By Carlos Miller
Any lawyer will tell you that the odds of winning a criminal appeal are almost impossible. This is why most lawyers don’t even do appeals. And the ones that do charge a fortune.
In fact, the odds of having the appellate judges even read your appeal without throwing it out on a lack of merit are against you.
According to Ruggero Aldisert, a federal appellate judge who wrote the book, Winning on Appeal, which he describes as a “book for lawyers”, the figures are winning an appeal are sobering.
ALL APPEALS……………………. 9.5%
Criminal………………………….5.6
U.S. Prisoner Petitions…………..9.5
Other U.S. Civil Cases…………..11.0
Private Prisoner Petitions……….9.9
Other Private Civil Cases……….12.2
From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court:
All appeals: 1 in 10
Criminal cases: 1 in 18
Private civil actions: 1 in 9
But those figures refer to the federal appellate court system. The figures for the circuit court system, which is where I filed my appeal, are even harsher.
According to the U.S. Court of Appeals judicial case load profile, in 2007 there were 58,410 new Appeals filled in the U.S. added to the overflow cases of previous years, the total was 62,846 cases waiting to be heard. Out of those 31,717 were terminated on merits alone and 28, 755 were terminated on procedural applications, meaning roughly 96% of appeals cases were not fully heard.
That is probably why a lawyer I met at the Abbey Bar earlier this year bet me a $100 that I would lose. He couldn’t stand the fact that a non-lawyer would have the gall to even pretend he had a chance in pulling this off. Much less speak about it with such braggado to the point where I was guaranteeing my victory.
Who did I think I was, Joe Namath?
I have that lawyer’s business card somewhere. Maybe I’ll send him an email and remind him of our wager. Or maybe I’ll just let it go because I’ve already proven my point. Besides, I can already see him denying ever making that bet (and yes, I do have witnesses, but whatever, I’ll bring it up if I ever see him again).
On Monday, I ventured down to the courthouse to get a copy of the entire opinion because the one they sent me was missing a page. The missing page, page 4, highlighted just how out of bounds the judge was in allowing my blog posts to be admitted as evidence (the entire opinion is posted below).
We see no reasonable basis that the inflammatory issues of Nazism and Gestapo, or the actions of the Los Angeles Police Officers, should have been injected into this, a misdemeanor trial involving the City of Miami Police. We reject the State’s contention that Defense counsel has a reasonable opportunity to rehabilitate the witness.
To do so would have required introducing and explaining the article, screening the referenced videos and other material taken of the Los Angeles melee, and including the contrite responses of the senior Los Angeles Police officials.
It would, in essence, have turned Miller’s misdemeanor trial into an examination of a violent, cross-continental incident. In that this evidence is more prejudicial than probative under these circumstances, we find the trial court abused its discretion and reverse the conviction.
The fact that a panel of circuit court judges determined that the lower court abused its discretion should be an embarrassment to Judge Jose L. Fernandez. After all, judges are given a great amount of leeway in interpreting the law. But that’s only because they are trusted to remain within the realms of the law. When they don’t, it is considered an abuse of discretion.
As defined by ‘Lectric Law Library’s Legal Lexicon:
The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the judge in the first place. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.
In my argument, I also brought up the fact that Fernandez issued a harsher sentence against me because he did not like what I had written on my blog. However, I was taking a chance on this argument because I had not made an objection during my trial over the sentencing, meaning the issue was technically not “preserved for appellate review.”
Although the appellate judges acknowledged that I did not preserve the record, they decided the issue was significant enough to address it in their opinion, dedicating more than a page in describing how Fernandez blundered.
It is Constitutionally impermissible for a trial court to impose a sentence based upon a defendant’s assertion of innocence before, during and after trial.
The State contends this did not occur, stating”. . . the court reviewed the total trial evidence and entered its sentence with a mere passing remark on remorse in the context of a comment on the Appellant’s misbehavior and demeanor.”
On the assumption that we have reviewed the same transcript, we reject the State’s interpretation of the record.
As evidenced by the sentencing colloquy, the trial court’s concern, in large part, was for the “real” heroes at Arlington, for Miller’s supporters and for Miller’s “shocking” lack of remorse. The trial court’s comments were not so much passing references, but, instead, grounds for sentencing.
REVERSED with directions that defendant be tried and, if necessary, sentenced before a different judge.
I’ve said it before and I will say it again. I will not show remorse for doing something that is 100 percent legal. And any judge worth his cloak should not expect a defendant to show remorse, especially when he had just been acquitted of most of the charges against him.
I was not remorseful after my first arrest and I am not remorseful after my second arrest. So we might have some problems considering I’m supposed to face Fernandez again for my second arrest of photographing cops against their wishes.
And let’s be honest, if he was upset at my blog before and during my trial, you can imagine how he feels about it now. Especially considering my blog pops up at number three and four after conducting a Google search on “Judge Jose L. Fernandez.”
One of the issues I raised in my appeal that was not discussed by the appellate judges was that of the resisting arrest without violence charge. I argued that by being acquitted of refusing a lawful order and disorderly conduct, a resisting arrest without violence conviction resulted in inconsistent verdicts. I further argued that it was legally impossible to be arrested for resisting arrest without violence when there was no underlying charge to base the arrest on.
And I also pointed out that it is legally permissible to resist an unlawful arrest in a non-violent manner in Florida.
So perhaps I will save that argument for my next trial where I am facing a single charge of resisting arrest without violence. I will eventually post the arrest report but I need to get a new copy because all I have is a carbon copy that is barely legible.
However, as you can read below, it almost reads like the report from my first arrest.
On the above date and time, officers were engaged in placing and safeguarding a prisoner and personal property when the def (me) began taking photographs of the area, officers and prisoner without consent, in close proximity of officers. I approached the def and def had a strong odor of alcohol emitting from his breath and def was told to move on. Def refused officer’s order and then came within a foot of this officer after this officer gave him several orders to not come near me while I was safeguarding prisoner property and a police issued bicycle which was stolen.
