The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Gary Lamar Polite v. State of Florida
SC06-1401
ALL RISE.
HEAR YE HEAR YE HEAR YE THE
SUPREME COURT OF FLORIDA IS NOW
IN SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT DRAW NIGH,
GIVE ATTENTION AND YOU SHALL BE
HEARD.
GOD SAVE THESE UNITED STATES.
GREAT STATE OF FLORIDA AND THIS
HONORABLE COURT.
>> GOOD MORNING.
GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS,
WELCOME TO THE FLORIDA SUPREME
COURT.
AND THE ORAL ARGUMENT SCHEDULED
FOR WEDNESDAY, MAY 9th.
2007.
FIRST CASE ON THE DOCKET THIS
MORNING IS POLITE VERSUS STATE.
MR. GONZALEZ, AM I SAYING YOUR
CLIENT'S NAME CORRECTLY, I
HOPE.
>> YOU DID, YOUR HONOR.
>> THANK YOU, MR. CHIEF JUSTICE
AND MAY IT PLEASE THE COURT.
FLORIDA HAS ENACT AID
COMPREHENSIVE STATUTORY SCHEME
DESIGNED --
>> COULD YOU PULL UP TO THE
MICROPHONE?
WE ARE HAVING -- AN ANNOUNCE
YOUR APPEARANCE.
>> CARLOS GONZALEZ ON BEHALF OF
MR. POLITE.
THANK YOU, YOUR HONOR.
>> FLORIDA HAS ENACTED A
COMPREHENSIVE STATUTORY SCHEME
DESIGNED TO PROTECT LAW
ENFORCEMENT OFFICERS IN THE
PERFORMANCE OF THEIR DUTIES ON
THE STREET.
AS A RESULT OF THE PLAIN
MEANING OF THOSE STATUTES, OR
BY COURT RULING, IT HAS BEEN
ESTABLISHED THAT THE STATE IN
SEEKING TO CONVICT A DEFENDANT
UNDER ANY ONE OF THESE STATUTES
MUST AMOK OTHER THINGS,
ESTABLISH OR PROVE THAT THE
DEFENDANT KNEW OF THE OFFICER'S
OFFICIAL STATUS IN ORDER TO
SUSTAIN A CONVICTION.
>> SHOULD HAVE KNOWN INCLUDED
-- IS "SHOULD HAVE KNOWN"
INCLUDED IN "KNOWN" AS TO YOUR
BELIEF WITH THE INTENT
REQUIREMENT.
>> THAT IS CORRECT, YES.
AND FOR EXAMPLE THERE ARE
SEVERAL EXAMPLES THAT HIGHLIGHT
THIS, CHIEF AMONG THEM WOULD BE
SECTION 776.051 WHICH PROVIDES
SIMPLY, THAT IN THE COURSE OF
AN ARREST NO INDIVIDUAL WILL
RESIST WITH VIOLENCE WHEN THE
OFFICER IS KNOWN OR REASONABLY
APPEARS TO BE A LAW ENFORCEMENT
OFFICER.
THAT KNOWLEDGE COMPONENT IS
WITH IN THE ACTUAL PLAIN
MEANING OF THE STATUTE.
IN ADDITION, THE
RECLASSIFICATION STATUTE THAT
FOCUSES ON ENHANCING BATTERIES
AND ASSAULTS ON POLICE OFFICERS
HAS ALSO BEEN FOUND BY THIS
COURT IN THOMSON -- THOMPSON TO
INCLUDE A SPECIFIC KNOWLEDGE
REQUIREMENT.
THAT THE STATE MUST PROVE THAT
THE DEFENDANT ACTUALLY KNEW HE
WAS ASSAULTING OR BATTERING A
LAW ENFORCEMENT OFFICER IN
ORDER TO SUSTAIN A CONVICTION.
>> EVEN UNDER THE STATE'S
POSITION, KNOWLEDGE ONE BE
IRRELEVANT AS IT WOULD BE AN
AFFIRMATIVE DEFENSE, RIGHT?
WE ARE TALKING ABOUT WHOSE
BURDEN IS IT HERE, FOR
KNOWLEDGE OR LACK THEREOF.
>> JUSTICE CANTERO, I WOULD
DISAGREE WITH THE STATE'S
ARGUMENT THAT IT IS AN
AFFIRMATIVE DEFENSE.
>> I KNOW YOU DISAGREE WITH IT,
BUT THAT IS WHERE WE ARE, IN
OTHER WORDS, EVEN UNDER THE
STATE'S POSITION, IF YOU PROVE
LACK OF KNOWLEDGE THEN STILL
YOU WOULD BE ACQUITTED OF THE
CRIME.
>> THAT IS CORRECT.
GENERALLY SPEAKING YES, AND I
SAY GENERALLY, JUSTICE CANTERO
BECAUSE IN THIS PARTICULAR CASE
WE COULD NOT EVEN EXERCISE THAT
SPECIFIC DEFENSE BECAUSE THE
STATE'S CLOSING ARGUMENTS WERE
SPECIFIC TO THE JURORS, YOU DO
NOT REACH THE QUESTION OF
KNOWLEDGE AT ANY POINT.
IN THE TRIAL COURT, THERE WAS
NO DISPUTE AS TO WHETHER OR NOT
KNOWLEDGE WAS AN AFFIRMATIVE
DEFENSE OR AN ELEMENT AS A
RESULT OF THE STATE'S CLOSING
ARGUMENTS, BOTH THE OPENING AND
THE CLOSING, CLOSING ARGUMENTS,
THERE WAS AN INSTRUCTION OR
RATHER AN ARGUMENT MADE TO THE
JURORS THAT WAS AFIRLD BY THE
TRIAL COURT THAT YOU WOULD
NEVER CONSIDER THE ACTUAL
KNOWLEDGE OF THE LAW
ENFORCEMENT OFFICER AT ANY
STAGE OF THE DELIBERATIONS.
>> THE DEFENDANT DIDN'T TESTIFY
-- I DIDN'T KNOW HE WAS AN
OFFICER.
>> THAT IS CORRECT.
THE DEFENDANT, MR. POLITE NEVER
TOOK THE STAND AT TRIAL AND NOW
A SECOND POLICE OFFICER WHO THE
EVIDENCE ESTABLISHED WAS THE
FULLY UNIFORMED POLICE OFFICER,
DID TESTIFY THAT MR. POLITE
SURRENDERED TO HIM SHORTLY
AFTER THIS INITIAL ALTERCATION
WITH OFFICER MUNOZ, THE VICTIM
IN THIS CASE.
>> IF THE BURDEN IS ON THE
STATE TO PROVE KNOWLEDGE, HOW
IS IT THE STATE IS GOING TO
PROVE SOMETHING THAT IS
PECULIARLY WITH IN THE
KNOWLEDGE OF THE DEFENDANT?
THE DEFENDANT WILL KNOW MORE HE
KNEW HE WAS AN OFFICER THAN THE
STATE WILL KNOW.
>> IN RESPONSE TO THAT QUESTION
I WOULD ACTUALLY -- AT -- ONE
POINT OF THE THIRD DISTRICT
COURT OF APPEALS, POLITE-2
DECISION WHERE JUDGE GERSTON
DISSENTED AND POINTED OUT THERE
ARE TWO WAYS OF PROVING THIS,
EITHER ACT BY DIRECT KNOWLEDGE
OR WHAT HAS BEEN ARGUED AS A
REASONABLY APPEAR, IN OTHER
WORDS, THE STATE CAN ESTABLISH
THE DEFENDANT SHOULD HAVE KNOWN,
KNOWLEDGE CAN BE IMPUTED
BECAUSE THE DEFENDANT SHOULD
REASONABLY HAVE KNOWN IT WAS A
LAW ENFORCEMENT OFFICER IT
WOULD BE A WAY BY WHICH IT
COULD BE PROVEN.
HOWEVER AS I SAID BEFORE, IN
THIS PARTICULAR CASE, WHETHER
YOU ARE TALKING ABOUT ACTUAL
KNOWLEDGE AS OPPOSED TO THIS
REASONABLE SHOULD HAVE KNOWN
STANDARD AT THE END OF THE DAY
IS A NONISSUE IN THE CASE
BECAUSE OF THE SPECIFIC
ARGUMENT MADE BY THE
PROSECUTORS AND THE TRIAL COURT
AND THEY CLEARLY TOLD THE
JURORS YOU DO NOT REACH THE
QUESTION OF KNOWLEDGE, BECAUSE
KNOWINGLY IN THIS PARTICULAR
CASE, AS THE PROSECUTOR HAS
EXPLAINED, ONLY REFERS TO THE
ACT OF RESISTING OPPOSING OR
OBSTRUCTING.
