PEOPLE v LITTLE
Docket No. 87021
Supreme Court of Michigan
Decided June 5, 1990
434 MICH 752
Kenneth P. Little was arrested for driving while intoxicated. After he was taken to the Walled Lake police station for a Breathalyzer test, he assaulted the police officer who was attempting to administer the test. Thereafter, he was charged with obstructing a police officer‘s attempts to keep the peace. The 52nd District Court, Harold M. Bulgarelli, J., rejected the defendant‘s argument that he should be prosecuted for simple assault and battery and bound him over on the original charge. The Oakland Circuit Court, Jessica R. Cooper, J., granted the defendant‘s motion to quash the information and remanded the case to the district court for trial on a charge of assault and battery, concluding that
In an opinion per curiam, signed by Chief Justice RILEY and Justices BRICKLEY, CAVANAGH, BOYLE, and GRIFFIN, the Supreme Court held:
The purpose of
Justice ARCHER concurred in the result only.
Reversed and remanded.
Justice LEVIN, dissenting, stated that when the police officers were attempting to administer the Breathalyzer test, they were not engaged in “lawful acts, attempts and efforts to maintain, preserve and keep the peace,” and therefore the defendant‘s interference with the administration of the test did not violate the statute. Peremptory reversal should be reserved for those cases in which the law is settled and no factual assessment is required. In this case, because there is a conflict in the decisions of the Court of Appeals, and the law is not settled, peremptory disposition is not appropriate; rather leave to appeal should either be granted or denied.
179 Mich App 445; 446 NW2d 309 (1989) reversed.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Richard Thompson, Prosecuting Attorney, Richard C. Williams, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
William E. Ziem for the defendant.
PER CURIAM. After being arrested for driving while intoxicated, the defendant allegedly assaulted a police officer. He was charged under the statute that prohibits obstructing an officer‘s efforts to keep the peace. The circuit court granted a motion to quash, evidently concluding that the statute only applies to obstructive behavior that precedes or accompanies an arrest. The Court of Appeals affirmed. We reverse, because the plain language of the statute covers the events that are said to have taken place in this case.
I
In the early morning hours of June 1, 1988, a uniformed Oakland County Sheriff‘s deputy stopped the defendant‘s pickup truck because the
At the station, the defendant was verbally abusive. He also spat upon the officer who was attempting to administer the Breathalyzer test. As the defendant prepared to spit on the officer again, the officer raised a hand toward the defendant. At that point, the defendant kicked the officer twice in the groin area.
The defendant was charged with a violation of
II
At the conclusion of the defendant‘s preliminary examination, the assistant prosecutor moved that the defendant be bound over for trial, as charged. Defense counsel‘s response included an argument that
The district judge rejected the argument, and bound the defendant over on the original charge.
In circuit court, the defendant moved that the information be quashed. In his motion, he relied upon a case in which the Court of Appeals had described the elements of the crime in terms of events that take place at the time of an arrest.5 In answering the motion, the prosecutor relied upon
The circuit court‘s decision was that the information should be quashed, and that the case should be remanded to district court for trial on a charge of assault and battery. The circuit judge explained:
I think that if you take a look at the legislative intent in terms of the resisting a police officer in
the performance of his duties, the purpose is to be able to maintain the peace, and I think that‘s the maintaining the peace in the public. So that when we take a look at the broad scope and the definition of the obstruction, the resistance of a public officer in the performance of his duties, the reason they raised that from a misdemeanor to a high misdemeanor in essence was so that the public officer could not be interfered with in the public in terms of preserving the peace. That they would be able to continue their duties, that they would not be resisted in that and that they would not be preyed upon as in [People v John Weatherspoon, 6 Mich App 229; 148 NW2d 889 (1967)]. But here you have someone who is already arrested and is incarcerated and it‘s a matter of being able to maintain control within the Jail setting. And I don‘t think that that‘s what that statute is for, and I will grant the motion of the Defendant and remand the matter to the District Court for trial on assault and battery.
After granting the prosecutor‘s application for leave to appeal, the Court of Appeals affirmed the order of the circuit court. 179 Mich App 445; 446 NW2d 309 (1989).