Def was using the flash which was diverting my attention towards him and the flash going off causing my visibility (illegible). Then after being told to leave for the final time, def approached this officer and attempted to flash the camera in the direction of my face, which would have caused my sight to be impaired.
First of all, as you can see in the picture, they were not “engaged in placing and safeguarding” anything except leaning against the car and bullshitting with each other. There was no prisoner being safeguarded. He was already in custody in the back of the car. An old man who allegedly attempted to steal a cop’s bicycle.
You can also see that I was not within “close proximity” of the officer. Contrary to what I said in my previous post, I was using a 50 mm f/1.4 lens. Not a 70-200 mm lens. It’s been a while.
They initially charged me with disorderly intoxication, but the State Attorney’s Office switched it to resisting arrest without violence.
I hate to be overconfident, but after finally beating all nine charges I was initially slapped with in my first arrest, this one should be a cakewalk.
Carlos Miller’s appeal victory
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I am a multimedia journalist who has been fighting a lengthy legal battle after having photographed Miami police against their wishes in Feb. 2007. Now I am preparing to go to trial for a second arrest where I was jailed for photographing Miami Beach cops against their wishes.
Please help the fight by donating to my Legal Defense Fund in the top left sidebar, which helps pay for the thousands of dollars I’ve acrued in debt since my arrest. To keep updated on the latest articles, join my networks at Facebook, Twitter and Friendfeed.
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Fernandez, as I mentioned in a 
You kick ass.
Congratulations! Have you started the movie script yet?
Seems to me that the copos need another lesson that people are allowed to take pictures of whatever they want in a public space (e.g. the “without consent” statement made in the report).
The “which would have caused my sight to be impaired” statement seems bullshit too. You’re trying to take a shot with a 50mm and you’re a foot away??? Seems unlikely… That lens sucks for close up shots. Besides with the camera settings and even the post processing you did with the pic you put up I can see plenty of ambient light and they weren’t tactical so why is he bitching?
Hopefully Judge Fernandez can see he was wrong and man up to it.
Won’t hold my breath, though.
Carlos,
Congratulations!
al
Carlos: let me clarify something for you. First, I think your initial arrest was incorrect, and I am not taking the side of the police. However, as a matter of law, you are incorrect about resisting arrest.
An arrest can be lawfully made of an innocent person. Example: They suspect you of murdering a local man, and there’s some physical evidence to support it. They come to arrest you, and you physically fight them, in the course of which you strike a police officer. Even though you are never taken to court on the murder (someone else is identified as the true culprit), you could and likely would still face charges for resisting arrest, and in that example, you would be guilty. Innocent men cannot resist arrest, it’s still a crime.
There was nothing inconsistent about your verdicts. You may well have NOT resisted, but if you had, it’s not inconsistent with an acquittal of the underlying crime.
Thanks for doing what you’re doing.
torgeaux,
I agree with your example, but it’s not quite the same as Carlos’ situation. First, he’s talking about resisting without violence. Once you use violence against an arresting officer, I would imagine the charge or resisting has enough merit to stand on its own.
The biggest problem I see with Carlos’ argument though (and IANAL) is that you’d have to win the argument that the original arrest was not lawful. Being acquitted of the charge or having charges dropped does not imply that the LEOs knowingly or unknowingly abused their power by making an unlawful arrest. People are acquitted or not charged everyday, but that doesn’t mean that their arrests were not legal.
How you’d go about getting a judgment that the arrest was unlawful is beyond my limited understanding of the legal system though.
Tom:
They’re the same from a matter of law, though. Resisting, with or without violence, is illegal (some places). If, as you propose, the arrest was unlawful, then even some physical violence could be permitted. Police have to be acting within the color of the law to have immunity.
Basically, if you could show the arrest was in bad faith, that no reasonable person could believe that grounds for arrest existed, then you’d be on to step two, which is still difficult, justifying the resistance.
torqeaux,
In Florida, there is resisting arrest with violence and resisting arrest without violence.
The former is a felony and the latter is a misdemeanor.
In the example you mention, striking an officer to resist an arrest, even if it turns out you are not the murder suspect, is illegal.
However, during my research, I learned that you are allowed to resist an unlawful arrest without violence.
Now the case you mentioned would most likely not be an unlawful arrest because you stated there was physical evidence to support it.
But in my two arrests that were clearly based on taking photos of cops against their wishes in public, it can be strongly argued that they were unlawful arrests.
Especially the second arrest where there is no other charge to support the resisting arrest without violence charge.
In the first arrest, they slapped me with a multitude of other charges, which were eventually dropped, so I was left with a sole resisting arrest without violence conviction, which in my opinion, is an inconsistent verdict.
I don’t know if you read my initial appeal brief, but I highlighted a couple of key court cases that stated the following:
“A person is not justified in using force to resist arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer, but nonviolent resistance to an unlawful arrest is no crime. In fact, a lawful arrest is an essential element of the offense of resisting arrest without violence.”
http://www.scribd.com/doc/13789583/CarlosMillerAppealBrief1
Resisting without violence is illegal, yes. However, it is only a chargeable offense if other charges are filed. This is especially true considering that they can and do consider even verbal protest resisting without violence. All it can legally do is extend the sentence of someone found guilty of another offense.
In his case, he was found innocent of all charges, except the resisting arrest. Because he didn’t do anything to justify the arrest, they can’t punish him for it.
Catinthewall: I can only assume you’re not an attorney, given the flatly incorrect statement you made.
