WILLIAM CHARLES LOWERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Lowery was convicted of resisting arrest with violence under Florida law. The court held that a person may not forcefully resist an arrest by a law enforcement officer, even if the arrest is unlawful, and affirmed the conviction.
A defendant does not have the right to use force to resist an arrest by a law enforcement officer, even if the arrest is technically unlawful. The legality of the arrest is irrelevant when force is used in resistance; the proper place to contest arrest legality is in court, not on the streets.
[1] 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, regar…
[2] The common-law rule permitting resistance to an unlawful arrest by force has been modified by statute in Florida.
Previewing 2 of 5 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“It matters not whether the arrest was lawful or unlawful because in this case the defendant resisted arrest with violence.”
Establishes the core holding that the legality of arrest is irrelevant when violent resistance is used.
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Join FLexlaw to unlock all legal intelligenceLowery was arrested on October 17, 1976. He challenged the lawfulness of the arrest, arguing it was a warrantless arrest for a misdemeanor not committ…
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ALDERMAN, Chief Judge.
This is an appeal from a conviction for resisting arrest with violence, contrary to Section 843.01, Florida Statutes (1975). The determinative issue is whether the defendant had the right to forcefully resist an allegedly unlawful arrest1 by a law enforcement officer. We hold that he did not and affirm.
Defendant has gone to great lengths to demonstrate that his warrantless arrest was not lawful because: (1) the misdemeanor for which he was arrested was not committed in the officer’s presence; and (2) the arresting officer was outside of his jurisdiction. This argument misses the point. It matters not whether the arrest was lawful or unlawful because in this case the defendant resisted arrest with violence.
Had defendant resisted arrest without violence, then the legality of his arrest would be a factor since in Florida, the common-law rule that one can resist without violence an unlawful arrest remains in effect. Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978). Until recently, Florida law even permitted the use of force to resist an unlawful arrest. E. g. State v. Saunders, 339 So. 2d 641, 642, n. 2 (Fla.1976). However, in 1974 the legislature modified the common-law rule by enacting Section 776.-051, Florida Statutes (1975) (effective July 1, 1975). This statute provides that 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. Thus, after July 1, 1975, Section 843.01 must be read in pari materia with Section 776.051; 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. Marshall, supra; K. G. v. State, 338 So. 2d 72 (Fla. 3d DCA 1976). And since it has not been alleged that the officer in this case used unlawful force in effectuating the arrest, it has not been necessary for us to consider the question of a defendant’s right to use force in defense of his person under Section 776.012.
The incident giving rise to the charge of resisting arrest with violence occurred on October 17, 1976, well after the effective date of Section 776.051. Therefore, defendant’s reliance on case law applying the old common-law rule is misplaced. Under our present law, except for passive nonviolent resistance, the place to contest the legality of an arrest is in court and not on the streets. The defendant had no right to resist arrest by the use of force.
AFFIRMED.
LETTS and MOORE, JJ., concur. . In deciding this case it is not necessary for us to actually determine the legality or illegality of the arrest.
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Citator
Cited By (33 total)
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Tillman v. State, 934 So. 2d 1263 (Fla. 2006)…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 encounters that fall short of a full-blown arrest, includi…1 / 2
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State v. Espinosa, 686 So. 2d 1345 (Fla. 1996)…section 776.051(1), Florida Statutes (1995),3 in pari materia with section 843.01 to eliminate that element as to the offense of resisting arrest with violence. State v. Davis, 652 So. 2d 942 (Fla. 5th DCA 1995); Benjamin; Johnson; Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978).4 Under Florida Rule of Criminal Procedure 3.510(b)5 the giving of an instruction on a lesser offense is a matter of discretion for the trial judge, who must determine whether the charging document and evidence at trial support…
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Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981)…. Section 776.051(1), Florida Statutes, states that “(1) 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.” In Lowery v. State, [*930] 356 So. 2d 1325, 1326 (Fla. 4th DCA 1978), the court read Section 843.01, Florida Statutes, in pari materia with Section 776.-’ 051(1), Florida Statutes (1974). It was concluded that one may not resist arrest with violence, even if the arrest is technically illegal…
Previewing 3 of 33 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Saunders, 339 So. 2d 641 (Fla. 1976)
- Laurentino A. Garcia v. State, 338 So. 2d 72 (Fla. 3d DCA 1976)
- Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978)