>> HAVE YOU BEEN ABLE TO FIND
ANY STATUTES THAT -- OR ANY
CASES THAT TALK ABOUT WHAT IS
MEANT WHEN BOTH KNOWINGLY AND
WILL FULLY IS USED, AGAIN, AS
YOU POINTED OUT IN THOMPSON, IT
TOOK A CASE THAT DIDN'T HAVE
ANYTHING ABOUT SPECIFIC
KNOWLEDGE AND FOUND THAT
KNOWLEDGE WAS THE ESSENTIAL
ELEMENT BUT I -- AND REALLY
WOULD BE FOR THE STATE, TOO, TO
ME, LIKE A DOUBLE WHAMMY,
SAYING KNOWINGLY AND WILL FULLY
AND DID YOU FIND ANY CASES THAT
TALKED ABOUT THE DUAL USE OF
THOSE WORDS AND WHETHER ONE
MODIFIES ONE PART AND THE OTHER
MODIFIES ANOTHER, YOU KNOW,
KNOWINGLY AS TO THE OFFICER,
WILL FULLY AS TO THE OBSTRUCT,
RESIST AND GETTING IN, RATHER
THAN TO THE POLICY ISSUES, TO
THE STATUTORY CONSTRUCTION
QUESTION.
>> YOUR HONOR I HAVE NOT FOUND
ANY SPECIFIC CASES THAT DISCUSS
THE INTERPLAY BETWEEN THE USE
OF KNOWINGLY AND WILL FULLY.
WHAT WE HAVE ARGUED IN OUR
INITIAL BRIEF, HOWEVER, IS THAT
UNDER THE BASIC RULES OF
STATUTORY CONSTRUCTION, EVERY
WORD IN THE STATUTE HAS TO BE
GIVEN A SPECIFIC MEANING.
WE HAVE TAKEN THE POSITION IN
OUR INITIAL BRIEF THAT IN THE
PARTICULAR CASE, THE PHRASE --
OR THE STATUTE THE WORD "WILL
FULLY" CONTAINS A KNOWLEDGE
COMPONENT.
SO IF YOU ARE GOING TO GIVE
EACH AND EVERY WORD IN THE
STATUTE MEANING YOU HAVE TO
ASSUME THAT KNOWINGLY MODIFIES
SOMETHING BEYOND SIMPLY THE ACT
OF RESISTING, OPPOSING OR
OBSTRUCTING.
OTHERWISE, IT BECOMES SUPER
FLEW US.
>> THAT IS A MATTER OF
STATUTORY --
>> HOW ABOUT DISCUSSING WITH US
JUDGE SCHWARTZ'S VIEW OF HOW
THE STATUTE IS TO BE CONSTRUED
AND WHY IS SCHWARTZ INCORRECT
AS TO THE ADD VERB AND THE VERB
AS HE HAS DESCRIBED IT IN HIS
GRAMMATICAL PROCESS.
>> JUSTICE WELLS, TAKEN IN
ISOLATION, I DO NOT
SPECIFICALLY DISAGREE OR CAN
DISAGREE WITH JUDGE SCHWARTZ'S
ANALYSIS THAT AT THE END OF THE
DAY, KNOWINGLY AND WILL FULLY
IS AN ADD VERBIAL PHRASE THAT
MODIFIES THOSE THREE SPECIFIC
ADD VERBS, HOWEVER LOOKING
BEYOND THAT OR, RATHER TO POINT
OUT TO THE COURT JUDGE SCHWARTZ
NEF ACTUALLY REACHES THAT
ASPECT OF STATUTORY
CONSTRUCTION THAT SAYS THAT YOU
HAVE TO GIVE EACH STATUTE OR
EACH WORD IN A STATUTE ITS
INDIVIDUAL MEANING AND SO IF
YOU SIMPLY SAY THAT THIS IS AN
ADD VERBIAL PHRASE, THAT IS ADD
VERBIAL PHRASE, THAT IS FINE,
HOWEVER IN THE CONTEXT OF
STATUTORY CONSTRUCTION,
KNOWINGLY AND WILL FULLY
ACTUALLY HAVE MEANING AND A
ROLE IN THE STATUTE AND "WILL
FULLY" CONTAINS A KNOWLEDGE
COMPONENT BUILT INTO IT AND BY
SAYING, SIMPLY, WILL FULLY
RESISD, ON STRUCKED OR OPPOSED
YOU ARE ACOME PLRK THE SAME
THING YOU WOULD SEEK TO
ACCOMPLISH WHETHER OR NOT THE
PHRASE OR WORD "KNOWINGLY" WERE
INSERTED INTO THE INSTITUTE I
WOULD SUSPECT THAT LT RESPONSE
TO THAT -- THAT THE RESPONSE TO
THAT IS THAT WHAT THERE COULD
BE A CONSTRUCTION THAT WOULD
SAY THE REASON THEY USE
"KNOWINGLY" AND WILL FULLY
BEFORE RESISTING IS THAT THERE
WOULD BE AND IN ADVERTENT BASIS
FOR THEIR -- AN INADVERTENT
BASIS FOR RESISTING OR THE
OTHER VERBS THAT ARE USED THERE
AND THAT THAT IS THE TYPE OF
LITERAL CONSTRUCTION THAT YOU
WOULD GIVE TO THIS TYPE OF
STATUTE.
WHY IS THAT NOT RIGHT?
>> JUSTICE WELLS I THINK THE
PROBLEM STILL REMAINS THAT EVEN
WITH A SPECIFIC JURY
INSTRUCTION THAT GOES BACK AND
EXPLAINS WHAT THE POTENTIAL
MOTIVATION OF THE LEGISLATURE
WAS, IN INSERTING THE WORD,
KNOWINGLY AND WILL FULLY, YOU
ARE STILL NOT HONORING THAT
CANON OF STATUTORY CONSTRUCTION,
YOU ARE STILL NOT PROVIDING OR
GIVING MEANING TO THE WORD,
KNOWINGLY "I AGREE WITH YOU,
CERTAINLY, WILL FULLY APLACE TO
THE ACT OF RESISTING,
OBSTRUCTING OR OPPOSING.
>> AS JUDGE SCHWARTZ POINT OUT
WHEN THE LEGISLATURE HASSETT
OUT IN PLAIN LANGUAGE THE
KNOWING REQUIREMENT SFERP AS
THE SCHOOL -- SUCH AS THE
SCHOOL BOARD MEMBER OR -- THEY
KNOW HOW TO DO IT, AND IN THIS
INSTANCE THE LEGISLATURE DID
NOT DO THAT.
WHY IS THAT NOT A FACTOR HERE?
>> WELL, JUSTICE WELLS, BECAUSE
IN CONSIDERING -- IN
CONSIDERING SUCH 843 -- SECTION
843.01 WE NEED TO LOOK AT THE
ENTIRE STATUTORY SCHEME THAT
INVOLVES THE PROTECTION OF LAW
ENFORCEMENT OFFICERS.
843.01 ONLY PROVIDES ONE ASPECT
OF PROTECTION THAT LAW
ENFORCEMENT OFFICERS ENJOY ON
THE STREETS UNDER FLORIDA LAW.
