This criminal case traversed the Michigan court system, up to its Supreme Court, to resolve whether M.C.L. 750.81d--which among other things makes resisting or obstructing a police officer a felony--abrogated Michigan's "well established" common-law right to resist illegal police conduct. The Court, overruling People v. Ventura, 686 N.W.2d 748 (Mich. Ct. App. 2004), held § 81d did no such thing.
The incident leading to the prosecution of the defendant occurred December 30, 2008, when two police officers, searching for another individual, attempted to enter Defendant's home without a warrant. A struggle ensued after Defendant tried to close the door on the officers to prevent their entry, resulting in injury to one of the officers. The defendant was charged under § 81d with assaulting, resisting, or obstructing a police officer.
At trial, Defendant moved to quash the charges on the basis that the officers' entry was unlawful. Although it agreed the entry was unlawful, the trial court denied Defendant's motion. It found § 81d did not require that the resisted conduct be lawful as an element of the charged offense. The court of appeals affirmed, applying Ventura's holding that § 81d abrogated the common-law right to resist. The Supreme Court of Michigan, however, reversed, finding neither the language nor legislative history of § 81d supported finding abrogation.
When modifying common law, the Court explained, the Legislature "must do so by speaking in 'no uncertain terms.'" 814 N.W.2d 624, 628 (quoting Dawe v. Dr. Reuven Bar-Levay & Assocs. P.C., 780 N.W.2d 272, 277 (Mich. 2010)). Yet nowhere does § 81d "state that the right to resist unlawful conduct by an officer no longer exists." Id. at 629. Furthermore, the mere absence in § 81d of the word "lawful" with respect to police activity was insufficient basis for finding abrogation. The Court added that "the Legislature's failure to expressly provide for a common-law defense in a criminal statute does not prevent a defendant from relying on that defense." Id.
Additionally, the Court explained, the previous version of § 81d--M.C.L. 750.479--"included the right to resist unlawful police conduct." Id. at 631. By amending § 479 (which resulted in § 81d), the Legislature modified some aspects of common-law rights and offenses relating to interactions with police, though when it did it used "language that clearly set forth the changes it intended to make." Id. at 633. But the Legislature "expressed no intent to do away with the common-law right to resist an unlawful arrest," so the Court concluded § 81d "retained the concept that the offense of resisting and obstructing requires that an officer's actions are lawful." Id. David Postel - 04/01/2014