enforcement officer after the defendant slapped an off-duty police officer who was working at a nightclub checking iden…
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Rodriguez v. State, 789 So. 2d 513 (Fla. 5th DCA 2001)…reverse Rodriguez’s conviction for battery on a law enforcement officer and remand the case for a new trial. REVERSED AND REMANDED. SHARP, W. and PETERSON, JJ., concur. . The facts of this case are similar to those discussed in Nicolosi v. State, 783 So. 2d 1095 (Fla. 5th DCA 2001). In Nicolosi, this court reversed a conviction for battery on a law enforcement officer where the evidence only established that the officer was working an off-duty job at a night club' as there was no proof that the officer was…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orme v. State, 677 So. 2d 258 (Fla. 1996)
- JAY v. State, 731 So. 2d 774 (Fla. 4th DCA 1999)
- Clauson Conway Taylor v. State, 740 So. 2d 89 (Fla. 1st DCA 1999)
- State v. Hartzog, 575 So. 2d 1328 (Fla. 1st DCA 1991)
- State v. Robinson, 379 So. 2d 712 (Fla. 5th DCA 1980)
- Hughes v. State, 400 So. 2d 533 (Fla. 1st DCA 1981)