843 UPON 1, HOWEVER, SORT OF
STANDING OUT BY THE SIDELINES,
WHEN COMPARED TO HOW THIS COURT
-- EVEN THE FLORIDA LEGISLATURE
HAVE EVALUATED THE KNOWLEDGE
COMPONENT BE IT ACTUALLY
WRITTEN INTO THE STATUTE OR BE
IT INTERPRETERED INTO THE
STATUTE BY COURT DECISIONS, IN
EXAMPLES SUCH AS 843.0 2:E --
>> LET'S GET BACK TO SOMETHING
IN THE STATUTE, I WOULD LIKE
YOU TO ADDRESS -- I THINK THAT
THE VERY WORDS USED, I DON'T
KNOW IF THIS IS IN YOUR BRIEF
OR WHERE THIS WAS, BUT THE
WORDS RESIST OR OBSTRUCT, ITS
HARD TO KNOW HOW SOMEBODY COULD
RESIST OR OBSTRUCT UNLESS THEY
KNOW WHAT THEY ARE -- WHAT THEY
ARE DOING IS RESISTING OR
OBSTRUCTING LAW ENFORCEMENT
OFFICER, BECAUSE OTHERWISE
SOMEONE IS COMING ON THE STREET
AND USING FORCE TO DO SOMETHING,
YOU ARE NOT RESISTING OR
OBSTRUCTING IF YOU ARE TRYING 0
GET AWAY FROM THAT PERSON AND
ISN'T IT REALLY IN THE USE OF
THE WORDS, RESIST, OBSTRUCT,
THAT YOU -- THAT THAT IS
ANOTHER WAY THAT THIS STATUTE
HAS GOT TO HAVE SOME KNOWLEDGE
COMPONENT OF THE PERSON DOING
IT TO YOU IS A LAW ENFORCEMENT
OFFICER?
>> I --
>> WE DON'T -- YOU SEE THAT IS
WHY THE POLICY THING, YOU KNOW,
AND WHAT DID THEY INTEND AND
YOU DON'T KNOW THE PERSON IS A
LAW ENFORCEMENT OFFICER.
HOW DO YOU ACTUALLY RESIST OR
OBSTRUCT WITHIN THE MEEK OF THE
STATUTE?
>> I -- THE MEANING OF THE
STATUTE.
>> I AGREE AND THAT IS THE
REASONING THE COURT USES IN
THOMPSON WHERE IT FINDS SUB
SECTION 3 OF THE
RECLASSIFICATION STATUTE
NECESSARILY INCORPORATES A
KNOWLEDGE KMONT -- COMPONENT
AND GRANTED IN THOMPSON THE
COURT WAS LOOKING AT TWO SUB
SECTIONS WITHIN THE SAME
STATUTE, SUB SECTION 2 WHICH
TALKS ABOUT A BATTERY ON A
POLICE OFFICER AND THE COURT
FOUND IN THAT SPECIFIC CONTEXT
YOU WOULD HAVE TO KNOW THAT YOU
WERE BATTERING A LAW --
>> I'D LIKE TO GO BACK TO THE
QUESTION JUSTICE CANTERO ASKED,
I FOUND IT INTERESTING AFTER
GOING THROUGH THE WHOLE THING
KNOWLEDGE HAS NOTHING TO DO
WITH THE CRIME AND ESSENTIALLY
SAYING, BUT IT'S AN AFFIRMATIVE
DEFENSE.
WE HAVE HAD SOME -- WE ARE
DEALING RIGHT NOW, WITH HOW YOU
INTERPRET THE POSSESSION OF
DRUGS STATUTE AND SOME -- IT
SEEMS UNLIKE AFFIRMATIVE
DEFENSES IN THE CIVIL AREA,
SOMETIMES AFFIRMATIVE DEFENSES
IN THE CRIMINAL AREA, SIMPLY
MEAN THAT IF THE -- IF THE
DEFENDANT PUTS ON SOME EVIDENCE
TO SHOW THAT THERE WAS A LACK
OF KNOWLEDGE THEN THE BURDEN
NEVER LEAVES THE STATE.
THE STATE STILL HAS TO PROVE
KNOWLEDGE.
AND DID YOU DO ANY RESEARCH ON
WHETHER THAT -- IN TERMS OF
TRYING TO UNDERSTAND THE WHOLE
STATUTE, IF IT IS AN
AFFIRMATIVE DEFENSE, IF THE
STATE SAYS IT IS -- IS IT A
BURDEN SHIFTING AFFIRMATIVE
DEFENSE OR JUST THAT THERE IS A
PRESUMPTION OF COLLEGE THAT CAN
BE REBUT AND ONCE IT IS REBUT,
LIKE HERE BY THE SECOND OFFICER,
THAT --
HE SAID, NO, HE DIDN'T RESIST
ME, THEN THE BURDEN REMAINS ON
THE STATE?
>> YOUR HONOR, IN ANALYZING THE
QUESTION, I BEGAN WITH THIS
COURT'S DECISION IN CHICKONE
WHERE THE STATE RAISED THE
ISSUE, KNOWLEDGE IS AN
AFFIRMATIVE DEFENSE, IN THAT
CASE THE COURT FOUND THERE IS
ABSOLUTELY NO INDICATION THE
LEGISLATURE CONTEMPLATED AN
AFFIRMATIVE DEFENSE OF
KNOWLEDGE IN THE CONTEXT OF THE
DRUG POSSESSION AND
PARAPHERNALIA POSSESSION
STATUTES AND I BELIEVE --
>> NOW THEY HAVE ACTUALLY
AMENDED THE STATUTE AND NOW
THERE IS SOMETHING IN THE
NATURE OF AFFIRMATIVE DEFENSE
BUT DOESN'T APPEAR TO BE ONE
THAT SHIFTS THE BURDEN.
IT JUST SAYS THAT YOU HAVE TO
AT LEAST -- DEFENDANT AT LEAST
HAS TO SHOW SOMETHING THAT
WOULD SHOW THERE SOMEBODY A
LACK OF KNOWLEDGE BEFORE THEY
HAVE TO ACTUALLY PROVE BEYOND A
REASONABLE DOUBT THE OFFICER --
THE PERSON KNEW THE PERSON WAS
AN OFFICER.
>> YOUR HONOR I WOULD SAY THAT
I HAVE NOT ANALYZED THAT
QUESTION FROM THIS PERSPECTIVE
OF WHETHER IT IS A BURDEN
SHIFTING ISSUE OR NOT BECAUSE I
DON'T BELIEVE THAT IT ACTUALLY
CREATES' BURDEN SHIFT.
BUT THERE IS A BURDEN SHIFT
INHERENT IN THE STATUTORY
SCHEME AND SPECIFICALLY,
776.051.
UNDER THAT PARTICULAR STATUTE,
IT IS CLEAR THAT IN ANY CONTEXT
WHERE YOU HAVE AN ARREST
SITUATION, YOU MUST KNOW THAT
THE LAW ENFORCEMENT OFFICER WAS
INDEED A LAW ENFORCEMENT
OFFICER, THAT THAT MUST BE
ESTABLISHED BY THE STATE.
THAT IS HOW I HAVE READ THOSE
TWO STATUTES AND --
>> LET ME ASK YOU ABOUT 843.02.
ONE OF THE JUSTIFICATIONS IT
SEEMS FOR THE KNOWLEDGE OF THE
OFFICER IN 843.02 IS THAT
OTHERWISE YOU END UP WITH IN
SEND CONDUCT BEING
CRIMINALIZED.
DO WE HAVE THAT SAME KIND OF
CONSIDERATION WHEN YOU LOOK AT
843.01.
>> JUSTICE I THINK WE HAVE TO
HAVE THAT CONSIDERATION FROM A
MATTER OF PUBLIC POLICY.
IT IS ESSENTIAL, BECAUSE THE
DIVIDING LINE BETWEEN WHAT IS,
FOR EXAMPLE, A BATTERY OR
RESISTANCE IS SOMETIMES BLURRED
AND NOT CLEAR, ONE NECESSARILY
LENDS ITSELF TO THE OTHER AND
SEVERAL DISTRICT COURT JUDGES
HAVE EXPRESSED A SUBSTANTIAL
CONCERN WITH THE POSSIBILITY
THAT CITIZENS ON THE STREET
HAVE TO MAKE THESE SNAP
DECISIONS ABOUT WHETHER OR NOT
IF SOMEONE IN PLAIN CLOTHES
COMES IN BEHIND THEM AND GRABS
THEM, AS HAPPENED IN THIS DAYS
-- CASE, WHETHER THEY ARE
GRABBED BY I THINK JUDGE FARMER
INDICATED WHETHER YOU ARE BEING
GRABBED BY A DRUG DEALER OR A
LAW ENFORCEMENT OFFICER.
>> SO YOUR ARGUMENT REALLY
INCLUDES PUBLIC POLICY ISSUES
CONCERNING WHETHER OR NOT THEY
ARE GOING TO BASICALLY PROTECT
THE PUBLIC OR PROTECT THE
POLICE, UNDER THIS STULT.
