People v. Moreno

police a made it unlawful to resist Before MCL 750.479 performing only what was later if that officer was but By omitting a lawful-act a lawful act. determined to constitute requirement MCL 750.479 and enacted MCL when it amended clearly Legislature and in no uncertain terms 750.81d in officer’s of the lawfulness of excluded consideration forcibly resisting element in an officer as conduct as a relevant performing long his or her duties. The as the officer was abrogating expressly that it is does not have state right. abrogate it to a common-law order for Obstructing Performing Resisting — — Duty Persons Criminal Law Resisting Illegal — Police Conduct. Common-Law Defenses 750.81d, assaulting, prohibits bat- which an individual from endangering wounding, resisting, obstructing, opposing, tering, individual or has reason to know is who the knows duties, abrogate or her did not the common-law his illegal police conduct, including arrests and to resist constitutionally protected areas. unlawful entries into Bursch, Schuette, Attorney General, Bill John J. General, Frantz, Attor- Prosecuting Solicitor Ronald J. Babbitt, Prosecuting At- ney, Gregory Assistant torney, people. for the Haehnel) (by

Haehnel & Phelan W. for defen- Craig dant.

Amici Curiae: Schafer, Kym Worthy, Timothy Baugh-

Ron L. A. Prosecuting Attorneys man for the Association of Michigan. M. for the Association for Michigan

Racine Miller Justice. case, J. In defen- this we review whether HATHAWAY, charged

dant obstruct- properly was under MCL after defendant ing police officer 750.81d officers had entered his home struggled with who Opinion of the Court unlawfully. To issue, resolve this we must address whether MCL abrogates 750.81d to resist illegal police conduct, including unlawful ar- rests and unlawful entries into constitutionally pro- tected areas. We conclude that the statute did not abrogate this right.

While the Legislature authority has the to modify the law, common it must do so speaking in “no uncertain terms.”1 Neither language of MCL 750.81d nor the legislative history of this statute indicates with cer- tainty that intended to abrogate the common-law right to resist unlawful arrests or other invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule People Ventura, 262 Mich App (2004), NW2d 748 to the extent that it held that Legislature affirmatively chose modify the tradi- tional common-law rule that a person may resist unlawful arrest. Because the Court of Appeals case relied on Ventura and extended its holding to the context of illegal entries of home, we reverse the judgment of the Court of Appeals and remand this matter to the trial court. remand, On we instruct trial grant court to defendant’s motion to quash the charges on the basis of ruling its the officers’ conduct was unlawful.

I. FACTS AND PROCEDURAL HISTORY This case arises from a physical struggle that oc- curred between defendant and two Holland police offic- ers when the sought officers to enter defendant’s home without a warrant. As a result of the struggle, defen- Contracting, Hahn, Hoerstman Gen Inc v NW2d (2006). 491 MICH 38 Court a obstructing and charged resisting

dant was obstructing police and officer and (1) of MCL 750.81d causing injury officer violation incident, Troy DeWys of the Officer morning On the searching for Hamberg and Officer Matthew were war- outstanding Adams had several Shane Adams. vicinity in the immediate rants. Defendant’s house was so the officers parked, of where Adams’s vehicle was to inquire knocked on defendant’s front back doors house, DeWys Officer about Adams. While outside He running heard voices and inside house. people officer and stated that he identified himself as people to ascertain the identities of the inside wanted through looked a basement Hamberg the house. Officer empty and could see bottles of alcohol window trying to hide. people minutes after the had

Approximately 15 officers doors, McCarry the front Mandy opened knocked on the DeWys Officer smelled “intoxicants and burnt door. marijuana.” McCarry underage persons admitted that house, consuming were alcohol inside the but Officer DeWys writing told her that he not interested in “a was in possession DeWys bunch of minor tickets.” Officer McCarry just identify told that he wanted to who was DeWys McCarry the house. Officer if she inside asked knew the owner of the vehicle the street. parked if for McCarry they looking asked officers were Adams and that he not the house. stated was inside could not come McCarry they told the officers without a inside house warrant. DeWys McCarry

Officer then informed that the offic- they entering ers were the house to “secure it” while time, defendant came to waited for a warrant. At the front door and demanded that the officers obtain op the Court entering warrant before his house. Defendant then door, attempted close but Officer Hamberg put his shoulder against prevent the door to defendant from closing it. A struggle ensued between defendant and the officers. Ultimately, pulled officers defendant from doorway, his physically him, subdued and arrested him. Officer DeWys suffered a torn hamstring bruised elbow in the struggle. charged

Defendant was with assaulting, resisting, or obstructing police officer, 750.81d(l), and as- saulting, resisting, or obstructing police officer caus- 750.81d(2). ing injury, MCL Defendant was bound over for trial. He moved to quash charges, arguing that entry the officers’ into his home was unlawful. The trial court concluded that the officers had en- unlawfully tered home, defendant’s specifically ruling that there were exigent no circumstances that would have pro- vided an exception to the warrant requirement. Never- theless, the trial court concluded that a “lawful” action by an officer is not a requirement and, of MCL 750.81d therefore, denied defendant’s motion to quash the charges.

Defendant appealed as of right. The Court of Appeals affirmed the trial court’s decision an unpublished opinion per curiam.2 The Court of Appeals relied on Ventura for proposition that the lawfulness of conduct is no longer element of the offenses of obstructing because MCL 750.81d abro- gated the resist Therefore, arrest.3 the Court of Appeals concluded that the officers’ conduct in forcibly entering defendant’s home did not have to be lawful order for defendant to 2 People Moreno, unpublished opinion per curiam of the Court of (Docket 294840). Appeals, issued June No. 3 Id. at 7-8. 491 Mich

Opinion of the Court granted Court charged under MCL 750.81d.4 This be for leave to application appeal.5 defendant’s OF II. STANDARD REVIEW interpretation application This case involves the statute, question of a which is a of law that this Court de reviews novo.6

III. ANALYSIS A. THE OF MCL 750.81d DOES LANGUAGE NOT SUPPORT ABROGATION a person The issue before this Court is whether a present his or her own home can resist officer unlawfully forcibly who enters the home or prohibits resisting whether MCL 750.81d unlawful ac- aby Specifically, tions officer. we must decide intended abrogate whether arrest resist with its enactment of MCL 750.81d. pertinent MCL 750.81d part: states (1) (2), (3), (4), Except provided in as subsections assaults, batters, wounds, resists, individual who ob- structs, opposes, endangers person or a who individual performing or knows has reason to know is his or her guilty felony punishable by imprisonment duties is of a for years $2,000.00, not more than 2 or a fíne of not more than or both.

(2) assaults, wounds, batters, resists, An individual who obstructs, opposes, endangers person or a the indi- who performing vidual knows or has reason to know is his or 4 Id. at 7. (2010). People Moreno, 488 Mich 1010 Lee, People v (2011); Miller-Davis 489 Mich 803 NW2d 165 289, 295; Constr, Inc, v Ahrens

Co 802 NW2d 33

Opinion of the Court causing bodily injury requiring her duties a medical atten- person guilty felony tion or to that medical care is a years punishable imprisonment for not more than 4 or $5,000.00, a fine of not more than or both.

