Homeless man granted a new trial
Associated PressDefinition of "resisting arrest" is narrowed.
Published September 29, 2007
TALLAHASSEE - A homeless man who has spent nearly five years in prison for resisting arrest will get a new trial because of his claim that he didn't know the person he resisted was an undercover police officer.
The Florida Supreme Court unanimously ruled Thursday that someone cannot be convicted of resisting an officer with violence if the defendant didn't know that person was an officer.
"Knowledge of the officer's status is an essential element of the crime," Justice Barbara Pariente wrote for the court.
The justices interpreted a law that's been virtually unchanged since 1881 in the case of Gary Lamar Polite, 42, a homeless man who was arrested in 2002 by Miami-Dade County police.
"It is a little bit surprising that this issue hasn't come up before," Polite's lawyer, Carlos Gonzalez, said Friday.
An undercover officer tried to arrest Polite for tampering with a parking meter, a misdemeanor, but he broke away and allegedly attempted to strike the officer.
Polite later submitted to a uniformed officer without a struggle, saying he wasn't sure the person who had confronted him was a policeman. Polite then was convicted of resisting arrest with violence and sentenced to 71/2 years in prison.
The case went three times to the 3rd District Court of Appeal which initially affirmed Polite's conviction, then reversed it before finally reinstating it.
The Supreme Court rejected the 3rd District's final decision, citing other appellate courts that have ruled the opposite way.
The case focused on the wording of the law that makes it a crime to "knowingly and willfully" resist, obstruct or oppose an officer.
The state and the 3rd District's final ruling contended the law means a defendant must have knowledge he or she is resisting, obstructing or opposing - not that the person being resisted, obstructed or opposed is a police officer.
That doesn't make sense because "resisting" by its very meaning - to exert force in opposition - implies an element of knowledge, Pariente wrote.
The attorney general's office, which had urged the Supreme Court to uphold the conviction, was reviewing the decision Friday, spokeswoman Sandi Copes said.
The state also argued public policy should favor protecting law enforcement officers over the rights of citizens. Gonzalez made the opposite argument, saying that would put people in the untenable position of submitting to anyone - including criminals - claiming to be a police officer.
Pariente said it's not the courts' role to decide public policy issues.
She added, though, that the ruling favors another important public policy consideration by requiring officers, especially those working undercover, to properly identify themselves when detaining, arresting or searching people.