>> MOST DEFINITELY, JUSTICE
QUINCE, THERE HAS TO BE A
BALANCING IN PLAY, WHERE WE ARE
LOOKING NOT ONLY TOWARDS THE
RIGHTS OF LAW ENFORCEMENT
OFFICERS WHO ARE ON THE STREETS,
PROTECTING THE PUBLIC, BUT,
ALSO THE INDIVIDUAL.
AND THAT IS WHY I THINK THE
CASE RAISES SUCH UNIQUE FACTS.
WE ARE NOT TALKING ABOUT A
UNIFORMED OFFICER.
WE ARE TALKING ABOUT A
PLAINCLOTHES OFFICER AND THE
IMPLICATION OF PASSING A LAW OR
INTERPRETING A PARTICULAR
STATUTE THAT SAYS ESSENTIALLY
YOU RUN THE RISK.
IF SOMEONE IN PLAIN CLOTHES WHO
YOU DON'T THINK OR DO NOT HAVE
REASON TO BELIEVE IS A LAW
ENFORCEMENT OFFICER GRABS YOU,
WHAT DO YOU DO?
AND I THINK THAT GIVEN HOW THIS
COURT AND THE LEGISLATURE HAS
WRITTEN OR INTERPRETED THE
OTHER STATUTES THAT FALL INTO
THE STATUTORY SCHEME OF
PROTECTING LAW ENFORCEMENT
OFFICERS KNOWLEDGE MUST BE SEEN
AS AN ESSENTIAL ELEMENT OF
SECTION 843.01.
>> NOT REALLY THE PLAIN MEANING
OF THE STATUTE.
WE REALLY DO HAVE TO ENGAGE IN
SOMETHING BEYOND THAT.
>> I WOULD THINK SO, JUSTICE
QUINCE, YES.
>> YOU ARE WELL INTO YOUR
REBUTTAL IF YOU WOULD TAKE TO
TAKE --
>> I WOULD, THANK YOU.
>> MAY IT PLEASE THE COURT, I'M
LA KREERB YEAH PITS, ASSISTANT
ATTORNEY GENERAL AND I
REPRESENT THE STATE OF FLORIDA.
>> YOUR FIRST VISIT TO THE
COURT.
>> YES, IT IS.
>> LET -- LET ME WELCOME YOU TO
THE COURT AND I BELIEVE
MR. GONZALEZ ALSO, GLAD YOU ARE
HERE.
DON'T USE YOUR TIME ON THAT.
>> THANK YOU.
>> THE STATE HAS TWO MAJOR
ARGUMENTS BEFORE THIS COURT.
ONE, THE OPINION DOES NOT
CONFLICT DIRECTLY WITH AF AS
WELL AS THE TRIAL COURT DID NOT
ERR IN DIE NIING THE
DEFENDANT'S MOTION FOR A
MISTRIAL AND DENYING THE
OBJECTION TO THE PROSECUTOR'S
STATEMENTS IN CLOSING ARGUMENT.
THE PROSECUTOR STATED THAT
BASED UPON THE ELEMENTS OF
RESISTING WITH VIOLENCE, THE
STATE DOES NOT HAVE TO PROVE
THAT THE DEFENDANT KNEW THAT
THE OFFICER WAS AN OFFICER.
THIS IS A CORRECT STATEMENT OF
LAW, AND THE TRIAL COURT
PROPERLY DENIED THAT OBJECTION
AND MOTION FOR MISTRIAL.
FIRST, GETTING TO THE CONFLICT
ISSUE WITH AF, THE STATE'S
POSITION IS THE CASE DOES NOT
CONFLICT WITH AF FROM OUT OF
THE 5th DISTRICT --
>> WE DO HAVE A CERTIFICATION
OF CONFLICT, CORRECT?
>> YES.
WE DO, A SERKT FICTION BASED
UPON AF, ONE LINE AT THE END OF
THE POLITE OPINION, THE THIRD
ONE WE ARE HERE ON THAT SIMPLY
SAID CERTIFIED WITH AF BUT IT'S
THE STATE'S POSITION UPON
REVIEWING AF, AF WAS A CASE
THAT DECIDED BASED UPON THE
SUFFICIENCY OF THE EVIDENCE
WHETHER OR NOT THERE WAS
SUFFICIENT EVIDENCE TO SUPPORT
THE CONVICTION FOR RESISTING
WITH VIOLENCE IN THAT CASE.
AND IN THAT CASE, THE STATE
PRESENTED ITS EVIDENCE, THE
DEFENDANT PRESENTED ITS DEFENSE,
THAT SHE DID NOT KNOW, MORE
REASONABLY COULD HAVE KNOWN AND
BASED UPON THAT EVIDENCE WE
HAVE THE --
>> LET'S ASSUME THERE IS
JURISDICTION BECAUSE JUSTICE
CON TAROT POINTED OUT THERE IS
CERTIFICATION OF CONFLICT AND
ISN'T IT BETTER TO GET THIS
RESOLVED AS TO WHETHER IT SEEMS
THE OTHER DISTRICTS BELIEVE
KNOWLEDGE IS PART OF THE
STATE'S BURDEN AND SO IT WOULD
SEEM THAT THAT IS SOMETHING WE
NEED TO RESOLVE.
>> THAT WOULD GO TO YOUR
QUESTION, THE DEFENSE WAS UP
HERE ADDRESSING THE ISSUE OF
WHETHER OR NOT THERE IS A
BURDEN SHIFTING SITUATION WHEN
YOU ARE ALLEGE!!ING -- INAUDIBLE
NAB IN THE CASE, THE RESEARCH I
CONDUCTED STATED IT'S NOT A
BURDEN SHIFTING AND THE STATE
MUST PROVE THE ELEMENT OF THE
OFFENSE ITSELF AND THE
DEFENSE'S RESPONSIBILITY IS TO
PRESENT EVIDENCE OF A PRIMA
FACIE CASE THAT SUPPORTS HIS OR
HER DEFENSE.
>> THAT IS WHERE I AM HAVING
TROUBLE WITH THIS STATE'S
POSITION HERE.
IF KNOWLEDGE OF THE OFFICER'S
STATUS IS NOT RELEVANT TO THE
OFFENSE, WHERE DOES IT BECOME
THAT IT IS AN AFFIRMATIVE
DEFENSE?
WHERE DOES THE STATE GET THAT
FROM?
IN OTHER WORDS, AS YUFS CAN --
JUSTICE CAN TEAR YO POINTED OUT,
IT IS SAYING THE -- WHERE DOES
IT COME FROM, THAT KNOWLEDGE IS
SOMETHING THEY CAN INSERT AS A
DEFENSE, OR LACK OF KNOWLEDGE?
>> THE STATE IS SAYING THAT THE
DEFENDANT MAY CHOOSE TO ELECT
THAT HE DID NOT KNOW MORE
REASONABLY SHOULD HAVE KNOWN.
>> HERE THE STATE SAID IT
WASN'T PART OF THE CRIME AND
KNOWLEDGE WAS NOT AN ISSUE.
AGAIN WHAT I AM ASKING YOU IS
WHERE IN THE LAW, THE STATUTES
DOES IT SAY INSTEAD OF IT BEING
AN ELEMENT, IT IS AN
AFFIRMATIVE DEFENSE?
WHERE DOES THE STATE GET THAT
FROM.
>> THE STATE VIEWS IN THE CASE
IT IS UNDISPUTED THIS IS AN
ARREST SITUATION.
AND THIS COURT HAS STATED IN
TIL LTMAN, AN ARREST SITUATION,
776.051 WILL APPLY PLY AND
776.051 THE LEGISLATURE WAS
VERY CLEAR THAT THE KNOWLEDGE
ELEMENT, WHETHER OR NOT HE
APPEARED OR REASONABLY --
WHETHER OR NOT HE KNEW OR THE
OFFICER APPEARED TO BE AN
OFFICER IS WHAT IN THE COURT
HAS INTERPRETED IS A DEFENSIVE
STATUTE AND BASED --
>> ISN'T THAT BASED ON THE
LANGUAGE OF THE -- BASED ON
SPECIFIC LANGUAGE IN THE
STATUTE, IN 776.051, ABOUT
KNOWLEDGE?
>> YES, THE STATUTE ITSELF
INCLUDES KNOWLEDGE WITH IN, IS
THAT YOUR QUESTION?
MAYBE I'M MISUNDERSTANDING.
>> YOU ARE SAYING THAT IN -- IN
TILMAN, 776.051 PROVIDES AN
AFFIRMATIVE DEFENSE OF LACK OF
KNOWLEDGE.