(3) assaults, batters, wounds, resists, An individual who obstructs, opposes, endangers person or the indi- who performing vidual knows or has reason to know is his or causing impairment body her duties a serious of a function person guilty felony punishable by imprison- of that is of a years ment for not more than 15 or a fine of not more than $10,000.00, or both.

(4) assaults, batters, wounds, resists, An individual who obstructs, opposes, endangers or the indi- who vidual knows or has reason to know is his or causing guilty her duties the death of that of a felony punishable by imprisonment for not more than 20 years $20,000.00, fine of not more than or both.

(7) As used in this section: (a) “Obstruct” includes the use or threatened use of physical knowing interference or force or a failure to comply with a lawful command. interpreting statutes,

When this Court must “ascer- tain and give effect to the intent Legislature.”7 of the The in words used the statute are the most reliable indicator Legislature’s of the intent should be on the interpreted basis of their ordinary meaning the context within which in they are used the statute.8 In interpreting statute, a this Court avoids construc- tions that would render part surplus- of the statute age or nugatory.9 7 (2002). People Koonce, 515, 518; v 466 Mich 648 NW2d 153 8 (1999). People Morey, 330; v 461 Mich 603 NW2d 250 9 People McGraw, 120, 126; (2009), citing v 484 Mich 771 NW2d 655 (1980). 639, 665; Corp,

Baker v Gen Motors 409 Mich 297 NW2d 387 38 491 Mich

46 of Court interpre statutory these basic rules of In addition to to the traditional tation, must also adhere this Court of the common law. concerning abrogation rules it modified.10We remains in force unless common law of the Legislature “know[s] presume must A it ccordi of the common law when acts.”11 existence abrogative explained “[t]he has ngly, this Court statutory question legislative scheme is a effect of amendment of the com “legislative intent”12 and that Legisla is not While the lightly presumed.”13 mon law law, it authority modify the common ture has “ ”14 terms.’ so in ‘no uncertain speaking must do in Moreover, deroga this Court has held that “statutes strictly be construed” and tion of the common law must abrogate “not extended estab implication shall be case, rules of common In this we must be lished law.”15 abrogation mindful the rules of the com regarding Legislature, determining mon law when whether 750.81d, enacting abrogate intended to police to resist unlawful conduct. charged Defendant was obstruct- of MCL 750.81d. In ing officer violation recog- officer has been Michigan, obstructing crime, an offense nized as a common-law as well as addition, In to resist governed by statute.16 arrests, of pri- and other invasions unlawful 10 Strat, 223, 233; Engineers 713 NW2d Wold Architects & v 474 Mich (2006). 750 11 Assoc, PC, Id. at see also Dawe v Dr Reuven Bar-Levav & Architects). (2010) 20, 28; (quoting Mich 780 NW2d 272 Wold 12Dawe, Mich at 28. Architects, Wold 474 Mich at 233. 14Dawe, Hoerstman, quoting 485 Mich at 474 Mich at 74. Schultz, Co, Snyder Lumber Rusinek v & Steele omitted). (1981) (citation 309 NW2d 163 356, 361-362; Krum, Mich 132 NW2d 69 People 47 Opinion op the Court common established our state’s rights, vate is well resist an In the common-law to explaining law.17 arrest, this Court has stated that “one necessary prevent force as is use such reasonable illegal to resist an arrest” and illegal attachment and or resistive action is preventive that “the basis for such action, [a] to which defen- illegality of an officer’s reacts.”18 immediately dant Ventura, prior Appeals compared In the Court of 750.479, statute, MCL resisting-arrest version of the version, version prior the current MCL 750.81d. part: stated in pertinent willfully...

Any person knowingly ob- who shall struct, resist, assault, any oppose, beat or wound. .. ... persons authorized law to maintain and acts, preserve peace, attempts in their lawful maintain, keep peace, preserve efforts to shall be guilty 750.479, enacted [MCL of a misdemeanor .... as 328.] 1931 PA version, 750.479, that the included a

Noting prior actions, reference to the lawfulness of an officer’s Court of in Ventura then turned to the lan- Appeals guage of MCL 750.81d.19The Court stated that it could any not find similar reference to lawfulness in MCL jurisdictions 750.81d.20The Court also noted that other have found the to resist an unlawful arrest to be (1888) Id., Clements, 655, 658; People v Mich NW 792 (recognizing reasonably illegal attempted resist an seizure of property by noting legally “[n]o the sheriff and officer can be manner”); private rights authorized to invade such (2002) MacLeod, App (holding 254 Mich 656 NW2d 844 prior resisting-and- an element lawfulness of the arrest was statute). obstructing 18Krum, 374 Mich at 361. 19 Ventura, App at 374-375.

20Id. at 375. MICH Opinion of the Court in contemporary society.”21 “outmoded our The Court Legislature concluded that the had made an “obvious modify affirmative the choice traditional common- person may law rule that a resist an unlawful arrest.”22 hold that disagree. We We MCL 750.81d did not abro- the gate right to resist unlawful conduct and that wrongly Ventura was decided.

A fundamental principle statutory construction is meanings that common-law unless apply Legisla- the ture has directed If Legislature otherwise.23 the in- abrogate tended to right common-law to resist unlawful conduct by by it had to do so “ ”24 speaking in ‘no uncertain Significantly, terms.’ in nowhere MCL 750.8Id does the Legislature state

that the resist by unlawful conduct an officer no longer exists.25 (citation omitted). quotation Id. at 376 marks 22Id. at 376-377. 23People Young, (1983); Mich 340 NW2d 805 see also Const (“The 3, force, § art common law and the statute in laws now not repugnant constitution, they expire by to this shall remain in force until limitations, changed, repealed.”). their own or are amended or 24Dawe, 28, quoting Hoerstman, 485 Mich at 474 Mich at 74. Legislature The is aware of how to draft statutes when it abrogating principles. example, For in the context of self- defense, Legislature changed duty by the common-law to retreat enacting 780.972, specifically explains longer MCL which that there is no duty Legisla to retreat under certain enumerated circumstances. The 780.974, clarify explicitly

