| Does the law still provide an individual with the | | | | Court of Appeals have the held the following on |
| right to resist an unlawful order from or unlawful | | | | this issue: |
| arrest of a police officer? Until a recent case I | | | | Examining the language of the MCL 750.81d, unlike |
| had, I thought the answer to this question was | | | | in MCL 750.479, we find no reference to the |
| absolutely yes. However, pursuant to Michigan | | | | lawfulness of the arrest or detaining act. The |
| Compiled Law 750.81(b)(1), and the cases | | | | language of MCL [Page 376] 750.81d is abundantly |
| interpreting that statute, I learned I was wrong. | | | | clear and states only that an individual who resists |
| This is another good example of how despite an | | | | a person the individual knows or has reason to |
| attorney's continuing legal education and | | | | know is performing his duties is guilty of a felony. |
| experience, one should never presume that the | | | | MCL 750.81d. Because the language of the statute |
| law has remained fixed and unchanged. This | | | | is clear and unambiguous, further construction is |
| statute states as follows: | | | | neither necessary nor permitted, and we decline |
| (1) Except as provided in subsections (2), (3), and | | | | to "'expand what the Legislature clearly intended |
| (4), an individual who assaults, batters, wounds, | | | | to cover'" and "read in" a lawfulness requirement. |
| resists, obstructs, opposes, or endangers a | | | | Davis, supra, 468 Mich 79, citing Pasha, supra, 466 |
| person who the individual knows or has reason to | | | | Mich 382."Courts and legislatures in other |
| know is performing his or her duties is guilty of a | | | | jurisdictions have found the right to resist an |
| felony punishable by imprisonment for not more | | | | unlawful arrest to be outmoded in our |
| than 2 years or a fine of not more than | | | | contemporary society." Wess, supra, 235 Mich |
| $2,000.00, or both. | | | | App 245. |
| This statute recently replaced a previous law | | | | In Wess, after finding that a citizen's right to use |
| which did allow for a statutory defense to | | | | such reasonable force as is necessary to prevent |
| resisting an unlawful arrest. According to MCL | | | | an illegal attachment and to resist an illegal arrest |
| 750.479; | | | | does not extend to third party intervenors, this |
| Any person who shall knowingly and willfully . . . | | | | Court discussed the status of Michigan's |
| obstruct, resist, oppose, assault, beat or wound . . | | | | unlawful-arrest theory. The Wess Court stated: |
| . any person or persons authorized by law to | | | | We share the concerns of other jurisdictions that |
| maintain and preserve the peace, in their lawful | | | | the right to resist an illegal arrest is an outmoded |
| acts, attempts and efforts to maintain, preserve | | | | and dangerous doctrine, and we urge our |
| and keep the peace shall be guilty of a | | | | Supreme Court to reconsider this doctrine at the |
| misdemeanor . . . . | | | | first available opportunity and to bring Michigan in |
| Until fairly recently, the Michigan Court of Appeals | | | | line with the majority view as articulated in State |
| has interpreted this statute in the following way: | | | | v Valentine, 132 Wash 2d 1; 935 P 2d 1294 |
| This Court has stated the elements of resisting | | | | (1997). |
| arrest under MCL 750.479 were: (1) the | | | | We see no benefit to continuing the right to resist |
| defendant resisted arrest, (2) the arrest was | | | | an otherwise peaceful arrest made by a law |
| lawful, (3) the person arresting the defendant was | | | | enforcement officer, merely because the |
| an officer of the law at the time, (4) the | | | | arrestee believes the arrest is illegal. Given |
| defendant knew the person was an officer, (5) | | | | modern procedural safeguards for criminal |
| the defendant knew the person was making an | | | | defendants, the "right" only preserves the |
| arrest, and (6) the defendant intended to resist. | | | | possibility that harm will come to the arresting |
| People vs. Ventura 262 Mich. App. 370 (2004) | | | | officer or the defendant. [ Wess, supra, 235 Mich |
| citing; People v MacLeod, 254 Mich App 222, 226; | | | | App 244- 245 n 1.] When the Legislature enacts |
| 656 NW2d 844 (2002), citing MCL 750.479; People | | | | statutes, it has knowledge of existing laws on the |
| v Little, 434 Mich752, 755 n 5; 456 NW2d 237 | | | | same subject, People v Ramsdell, 230 Mich App |
| (1990). Therefore, under MCL 750.749, the right | | | | 386, 393; 585 NW2d 1 (1998), and it is not within |
| to resist an unlawful arrest was, in essence, a | | | | our province to disturb our Legislature's obvious |
| defense to the charge of resisting arrest, because | | | | affirmative choice to modify the traditional |