1 IS THAT WHAT YOU ARE SAYING?
>> NO, IT WAS NOT ON LACK OF
KNOWLEDGE, WE ARE NOT TRYING TO
SAY IT WAS LACK OF KNOWLEDGE,
WE ARE SAYING THE COURT CAME
OUT AND PRECISELY STATED IT
DOES NOT APPLY IN A NONARREST
SITUATION AND THIS PARTICULAR
CASE, IT IS NOT DISPUTED WE ARE
WITHIN AN ARREST SITUATION
BECAUSE THE CASE CAME BEFORE
THE COURT BASED UPON THE
PROSECUTOR'S STATEMENT --
>> BUT THE QUESTION IS, JUSTICE
PARIENTE IS ASKING, IS IF IT IS
NOT AN ELEMENT OF THE CRIME HOW
IS LACK OF KNOWLEDGE AN
AFFIRMATIVE DEFENSE UNDER THE
READING OF THE STATUTE.
>> WELL, IF I CAN LIKEN IT TO
THE CHICKONE SITUATION AND THE
LEGISLATURE COMING OUT WITH A
SUBSEQUENT STATUTE STATING THAT
THE DEFENDANT MAY RAISE LACK OF
KNOWLEDGE OF THE ILLICIT NATURE
OF THE DRUG POSSESSED AS A
DEFENSE, THE STATE WAS LIKE IN
776.05, SIMILAR TO THAT.
THE LEGISLATURE HAS COME OUT ON
THAT ISSUE IN AN ARREST CONTEXT
--
>> BUT THAT STATUTE, YOU SEE,
DEALS WITH THE -- A
MODIFICATION OF THE COMMON LAW
BECAUSE THE COMMON LAW, IF --
IF THE POLICE OFFICER'S ACTIONS
WERE ILLEGAL, YOU COULD USE
FORCE TO RESIST.
AND NOW, 776.0511 SAYS, NO, IF
THIS ARREST IS ELIMINATED, THAT
AS A -- AN ARGUMENT OR DEFENSE
-- BUT HERE WE DON'T HAVE AN
ISSUE OF LEGALITY OR ILLEGALITY
-- THERE IS NO QUESTION THAT
THEY HAVE RAISED THAT THIS IS A
LAWFUL -- WOULD BE A LAWFUL
ARREST AND I'M HAVING TROUBLE
SEEING HOW THAT STATUTE HELPS
YOU SAY THAT THIS MUST BE AN
AFFIRMATIVE DEFENSE IN ARREST
AND NONARREST SITUATIONS, TO
RESISTING AN OFFICER BITE
VIOLENCE.
>> ONE OF TWO THINGS, THAT IN
THE PARTICULAR CASE, WE CAN
RELY UPON 776.051, BECAUSE IT
-- THERE IS NO DEPUTY THERE IS
AN ARREST SITUATION.
AND THAT IN THE PARTICULAR CASE,
SINCE 776.051 DOES APPLY, AND
IF THE COURT IS IN AGREEMENT
THAT IN THAT STATUTE THE
LEGISLATURE HAS INCLUDED A
KNOWLEDGE ELEMENT, WITHIN THE
CONTEXT OF AN ARREST AND
APPLYING THE STATUTE IN THIS
CASE, AND WE'LL GET TO
NONARREST SITUATION BASED UPON
THE PLAIN LANGUAGE --
>> WHAT HAPPENS -- WHAT WOULD
HAPPEN -- WE ARE INTERPRETING
THE WHOLE STATUTE.
AND IF IT IS A NONARREST
SITUATION, THEN WHAT IS YOUR
INTERPRETATION OF THE STATUTE?
>> THE PLAIN LANGUAGE OF THE
STATUTE IN ADDITION TO THE
COURT THE KNOWLEDGE OF THE
OFFICER'S STATUS IS NOT
INCLUDED.
HOWEVER, THIS CASE WAS BROUGHT
UP ON THE PROSECUTOR'S CLOSING
--
>> FOLLOWING JUSTICE QUINCE'S
ARGUMENT, A NONARREST SITUATION,
IS LACK OF KNOWLEDGE AN
AFFIRMATIVE DEFENSE.
>> THE DEFENDANT MAY CHOOSE TO
RAISE IT AS AN AFFIRM --
>> BUT UNDER WHAT -- WHERE IS
IT THE LEGISLATURE SAID INSTEAD
OF BEING AN ESSENTIAL ELEMENT
IT'S AN AFFIRMATIVE DEFENSE IN
ARREST AND NONARREST
SITUATIONS.
>> I DO NOT HAVE A CASE FOR
THAT, YOUR HONOR, THE
INTERPRETER TAKES HAS BEEN THAT
IT IS ALONG THE LINES OF WHAT
YOU SAID BEFORE, IN THE
CRIMINAL CONTEXT THE DEFENDANT
MAY RAISE THE DEFENSE THAT HE
FEELS HE HAS PROVEN AND IN THIS
CASE, IF HIS DEFENSE WILL BE
KNOWLEDGE HE MUST PROVE BY HIS
EVIDENCE THAT HE DID NOT KNOW
MORE REASONABLY COULD HAVE
KNOWN THAT THAT WAS AN OFFICER.
THAT CAN BE RAISED IN ANY
CONTEXT, WITH THE STATE'S
POSITION, AND WE ARE NOT
PRECLUDING THE DEFENDANT FROM
RAISING IT AS AN AFFIRMATIVE
DEFENSE.
>> WHAT BOTHERS ME IS IT SEEMS
WE ARE GOING TO HAVE TWO WAYS
TO INTERPRET THE STATUTE,
DEPENDING ON WHETHER OR NOT WE
ARE TALKING ABOUT AN ARREST
SITUATION, OR NONARREST
SITUATION.
NOW --
>> THE STATE --
>> WHY SHOULD WE HAVE TO GO
THROUGH THOSE KINDS OF
GYMNASTICS.
>> IN PARTICULAR, BASED UPON
THE JURISDICTION OF THIS CASE,
AND BEING ON THE AFFIRMATIVE --
I'M SORRY.
ON CLOSING ARGUMENTS BASED UPON
A RESISTING ARREST WITH VIOLENT
SITUATION, HOWEVER, THE STATE'S
POSITION IS STILL THAT YOU WILL
NOT BE MAKING TWO DIFFERENT
SITUATIONS ON THE KNOWLEDGE
ELEMENT.
IF AN ARREST OR NONARREST
SITUATION THE STATE ARGUES THAT
KNOWLEDGE OF THE OFFICER'S
STATUS WILL BE A DEFENSE AND
THE DEFENDANT MAY OR MAY NOT
CHOOSE TO RAISE.
AND THAT IT WILL BE A DEFENSE
IN ANY SITUATION, SO THE STATE
IS NOT PRECLUDING THE PERSON
FROM MAKING IT A DIS SENT, AS I
AM ANSWERING YOUR QUESTION AND
WE ARE IN THE ASKING FOR THERE
TO BE TWO INTERPRETATIONS OF
THE LAW, WE ARE STATING THAT
BASED UPON THE FACTS OF THIS
CASE AND THE ISSUE BEFORE THE
COURT IN THE CASE, THERE IS NO
DISPUTE IT IS AN ARREST
SITUATION.
AND SO, AS THE COURT LIMITS ITS
ANALYSIS BECAUSE THE CASE IS
LIMITED, THEN THERE IS NO ISSUE
HERE IN THIS CASE AND CAN'T
RESOLVE THE CASE WITHOUT
GETTING TO THE LARGER ISSUE.
>> LET ME GET TO THE -- GET TO
THE STATUTE ITSELF AND TALKING
TO YOUR OPPOSING COUNSEL ABOUT
HOW SCHWARTZ HAD REFERRED TO
THE ADD VERBS -- ADVERBS AND
GAVE US A GRAMMAR LESSON IN THE
INTERPRETATION OF THE STATUTE.
BUT HOW DOES THIS STATUTE,
WHERE YOU HAVE KNOWINGLY AND
WILL FULLY RESISTING, DIFFER IN
THAT CONSTRUCTION FROM 775.072
WHICH IS WHENEVER ANY PERSON IS
CHARGED WITH KNOWINGLY
COMMITTING AN ASSAULT OR
BATTERY, AND IT SEEMS TO ME AND
THIS COURT HELD IN THOMPSON,
NOT ONLY KNOWLEDGE WAS AN
ELEMENT IN RESPECT TO THAT
STATUTE, AND SO HOW CAN IT BE
AN ELEMENT IN RESPECT TO THAT
STATUTE AND NOT AN ELEMENT WITH
RESPECT TO KNOWINGLY RESISTING?