ture also enacted MCL 780.973 and MCL which aspects relating that certain other of the common law to self-defense were abrogated. enacting 750.81d, Legislature not In MCL could have easily abrogated by by simply to resist an unlawful act an officer stating provision regardless could be violated of whether an officer’s actions are lawful. The chose not to include such language. Nevertheless, the dissent reasons that because MCL 750.81d does not “ proviso,” Legislature “clearly” include a ‘lawful acts’ and “in no abrogated uncertain terms” the common law and excluded the lawfulness Court resisting-arrest statute, MCL 750.479 prior as PA prohibited obstructing enacted or resisting “authorized law to maintain and in preserve peace, their lawful acts . . . .”26 The statute, resisting-arrest 750.81d, current prohib- obstructing its an “individual” who is “performing his or her duties.” We cannot conclude that the common-law to resist an act merely officer ceased to exist the Legislature because did not include the phrase word “lawful” from fact, MCL 750.81d. In this Court recently has clarified Legislature’s that the failure to expressly provide for a common-law defense a criminal statute does not prevent relying defendant from on that defense.27 In v this Court People Dupree, addressed whether a properly defendant could raise the common-law affir- of mative defense self-defense when under the charged statute, felon-in-possession MCL 750.224f.28The felon- in-possession statute does not explicitly indicate that self-defense is an available charge. defense to this Nevertheless, this Court clarified that Legisla- “[t]he provide explicitly ture’s failure to for the common law affirmative defense of self-defense not does foreclose resisting aof officer’s conduct as an element of an officer. The Breton, 531, 8; relies on a dissent footnote in Reed v 475 Mich n 539 718 (2006), explaining language specifi- NW2d 770 that the mere absence of cally abrogating necessarily the common law does not mean that no abrogation However, nothing changes longstanding occurred. in Heed speak rule that must in no uncertain terms when it abrogate law, support intends to the common and Reed does not position language dissent’s that the mere of absence is somehow the same presence as the of “no uncertain terms.” We note that while PA MCL 750.479 was amended it has repealed not been and remains an alternative statute under which resisting obstructing may charged. be People Dupree, 788 NW2d 399 28Dupree, 486 Mich at 705. Mich of Court of relying justify on it to a violation defendants from explained this Court that Specifically, MCL 750.224f.”29 statutory provision in cases in which the “[historically, Court, we did not resolve issue before squarely law, that presuming have the common applied aspects statutes mindful of those of Legislature enacted ‘firmly that have become embedded our common law ”30 explain . .. This Court went on to jurisprudence Supreme the United States Court recently, “[m]ore that nature recognized the interrelated of criminal statutes law, stating legislative bodies and the common background Anglo- criminal ‘against enact statutes ”31 . in- Finding Saxon common law .. .’ this rationale structive, this Court concluded that Legislature abrogated

[a]bsent some clear indication that the or modified the traditional common law affirmative defense of felon-in-possession charge for in MCL self-defense Michigan Code, pre 750.224Í or elsewhere in the Penal we sume that the affirmative defense of self-defense remains evidence.[32] supported to defendants if sufficient available In the context of obstructing there be clear indication in MCL 750.81d must some that the Legislature abrogated if resist officer’s unlawful conduct this Court is to so “ hold. Court recognized ‘[t]he This has obstruc- tion of or resistance officer in the public perfor- law, mance an offense and by his duties is at common ”33 jurisdictions.’ statute all MCL 750.81d expressly 29 Id. 30 Id., quoting Co, Garwols v Bankers Trust 232 NW (1930). 239 31 Dupree, Bailey, quoting United States v Mich at US 624;

415 n 100 S Ct 62 L Ed 2d 575 32 Dupree, Mich at 706. omitted). Krum, added; (emphasis 374 Mich at 361 citation Opinion of the Court “knowing comply as a failure defines “obstruct” However, command.”34 the decision of a lawful statutory in this case conflicts with the Appeals Court of held that MCL language. 750.81dprohibits The Court conduct, yet from officer’s to obstruct an officer’s the statute allows conflict substantial unlawful command. This casts intended, that the argument Legislature doubt on the intended,” abrogate alone the common- “clearly let including law to resist an unlawful arrest not “in in MCL phrase their lawful acts” 750.81d. 750.81d, and language Based on the of MCL plain Legis- without certain indication otherwise lature, simply we cannot assume that abrogate intended to the common-law resist unlawful arrest with its enactment of MCL 750.81d. incon- interpretation Such an of the statute would be statutory with this Court’s rules of construction sistent abrogation when of the common law is at issue. case, “[t]he In this the Court of held that fact Appeals entry they that defendant refused to the officers unless obtained a search warrant is indicative of defendant’s of their and that knowledge status as officers they were in the of their official engaged performance question duties.”35 There is no that defendant knew However, at men his door were officers. enter officers wanted to defendant’s home without warrant, and one physically prevented officers closing defendant from the door to his home. Accord- into ingly, defendant’s refusal to allow officers his home not of whether defendant had rea- conclusive “engaged sonable cause to know that the officers were Consistently in the of their official duties.” performance 750.81d(7)(a) added). (emphasis 35 Moreno, unpub op at 5. 491 Mich 38 the Court rule, pros- the conclude that the with common-law we that the actions ecution must establish officers’ were lawful.

B. THE LEGISLATIVEHISTORYOF MCL750.81dDOESNOT SUPPORTABROGATION The legislative history helpful of MCL 750.81d is also demonstrating did not abrogate by intend to to resist an act However, history an officer. be reviewed in must conjunction history corresponding stat- ute, MCL 750.479. Before it was clear that a had the to resist unlawful conduct. version of MCL pre-2002 governed 750.479 offense of and resisting obstructing generally pro- hibited an officer discharging his or her du- ties.36 interpreted This Court the former version of including Michigan 750.479 as principle that “one use reasonable force such as is provided: The former version of MCL 750.479 Any person knowingly wilfully obstruct, who shall resist or sheriff, oppose any coroner, treasurer, township or constable other person duly authorized, serving, attempting officer or or any process, serve or execute rule or order made or issued authority, any lawful or who shall resist officer in the execution of ordinance, any by law, any rule, made, or order or resolution issued, passed by any city or the common council of board of trustees, village, village any incorporated or common council or council of township any township assault, or board of or who shall any sheriff, coroner, township treasurer,

beat or wound constable duly authorized, serving, attempting or other officer while or any order, process, having or serve served, execute such rule or for or same, atempted [sic] or to serve or execute the or who shall obstruct, resist, assault, oppose, any so or beat wound of the above officers, persons named to maintain and and efforts to guilty or other or authorized law acts, preserve peace, attempts in their lawful maintain, preserve keep peace, shall be misdemeanor, punishable by imprisonment of a in the state prison years, 1,000 not more than a fine of not more than dollars. Opinion of the Court and to resist necessary prevent illegal attachment Thus, . . .”37 the former version of illegal arrest. MCL 750.479 included the to resist unlawful police conduct. 2002, 5442, Legislature passed

In the House Bill amending the version of MCL 750.479.38Simulta- prior neously, enacted House Bill 5440 as PA which added MCL 750.81d. Both bills reciprocal language providing contained that each would not take effect both were enacted into unless law.39The amended version of MCL 750.479 no longer prohibits person a from resisting “persons authorized by law to maintain and preserve peace,” but