Carlos: As I mentioned, and Tom also, if the arrest is unlawful, that’s different. Your innocence is NOT the determining factor in whether the arrest was unlawful. Your statement that I am addressing is this one:
“I argued that by being acquitted of refusing a lawful order and disorderly conduct, a resisting arrest without violence conviction resulted in inconsistent verdicts. I further argued that it was legally impossible to be arrested for resisting arrest without violence when there was no underlying charge to base the arrest on.”
There is no inconsistency in the verdict. An acquittal does not equal unlawful arrest. Your second argument, that ” it was legally impossible to be arrested for resisting arrest without violence when there was no underlying charge to base the arrest on,” is true, but not pertinent to the facts of your initial arrest, as they did arrest you for another crime, albeit one for which you were ultimately acquitted.
You say that the other charges were eventually dropped, but even that isn’t dispositive. It certainly lends weight to an argument that you were arrested for contempt of cop, but it’s not conclusive. Weren’t you tried on more than just resisting?
Damn, another edit: Your brief, to which you cite in your last response, is dead on, and agrees with exactly my point: resistance without violence is not a crime to an UNLAWFUL arrest. Acquittal doesn’t equal unlawful, nor does charges dropped. That’s where you keep missing the point.
Wow. > Less then < a 6% chance of winning your appeal and you won it PRO SE, of all things? Imo now this proves you should strongly consider law school…
I might be naive, but I would've thought the fact that you were working as a journalist would've helped the situation. We can understand triggering contempt of cop if someone gets right up in their face, but it's clear from the photo that's not what happened here. How far away were you standing from said moron, uh I meant officer, when you took that picture? The photo in question effectively tells the story that there was not mayhem in the streets, only a strong police presence to prevent problems. Journalists capture police on film all time in the course of covering events, so what's the big deal? Did you explain to the cops that you were working for Miami Beach 411? LOL does the Miami PD have it out for you?
E.W. v. State, 873 So. 2d 485, COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
“It is not necessary that the underlying criminal activity providing the basis for the arrest result in a charge or conviction; it is only necessary that the officer has a founded suspicion of criminal activity to make the detention.”
torqeaux,
The key words here are “founded suspicion,” which is not much different than probable cause or a reasonable suspicion.
In my appeal, I argued that they really did not have a probable cause to arrest me because photographing cops is not illegal nor is it probable cause.
I also argued that by being acquitted of refusing a lawful order, it is essentially stating that they were giving me an unlawful order.
After all, I never denied that I refused their orders, so that was never in question.
Carlos: I’m only addressing your quoted statement. The quoted statement is inaccurate.
I think you have a strong’ish case that they did not have reasonable suspicion. I think you are actually innocent. I do not think it was an inconsistent verdict, the only point I’m making here.
Photographing police is not per se a crime. It can be, if it is actually interfering with their duties.
Being acquitted of a crime means they failed on at least one element…in the case of refusing a lawful order, it doesn’t of necessity mean the order was unlawful. It simply means the government did not carry their high burden. Lay folk frequently equate acquittal with a finding that they did not do what they were charged with, and the two are legally separate concepts, with different consequences.
Basically, you are mistaken about one small thing, here, but it’s a pretty important piece.
Which quoted statement?
“I argued that by being acquitted of refusing a lawful order and disorderly conduct, a resisting arrest without violence conviction resulted in inconsistent verdicts. I further argued that it was legally impossible to be arrested for resisting arrest without violence when there was no underlying charge to base the arrest on.”
As before, the verdict isn’t inconsistent just because you were found not guilty. The verdict could be wrong, it is not inconsistent. The case I note, and its quote, are directly on point. The underlying basis of the arrest doesn’t even have to result in charges, let alone a conviction.
I think what this legal eagle is trying to drill into us is that the stand-alone principle by itself is worthless, it’s the context with which it’s applied by the courts that makes or breaks it. Three things I learned the hard way in dealing with a boring civil matter: 1) tread lightly, because there’s always more to the law then initially meets the eye 2) always get a second opinion, and most importantly 3) ignore good, free legal advice at your own peril. I think he’s only trying to caution us against being “right” all the way to jail. A little caution is warranted, since these miscreants called “po LICE” have no problem lying, and the odds are usually stacked in their favor. Just my two cents….
Sara,
Your comment ended up going into my spam folder and I just noticed it now, which is why it only appeared now.
I was strongly considering law school earlier this year. I even studied for the LSAT and was on my way to take the exam one morning when I got into a minor accident.
Then I got arrested again, so my plans for law school were shelved. For now, at least.
Although I was intimidated when I first started working on my appeal brief, I quickly learned what it takes.
And I enjoyed researching case law in preparing the appeal.
I’ve never been the most studious person, so who knows what I’ll do in the future.
torqueaux,
Maybe you are right but I wish the appellate judges would have addressed that argument, even if it was just to tell me I was wrong.
I should have replied to this earlier…yes, they should have mentioned this, as it would have been dispositive, resulting dismissal of the charges, not a direction for a new trial.
Carlos,
Congratulations on winning your appeal, you are and always have been in the right about this important 1st amendment issue. However, I want to point out that according to my understanding of the statistics you’ve cited – that they are for federal circuit courts. Federal circuit courts and state level appellate courts are entirely different beasts.
Thanks for the odds stuff and links…very interesting! One of the problems with appeals is they have to get past the judge’s law school intern who usually scans them first with an eye on coming up with any excuse to reject it. You can often resubmit a revision.
And I came back today to read the complete report…I thought page four would be hot. Thank you.