>> YES.
LOOKING AT THE THOMPSON CASE AN
SUBSECTION TWO OF THAT STATUTE
IT INCLUDES THE KNOWINGLY
COMMITTING AN ASSAULT AND THE
NEXT SECTION IS KNOWINGLY
COMMITTING A BATTERY.
THE STATE'S POSITION IS THAT IN
THOMPSON THE COURT WAS, ONE,
REVIEWING THIS TYPE OF
ENHANCEMENT STATUTE THAT
ENHANCED ALREADY WHAT WAS A
SPECIFIC INTENT.
OFFENSES.
THEREFORE, SINCE THE COURT
DETERMINED THAT RESISTING WITH
VIOLENCE IS NOT A SPECIFIC
INTENT BUT A GENERAL INTENT
CASE, GENERAL INTENT OFFENSE WE
DON'T HAVE THE SAME SITUATION
GOING ON.
KNOWINGLY COMMITTING A SPECIFIC
INTENT IS DIFFERENT THAN OUR
CASE WHICH IS SIMPLY A GENERAL
INTENT WHERE THE COURT ALREADY
INTERPRETED THAT THE KNOWINGLY
IS TO THE ACT PERFORMED ITSELF.
SO WE WOULD DISTINGUISH THE TWO
-- THE KNOWINGLY COMMITTING AND
ASSAULT AND KNOWINGLY
COMMITTING A BATTERY, UNDER
THOMPSON WHICH WE DO NOT FEEL
IS RELEVANT --
>> WE SAID, EVEN THOUGH WE USED
THAT IT IS NOT A SPECIFIC
INTENT, THE PLAIN LANGUAGE
REVEALED THE DEFENDANT MUST
HAVE A GENERAL INTENT TO
KNOWINGLY AND WILL FULLY IMPEDE
AN OFFICER IN THE PERFORMANCE
OF HIS OR HER DUTIES.
IT SEEMS, ALTHOUGH WE WEREN'T
INTERPRETING THE PHRASE YOU
CANNOT KNOWINGLY AND WILL FULLY
IMPEDE AN OFFICER IN THE
PERFORMANCE OF HIS OR HER
DUTIES UNLESS YOU KNOW THE
PERSON, INSTEAD OF BEING A DRUG
DEALER IS A POLICE OFFICER.
BUT I DON'T SEE ANYTHING WE ARE
SAYING HERE IS IN CONSISTENT IF
WE WERE TO REJECT THE STATE'S
POSITION WITH THE COURT'S
OPINION IN FREY, DO YOU?
>> --
>> THAT LANGUAGE THAT I JUST
SAID, IS THAT THERE MUST HAVE A
GENERAL INTENT TO KNOWINGLY AND
WILL FULLY IMPEDE AN OFFICER IN
THE PERFORMANCE OF HIS OR HER
DUTIES.
HOW DO YOU KNOWINGLY AND WILL
FULLY OBSTRUCT, RESIST OR
IMPEDE UNLESS YOU KNOW THIS
PERSON ARE DOING THAT TO IS AN
OFFICER?
>> WELL, YOU CAN KNOWINGLY
OBSTRUCT OR KNOWINGLY OPPOSE.
IN THIS PARTICULAR CASE THE
OFFICER MUNOZ TESTIFIED THAT
WHEN HE ATTEMPTED TO GRAB THE
DEFENDANT'S WRIST TO HANDCUFF
HIM THE DEFENDANT PULLED AWAY.
THAT IS A KNOWING -- IT IS --
MEANING IT'S NOT A REFLECTIVE
-- HE IS INTENTIONALLY
KNOWINGLY RESISTING WHAT IS
BEING DONE TO HIM AND WHETHER
OR NOT THAT IS A POLICE OFFICER,
EVEN TO HIM IS IRRELEVANT AT
THAT POINT.
>> EXCUSE ME, IF YOU ACCEPT
THAT ARGUMENT, THEN THE
SO-CALLED AFFIRMATIVE DEFENSE
IS IRRELEVANT YOU TALK WITH THE
OTHER JUSTICES ABOUT USING
VIABLE FORCE AS A DEFENSE AND
IF KNOWING THE OFFICER IS
IRRELEVANT AS YOU SAID, THEN IF
A TRIAL JUDGE IS ASKED TO ALLOW
THE DEFENSE, AND THE STATE
ARGUES, JUDGE THAT IS
IRRELEVANT.
BECAUSE THAT DEFENSE IS
IRRELEVANT TO THE OFFENSE AS
CHARGED.
>> EVEN IN THIS CASE THE STATE
ALLOWED FOR THE REASONABLY
SHOULD HAVE KNOWN AS A DEFENSE,
I KNOW YOU ARE INTERPRETING
WHAT MAY --
>> WHAT IS IT A DEFENSE TO IF
NOT AN ELEMENT OF THE OFFENSE?
>> IF YOUR POSITION IS IT IS
IRRELEVANT WHETHER THE PERSON
KNEW OR SHOULD HAVE KNOWN THE
PERSON WAS A LAW ENFORCEMENT
OFFICER, WHAT DOES IT MATTER,
THE SO-CALLED DEFENSE, IF IT IS
IRRELEVANT.
>> I MAY HAVE MISSPOKEN, IN THE
POSITION OF THE STATE TO THE
DEFENDANT, IT WAS IRRELEVANT,
WHETHER OR NOT THAT PERSON AS A
LAW ENFORCEMENT OFFICER AND TO
YOUR SPECIFIC QUESTION OF IT
BEING AN --
>> I'M NOT SURE I UNDERSTAND
THAT RESPONSE.
IRRELEVANT TO THE PERSON, TO
THE DEFENDANT AS TO WHAT THE
PERSON --
>> THIS PERSON DECIDED TO USE
VIOLENCE --
>> IT DOESN'T SAY VIOLENCE, IT
COULD BE ANY KIND OF CASE, IT
COULD BE ANY KIND OF
OBSTRUCTION AND ANY KIND OF
RESISTANCE, WHETHER VIOLENT OR
NOT AND STANDING IN THE PATH OF
ONE COULD BE RESISTANCE, IS
THAT WHAT YOU MEANT TO SAY,
IRRELEVANT TO THE DEFENDANT.
>> NO, I'M SAYING UNDER THE
FACTS OF THIS PARTICULAR CASE,
AND HIS RESISTANCE OF THE
OFFICER, WHEN HE RAN UP TO OFF
SANTIAGO HE SAID I'M NOT SURE
THAT THAT WAS AN OFFICER.
AND TO HIM, IT WAS NOT RELEVANT
WHETHER OR NOT THAT PERSON HE
USED VIOLENCE AGAINST WAS OR
WAS NOT AN OFFICER.
THAT IS WHAT I MEANT.
>> PLEASE ANSWER THE QUESTION
--
>> AND NOW I SORT OF FORGOT
WHERE I WAS GOING TO GO ON THAT
QUESTION.
YOUR QUESTION WAS TO TRIALS
THAT MAY COME AND THE STATE
COMING BACK AND STATING IT
DOESN'T RELATE TO THE OFFENSE
ITSELF, FOR HIM TO SAY, I DID
NOT KNOW OR KNEW.
THE CASE LAW AND I REMEMBER THE
NAME BUT I CAN'T GIVE YOU A
CITE AND CAN SOME PLMENT THE
RECORD WITH IT, AND IN TERMS OF
ALLEGING AN AFFIRMATIVE DEFENSE,
THE DEFENDANT SAYS THEY ACCEPT
THE STATE'S EVIDENCE AS PROVEN,
IN THIS CASE, THE STATE MUST
PROVE HE KNOWINGLY HE CYST AND
THE STATE MUST PROVE HIS
ACTIONS ROSE TO VIOLENCE.
AND AT THAT POINT, WE HAVE ALL
CITIZENS ARE -- KNOW VIOLENT
BEHAVIOR IS IN AND OF ITSELF
UNLAWFUL AND AT THIS POINT WE
HAVE AN OFFENSE.
