Weeks after Gov. Ron DeSantis proposed a crackdown on civil disobedience and protesters who target police, a Florida prosecutor has instructed her staff to stop pursuing resisting arrest charges in many cases.
Police have used resisting arrest charges to stifle protests and free speech, said State Attorney Aramis Ayala, whose jurisdiction covers almost 1.8 million people in Orange and Osceola counties.
She’s tangled with DeSantis and his predecessor before over her refusal to seek the death penalty. The state Supreme Court backed former Gov. Rick Scott’s decision to re-assign such trials. DeSantis may challenge her again, she suspects.
“I would not be surprised if there was an attempt for some type of political gratification, but I’m just defining alternative methods of prosecution,” she told CNN.
Officers undermine public safety when they bring “the force of our criminal justice system to bear against nonviolent citizens who are simply promoting the change our society so desperately needs,” her policy, announced Tuesday, says.
Abuse of power is another factor, she said. Especially when dealing with African Americans, police too often charge people with resisting arrest as a retaliatory measure or to cover up their own misdeeds, she said.
Under the policy, most people charged with nonviolently resisting will be ordered to watch a 30-minute video on the importance of obeying police. Offenders who have been arrested in the previous six months for resisting arrest will be prosecuted normally, the policy says.
Data shows that between September 2019 and September 2020 police charged Black residents with resisting arrest almost twice as often as other demographics combined, despite African Americans making up less than 21% of the counties’ populations. The contrast could be starker for people of color in general, Ayala said, but her arrest data doesn’t differentiate between White and Hispanic.
Prosecuting the cases encourages disproportionate policing, saps needed resources, creates trauma and long-term economic hardships and fosters distrust in the legal system, the policy says.
While research shows correlations between public trust and public safety, Ayala said, there’s nothing that indicates prosecuting nonviolent resisting arrest charges leads to less crime.
“There is absolutely no research that supports the nexus,” she said, “between a person who is arrested for resisting an officer without violence and future criminality.”
Other cities, including Chicago, New York and San Diego, reportedly have had similar racial disparities in resisting arrest charges, and some prosecutors have taken steps similar to Ayala’s. But Ayala believes hers is the nation’s most sweeping, she said.
‘It’s a bad decision’
Ayala’s team will still pursue cases involving violence or other aggravating factors, but the resisting arrest announcement isn’t sitting well with some of the 21 police agencies in her sprawling Ninth Circuit.
Heads of her circuit’s two largest police agencies say they worry Ayala’s policy was hastily conceived and will create problems if people are emboldened to defy lawful orders, they told CNN.
“That could start the chain of events that leads to us using more force, where we were just detaining you and had reasons to stop you and just wanted you to get out of the car or come and sit down,” Orange County Sheriff John Mina said. “We just think this is going to confuse our residents.”
It will also encourage drug dealers carrying narcotics to flee, the sheriff said.
“We already have an issue with people, when being stopped by law enforcement, pulling out their phone and refusing to get out of the car,” Mina said. “Police give a lawful command, you need to follow instructions.”
He and Orlando Police Chief Orlando Rolón were not consulted before Ayala’s Tuesday announcement. Rolón and Ayala briefly discussed the matter at an event this month, he said.
Ayala provided CNN a letter she sent to police chiefs and sheriffs the day before the announcement, but Mina didn’t receive it, he said. Only Windermere Police Chief David Ogden responded, Ayala said, asking to see the video.
“It caught many people off guard … In the end, it’s about communication,” Rolón said. “We all want a nation where people feel that they are being policed (justly), and everyone is treated the same with dignity and respect and there is no question about the way law enforcement is performing their duties.”
Without singling out Rolón or Mina, Ayala said some police leaders have declined to support her reforms or issued statements contradicting her vision, she said.
“Seeking the counsel of people who don’t have same vision as me is counterproductive,” she said.
Rolón believes Ayala has good intentions, but he would have liked to share his insights. Ayala previously sought police guidance on her plan to publicly list officers who committed ethical or criminal violations, Rolón said, and he felt police input made officers more amenable to her policy.
He worries Ayala’s office is sending a message that protesters can take over an interstate or block an intersection, and it’s no big deal if they disobey police because they’ll just watch a video and do it again in six months, he said.
“It’s a bad decision,” he said. “When the only consequence of their actions is going to be a 30-minute video, then that is concerning.”
Mina was dismayed he could fast forward through the video, provide a fake name and receive a certificate of completion, he said. CNN was able to do the same.
The video made good points, the sheriff said, but there “needs to be more deterrence.”
In Orlando, located in Orange County, officers responded to 500,000 calls and made 12,000 arrests last year, Rolón said. Only in about 2% of arrests did officers employ a takedown, pepper spray, Taser, baton, gun or other force, and the numbers are declining annually, the chief said. In Orange County, only 1.7% of arrests list nonviolent resistance as the lone charge, Mina said.