In stating its analysis, the Court of Appeals acknowledged some merit to the prosecutor‘s argument:
The stated purpose of § 479 seems to support the people‘s application of the statute, the purpose being to punish an assault upon a public officer in the discharge of his duty by a penalty more severe than that imposed for assaults on private citizens, People v Tompkins, 121 Mich 431; 80 NW 126 (1899), United States v Feola, 420 US 671; 95 S Ct 1255; 43 L Ed 2d 541 (1975), and protect officers from physical violence and harm. People v Kretchmer, 404 Mich 59; 272 NW2d 558 (1978), People v Baker, 127 Mich App 297; 338 NW2d 391 (1983). Additionally, in Weatherspoon, supra, a panel of
this Court found the broad statutory clause “maintain, preserve and keep the peace” to include all duties legally executed by a police officer. In so finding, the Court relied on People v Krum, 374 Mich 356, 361; 132 NW2d 69 (1965) [cert den 381 US 935 (1965)], wherein our Supreme Court recognized the statute‘s tie to the common-law crime of obstructing an officer, and acknowledged the general rule: “‘The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.’ (39 Am Jur, Obstructing Justice, § 8, p 506.)” [Id. at 448.]
However, the Court of Appeals then indicated that its research had “failed to uncover precedent wherein the statute in question has been applied to a postarrest in-custody defendant.” Id. at 448-449.
The Court of Appeals further noted that the Legislature has provided in
The prosecutor has applied to this Court for leave to appeal.
III
The Court of Appeals is correct that no previously reported decision is on point. However, it is clear that the events alleged in this case fall within the plain language of the statute.
Such an application of the statute accords with its purpose, which is to protect officers from physical harm. People v Kretchmer, supra at 64. Moreover, there is ample authority that an officer‘s efforts to “keep the peace” include ordinary police functions that do not directly involve placing a person under arrest. People v Krum, supra at 362, People v John Weatherspoon, supra at 232.8
The Court of Appeals acknowledged the general applicability of these principles. It nevertheless concluded that the circuit court was correct, largely in reliance upon the existence of a sentence-
We disagree. The Legislature‘s enactment of
In deciding this case, it is not necessary for us to consider further the nature and extent of a prosecutor‘s charging discretion. As the prosecutor has observed in his argument to this Court,
In lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the
RILEY, C.J., and BRICKLEY, CAVANAGH, BOYLE, and GRIFFIN, JJ., concurred.
ARCHER, J. I concur in the result only.
LEVIN, J. (dissenting). The defendant, Kenneth P. Little, was arrested for drunk driving and transported to the police station. On evidence tending to show that he struck a police officer while the officer was attempting to administer a Breathalyzer test, Little was charged1 with obstructing and resisting an officer in his “lawful acts, attempts and efforts to maintain, preserve and keep the peace, to wit: assisting in taking of breathalyzer . . . .”2
Little was bound over by the magistrate on the basis of the testimony of two police officers which tended to show that Little spat on the Breathalyzer, was about to spit on one of the officers who then raised his hand, and that Little then kicked the officer twice in the groin. Little was subdued by the officers.
Little moved to quash the information, claiming that administering a Breathalyzer test is not, unless the officer is “out on the road,” maintaining, preserving, and keeping the peace. The circuit judge agreed and quashed the information. She said that the purpose of the statute is to protect against interference with the performance in public places of the officer‘s duties, and that it was not intended that the statute apply to the acts committed by Little while he was detained in a jail setting.
The Court of Appeals affirmed, stating that “our research has failed to uncover precedent wherein the statute in question has been applied to a postarrest, in-custody defendant.” 179 Mich App 445, 448-449; 446 NW2d 309 (1989). The Court added that there is another statute3 applicable where an offense is committed by a person lawfully imprisoned or detained that “enhances the
The per curiam opinion reverses the decision of the Court of Appeals “because the plain language of the statute covers the events that are said to have taken place in this case.”5
I
The per curiam opinion appears to acknowledge that “keep the peace” are key words,6 but does not state what is the “plain meaning” of the “plain language” of the statute.
Nor, on somewhat hasty and inadequate research, have I found a definition of “preserve” or “keep the peace.”7 It appears, however, that there
In general terms the offense is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace. Each case where the offense is charged must depend upon the time, place, and circumstances of the act. [People v Johnson, 86 Mich 175, 177; 48 NW 870 (1891). Emphasis added.]
Reading that definition together with the statutory language, “maintain and preserve” or “keep the peace,”8 it appears that the act of the defendant must have occurred in a setting where the officer was seeking to maintain and preserve “public order” or “tranquillity” and, thus, that the defendant‘s conduct interfered with the officer‘s “lawful acts, attempts and efforts to maintain, preserve and keep [public order or tranquillity].”
The only persons in the room where the Breathalyzer was located were two police officers and Little. In that setting, the officers were not seeking to maintain and preserve public order or tranquillity. Thus, Little‘s acts did not interfere with the officer‘s efforts to maintain and preserve public order or tranquillity.