37Krum, 374 Mich at 361. provides pertinent part: MCL 750.479 now (1) person knowingly willfully any A shall not and do of the

following: (a) Assault, hatter, obstruct, wound, endanger or a medical examiner, township treasurer, judge, magistrate, officer, probation officer, parole prosecutor, city attorney, employee, court court duly person serving or other officer or authorized or attempting any rule, process, serve to or execute or order made or authority acting performance issued lawful or otherwise in the of his or her duties. (b) Assault, batter, wound, obstruct, endanger or an officer enforcing ordinance, law, rule, order, of resolution city trustees, common council of a hoard of the common council or village incorporated village, township council of an or a board of a township. arguments passing protect persons The offered for these bills were to professions only peace in all connected to law enforcement instead of penalty officers and to establish a tiered structure based on the serious injury actually provide uniformity of the ness inflicted. The were bills punishment provisions relating of and consolidate all to attacks on law personnel, firefighters, emergency personnel enforcement and medical Legislative Analysis, through into one section law. House HB 5440 29, 2002, August p 5443 and 5. Mich 38 Opinion of the Court threatening danger- at targeted prohibiting

instead persons of enumerated con- ous conduct toward list provides nected with law enforcement.40 statute danger penalty degrees tiered structure for various protected by and harm to a posed caused statute,41 charged can be with and clarifies that a offense, of an courts underlying provides convicted violating a sentence for impose with discretion consecutively that must be served sen- statute arising tence for an offense out of the same transac- Further, the term “obstruct” tion.42 statute defines physical “the or threatened use of including as use knowing comply interference or force or a failure to awith lawful command.”43

Meanwhile, prohibiting MCL 750.81d focuses on dan- gerous threatening “person” conduct toward protected by statute.44 This includes actions. The expressly officer’s statute enumerates emergency enforcement officials and other respond- law protected requires ers who are and that an individual have reason to know that his or her conduct is directed person “performing toward a his or her duties.”45 Like 750.479, MCL MCL 750.81d a tiered provides penalty for harm degrees danger posed structure various and statute,46 caused to a clarifies person protected charged that a can be with and convicted of an offense, underlying provides and courts with discretion 40 750.479(l)(b) prohibition MCL retains the in the former version of against threatening dangerous and the statute conduct toward officers enforcing municipal law. 41 750.479(2) (5). through MCL 42 750.479(6) (7). MCL and 43 750.479(8)(a). MCL 750.81d(7)(b). MCL 750.81d(l) (4). through MCL 46Id. Opinion of the Court impose a sentence for violating the statute that must be served consecutively sentence for an offense arising out of the Further, same transaction.47 just like 750.479, MCL MCL 750.81d defines the term “ob- struct” as including “the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command.”48 As evidenced language of statutes, these two it is clear that Legislature some, changed all, but not aspects of the common law governing the offenses of resisting and obstructing peace officer.49 The Legislature made these changes using language that clearly set forth the changes it intended to make.

In contrast, Legislature expressed no intent to do away with the common-law to resist an unlawful arrest.50 The most that could be said in favor of finding 750.81d(5) MCL 750.81d(7)(a). 49MCL together 750.479 and prohibit MCL 750.81d now certain against peace conduct persons officers and additional connected to law enforcement, they penalty include tiered structures for the various degrees danger posed persons. and harm caused to these In these statutes, Legislature clarified charged that a can be with an underlying abrogated crime. The also the common-lawrule of presumed sentencing by expressly concurrent providing for consecutive sentencing arising for all offenses out of the same transaction. legislatures When from away other states intended to do with this right, they unequivocal found clear language to accom plish example, their task. For a Delaware abundantly statute makes it “[t]he clear that justifiable use of force is not under this section to resist an arrest which the defendant being knows or should know is made peace officer,whether or Ann, not the arrest is Del Code tit lawful.” 464(d) added). § (emphasis A clearly provides Texas statute “[i]t prosecution no defense to under this section that the arrest or search was 38.03(b). unlawful.” Tex Penal Oregon statute, CodeAnn An Or Rev Stat 161.260, 750.81d, which is expressly provides, similar to person “A physical not use by peace force to resist an arrest a officer who is reasonably appears known or peace to be a whether the arrest is Similarly, lawful or analogous unlawful.” expressly Colorado statute 491 Mich 38 Opinion of the Court of the phrase the omission of that is abrogation However, simi- 750.81d. from MCL

“in their lawful acts” included both acts was regarding lawful language lar MCL 750.479. version of and the amended MCL 750.81d has that this Court language include Both statutes now offense of that the common-law explain in the past used pro- occurs while the resisting an officer obstructing or duties.” The term his or her “performing tected expected that one is “something means “duty” generally legal obligation”51 moral or by to do required one has law or obligation “an legally implies imply both 750.479 and MCL 750.81d contract.”52 MCL or has reason to know” charged “knows that the his or her “performing protected that a individual is authorized law or conduct engaging duties” when Thus, re- by legal obligation.53 required resisting and ob- that the offense of concept tained the are lawful. that an officer’s actions structing requires prosecution provides: a under this section that “It is no defense to in fact was peace attempting to make an arrest which officer was 18-8-103(2). Colo Rev Stat unlawful....” 51Random, Dictionary College House Webster’s (6th ed). Dictionary Black’s Law meaning phrase added is not inconsistent with of this concept phrase at oral “in lawful acts.” This was illustrated omitted their Cavanagh argument questioned prosecutor as follows: when Justice you? pose hypothetical Cavanagh: I What if Can Justice you you his where have a male officer have situation puts prisoner hand of a female his duties undertakes search conduct]? pants [criminal sexual inside her and commits CSC your just interpretation [MCL 750.]81d and under stated Under fights off, assuming holding, him she resists —she Ventura’s charged fight she not? him off—she could be could tries to Prosecuting Attorney: No. Why? Cavanagh:

Justice Attorney: duty performing? Prosecuting is he What —what Doing Cavanagh: a search. Justice Opinion of the Court This Court that if explained has there is doubt about whether statute abrogates established common-law “ rules, the ‘given statute shall he the effect which the makes least rather than the change most in the ”54 Nevertheless, common law.’ without certain Legislature’s indication of the abrogate intent to the common-law right arrest, to resist unlawful the of Court in Appeals Ventura pronounced that it was “adopting] the modern rule that a person may not use force to resist by an arrest made one he knows or has reason to know is his regardless duties whether the arrest is under illegal the circumstances of the However, occasion.”55 find nothing we lan- the guage legislative history this statute to support this conclusion. Therefore, we simply cannot conclude that the Legislature abrogated to common-law resist unlawful invasions of private rights “no uncer- tain terms.”

Accordingly, we overrule Ventura to the extent that it concluded that the common-law un- to resist an lawful arrest abrogated by was MCL 750.81d.