You can bet Judge Fernandez is biased and ticked…even more so now. Oh heck yes this is embarrassing for a judge. It is one heck of a rebuke (for a puke). When you go to the hearing I would let the judge bring up recusal. Or not. Don’t mention the prior arrest, conviction, overturn… it is immaterial to the current charge. But oh is it ever relevant. [Be sure to enter into evidence that the named appellate court judges identified you as a "photojournalist," and that your arrest now is as your arrest before in the performance of your duties and your Constitutionally protected Right of the Press.] When he says, ‘I imagine Mr. Miller, you would like a different judge for this trial?’ You should jump up and clearly say, “I’m good. In fact, I can’t think of another judge I would rather have conducting my trial than you Judge Fernandez.” And mean it. Watch how fast that prosecutor comes out of his chair to demand the judge recuse himself. Guaranteed fun. Never give them what they expect. Ever. Besides it’s no fun. [Don't be surprised if the case gets quietly reassigned to a different judge before you get to a hearing.]
Of course your current charge reads like the prior arrest, it is boilerplate for the charge of contempt of cop.
The beauty is you have been through this once, you have made the arguments, you have made the mistakes and will not make them again in this trial. And as you say, you face a single charge.
I also do not know what Florida aw requires, but in Arizona all police (except the feds who are not cross licensed as AZ Peace Officers) MUST have on them a business card to be given on demand by anyone for any reason or they are out of uniform. So walking up and demanding a business card in AZ certainly will get you scrutinized, and possibly arrested for Disorderly Conduct – Fighting (our version of contempt of cop), but it is a lawful activity. If FL requires something similar from their state police licensing board (who requires it here) … it might be worth looking into.
Florida Statute 843.02 Resisting officer without violence to his or her person. — Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process 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, punishable as provided in s. 775.082 or s. 775.083.
History.–s. 2, ch. 3276, 1881; RS 2581; GS 3501; RGS 5386; CGL 7525; s. 1, ch. 63-433; s. 1, ch. 65-226; s. 3, ch. 67-2207; ss. 20, 33, 35, ch. 69-106; s. 1035, ch. 71-136; s. 1, ch. 77-174; s. 2, ch. 78-116; s. 21, ch. 79-3; s. 27, ch. 79-8; s. 6, ch. 85-87; s. 41, ch. 88-122; s. 2, ch. 88-373; s. 51, ch. 88-381; s. 43, ch. 89-526; s. 209, ch. 91-224.
[max. punishment of up to one year in prison or a fine of up to $1,000]
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0843/Sec02.HTM
PS: For those irritated with the advice — presumably of a lawyer, and especially a FL lawyer of which I am neither — chill. They know the process that the courts recognise and ostensibly obey. Their advice is valuable. Are they always correct? No. Are they found to be wrong even when they are correct? Absolutely, I guess that is what appeals and public opinion is for. But their advice is always good.
Carlos, who was the prosecutor on your case? Who’s the prosecutor on the new case?
“…my blog pops up at number three and four after conducting a Google search on “Judge Jose L. Fernandez.”
I’m sure he would turn up in a Google search using the words sanctimonious and douchebag with the same level of frequency.
My concern is how do you prove you weren’t intoxicated? Pulling credit card records for the bar seems the only way to bring hard evidence into it.
John L,
The Deuce Bar only accepts cash.
And I am not even facing that charge anymore.
Wow, just figured out they changed the intox. charges to resisting w/o violence. Feeling sharp tonight.
What is your desired endgame Carlos? Do you want cops to get training on what is and is not a criminal offense when dealing with photographers? What will make that happen? Will Miami/Miami Beach P.D. spontaneously do it themselves. Doubt it. You will need to go on offense to make that happen, no?
Marty,
The prosecutor in the first case was Ignacio Vazquez.
You can read all about him here.
http://carlosmiller.com/2009/02/23/state-attorney-is-granted-yet-another-extension-to-respond-to-my-appeal/
Not sure who it is in the upcoming trial.
There are still several more steps in the process but my goal is to get them to implement required training about photography in public to all officers.
Also to win a settlement because this has cost me more than enough.
Fascist Nation,
I agree with everything you say.
Congratulations on your success, and on all that diligent hard work. I’ve been poking my head in and following this, and I’ve been impressed.
I hope the new trial goes well.
That judge should be ashamed for so blatantly abusing his authority. Nobody with with an ego that large and fragile should be in a position with that much authority.
I hope this is enough of a slap for him to behave himself this time.
Carlos, thank you for the work on your blog.
Good luck on your next case.
And have a very Merry Christmas and Happy New Year.
Then the law is wrong. The right to resist is based on the right to self defense. If a person believes they are innocent, then they have the right to resist. How many of these stories would have turned out differently if people were allowed to resist? How many of the cops would proceed knowing that they did not have the power to arrest an innocent person.
Matt, you place an impossible standard on police.
Example: Domestic abuse. Wife calls in, complains husband struck her, police have to arrest him, but in fact he is innocent. Why are the police being put at risk in that situation? The responsibility for the arrest lies with the false witness, not the police, who cannot act as an independent judge. That husband in that situation cannot resist, with or without violence, and that is as it should be.
Congrats on the victory Carlos. Let’s hope your next one is just as good.
torgeaux, the scenarios you mention are good and I think correct. In each case, the arrest was made based on evidence that (apparently) comes from a source other than law enforcement. Though I am not an attorney, common sense is that if the evidence (reason for probable cause) did not originate from a third party (i.e. the arresting officers), and the defendant was found not guilty, then probable cause did not exist, the arrest was unlawful, therefor the resisting arrest charge should be dismissed.
Or ?
further, what is the threshold for resisting arrest without violence? Does asking the question “why am I being arrested? ” or “What is your name?” give the arresting officer a lawful reason charge then arrest? To me, those questions do not qualify as resistance, obstruction, or opposition.
Dan: But now you’re still requiring a level of sophistication and training (and investigation) that a policeman cannot be expected to have.