>> WHAT WOULD IT BE IF HE WAS A
-- NOT AN OFFICER, AND COMES UP
TO YOU, YOU HAVE JUST TRIED --
A HOMELESS MAN AND SOMEONE ELSE
COMES UP AND GRABS HIM FROM
BEHIND.
ALL RIGHT?
DOES HE SUBMIT TO THAT
AUTHORITY.
>> EVER -- THERE ARE DIFFERENT
CHOICES OF WHAT TO MAKE IN THAT
SITUATION BUT I WILL TRY TO
DISTINGUISH THAT THIS IS NOT A
CASE WHERE THE DEFENDANT IS
ALLEGING FORCE WAS USED AGAINST
HIM.
THAT IS A DIFFERENT SCENARIO.
WE ARE -- RESISTING WITH
VIOLENCE, WE ARE WITHIN THE
CONTEXT OF -- AS THE U.S.
SUPREME COURT SAID, THIS IS NOT
A SITUATION WHERE THIS
DEFENDANT IS SAYING FORCE IS
BEING USED AGAINST ME, THERE
FOR I USE LIKE FORCE.
THE DEFENDANT SAID, I DIDN'T
FACT USE VIOLENCE AGAINST THE
PERSON, NO MATTER WHO THE
PERSON WAS OR WAS NOT.
>> LITTLE EXCHANGE --
STRANGE WHAT HAPPENED, HERE HE
IS PATROLLING, THE MAN, A
HOMELESS MAN, SHAKING A PARKING
METER AND HE GOES AND HE GETS
HIS HANDCUFFS OUT AND HE IS --
GRABS HIS WRIST AND I MEAN,
WE'RE NOT -- I MEAN, THE FACTS
OF THIS CASE ARE NOT EXACTLY
COMPELLING FOR THE STATE.
>> AS THE OFFICER, WHO WAS
UNDERCOVER, WHAT HE WAS DOING
TRYING TO HANDCUFF A HOMELESS
MAN JUST -- HAD JUST SHAKEN A
PARKING METER.
>> IF I MAY RESPECTFULLY ADD TO
THE FACTS PRESENTED AT THE
TRIAL --
>> FACTS FROM THE TRIAL, YOU
MEAN.
>> YES, NOT ADD -- NO, NO, I
WOULD NOT ADD.
FACTS ON THE RECORD HERE,
OFFICER MUNOZ TESTIFIED THAT HE
WATCHED THE DEFENDANT GO TO
SEVERAL MARKING -- PARKING
METER AND THE LAST ONE HE PUT
SOMETHING IN IN ORDER TO
RETRIEVE COINS FROM MEET AND
THE DEFENDANT CONCEDED AT TRIAL
THAT THAT DEFENDANT WAS
COMMITTING THE OFFENSE OF TAMP
EER --
>> WHAT LEVEL CRIME THAT IS.
>> THAT IS A MISDEMEANOR, YOUR
HONOR.
>> OKAY.
SO THAT IS -- I'M SAYING THE
CRIME THAT WAS -- IT WANT LIKE
HE HAD BROKEN INTO, YOU KNOW,
7-ELEVEN AT NIGHT.
AND I'M NOT MINIMIZING TAKING
MONEY FROM THE PARK -- PARKING
MOOTER.
YOU WERE SAYING THAT IT IS NOT
JUST -- HE DIDN'T -- YOU SAID
THE OFFICER DIDN'T USE FORCE
AND I'M SAYING IT SEEMED
STRANGE TO GRAB HIS HANDCUFFS
AND GRABBED HIS WRIST AND THEN
THERE WAS A REACTIVE -- OF THE
DEFENDANT.
>> THERE WAS ADDITIONAL
EVIDENCE IN THAT IN ADDITION TO
COMMITING THE OFFENSE WHICH HE
KNEW HE WAS COMMITTING AND THE
OFFICER SAID STOP, POLICE,
IDENTIFIED HIMSELF, YOU ARE
UNDER ARREST AND ALL DONE
BEFORE THE ATTEMPT TO -- AND
WHAT I AM SAYING IS NO USE OF
FORCE, THE OFFICER IS ONLY
ATTEMPTING TO HANDCUFF THIS
DEFENDANT AND I WANTED TO MAKE
THE SCENARIO -- DIDN'T WANTED
TO MAKE A SCENARIO OF SOMEONE
BEING ATTACKED AND CHOOSING
WHETHER OR NOT TO USE FORCE.
>> IN THE CASE DIDN'T THE
OFFICER REMOVE HIS -- THE SIGNS
OF HIS AUTHORITY AS A POLICE
OFFICER, HIS BADGE.
>> THE BADGE --
>> AND [INAUDIBLE].
>> A POLICE OFFICER AT THAT
POINT.
--
>> LET ME ASK YOU THIS.
>> HE TAKES IT OFF.
>> NO, NO, NO.
HE HAD A T-SHIRT ON THAT HAD A
POCKET AND HAD A SHIRT OVER HIS
POCK AND WHEN HE WAS UNDERCOVER
THE BADGE WAS IN THE POCKET.
HE STATED AND DEMONSTRATED FOR
THE JURY HOW HE REMOVED THE
BADGE AND THAT IS WHAT HE SAID
HE IMMEDIATELY -- IMMEDIATELY
DID AND SAID STOP --.
>> EVIDENCE SAID HE REMOVED HIS
BAG.
>> OUT OF THE POCKET AND
DEMONSTRATED HOW -- THAT IS NOT
THE OPINION BY JUDGE SCHWARTZ,
FOOTNOTE ONE, HE SAYS HE
REMOVED HIS BADGE.
>> THE OPINION -- THE OPINION
DESCRIBES THE SHIRT, AND I
CAN'T RECALL FURTHER, IF HE WAS
WEARING A T-SHIRT --
>> ANYWAY.
>> AND DISPLAYED IT FOR THE
DEFENDANT --
>> YES.
THE EVIDENCE AT THE TRIAL,
DEMONSTRATED THAT IT WAS
DISPLAYED.
>> THAT IS TOTALLY -- TOTALLY
CONTRARY TO JUDGE SCHWARTZ'S
INITIAL OPINION AND HE
INTENTIONALLY -- DID HE
INTENTIONALLY LEAVE IT OUT, HE
MAKES THE STATEMENT IN FOOTNOTE
ONE THAT THE OBSERVED AND
REMOVED HIS BADGE AND
APPROACHED THE DEFENDANT,
STATING PLEERBS, YOU ARE UNDER
ARREST AND WOULDN'T YOU THINK
THE JUDGE WOULD BE HONEST
ENOUGH TO SAY HE DEMONSTRATED
HIS BADGE IN RENDERING HIS
OPINION.
>> IT WAS NEVER A DISPUTED
ISSUE ON APPEAL.
I CAN'T SAY IN -- JUDGE
SCHWARTZ TYPING THAT BUT IT WAS
NEVER A DISPUTED ISSUE AND AS I
STATED THE PROSECUTOR --
>> IT IS PART OF THE DISPUTED
EVIDENCE WITH REGARD TO WHETHER
YOU HAVE TO KNOW WHETHER IT IS
A POLICE OFFICER AND THAT WOULD
BE ANOTHER INCIDENCE OF
AUTHORITY.
>> THAT HAS NOTHING TO DO WITH
IT, THE OFFICER REMOVES ALL
EVIDENCE OF AUTHORITY, AND
SHOULD HAVE NO PART IN WHAT IS
GOING ON WITH THAT ANALYSIS BE
THE.
>> -- ANALYSIS THEN.
>> I'M NOT SURE IF YOU ARE
RELATING TO AF.
>> I'M RELATING TO WHETHER YOU
KNOW IT IS A POLICE OFFICER OR
SENATE WE ARE SAYING, THE
DEFENDANT STATES THAT HE DID
NOT KNOW MORE REASONABLY SHOULD
HAVE KNOWN IT WAS A POLICE
OFFICER THE STATE HAS TO REBUT
THE ARGUMENT.
>> LET ME ASK YOU BEFORE YOU
SIT DOWN, SEEMS TO ME THE WORDS,
RESIST OR OPPOSES IMPLY AN
ELEMENT OF INCIDENT JUST BY THE
PURE WORD ITSELF.