| the legality of the arrest was an element of the | | | | common [Page 377] law rule that a person may |
| charged offense. People v Rice, 192 Mich App | | | | resist an unlawful arrest. When prosecuting a |
| 240, 243; 481 NW2d 10 (1991). | | | | charge drawn upon MCL 750.81d, we adopt the |
| In my own practice, the case I am referring to | | | | modern rule that a person may not use force to |
| involves two defendants who were on their way | | | | resist an arrest made by one he knows or has |
| to a friend's house. A number of third-party | | | | reason to know is performing his duties regardless |
| witnesses, including a building superintendent, | | | | of whether the arrest is illegal under the |
| contacted the police and gave a description of | | | | circumstances of the occasion. |
| four individuals who apparently had committed an | | | | Assaulting, resisting, or obstructing an officer while |
| assault and had displayed a gun. Based on the | | | | he is performing his duty must be avoided for the |
| descriptions given to the police from dispatch, | | | | safety of all society, regardless of the legality of |
| they went to the scene. So far, the police are | | | | the arrest. It is the immediate harm that can be |
| well within their rights to approach a residence | | | | attendant to an arrest when a subject engages in |
| based upon what was told to them in a dispatch | | | | assault, resistant, or obstructive behavior that the |
| transmission. The residence in question was an | | | | Legislature seeks to eradicate. Solid mechanisms |
| apartment building, and, one of the police officers | | | | are in place to guarantee the safety of those |
| who had been to this residence on many prior | | | | arrested, and, to correct any injustices that may |
| occasions, decided that he knew which apartment | | | | result from an illegal arrest. The statute at issue, |
| door to knock on to investigate the alleged | | | | MCL 750.81d, now serves as another mechanism |
| incident. He did so, was invited into the apartment, | | | | to reduce the likelihood and magnitude of the |
| and then proceeded to search the apartment | | | | potential dangers inherent in an arrest situation, |
| without obtaining consent to search. At this point, | | | | thereby dually protecting both the general public |
| the police have engaged in an unconstitutional | | | | and its police officers. |
| search of the apartment that went far beyond | | | | If you are involved in a traffic stop and you ask |
| any plain sight or plain view exceptions to the | | | | the police officer why you were pulled over, have |
| fourth amendment of the Constitution. | | | | you "obstructed" or "opposed" the officer in the |
| My client was found hiding in a closet, and he was | | | | execution of his duties? Can you interfere in a |
| ordered out of the closet. Pursuant to the | | | | five on one police beating of a suspect? This |
| arresting officer's own preliminary hearing | | | | happened in New Orleans after Katrina. Can you |
| testimony the defendant, "did not move fast | | | | interfere when the police tazer a woman to death |
| enough" for him. As such he was pulled out of the | | | | in an airport? This happened in an airport in |
| closet thrown down on the bed and charged with | | | | Phoenix, Arizona. It seems that a citizen cannot |
| resisting arrest. No gun was found and there is no | | | | act pursuant to their own judgment and |
| evidence of any wrongdoing of any kind except | | | | conscience to intervene on another's behalf when |
| for the fact that the police found this particular | | | | the police have engaged in clearly unlawful conduct |
| defendant hiding from them in a closet. | | | | without risking being charged with a felony under |
| Does the fact that the police made an | | | | any circumstances. If you happen to disagree with |
| unconstitutional search provide a defense against | | | | the Michigan Court of Appeals on this issue, the |
| the crime of resisting arrest with which the | | | | best thing you can do is contact your state |
| defendant was charged? No. The | | | | legislator or join a political action committee that |
| unconstitutionality of the search can be challenged | | | | shares your opinion. |
| with a motion to exclude any evidence that was | | | | If you enjoyed this article and would like more |
| discovered pursuant to that search. At which | | | | information on Michigan legal issues visit this |
| point, the entire case may be dismissed for lack | | | | website:michigancriminalattorney.net |
| of evidence. However, according to the statute | | | | By Christopher P. Kohler |
| and People vs. Ventura it does not provide a | | | | Attorney at Law |
| defense for the fact that these particular | | | | Kohler & Associates, P.C. |
| individuals were unlawfully arrested. The Michigan | | | | |