Basically, under your scenario, if police come upon 5 men in a fist fight, they can’t arrest them based on their own observations since they can’t know who may have been engaging in self-defense. The arrest process has to be distinct from the charging and prosecuting process, they serve different functions. There may well be subtle distinctions in the law that permit one man to do something that to an outside observer would be clearly illegal. Breaking into a house, to take a Harvard example. Police see a man breaking a window and going into a car at night. The man says he’s the owner, but has no license on him. Ok, the police should be able to cuff this man, and put him in their car while they investigate. While they get his details and check them out, he’s subject to detention (which triggers the resisting arrest rules). Under your rules, he could just run, and the police couldn’t do anything about it.
Carlos had problems because these rules, while I think they’re fine, depend on the good faith execution of the duties of the police, prosecutors and judges. Judges and prosecutors naturally tend to believe and protect police, and police, like anyone else, have bad apples who don’t know the law or who know but abuse the law.
Torgeaux,
Well said sir! The right of an innocent person to resist would cause anarchy during attempted arrests. Everyone would either fight or run and then simply claim they were innocent. I cannot imagine many positions more naive than wanting to give everyone the tight to resist arrest.
You would also see police use of force jump up because, resistance or not, the police will win. They have the tools and the numbers. That means more citizens wil be injured while fighting or running.
The place to resist is in the courtroom. There are rules and procedures set up for that. There are civil courts and Internal Affairs for those that think they were unfairly arrested.
Johnny Law,
There are also lawful orders and unlawful orders. Florida courts say one has the right to resist an unlawful arrest in a nonviolent manner.
These are not my words. These are the words I found in case law books during my research.
Torgeaux you are conflating two types of uncertainty. There is the case where there are grounds to believe a crime has been committed but it’s not obvious who did it. That’s different from where there is no grounds to believe that a crime has taken place, and a policeman is arresting someone based on his uninformed assumptions that anything he doesn’t like is a crime.
@Torgeaux & Johnny Law
Carlos is right here though. We’re not talking about the straw man arguments of fights or possible breaking or entering. We’re talking about lawful and unlawful orders, given where there is no actual underlying unlawful activity taking place on the part of the accused. There’s no crime until the cop decides he’s annoyed or wants to show people who’s boss, and then the “disorderly conduct” and resisting arrest for resisting arrest charges come out.
“You would also see police use of force jump up because, resistance or not, the police will win. They have the tools and the numbers. That means more citizens wil be injured while fighting or running.”
A hollow threat. The citizens have far larger numbers, and tools that can be just as effective, if not more so. But then we know you don’t think much of non cops, Johnny. http://bit.ly/johnnylaw
Carlos, I am not from Florida so I am not sure what nonviolent resisting consists of. Does that mean verbal only? Just going limp? Locking your arms to keep from being handcuffed?
In my jurisdiction, the wording of the resisting arrest statute is only concerned with physical resistance that is used against the officer. For example, if you simply go limp, that would not get your an additional charge. However, if you pushed the officer back from you, that would get you an extra charge.
Running from a cop, no matter the charge, gets you a fleeing to avoid arrest charge.
My point is that the street is not a place to argue a point of law. I don’t see that as the proper place to determine if an order is unlawful or not. That will just end up with things escalating as the officer tries to force the arrest. While some here seem to think the public will rise up in a mass revolt, we all know that won’t happen. I have had citizens come up to me while I am trying to arrest someone and offer their help.
Seems safer to me for all the parties to figure it out in a courtroom.
Here is an interesting article regarding resisting arrest without violence in Florida.
ORANGE COUNTY, Fla. — Often, police are slapping citizens with a little-known charge called resisting arrest.
Eyewitness News found that when the cases go to court, there are very few convictions.
Some are wondering if officers are over-stepping their authority just to throw people in jail.
“It’s ridiculous, you can’t even be safe in your own house,” said Lilliam Quiles.
That’s exactly where she and her mom, Marie, were when an Orange County sheriff’s deputy came knocking on their door. They had been asleep and had no idea what was going on.
Marie told Channel Nine “He says, ‘I’m the police, you need to open the door.’ I say, ‘In regards of?’ And he says, ‘I cannot tell you.’”
Video from their home surveillance camera shows that the deputy wasn’t wearing a uniform.
When Marie didn’t open the door, he put on a police vest and tried again.
“He comes banging, but harder this time and he’s shouting this time and you can see that he’s really mad,” said Marie.
The deputy arrested Marie on a battery charge from an ongoing feud with her neighbor. He wouldn’t look at her file of 12 incident reports.
Nor would he look at video which would prove she didn’t do it. Instead he hauled her off to jail.
And he tacked on a charge for resisting without violence. Then he charged Lilliam with resisting as well. Lilliam was crying, scared for her mom.
Defense attorney David Bigney says he rarely sees a case now where resisting isn’t a charge.
“All these people want is to know why, what’s going on here, but the officer decides I’m just going to arrest you,” said Bigney.
And often it’s the only charge.
In more than 25-percent of the 4000-plus cases Eyewitness News tracked, resisting was the only charge. That begs the question: if there’s no arrest for something else how could they be resisting arrest?
David Bigney calls it, “…a terrible abuse of the system. It is an excuse to get somebody off their back in many cases.”
And our investigation found prosecutors are rarely forced to prove the cases they pursue. 94-percent of the time the suspects pled guilty or no contest right away.
David Bigney says that it’s often seen as a “…fast way out. They can’t afford a lawyer or they just want to get it over with, not realizing they
potentially have a defense to the charges.”
Of the 41 cases that did go to trial only 13 were found guilty.
Bigney admits there are some cases, such as when a suspect won’t cooperate with police, where the charge is warranted.
Orlando Police Chief Mike McCoy says the charge is necessary to protect officers and prevent onlookers from interfering in investigations.
McCoy says, “The street’s not the place to dispute it, the courts are.”
A judge threw out both charges against Marie. And a jury found Lilliam not-guilty. But both spent time in jail along with money on an attorney, to restore their faith in the justice system.
Marie said, “They cannot just generalize good people with bad people. They need to stop the way they’re treating people because you’re supposedly innocent until proven guilty.”