IV CONCLUSION While the Legislature authority has the to modify law, common it must do so by speaking in “no uncertain exchange This illustrates that is no there relevant distinction between meaning “performing of an officer his or her duties” and an officer engaging in “lawful legal acts.” Just as an officer acts outside his or her duty perform committing assault, a search the officers in this legal case unlawfully entering acted outside their duties defendant’s home without warrant. Co, Nation v W D E Electric 454 Mich 563 NW2d 233 (1997), quoting Whitmill, Energetics, Ltd v 442 Mich NW2d 55 Ventura, App at 377. 491 Mich Dissenting Markman, of MCL 750.81d nor language Neither terms.”56 cer- indicates with of this statute history legislative abrogate the intended to Legislature tainty that or other unlawful arrests resist rights. pre- We cannot private invasions of abrogate this intended to Legislature sume that extent that Ventura to the Therefore, we overrule right. affirmatively chose it held that common-law rule modify the traditional an unlawful arrest.57 resist in case relied on the of this Appeals Because Court to the con- principle its Ventura and extended broader home, the entry text of the we reverse of unlawful and remand this judgment Appeals of the Court of remand, court. we instruct matter to the trial On to quash to defendant’s motion grant trial court ruling the officers’ on the basis its charges conduct was unlawful. Mary Marilyn Kelly,

Cavanagh, Kelly, Beth JJ., HATHAWAY, J. ZAHRA, concurred with (dissenting). respectfully J. I dissent from MARKMAN, to of the judgment decision reverse the majority’s Ventura, 262 People and overrule Appeals Court of issue only Mich NW2d 748 App Legislature abrogated here whether the is have conduct that later determined to police resist 2002, the in MCL Legislature been unlawful. Before but made unlawful to resist 750.479 it later only if that officer was what was However, in a “lawful act.” determined constitute MCL and also amended 750.479 56 Hoerstman, at 474 Mich 74. 57 Ventura, App at 376-377. Dissenting Opinion Markman,

enacted new statute addressing subject, MCL 750.81d, neither which contains the “lawful act” this, requirement. doing By Legislature clearly excluded consideration of the lawfulness of the police officer’s conduct as a in relevant element re- forcibly sisting an officer as as the long police officer was duties,” or “performing his her and it did so “in no Therefore, uncertain I terms.” would affirm judg- ment of which, the Court of in Appeals, reliance on Ventura, held that defendant was properly charged and obstructing a officer under MCL after struggled 750.81d he physically with officers who had entered his home.1

I. LEGISLATIVEABROGATION Before provided: 750.479 Any person knowingly wilfully obstruct, who shall oppose any sheriff, coroner, or treasurer, resist township constable or duly authorized, other officer or serving, attempting or any process, or serve execute rule order authority, or made issued lawful or who shall resist any ordinance, law, officer execution of any rule, made, issued, or order or passed by resolution or any city the common trustees, council of board of or common or village council any incorporated council of village, township any or board of township or who shall assault, sheriff, coroner, beat any township or wound treasurer, duly authorized, constable or other officer while serving, attempting any or to or process, serve execute such order, or served, rule for having atempted or or [sic] to same, serve or obstruct, resist, execute or who shall so assault, oppose, any beat or wound of the above named officers, any person persons or by other or authorized law 1 unlawfully The trial court ruled that the officers had entered defen home, prosecutor appeal Therefore, ruling. dant’s and the not did opinion assumption is written under entry that the officers’ was unlawful. 38 Opinion by Dissenting Markman, acts, peace, in their preserve to maintain and lawful maintain, keep preserve and and to attempts efforts misdemeanor, by punishable guilty be a peace, of shall years, prison imprisonment not more than or in the state 1,000 [Emphasis added.] dollars. of not more than a fine Krum, Mich 132 NW2d In v People “one use such reason- (1965), this Court held that illegal necessary an attach- prevent able force as is violating illegal ment to resist an arrest” without and Clements, 68 Mich MCL See also 750.479. (1888) a whose (holding debtor 36 NW executing a invalid was seized sheriff property “compelled to submit writ attachment was not of in order without reasonable resistance” trespass such 9257, a of predecessor How Stat violating to avoid 750.479). MCL

In amended MCL 750.479 provides, 750.479 now enacted 750.81d. MCL pertinent part:

(1) knowingly willfully person not do of A shall following: (a) Assault, batter, wound, obstruct, endanger or a treasurer, examiner, township judge, magistrate, medical officer, city attorney, probation officer, parole prosecutor, duly or employee, or other officer court court serving attempting serve ex- or or authorized rule, any process, or order made or issued lawful ecute performance authority in the his or acting or otherwise of her duties. (b) Assault, batter, wound, obstruct, endanger an or law, rule, order, ordinance, or enforcing resolu- officer trustees, city council of a board tion of common village incorporated of an vil- common council or council township. lage, township board (2) (3), (4), (5), Except provided in as subsections guilty felony of a who violates this section Dissenting by Markman, punishable by imprisonment years for not more than or $2,000.00, a fine of not more than or both.

(3) person A by who violates this section and that bodily injury violation a requiring causes medical attention or medical care individual described in this section is guilty felony punishable by imprisonment of a for not more years than 4 $5,000.00, or a fine of not more than or both. (4) person A who violates this section and violation impairment body causes serious of a function of an individual in guilty described felony this section is of a punishable by imprisonment years for not more than 10 or a fine of not $10,000.00, more than or both.

(5) person A who violates this section and violation causes the death of an individual described guilty felony punishable section a is imprisonment for years not more than 20 aor fine not more than $20,000.00, or both.

(8) used As in this section: (a) “Obstruct” includes the use or threatened use of physical interference or or knowing force a failure comply with a [Emphasis command. added.] lawful provides: 750.81d

(1) Except provided (2), (3), as (4), subsections assaults, batters, resists, individual wounds, who ob- structs, opposes, endangers person or who the individual knows or has reason to know is or his her duties guilty felony punishable by is of a imprisonment for not years than 2 $2,000.00, more or a fine of not more than or both.

(2) assaults, batters, An wounds, resists, individual who obstructs, opposes, endangers who the indi- vidual knows or has reason to know is performing his or causing bodily injury her duties requiring medical atten- tion or guilty medical care to that felony of a - 491 MICH 38 by Dissenting Opinion Markman, J. years than 4 or by for not more

punishable imprisonment $5,000.00, or both. of more than a fine not wounds, resists, (3) batters, assaults, who An individual person the indi- endangers who obstructs, opposes, or a his or performing is or reason know knows has vidual body a function impairment of causing a serious her duties by imprison- felony punishable person guilty a is of of that years not more than or a fine of for not more than 15 ment $10,000.00, or both.

(4) wounds, resists, assaults, batters, who An individual endangers indi- obstructs, who the opposes, or is his or or has to know vidual knows reason guilty aof causing the death of that her duties for than 20 felony punishable imprisonment not more $20,000.00, or years than both. or a fine of not more (7) As used in this section: (a) use of the use or threatened “Obstruct” includes knowing force or a physical interference or failure command. comply with a lawful (b) following: of the “Person” means (j) political of a subdivi- A officer of this state or to, including, a motor but not limited of this state sion department capítol security officer of officer or carrier police. of state (ii) junior college, college, A of or univer- police officer junior governing board of that

sity who is authorized university and the college, college, to enforce state law or college, college, junior of that rules and ordinances university.