As for Ayala’s assertion that 63% of resisting charges target African Americans, Mina and Rolón did not refute the number but pointed out most reports originate with residents. In Orlando, Rolón said, most of those calls come from communities of color.
‘It tends to be widely abused’
Ayala also based her decision on her decade as a public defender, when she routinely saw trumped-up resisting arrest charges.
Her ex-boss, Ninth Circuit pubic defender Robert Wesley, concurs. He says he has seen clients charged with resisting arrest for “more innocuous” behavior such as walking away, refusing to give a name or recording police during a stop.
Once, a client who was hospitalized on Christmas Eve stepped outside in his gown for a cigarette. When a police officer told him to put it out, Wesley said, he took one more drag before complying and was charged with resisting arrest. The client spent Christmas morning in jail, he said.
“It tends to be widely abused,” the defense lawyer of 36 years said. “It can be used for less serious reasons.”
Wesley declined to say if Ayala’s policy would lighten workloads for his more than 150 staffers. But he said it would allow prosecutors to focus on “violence and other abuses” that injure people and their livelihoods.
The video nonviolent arrestees must watch informs them of their rights and when to comply with an officer’s demand.
“The police are important and so are you,” it says.
It reminds viewers that officers face risks on their jobs and may be apprehensive. The officer also may not have received treatment after a previous violent encounter, it says.
“Defusing the situation might save your life,” the video warns. “Live to tell what happened. You can fight it out in court later if you need to.”
It adds, “While citizens who have been stopped by police should not shoulder the burden of deescalation, the fact is the law does not require police to do it, and the failure to deescalate is dangerous and could even be deadly.”
From Ferguson to San Diego
Ayala’s policy notes racial disparities in resisting arrest charges are not unique to her jurisdiction.
In February, a San Diego television station reported similar differences in resisting, delaying or obstructing an officer over a seven-year period. In 2019 alone, the station reported, African Americans and Latinos accounted for 159 such arrests, compared to 54 for Whites, in a city where two out of three people are White.
The news outlet Slate last year, using data from the police watchdog Invisible Institute, reported that in 60,000 instances between 2004 and 2016 Chicago authorities more frequently used force on Black people, despite Whites being more prone to resist.
New York police were highlighted in a 2014 WNYC report that found in minor drug possession cases, Black residents were arrested for resisting at more than twice the rate of Whites in four of the five boroughs.
A 2015 article in The New York Times showed police in Greensboro, North Carolina — which was 48% white — charged Black and White offenders with resisting, delaying or obstructing at a four-to-one clip (836 Black, 209 White). The Citizen-Times in Asheville cited a University of North Carolina study showing disparities across the state.
And in Ferguson, Missouri — where Justice Department investigators converged after a police officer fatally shot Michael Brown — the agency found African Americans accounted for 92% of resisting arrest charges.
“They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence,” the department said of Ferguson police.
Brooklyn, San Francisco also target resisting
Several agencies have strived to level Lady Justice’s scales. In Fayetteville, North Carolina, then-Police Chief Harold Medlock instructed officers to avoid resisting arrest charges unless there was a more serious crime, The New York Times reported in the Greensboro story.
More recently, the Brooklyn district attorney opted not to pursue resisting charges unless they were accompanied by body camera footage, while also declining to charge protesters unless they were violent or damaged property, spokesman Oren Yaniv said.
As part of an effort “to protect the public — especially Black communities — from police violence,” San Francisco District Attorney Chesa Boudin this summer instituted similar policies, he wrote in an op-ed.
The policy was driven by the George Floyd protests but also by a local case in which a resisting arrest charge was dismissed after a bodycam showed an officer pinning down a suspect’s head with her knee, spokeswoman Rachel Marshall told CNN.
“This policy was created to ensure that officers are not manufacturing false charges to cover up excessive force,” she said. “Police body camera footage may reveal a very different picture than police reports depict — especially when police officers are worried about protecting themselves from allegations of excessive force or illegal conduct.”
Boudin is pleased with the results, she said, as it “ensures the integrity of filed charges.”
Sheriff Mina in Florida likes the idea of the body camera policy, he said, adding he might have suggested something similar to Ayala had he been consulted.
“I think that’s smart,” he said. “That would be my preference: Let’s watch the video and see if this is a case that needs to move forward.”
Ayala knows she’s a lame duck — voters will decide her successor next month — but she hopes she can convince the next state attorney to maintain her reforms, such as the resisting arrest policy, publicizing the names of bad police officers and her conviction integrity unit.
“I wanted to recognize history, and change in this country comes from people on the ground moving the people in power,” she said. “I was moved by the protests and wanted to protect rights.”