Experts say that if you’re involved in a situation with an officer don’t argue, pull away or even question why. That can give them cause to add the resisting without violence charge.
http://www.wftv.com/news/10234766/detail.html
The problem child of the chapter is Florida Statute 843.02, named “resisting officer without violence”. It is often known as “resisting arrest without violence”, or “resisting without”. It is a first degree misdemeanor, and carries a maximum sentence of one year in the county jail. In essence, this subsection of the statute states that “whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty without offering or doing violence” is guilty of a first degree misdemeanor. Problems arise in multiple situations – usually that the officer didn’t have the right to detain or question the citizen in the first place, was carrying out an illegal search or seizure, was unlawfully trying to enter a home, or was demanding a citizen do or not do an act that was actually legal.
As you can see, the primary problem here is that police officers usually don’t like citizens telling them the law, or refusing to cooperate with them – and since there are no judges “on the street” when these things occur – bad arrests can happen. Thus, when a law enforcement officer asks you a question – he or she expects an answer, not a legal argument. When a cop tells you to do something – they expect you will do it. And, if you’re one of those people who still believe you have any Constitutional rights outside of a court room, or chose to argue with or ignore the officer’s question, or fail to immediately obey the order (lawful or unlawful) – you may be arrested for “resisting arrest”, right or wrong.
http://www.floridafirearmslaw.com/Resisting-Arrest-Battery-On-An-Officer-Florida.html
The problem with Florida’s resisting arrest without violence is that you can get slapped with it for merely questioning an arrest.
In the two times I was arrested, I was surprised when they slapped handcuffs on me because I wasn’t breaking the law.
It would have been different if say I was fighting in the street or committing a robbery or whatever.
So I naturally question the arrest. I ask them on what charges I am getting arrested on. I tell them I did not do anything illegal.
So they take this as resisting the arrest without violence.
The problem is, it infringes on our Constitutional right to express ourselves.
I don’t advocate using violence against an officer because not only is it illegal, it’s a sure way of getting your ass beat.
But I do advocate questioning an arrest if you feel it is an unlawful arrest, as my two arrests have been.
Oh ho ho sir… on that last part, I firmly (and supreme court justices agree with me) recommend that you DO NOT question an arrest. If an officer comes up to you, you are under no obligation to talk to them what so ever, and if they ask for ID you DO NOT have to present it, regardless of what all the wishywashy horseshit the patriot act said.
They WILL probably arrest you every time, but you will not be charged after they determine who you are, and since you've been arrested, all they need to do is fingerprint you to find out who you are. You get your property back, an apology, and a quick exit from the station house.
At no point should you ever talk to an officer for any reason other than to say "I would like to speak to my lawyer"; "am i being detained" or "am i free to go" – those THREE things, and three things ONLY will never result in a conviction of resisting arrest, or any other conviction if you aren't doing anything wrong.
Don't take my word for it, ask your lawyer, ask any off duty cop if you should talk to police or answer their questions. the honest ones will tell you that you shouldn't.
I know you have a quick wit and tongue, carlos, and i am sure it has gotten you in trouble, and WRONGFULLY so, i add. But if, in the future, you're ever approached by police while taking pictures of ANYTHING, try what i said, and see how it pans out. The constitution has more than 1 amendment. The fifth is as important if not more important than the first.
Questioning an arrest will most likely not make a difference because once a cop slaps handcuffs on you, there is little chance of going back.
But the mere questioning of an arrest should not be an added criminal charge that is punishable by up to a year in jail.
And when there is no initial underlying charge, then it really doesn’t make sense.
From the article above, it is obvious that I am not the only person to be charged with a single count of resisting arrest without violence.
But most people just accept it because it is very time-consuming and costly to fight it in court.
It’s easy to say let’s settle it in the courtroom, but that automatically puts the defendant in a defensive position completely off his home turf.
Sure they say you are innocent until proven guilty but it’s really more the opposite because even if you don’t plead guilty, chances are they will strike a plea deal with you that requires you to admit some guilt.
The bottom line is that the resisting arrest without violence law is flawed. It is unconstitutional because it infringes on our right to free speech.
And it is a mockery of the judicial system to put a defendant up on a single charge of resisting arrest without violence without any other charges.
Basically it means that cops can just walk up to you as you are going about your business and arrest you, and if you question why, then the arrest suddenly becomes justified.
Screw that.
I am surprised that the resisting law as it is applied in Florida has never been challenged to the US Supreme Court. It appears to be unconstitutional.
@NYCPhotorights
The cops would never use it on and the prosecutor would never press it against anyone capable of sustaining that challenge, would be my guess.
This law is pretty much made for abusing people who aren’t willing to or can’t fight back.
Johnl: No, I’m not conflating anything. This is not and was not a conversation on whether or not the particular facts in Carlos’ case meant he was guilty, but rather the proposition that being found not guilty meant you automatically had to be found not guilty of resisting arrest. Period.
MichaelK42: Carlos MAY be right in the incident in question, but neither jlaw nor I were discussing that…just the legal question of whether a) actual innocence of the underlying crime meant you could resist legally (no) and b) whether this state of the law was proper (yes).
As for the constitutionality, I’m curious why someone would think it’s unconstitutional. Doesn’t seem like a close call to me, it clearly is constitutional.
I feel it is unconstitutional in the way it is being applied to people who question police. It appears that they are being arrested for exercising their first amendment rights to free speech.
I'm not sure I'd agree it was unconstitutional as clearly improper. Assuming all facts as Carlos tells the story, he should not have been arrested or detained, and the subsequent "resisting" would have been legal, as the arrest is unlawful. If the police had no good faith basis for their original detention, then the resisting without violence is not a crime.
As applied here, he should be acquitted, but I'm not sure that means the law is unconstitutional, if you see the distinction.