(Hi) department natural officer of the of A conservation department quality. of environmental resources or (iv) depart- officer of the United States A conservation of the interior. ment

(;v) deputy A sheriff. sheriff or Dissenting Opinion Markman, (yi) A constable.

(vii) peace duly A officer of a agency authorized of States, including, to, agent the United but not limited department justice. the secret service or Cviii) firefighter. A

(wc)Any emergency personnel medical service described public code, in section 20950 of the health 1978 PA MCL 333.20950.

(x) engaged An individual opéra- in search and rescue 750.50c], tion as [Emphasis [MCL that term is defined in added.]

MCL applies 750.81d to police officers, firefighters, and emergency medical service personnel, and MCL 750.479 to other applies persons involved enforcement, with law such as judges, prosecutors, and parole officers. Both statutes make it unlawful only not to assault or resist individuals, these but also to them endanger they while are performing their duties. Both statutes also have multitiered penalty structures based on level the injury suffered.

The question before us concerns whether rule announced in Clements Krum, and reaffirmed in 374 Mich at that “one may use such reasonable force as is necessary prevent to an illegal attachment and to an illegal resist arrest” remains the rule of law in Michigan in light of the 2002 amendment MCL 750.479 and the enactment of MCL 750.81d. More specifically, the issue concerns whether a person who forcibly a police resists unlawfully officer who is enter- that ing person’s home may be found guilty of violating I MCL 750.81d. believe that the answer to the latter question be must in the affirmative.

As earlier, mentioned in Legislature 2002 the enacted significant changes to this resisting-and- state’s obstructing Perhaps laws. significant the most change Mich 38 491 Dissenting Markman, “in their phrase of the to the elimination

pertained This was also language MCL 750.479. lawful acts” from 750.81d. This newly enacted MCL left out of notably of MCL the former version while significant because police to resist officers made it unlawful clearly 750.479 acts,” the “lawful performing officers only if those were MCL equally 750.8Id language of this same absence regard- officers police makes it unlawful resist clearly “lawful were less of whether those officers acts.” outset, majority it

At must be observed here is “whether states that the issue resist abrogate intended enactment of arrest with its 2002 unlawful it cites no case of 750.81d,” ante at when underlying assump- court in of the support Michigan in Michi- tion that there was such common-law Instead, majority supports only cites each case gan. of MCL pre-2002 versions the proposition only if illegal it to resist officer made 750.479 Krum, Mich “lawful.” See the officer’s actions were Clements, 750.479), CL (interpreting at 361 9257). is, 1882 How Stat That (interpreting Mich at Clements, there to Krum Michigan, pursuant in their to resist officers statutory right was a (stating Mich at 374 Ventura, App acts. 750.479, right the to resist an unlaw- that “under MCL essence, charge a the of was, in defense to ful arrest arrest, the of the arrest was legality because offense”).2 Therefore, con- of the charged an element 2 right course, English recognize, to of there was an common-law I that Apparently, right originated the from belief arrests. this resist unlawful victim, provocation adequate for the that an unlawful arrest “created reducing charge justifying from the thus the victim’s resistance (a (an killing upon killing) manslaughter unprovoked suffi to murder at All”: A Call Levin, “Not Law provocation).” Hemmens & cient for 65 Dissenting Opinion Markman, J. trary majority’s contention, to “the rules regarding law,” of abrogation 46, the common ante at are not even clearly relevant here.

However, even that assuming legacy as a English common law there awas common-law right resist conduct in Michigan, and there- fore that regarding rules legislative abrogation invoked, must Legislature be clearly abrogated this in right common-law 2002. “The common law and the force, statute laws now in repugnant not to this consti- tution, shall in remain force until they expire by'their limitations, own or are or changed, amended repealed.” 1963, 3, § Const art 7. a statutory “Whether scheme preempts, changes, amends the common law is a question of legislative intent.” Wold Engi- Architects & (2006). Strat, neers v 474 Mich 750 NW2d However, “the Legislature ‘should in no uncer- speak tain terms’ authority when it its to modify exercises ” Assoc, law.’ v Dr common Dawe Reuven Bar-Levav & PC, 20, (2010), 780 NW2d 272 quoting Hahn, Hoerstman Gen Inc v Contracting, Mich 74; 711 NW2d 340

Assuming that there in was Michigan forcibly resist a police officer’s unlawful acts, I believe the “in no uncertain terms” abrogated this when it amended MCL 750.479 and discussed, enacted MCL 750.81d. As before made only 750.479 it unlawful to resist a if police officer However, officer was a “lawful act.” Right Arrest, Return Common Law to Resist U L 29 Sw Unlawful 1666). R1,9 (1999), Case, citing Huggett’s Rep (KB, Hopkin Eng against This was later extended to excuse assaults officers. Levin, 11, citing Eng Thompson, & U L Hemmens 29 Sw R at Rex v 1825). (KB, Rep However, majority authority cites no for proposition aspect English expressly common law was ever adopted Michigan. 491 Mich 38 Dissenting Opinion J. Markman, proviso the “lawful acts” removed Legislature the 750.81d, which MCL and enacted in MCL 750.479 By proviso. the “lawful acts” does not contain similarly terms” ex- “in no uncertain so, the Legislature doing officer’s conduct as of the police the lawfulness cluded is, Legisla- That the resisting an officer. an element of unlawful police to resist clearly abrogated ture as of it is unlaw- Therefore, Michigan, in conduct. regardless of forcibly police ful to resist the Court of actions. As of the officer’s lawfulness at Ventura, App 375-377: explained Appeals 750.81d, language [sic] Examining the of 750.479, we of] MCL find no [the unlike in former version detaining the arrest or act. to lawfulness of reference abundantly clear language MCL is The 750.81d only an individual who resists a states that know his or has reason to is individual knows guilty felony. MCL Because the is of a 750.81d. duties unambiguous, is further language of clear and the statute necessary permitted, nor and we construction is neither “ clearly Legislature intended ‘expand to what the decline ” requirement. in” a cover’ and “read lawfulness to statutes, knowledge Legislature enacts it has When existing subject, not on the same and it is within laws Legislature’s affirma- province to disturb our obvious our modify rule the traditional common-law that tive choice [Citations omitted.] arrest. resist the common-law majority argues abrogated conduct was not be- resist unlawful Legislature “nowhere in MCL 750.81d does the cause conduct to resist unlawful state However, at no exists.” Ante 48. longer officer does not already has held that Court it common- expressly “abrogating have to state that Dissenting Markman, law in order for it right” abrogate a common-law right. Breton, As this Court explained Reed (2006): 531, 8; Mich 539 n 718 NW2d 770 Strat, 223, In Engineers Wold Architects & v (2006), nothing 713 NW2d 750 we stated that in the abrogate act at issue there showed an intent to the common analysis law. We did not extend that to conclude that the language specifically abrogating absence of the common abrogation law demonstrated that no occurred.

