HOW AN ACCIDENTAL TOUCHING OF AN OFFICER CAN RESULT IN BATTERY ON A LAW ENFORCEMENT ARREST

Since a battery under Florida law is an intentional touching or striking of another person, a battery committed against a law enforcement officer should always require that the defendant intended to touch or strike an officer. Yet officers often make arrests for Battery on a Law Enforcement Officer (BOLEO) where there’s no evidence of any intention to commit battery on the officer. 

W.C. Fields about to be Battered


While working years ago as a prosecutor and now as a defense lawyer in Tampa Bay, Florida I’ve seen dozens of cases dismissed or reduced when evidence clearly established that an officer was not intentionally touched. 

The following are four ways in which law enforcement officers often mistakenly charge an unintended or accidental touching as a BOLEO:

1. Law enforcement officers may overreact when they feel that a situation is getting out of control and make a BOLEO arrest to quell the situation. Officer safety is a legitimate issue but an arrest for BOLEO should only be made if the facts and circumstances of the case support an intentional touching or striking of an officer.

2. Other cases result from what should be charged as a mere misdemeanor resisting arrest without violence where a defendant is not immediately obeying an officer’s commands to allow an arrest or provide specific information. In these situations the case should be reduced from a felony to reflect the actual facts of the case.

3. Sometimes officers become frustrated during the course of an investigation if an officer is injured even if the defendant had no intention of doing anything to the officer. In one case I had years ago the officer was angry that his glasses broke while securing my client during an arrest and was more than happy to use a felony charge as a means of paying for his new frames thru restitution. The other officers testified that there was no unlawful touching or striking of the officer’s face so the BOLEO charge was dismissed.

4. Officer or prosecutors may make a tactical decision to add BOLEO charges that would normally not be filed where it can be used as effective leverage to convict the defendant of other charged misconduct. By driving the guidelines higher with a new charge the prosecutors up the ante for a defendant who might want to fight the other charges in trial thus increasing the chances of obtaining a conviction.

If you’ve been falsely arrested for Battery on a law enforcement officer, it’s important to have a criminal defense lawyer look for the underlying reasons why a BOLEO charge has been filed in each case and then to support his conclusions with evidence such as video, audio, photographs, medical records or witness testimony. By establishing a likely motive for the police to have mistakenly charged the felony BOLEO it becomes much more likely to find ways to dismiss the charge or reduce the felony to a more manageable misdemeanor. 

WHAT MUST I DO WHEN FLORIDA POLICE STOP ME IN TAMPA BAY?

Criminal Defense Lawyers in Clearwater are often asked these questions: What should I do when a Florida Police Officer makes contact with me? How much information must I give, if any? And how many days will I get in jail if I steal the Officer’s hat?


Rembrandt - Painting of an Old Man in a Fur Hat. If you want to be arrested in Tampa Bay, Florida just steal a police officer's hat
Even Rembrandt knew it’s all about the hat.
As a rule of thumb when stopped by any officer (with or without his hat) who is readily identifiable as an officer, then you must at least correctly identify yourself to the officer. If you’re driving a vehicle you must also establish that you have a valid driver’s license and vehicle registration. If your goal is not to be arrested by Florida Police it’s also smart to be polite, reasonable and honest, not that you have to be under Florida law, except as to identity. You don’t have to consent to a search of your person or your vehicle, but in searching for weapons officers in Florida are allowed to frisk you (this is Florida after all).
But with the coming of that band of prosperous pirates set to lay siege to Tampa, known as the Republican convention, our local paper is warning that there’s likely to be some folks whose goal is to be placed under arrest while disrupting and protesting. And with that hope the police seem to be preparing for mass arrests in Tampa.
The Florida criminal justice system will welcome protestors with open arms as there exist enumerable ways to be branded as a criminal and arrested under our harsh Florida Criminal Statutes.
The quickest way to guarantee an arrest in Tampa Bay is to touch or strike an officer. Although Florida law is clear that an illegal arrest can be lawfully resisted, an illegal arrest can only be lawfully resisted without using force or violence against an officer. A mere unwanted touching of the officer that would otherwise be a misdemeanor Simple Battery will be charged as a felony Battery on a Law Enforcement Officer if the Defendant had knowledge that the victim was a Florida Police Officer.

Here’s some excerpts good advice from the ACLU for any police encounter in the sunshine state of Florida:

You don’t have to answer a police officer’s questions, but you must show your driver’s license and registration when stopped in a car. While on the street, if a police officer has reason to believe you’re involved in criminal activity and asks you for identification, you must show ID, identify yourself, or face possible arrest. You cannot be arrested merely for refusing to provide proof of immigration status.

You don’t have to consent to any search of yourself, your property or your papers. Police may “pat-down” your clothing if they suspect a concealed weapon. Don’t resist, but make it clear that you don’t consent to any further search.
Keep your hands where police can see them. Don’t run. Don’t touch any police officer. Don’t resist even if you believe you’re innocent.
        Ask if you are under arrest. If you are, you have a right to know why and you should ask to talk to a lawyer. Then tell the officer you wish to exercise your right to remain silent. If you are not under arrest, ask if you are free to leave.
        If you witness a police action that you believe is unfair, don’t interfere, don’t complain on the scene or tell the police officers they’re wrong. Call 911 and document everything you witness. Write down officers’ names, badge and patrol car numbers.

Yet despite all that here’s some hope for the Constitutional Right of being able to protest at the Republican convention:

You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks. But, the government can impose “time, place and manner” restrictions on speech by requiring permits. These restrictions are generally permissible as long as they are reasonable and not based on content. The government cannot impose permit restrictions simply because it does not like the message of a certain speaker or group.


And try to avoid taking the Florida Officer’s hat, it makes them very angry; I’m not sure why. Hope your next police encounter ends in such a way that you don’t need help from a Clearwater Criminal Defense Attorney, but if you do call anytime.