@torgeaux
Yes, that’s what I’m saying. You’re talking about something irrelevant to the case at hand.
The next question would be why. You’re bringing regular resisting into this when the whole thing is about Florida’s “resisting without violence.”
I'll let this serve for johnl also: It's not irrelevant at all. Carlos made a statement, about this case, that was incorrect, and I addressed it. It was after that that the wisdom of that law was questioned, and I addressed that.
I'm not conflating my examples with Carlos situation, at all. But, when someone says the law is unconstitutional, they're talking out their ass. It is not, and cannot, be a defense to resisting without violence that you are innocent. That's it, the whole point.
If you guys don't bother to read the thread, don't be surprised that an individual comment may not make sense to you.
Torgeaux you have conflated the entire time. Your argument is that a policeman might legitimately arrest an innocent person in a case where a crime is suspected to happen. Please stop trying to change the subject from the subject at hand, people arrested for engaging in activities that are in no way illegal, and then charged with “non violent resistance” for pointing out the nature of the situation.
I decided to answer this individually after all.
Yes, I've argued just what you said. No, I'm not trying to change the subject, or suggest an equivalence to Carlos situation. Please, read the whole context, i.e. the whole thread, not some individual comment and then leap to conclusions.
Here's the whole point: a finding of not guilty to the original offense does not render a verdict of guilty on the non-violent resisting charge inconsistent. Read the OP, then get back to me on how anyone could conceivably think that wasn't relevant, and in fact, correct.
All I pray for is that common sense prevails.
I sit here tonight, with my family, listening to Christmas classics and enjoying the warmth of both hearth and hearts, and I review this thread…
Earlier this week, here in the Seattle, a pair of sheriff deputies were in effect, ambushed whilst they responded to a domestic violence call. One has been released from the hospital today and is at home tonight, the other clings to life in a critical care unit. That makes 8 police officers killed or seriously wounded here, by ambush, in less than a month.
I pray for common sense.
I truly respect the work that law enforcement must do to keep order. And I agree, with every fiber of my being, that we must have laws that protect public order and those that we entrust to enforce them. Lately, at least here, they place their lives on the line with more and more frequency. That, just like our soldiers overseas, must be respected – I couldn’t do that job.
There are lines that are crossed too, both by the serious, anti-social criminal element and the men and women that put themselves between “us” and “them”.
I pray for common sense to prevail.
I think we can all agree that a photographer is (99.9999% of the time) not a criminal, nor is a 12-year old emerging outside of her Galveston home. Or that a King George’s County mayor, his wife and pets should never need to guard against, defend themselves, or have to file a civil rights law suit against a county government that clearly is in the wrong, yet admits no wrong-doing.
We’ve all read them, the stories that polarize us, that seem to drive a wedge between reason and hysteria. This, the unreasonable action and reaction is what needs to stop.
Just as it is just not reasonable to see a photojournalist (or anyone for that matter) arrested for taking pictures in a public place, dropping every police or justice official into the bucket called “thugs” is equally wrong.
It is time that common sense prevails.
Dan…
I think I'm getting it. Semantics.
Formerly, there was just "resisting arrest."
Breaking it up into two categories was pretty sly.
Now, the new "without violence" category is roughly synonymous
with not resisting arrest. After all, how do you resist without some form of physical resistance?
it was a clever progression whereby they could ensnare anyone.
But you stuck it to em. And won.
“I was arrested for ‘impeding an investigation’ and ‘obstruction of justice’, when all that really happened was me saying ’stupid pig’ to a stupid pig.” said Melissa Gilbertson, a housewife in Indiana. “He was badgering me at my home about how my son was seen breaking a window, and wouldn’t listen when I said that I only have one adopted daughter! Then he asked for my Driver’s Licence, and I said I wasn’t driving! When he insisted, that’s when I called him what he was!”
by ‘respect’, Himmler referred to a type of bootlicking sycophancy once reserved only for the more despotic of oriental potentates, but now regarded as the bare minimum due to any rookie traffic cop, meter maid or court security officer. Also not mentioned, and for the same reason, was that by ‘endanger’, he refers to the practice of a citizen insisting on civil liberties, constitutional rights, rule of law and/or due process, all things long known to cause actual physical harm to any of our brave boys in blue who’s tender ears hear of such things.
http://www.thespoof.com/news/spoof.cfm?headline=s2i61637
on the subject of BS arrests, you gotta read this one:
“Supercop: How I Do It”
http://www.thespoof.com/news/spoof.cfm?headline=s1i61463
some of you might like the photo for this one:
http://www.thespoof.com/news/spoof.cfm?headline=s3i52263
@Torg
In short, the cops can deprive you of your freedom /on a whim/, and you and JL support the action, IMO. And again IMO, you and JL support the cops' right to do so /without a shred of supporting law/, and without retribution, as well.
JL should try to imagine a world where /anyone/ could stop him from doing his job, cuff him, and toss him into a basement – that's what cops can, and often do to the citizens (not "civilians" cops are civilians as well, since they are not soldiers) that they supposedly serve.
Face it: all too many cops feel that they RULE their fellow-citizens. WE (that cops) order, and everyone not a cop MUST obey, without question, under penalty of law. That's the world which, IMO, you and JL are espousing. JL at least gets the excuse that he's lazy, and possibly incompetent. What's your explanation?
Or, in short, why do you seem to believe that when you are being arrested under an utterly BS excuse, you have forfeited your 1st amendment rights. Explain that, please, Torg.
Nemo, I can only assume you have a limited ability to read and comprehend. I don't know JL's opinions beyond what he's written here, but I can find no way to arrive at your conclusion from those remarks.
As for my own beliefs, I am certain that my remarks cannot be fairly read to support the actions you propose, since they don't support the actions taken by the police in this particular instance. However, since you haven't bothered to read the thread (apparently, you pull individual sentences or perhaps just string together random words), I'm not going to restate it all again.