A different question might be presented if a number of persons had been arrested and the officers were maintaining and preserving, at the station house, the tranquillity of those who had been arrested and others who may have been there with them.
In People v Krum, 374 Mich 356; 132 NW2d 69 (1965), the Court held that the defendant was properly convicted of obstructing an officer in his efforts to maintain, preserve, and keep the peace on evidence that he interfered with an officer who was conducting a roadblock.9
In People v John Weatherspoon, 6 Mich App 229; 148 NW2d 889 (1967), the defendant was convicted of violating the statute on evidence that he opened the door of a police car and assaulted an officer. The Court of Appeals, referring to Krum, said that the officer was engaged in preserving the peace when he was assaulted. The Court of Appeals explained:
[The defendant in Krum] interfered with a State trooper‘s duty to inspect automobiles as they arrived at a blockade set up as part of a search for prison escapees. From a factual analysis, Officer Nevelle‘s “acts, attempts and efforts” seem comparable to those being executed by the State trooper in People v Krum, supra. But more important
than this parallel, is that on page 361 of the Krum Case, supra, the Court recognized the relationship between the statute and the general rule which provides: ““The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.’ (39 Am Jur, Obstructing Justice, § 8, p 506.)” (Emphasis supplied [by the Court of Appeals].)
The emphasized language leads us to conclude that the broad statutory clause “maintain, preserve and keep the peace” includes all of the duties legally executed by a police officer. A police officer is expected to be, and should be, in a constant state of readiness to quell any disturbance. Officer Nevelle had parked his automobile at the intersection to watch for Elmer Weatherspoon who was wanted for assault. The mere fact that this officer was not in the act of making an arrest when he was assaulted does not necessarily mean that he was not preserving the peace. [Id., pp 231-232.]
In People v Stiles, 99 Mich App 116; 297 NW2d 631 (1980) (per curiam), police officers were investigating a domestic dispute between the defendant and his wife. An officer entered one of the rooms in the apartment to talk to the defendant and to keep the parties separated; a scuffle ensued, and the defendant assaulted one of the officers. The Court of Appeals said:
It is clear that the officer was legally performing his duty when he approached the apartment in response to the call that a family disturbance was occurring therein. It further appears that the officer was accomplishing a lawful and proper police function of preserving law and order by attempting to ascertain whether defendant was still present in the apartment and by attempting to keep the parties separate. [Id., pp 119-120.]
In the instant case, however, the officers were not on patrol or in a place where other citizens were present. At the police station, they were not seeking to maintain, preserve and keep public order or tranquillity, but rather were seeking to administer a Breathalyzer test.
III
The gist of the offense is not assault—the defendant in Krum did not assault the officer—but rather the “obstruction of justice” that results from interference with the performance of specific law enforcement activities, originally the service of process10 or execution of a city or township ordinance,11 and only later “keeping the peace.”12
The statute does not proscribe obstruction, resistance, or opposition to all “lawful acts, attempts and efforts” of an officer. Refusing to take a Breathalyzer test, even assaulting a police officer, is not necessarily “obstruction of justice” within the intendment of this statute. The obstruction must occur while the officer is attempting to serve
Any assault on an officer while on patrol in a public setting might be seen as an interference with his ongoing efforts to maintain and preserve public order or tranquillity. An officer on patrol tends to keep the peace by his presence. Citizens tend to slow down for a police car. It is reassuring to see police officers. Their mere presence is generally sufficient to maintain and preserve public order or tranquillity. An interference with an officer on patrol might thus be seen as obstructing and resisting an ongoing effort to maintain and preserve public order or tranquillity.
When, however, the officer is at the station house, his mere presence does not ordinarily tend to maintain and preserve public order or tranquillity. The police generally separate the public from a person who is being detained, and thus there generally is no public to be tranquillized by the presence of the officer. While sitting at his desk or administering a Breathalyzer test, an officer is, to be sure, performing a police function. He is not, however, truly “in a constant state of readiness to quell any disturbance“—he is not at that time keeping the peace.
The statement in Weatherspoon that the “statutory clause ‘maintain, preserve and keep the peace’ includes all of the duties legally executed by a police officer” must be read in context. In Weatherspoon, the officer was assaulted while looking for a person who was wanted for assault and battery. The statement in 39 Am Jur, p 506, quoted in Krum, supra, p 361, that “obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by
I do not wish to be understood as belittling the spittle of Little. It is not, however, a violation of the statute to fail to obey every command or direction given by a police officer.