Here, the Legislature abrogated the common-law to resist unlawful police by conduct this removing by statute, from MCL 750.479 and enacting related 750.81d, right. without including Legis- lature’s intent to abrogate to resist unlawful police sufficiently conduct is clear with- out its to having specifically state that this was its intent. A legislative body need not provide blow-by- analysis blow concerning the effect of its actions on the common law when its only actions will admit of most obvious interpretation.

Contrary to the majority’s position, Legislature’s striking of the requirement lawfulness from the “resist- ing” portions of pertinent statutes was hardly inadvertent. This is evidenced the fact that requirement lawfulness was partially retained in the obstruction portions of the statutes. Both statutes de- fine “obstruct” as “the use or threatened physical use of interference or force or a knowing failure to comply with a command.” MCL 750.479(8)(a); MCL lawful 750.81d(7)(a) added). (emphasis Accordingly, while an individual who physically forcibly interferes with or resists an may officer be guilty “resisting” of or “ob- structing,” regardless of whether the officer’s conduct lawful, was an individual who fails to with comply officer’s command be guilty only of if “obstructing” Mich 38 Dissenting Markman, J. See Brooks command was “lawful.”3

the officer’s (“[A] (CA 2009) Rothe, straightfor- 577 F3d 750.81d(7)(a) [MCL] of reading language ward ways: by in two the law can be violated provides command, lawful or resisting a whether physically com- unlawful, refusing comply or with lawful force.”) original). in the using (emphasis mand without comply providing failing By expressly command if the only can constitute obstruction officer’s re- yet expressly command was “lawful” and officer’s from the moving requirement this same lawfulness of the portions interference and resistance physical “in uncertain exer- statutes, no terms” is, the common law. That it authority modify cised its rule —that one could be modified the common-law if obstructing only an officer guilty found allow one to be the officer’s conduct was lawful —to an officer for guilty resisting obstructing found of or to an officer’s lawful command or failing comply with majority Appeals of the Court in this The holds that “the decision of statutory language” the because the Court “held that case conflicts with person resisting prohibits MCL 750.81d a from an officer’s unlawful conduct, yet allows a to obstruct an officer’s unlawful statute original). (emphasis Ante at 51 in the The decision of the command.” not, way Appeals my judgment, in conflict in with the Court of does language; rather, majority simply recognize statutory fails to physically interfering resisting with an officer and distinction between simply failing comply to with an officer’s command. Pursuant to MCL 750.81d, guilty while an individual be of the former even if the unlawful, only guilty conduct is an individual can be of the latter officer’s example, responds if the officer’s For if a to command was lawful. keys by punching command hand over his car an officer’s unlawful officer, officer; however, person may guilty obstructing if the be nothing keys, person does other than refuse to hand over his he would not guilty obstructing perfect This distinction makes sense. be the officer. perfectly logical punish people physically interfere It is who with unlawful, yet punish not even if the officer’s conduct is those people nothing comply who do other than fail to with an officer’s unlawful command. People v Moreno Dissenting (Opinion Markman, physically interfering for with or the officer regardless of whether the officer’s conduct was lawful. clear, reasonable, fully The distinctions drawn are judgment Legislature. within the of the majority further contends that the Legislature’s language removal of the “in their lawful is irrel- acts” recently evant because Court has clarified that the “this Legislature’s failure to a expressly provide for common- law defense in a criminal prevent statute does not a defendant from relying on that defense.” Ante at citing People Dupree, 486 Mich 788 NW2d 399 earlier, As discussed it appears resist unlawful conduct a statutory right was a However, rather than common-law in right Michigan. even it assuming was common-law in Michigan, it Legisla- was that the ture codified when it PA enacted 1869 which amended a predecessor 750.479, rejected of MCL when it amended MCL 750.479 enacted MCL in 750.81d 2002. This historical context makes this case altogether distinguishable from Dupree which this Court held that charged an individual being felon in possession of a firearm can raise the common-law affirmative though defense of self-defense even felon-in-possession regarding statute is silent self- defense, because the Legislature expressly had never included in the self-defense statute and then removed it. Unlike in which the Dupree, Legislature simply remained silent about self-defense in the felon-in- statute, possession has not remained silent about the to resist police unlawful conduct. Instead, 2002, until Legislature from 1869 clearly provided right, for such a and in so, equally clearly By doing removed it. the Legislature “in no uncertain abrogated terms” to resist

70 491 Mich 38 bt'Markman, Dissenting conduct,4 Dupree hardly unlawful and relevant police contrary. in establishing Next, “in majority argues that the removal of replaced their lawful acts” is irrelevant because it was namely, “similar his or her language,” “performing majority recognize duties.” Ante at 55-56. The fails to the substantial distinction “in their lawful between and or her duties.” It “performing acts” his is well established that the lawfulness of an individual’s con- duct is not determinative of necessarily whether argues Defendant that he should be able to claim “self-defense” Act, 780.972(2), provides, pertinent because the Self-Defense in part: engaged An individual has not is not who the commission deadly at of a crime the time he or she uses force other than force deadly against use force other than force another individual anywhere legal right duty he or she has the to be with no to retreat honestly reasonably if he or she believes that the of that use necessary force is himself defend or herself or another indi-