IN OTHER WORDS, YOU CAN'T
INADVERTENTLY RESIST AN OFFICER
IN PERFORMANCE OF A LEGAL DUTY
AND YOU CAN'T INADVERTENTLY
OPPOSE AN OFFICER IN
PERFORMANCE OF A LEGAL DUTY AND
SEEMS LIKE UNDER YOUR
INTERPRETATION OF THE STATUTE,
THE WORDS, KNOWINGLY AND WILL
FULLY WOULD BE SUE PURR FLUS --
SUPERFLUOUS, BECAUSE ALL YOU
HAVE TO DO IS SAY THEY
RESTRICTED OR OPPOSED AN
OFFICER IN HIS --
>> A SITUATION OF A PERSON WHO
HAS UNCONTROLLABLE MOVEMENTS
AND THINGS --
>> THEN ARE NOT RESISTING IF IT
IS UNCONTROLLABLE MOVEMENT YOU
ARE NOT RESISTING, ARE DOING
SOMETHING ELSE.
IF IT IS A AN UNCONTROLLABLE
MOVEMENT YOU ARE NOT OPPOSING
THE OFFICER, YOU ARE DOING
SOMETHING ELSE.
SO I'M ASKING WHY ISN'T THE
WORD RESIST OR OPPOSED, WHY
DON'T THEY IMPLY IN THEMSELVES
AN ELEMENT OF INTENT SO THAT
THE QUALIFYING PHRASES,
KNOWINGLY AND WILL FULLY HAVE
TO ADD SOMETHING MORE THAN THE
FACT THAT YOU WERE RESISTING.
>> I HAVE DONE SIMPLE RESEARCH
ON THE WORD RESIST MYSELF AND
IT WAS NOT INTERPRETATION OF
THE RESIST AND UNFORTUNATELY I
CAN GET BACK TO THE COURT ON
THAT PARTICULAR ISSUE.
>> WITH OUR ASSISTANCE YOU HAVE
WELL GONE BEYOND, PLEASE MAKE
YOUR CONCLUDING REMARK AND THEN
--
>> INCLUSION, THE STATE IS
ARGUING THAT THE -- THIS DID
NOT PRINT A CONFLICT WITH AF IN
ADDITION, BASED UPON STATUTORY
CONSTRUCTION THAT THE CASE IS
UNDEPUTILY A -- AN ARREST
SITUATION AS WELL AS DISCOURSE
DETERMINATION THAT IT IS YOU A
GENERAL INTENT OFFENSE THAT
KNOWLEDGE OF THE OFFICER'S
STATUS, WAS NOT A REQUIREMENT
UNDER RESISTING WITH VIOLENCE
AND EVEN IF IT HAD BEEN THE
STATE ARGUED AND PROVED THAT HE
REASONABLY SHOULD HAVE KNOWN
FOR THE PROSECUTOR'S CLOSING
ARGUMENT IT WAS NOT AN
INCORRECT STATEMENT OF LAW,
THERE ARE ALTERNATIVE KNOWLEDGE
OR REASONABLY SHOULD HAVE
KNOWN.
THANK YOU.
>>.
>> THE PRACTICAL EFFECT OF THE
STATE'S ARGUMENT OR THE THEORY
OF SECTION 843.01 IS SIMPLY FOR
THOSE INDIVIDUALS WHO ARE
CHARGED WITH A NONARREST-BASED
VIOLATION OF SECTION 843.01,
THERE IS NO DEFENSE OTHER THAN
I HAD AND IN VOLUNTARY BODY
MOVEMENT THAT STRUCK SOMEONE
WHO HAPPENED TO BE A POLICE
OFFICER.
THIS IS SIMPLY INCONGRUOUS WITH
THE INTERPRETATION OF THAT
STATUTORY SCHEME TARGETING AND
PROTECTING LAW ENFORCEMENT
OFFICERS THAT THE FLORIDA
LEGISLATURE EN INCOMED AND THIS
COURT HAS INTERPRETED,
PARTICULARLY IN THE CASE OF
THOMPSON.
IT IS CLEAR FROM THOSE -- FROM
THOMPSON BUT ALSO -- AND I'LL
ADDRESS THE ISSUE OF
AFFIRMATIVE DEFENSE IN A SECOND
BUT FROM THE THOMPSON
PERSPECTIVE, IT IS CLEAR THAT
THE QUESTION OF KNOWLEDGE,
KNOWLEDGE OF THE LAW
ENFORCEMENT OFFICER'S OFFICIAL
STATUS IS AN INHERENT COMPONENT
OF THE STATUTES, NOT ONLY WITH
RESPECT TOD RECLASSIFICATION
STATUTE AS THOMPSON ADDRESSED
BUT ALSO THE OTHER STATUTES AS
-- 776.051 --
>> HAVE WE HELD THAT AFTER THE
LEGISLATURE IN A CASE TO WHICH
WHEN THE LEGISLATURE REENACTED
THE THOMPSON STATUTE IN 784 .01,
THAT THERE WAS A KNOWLEDGE
COMPONENT IN THAT
RECLASSIFICATION?
>> YOUR HONOR, THE THOMPSON
DECISION FOCUSED ON SUB SECTION
--
>> BUT THE LEGISLATURE HAD
REENACTED AFTER GRENWICH IN
CARPIER AND THOMPSON DIDN'T
DEAL WITH THE REENACTED, IT
DEALT WITH THE STATUTE BEFORE
IT WAS PLACED IN 770.
-- 782.-- I THINK IT WAS 782 --
784.07.
>> THAT IS CORRECT, YOUR HONOR,
YES.
YES.
>> AND THAT MY QUESTION IS, HAS
THERE BEEN A KNOWLEDGE
COMPONENT THAT YOU KNEW THE
PERSON WAS A LAW ENFORCEMENT
FOR THAT RECLASSIFICATION.
>> IN -- POST THE REENACTMENT.
I DON'T BELIEVE SO, JUSTICE
WELLS BUT I DON'T BELIEVE THAT
THAT CHANGES THE OUTCOME OR
ANALYSIS WITH RESPECT TO
SECTION 843.01 THE PRACTICAL
EFFECT IS TO FORCE COURTS AND
DEFENDANTS TO PARSE THROUGH
COMPETING AND CERTAINLY IN
OPPOSITE INTERPRETATIONS OF THE
SAME STATUTE AND MAKES NO SENSE
FROM A PUBLIC POLICY STANDPOINT
ALSO TO SAY THAT ONE TYPE OF
VIOLATION OF SECTION 843.01
WILL HAVE XYZ ELEMENTS WHILE
ANOTHER TYPE OF VIOLATION WHICH
MAY BE RELATED OR DISSIMILAR BY
A HAIR WILL REQUIRE A DIFFERENT
TYPE OF ANALYSIS OR DIFFERENT
TYPE OF BURDEN OF PROOF FOR THE
STATE AND WITH RESPECT TO THE
QUESTION OF AN AFFIRMATIVE
DEFENSE I WOULD AGAIN RELY ON
THE COURT'S REASONING IN
CHICKONE AS TO WHETHER OR NOT
KNOWLEDGE IS AN AFFIRMATIVE
DEFENSE AND I DON'T BELIEVE
THAT 776.051 IS AN AFFIRMATIVE
DEFENSE.
NUMBER ONE, THERE IS NO
EVIDENCE, NO STATUTORY OR OTHER
AUTHORITY THAT WOULD EVEN
SUGGEST THAT THE LEGISLATURE OR
THE COURTS HAVE CONTINUE
STRAIGHT 776.051 AS AN
AFFIRMATIVE DEFENSE, FOR THOSE
REASONS I WOULD URGE THE COURT
TO ADOPT THE INTERPRETATION
843.01 CONTAINS A SPECIFIC
KNOWLEDGE REQUIREMENT, EVIDENCE
OF THE OFFICER'S OFFICIAL
STATUS IS AN ESSENTIAL ELEMENT.
THANK YOU.
>> THANK YOU VERY MUCH.
AND LET ME SAY TO BOTH OF YOU
ON BEHALF OF THE COURT I DON'T
BELIEVE I EVER RECEIVED BETTER
ARGUMENT FOR FIRST-TIME
INDIVIDUALS COMING TO THE COURT
THAN WE HAVE HAD ON WHAT COULD
BE A DIFFICULT STATUTORY
INTERPRETATION, ON BEHALF OF
THE COURT, LET ME THANK YOU AND
AS YOUNG LAWYERS COMING IN, I'M
PROUD TO BE A LAWYER.