IV
“Breaking the peace” may not be the other side of the coin of “keeping the peace.” The prosecutor may be right, and the Court of Appeals, in the instant case, wrong.
There is at least a conflict in the decisions of the Court of Appeals, and the law is not settled. Peremptory disposition is not appropriate.
I adhere to the view that peremptory reversal should be reserved for those cases in which the
I would either grant or deny leave to appeal.
Notes
on or about June 1, 1988 did knowingly and wilfully obstruct, resist, oppose, assault, beat or wound Christopher Helgert, a police officer with the Wolverine Lake Police Department, while said officer was engaged in lawful acts, attempts and efforts to maintain, preserve and keep the peace, to-wit: assisting in taking of breathalyzer; Contrary to the statute in such case made and provided and against the peace and dignity of the People of the State of Michigan.
Sec. 750.479, CL 1979; MSA 28.747. [750.479-B]. Misdemeanor: 2 Years or $1,000.00
Resisting and obstructing police officer preserving peace
As we conclude the instant defendant should have been charged under
MCL 750.506a ;MSA 28.774(1) , we therefore find no abuse of discretion in the trial court‘s dismissal of the resisting and obstructing charge. [Id.]
I agree with the majority that the consecutive sentencing so provided has no bearing on the question whether Little was properly charged under § 479 of the Penal Code and that the question whether he was properly charged is not one that is confided to the discretion of the circuit judge when reviewing the magistrate‘s exercise of discretion.
[I]t is clear that the events alleged in this case fall within the plain language of the statute. [Ante, p 759.]
Moreover, there is ample authority that an officer‘s efforts to “keep the peace” include ordinary police functions that do not directly involve placing a person under arrest. People v Krum [374 Mich 356, 362; 132 NW2d 69 (1965)], People v John Weatherspoon [6 Mich App 229, 232; 148 NW2d 889 (1967)]. [Ante, p 759.]The position of the defendant is that the legislature did not intend this statute to punish offenders who commit a simple assault on any police officer while on duty. More simply stated, the argument is that when the officer was assaulted, he was not engaged in preserving the peace.
In People v Krum (1965), 374 Mich 356 [132 NW2d 69], the Supreme Court upheld a conviction based on the above quoted statutory excerpt where the accused interfered with a State trooper‘s duty to inspect automobiles as they arrived at a blockade set up as part of a search for prison escapees. From a factual analysis, [the] “acts, attempts and efforts” [of the officer in John Weatherspoon] seem comparable to those being executed by the State trooper in People v Krum, supra. But more important than this parallel, is that on page 361 of the Krum Case, supra, the Court recognized the relationship between the statute and the general rule which provides:
“‘The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.’ (39 Am Jur, Obstructing Justice, § 8, p 506.)” (Emphasis supplied [by the Court of Appeals].)
The emphasized language leads us to conclude that the broad statutory clause “maintain, preserve and keep the peace” includes all of the duties legally executed by a police officer. A police officer is expected to be, and should be, in a constant state of readiness to quell any disturbance. [The officer] had parked his automobile at the intersection to watch for [John Weatherspoon‘s brother] who was wanted for assault. The mere fact that this officer was not in the act of making an arrest when he was assaulted does not necessarily mean that he was not preserving the peace. [John Weatherspoon, 6 Mich App 231-232.]
(2) If a person, lawfully detained in a jail or other place of confinement established by law, and awaiting arraignment, examination, trial or sentencing for any crime or offense, commits a subsequent offense defined in [
The trooper then resumed his station where he was observing cars as they crossed the bridge, and Krum returned to his car. Krum then approached the trooper again. The trooper testified that in this second encounter, Krum
interposed himself between the trooper and the car to be inspected, finally brushing against the trooper and moving the automatic carbine from the position in which it was held by the trooper; that the trooper told defendant he was under arrest and ordered him to go to the police car; that defendant answered, “I don‘t have to and you can‘t make me“; that the trooper than took him by the wrist and, when he wouldn‘t move, pulled him over to the police car. [Id., p 359.]
The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute.
Observation: The various statutes have the same purpose, but may differ in their description of the offense. Their wording varies to such an extent that each statute must be read to determine just what acts constitute the crime in the particular jurisdiction. [Emphasis added.]
See Schweiker v Hansen, 450 US 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) (“A summary reversal is a rare disposition, usually reserved for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error“); Leis v Flynt, 439 US 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) (“Summary reversal ‘should be reserved for palpably clear cases of . . . error.’ Eaton v Tulsa, 415 US 697, 707 [94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]“).