As for supporting law, I, unlike you, have actually cited to the law in Florida that supports the limited point I was making. So your use of the phrase, "without a shred of supporting law" is comical. Try some reading in this very thread, read my posts, AND what they were responsive to, and get back to me. Not that I think you're capable of it, though.
Unfortunately people like Nemo and others (Mike) love to ramble on and on here without bothering to read or comprehend what others are saying. If it doesn't match their view, it's totally wrong. Heaven forbid they actually read the law and look at previous cases before screaming about a police state. We actually have knowledge of the subject matter but they never will because they are too busy being outraged to do any research.
Nemo, for the record, I have never locked anyone in the basement. However I do know an officer who locked himself out of his patrol car with the engine running while a prisoner was still in the back seat. Does that count?
No, I'm afraid that doesn't count.
Johnny, the problem is, some feel that pointing out that something is legal is the same as advocating the correctness of the facts/situation. By pointing out the simple fact that you can actually be guilty of resisting arrest without violence AND be acquitted of the thing you were arrested for apparently means that we think police are always right, that Carlos should have gotten the death penalty, and that there is/should be a presumption of guilt whenever a photographer is arrested. Some (johnl) think that any example given for a particular point means we are "conflating" that example with the current events, despite the example being made for a particular, well specified, limited, point. Basically, if you don't just yell, "Right on!" and enthuse away, you're diametrically opposed to the idea of freedom of photography.
As for the merits of any particular position, I give up. If someone asks me a question that seems intelligent, and seeks clarification, I'm there. If someone just wants to make the kind of insulting, moronic statements like Nemo, and johnl, well, I don't know what to do but point at them and laugh.
From what I have read from you, you appear to hold the opinion (as far as I can tell, since you didn't make your stance explicit, thus my adding IMO (in my opinion, to noobs) to my comments) that Carlos could, or possibly /should/ be found guilty for opening his mouth in any way when being arrested under BS charges. In short, when the police abuse their authority, you seem to hold the opinion that Citizens should shut up and obey.
If your words have led me to the wrong conclusion, I welcome hearing your clarification. If all you have is self-justification, don't waste your time, because you'll just be re-hashing what you have already written.
In the interest of transparency, though, I will say that having Johnny Law supporting you leads me to suspect that my initial analysis was correct. IME, JL won't admit that a cop did anything wrong unless all possible excuses and dodges have been exhausted.
From the sixth comment in this thread, my first:
"Carlos: let me clarify something for you. First, I think your initial arrest was incorrect, and I am not taking the side of the police. However, as a matter of law, you are incorrect about resisting arrest." and "There was nothing inconsistent about your verdicts. You may well have NOT resisted, but if you had, it's not inconsistent with an acquittal of the underlying crime."
From my second post here: "Resisting, with or without violence, is illegal (some places). If, as you propose, the arrest was unlawful, then even some physical violence could be permitted. Police have to be acting within the color of the law to have immunity."
From my fourth or fifth post: "I think you have a strong'ish case that they did not have reasonable suspicion. I think you are actually innocent. I do not think it was an inconsistent verdict, the only point I'm making here."
You ask me to clarify, but you haven't bothered to read my position…it's not possible to conclude I hold the positions you equate with me and the posts I've actually made.
Yeah, that's what I thought. Active with the blathering, not so eager to apologize or note you were wrong.
First, as to reading comprehension, per Carlos telling of the story, he was acquitted by the jury, not "the biased judge had to dismiss all but the bogus "resisting" charge." The judge didn't "had to because they were non-legal charges."
Second, you've made a much more cogent statement here, but completely different from your statement to which I replied. In your original you state, "In short, the cops can deprive you of your freedom /on a whim/, and you and JL support the action, IMO. And again IMO, you and JL support the cops' right to do so /without a shred of supporting law/, and without retribution, as well." AND "That's the world which, IMO, you and JL are espousing." AND "Or, in short, why do you seem to believe that when you are being arrested under an utterly BS excuse, you have forfeited your 1st amendment rights. Explain that, please, Torg."
None of those statements have any support in any prior position I've taken. Please feel free to quote me to me to support those insane (and speaking of ad hominem) assertions about me.
Finally, you "explained in short words" what exactly? He was arrested on real charges, for which he should not have been arrested. I believe the police lacked a good faith basis to arrest him. You apparently agree, if I'm reading your hyperbole right. He was also charged with resisting without violence, so we are in full agreement so far. He was tried. . . you've got some important details wrong, but he was ultimately acquitted of the charges that were used to justify his original arrest.
Funny you stop there since none of that are the points of contention. Mostly, in my opinion, because there is no support for your arguments, e.g. that I'm some sort of police state advocate. Where I suspect we differ is that I pointed out, correctly, that being acquitted of the underlying charges is not an inconsistent verdict with being convicted of resisting arrest, as a matter of law. All while agreeing that in this case, Carlos has a pretty good argument that the original arrest was in fact unlawful, which WOULD be a defense to the resisting arrest charge.
Try again.
Just bring them a printout of the EXIF data and you will have a very quick case. “Flash: Off, Did not fire”.
Exposure Compensation +1/3
Exposure Mode Auto
Exposure Program Program AE
Exposure Time 1/50
F Number 1.6
Flash Off, Did not fire
Focal Length 50.0 mm
Focal Plane X Resolution 3,086.925795 pixels/inch
Focal Plane Y Resolution 3,091.295117 pixels/inch
ISO 3,200
Make Canon
Max Aperture Value 1.4
Metering Mode Multi-segment
Camera Model Name Canon EOS 5D
WHAT IN TARNATIONS IS AN EXIF? sounds like terrorism to me! BAILIFF, TAKE THIS TERRORIST OUT OF MY COURTROOM!
Hooray for justice. Congratulations Carlos.