vidual from the imminent use of force another [Emphasis added.] individual. First, may very engaged defendant well have been in the commission entry of a crime when he used force to resist the officers’ into his house. Marijuana house, girl- was found inside defendant’s and defendant’s drinking friend admitted that minors were alcohol inside defendant’s significantly, house. Even more it is well established that “the more specific provision prevails general. Gill, over the more ...” Manuel v 637, 648-649; Clearly resisting-and- Mich NW2d obstructing specifically pertains subject statute more to the obstructing police Act, officer than does the Self-Defense pursuant resisting-and-obstructing statute, only to the an individual can forcibly resist officer if he does not know or have reason to know 750.81d; officer is his duties. MCL see also State v Hobson, (1998), 2d 218 Wis 577 NW2d 825 in which a similar argument rejected. Moreover, was there is no evidence that defendant “ ‘reasonably danger believe[d]... [was] that he immediate of unlaw- bodily adversary....’” Dupree, ful harm from his Mich at (2d LaFave, quoting ed), 10.4, p § Substantive Criminal Law 142. At most, reasonably defendant could have believed that he was in immediate danger entry of an unlawful into his home which does give forcefully not rise to a resist. People 71 Dissenting Opinion by Markman, individual or her “performing is his duties” because an individual can commit an unlawful act while “perform- ing Corr, his or her duties.” See v App 287 Mich 499, 504; (2010), 946; NW2d lv den 488 Mich (2010) (“Under 794 NW2d 324 750.81d(l), it is illegal assault, batter, resist, or obstruct an officer if action, even the officer taking long is unlawful as as are done in performance officer’s actions of the duties.”). official recognized officer’s This has been time and time again the context of the doctrine of respon- doctrine, deat superior. Pursuant to that employer “[a]n generally is liable for the torts its commit employees ” the scope employment. within of their Hamed v Wayne Co, 1, 10-11; Indeed, 490 Mich 803 NW2d 237 “ municipal ‘[a] corporation may... be liable for an and unauthorized act of one of its officers or unlawful agents if the act done in was the course of his official duty or employment, and within the general scope of his ” (On authority.’ Ross Consumers Power Co Rehear- ing), 567, 624; 420 Mich (1983), NW2d 641 quoting 2d, 57 Am Jur Municipal, School, and State Tort added).5 § Liability, 99-100 pp (emphasis The fact Liquor Comm, See also Anschutz v Control 343 Mich (1955) (“[T]he employee NW2d 533 instruction to the did not relieve responsibility illegal defendant from ground for the act on the that such employee placed scope employment himself outside the of his when he it.”); (1954) Mitchell, 7, 19-20; violated Barnes v 341 Mich 67 NW2d 208 (“ application respondeat superior ‘The depend upon of the rule does not orders, upon the obedience of the legality servant to his master’s nor conduct; acting of the scope servant’s where a servant is within the of his employment, acting something negligent wrongful, so does or liable, employer though very even the acts done be the reverse of (citation ”) actually omitted); that which the servant was directed to do.’ Chicago Co, Randall v & R Grand Trunk 71 NW 450 (1897) (“ injury ‘[T]he negligent fact that the was occasioned or appellant’s employés appellant acts of the would not make the liable, appeared complained unless it further that the acts of occurred ”) (citation omitted). scope employment.’ within the of the servants’ 491 MICH38 Dissenting Opinion Markman, J. an unlawful act of may be liable for municipality

that a in the course of the if the act was done an officer necessarily means duty employment officer’s official an unlawful act while that an officer can commit Therefore, contrary to or her duties.” “performing his “in their lawful acts” and majority’s suggestion, remotely even his or her duties” are not “performing synonymous.6 “on

However, say this is not to that an officer who is necessarily acting his duties or performing the clock” is Instead, an scope employment. the of his officer within acting of his performing scope is his duties within “ ‘ in “engaged he is the service of employment when ’ ” master, his or while about his master’s business.” (citations omitted). Harried, “Although Mich at 11 490 contrary employer’s an act be to instructions”— of employee’s scope or unlawful —it is within “if the act in employment employee accomplished furtherance, interest, or the of the busi- employer’s hand, action, “[independent ness.” Id. On the other to further individual solely employee’s intended interests, fairly falling cannot be characterized as Therefore, scope employment.” within the Id. con- trary assertion, the issue here is not majority’s lawfully entered defendant’s whether the officers house, acting but rather whether officers were further their or their own individual inter- employer’s 6 English Even the to resist unlawful arrests did not Instead, apply “the in to all unlawful arrests. cases which the common illegal provocation law held that an arrest created sufficient courts resistance, generally arresting excuse involved officers individuals ‘arbitrary through truly outrageous conduct and assertions of author ” Levin, 12, ity.’ quoting Chevigny, Right L R at Hemmens & 29 Sw U Arrest, 1128, particular, L to Resist an 78 Yale J 1131 In Unlawful i.e., “good arrests, arrests individuals did not have a to resist faith” by police good-faith had a that the arrest was made officers who belief Levin, L R lawful. Hemmens & 29 Sw U at 12. 73 Dissenting Opinion by Markman, J. words, In other ests. were they going “about [their] master’s business” or their own business when they entered defendant’s house? Id.7

There is no question that the officers in this case going were about their master’s they business when interpretation jurisdictions This is consistent with how other have interpreted example, Heliczer, similar statutes. For in United States v (CA 2, 1967), den, 2133; F2d cert 388 US 87 S Ct 18 L Ed (1967), 2d Appeals the United States Court of for the Second Circuit rejected the unlawful, agents defendant’s “claim that if the arrest was engaged duties, were not their official [the defendant] explained: had a to resist.” Heliczer * * * “Engaged performance simply of official duties” is acting scope agent within employed of what the is to do. The agent acting

test is whether the compass is within that or is engaging personal in a frolic of his own. It cannot be said that an agent capacity who has made an arrest loses his official if the subsequently adjudged arrest [Id., quoting is to be unlawful. 111.] USC (CA Street, (“The 969, 978 8, 1995) See also United States v ‘scope 66 F3d agent employed what the to do’ is not defined ‘whether the officer is abiding regulations incident____’”) laws and in effect at the time of the (citation omitted); (CA Jennings, 11, 1993) United States v 991 F2d (“The abiding by test is not regulations whether the officer is laws and in incident, effect at the time of the but whether the officer is on some ‘frolicof ”) (citations omitted); State, his own.’ (Ind, Barnes v 946 NE2d 2011) (holding engaged that an officer “was in the execution of his official duty” regardless entry of whether apartment his into the defendant’s was lawful); Valentine, (1997) State v (holding 132 Wash 2d 935 P2d 1294 that engaged performance an officer “was regardless of his official duties” lawful); Moreira, whether his arrest of the defendant was Commonwealth v (1983) (“[A] 388 Mass person may 447 NE2d 1224 not use force to good resist an arrest one who he knows or has reason to believe is an police engaged performance duties, authorized regard in the of his less circumstances.”); of whether the arrest was unlawful in the State v 1978) Austin, (Me, (noting A2d that a statute that “makes a person guilty assaulting ‘knowingly an officer if he assaults a law enforcement engaged officer while the performance officer is in the of his ‘discourage[s] people custody official response duties’... from a violent ”) they omitted). illegal (emphasis what see as an arrest’ and citations The majority hand, single on the other support does not cite a case in of its contrary position. Mich 38 Dissenting Markman, on defen- They knocked defendant’s house. entered Ad- to Shane belonging because a vehicle dant’s door warrants, was outstanding had several ams, who leaving and a person house near defendant’s parked the officers that several told one of house defendant’s defendant’s consuming alcohol inside were minors be” inside. “might Shane Adams house and that people and several bottles of alcohol empty officers saw house. The officers were hiding and running inside uniforms, iden- they verbally their wearing minutes Fifteen as officers. tified themselves door, defendant’s knocked on the after the officers and admit- McCarry, opened the door Mandy girlfriend, drinking alcohol inside. When ted that minors were the vehicle if knew who owned officer asked her she street, if the officers were on the she asked parked then denied that he was for Adams and looking Shane intoxicants, and one of the there. Both officers smelled burning marijuana. When smelled burnt or officers also to enter McCarry they going were an officer told search they it obtained a the house to secure while and, using obscene warrant, defendant came to the door they could told the officers vulgar language, door, defendant moved to close not enter. When it from prevent to the door to officer his shoulder placed defendant and A ensued between being struggle closed. officers, removed from house and defendant was a torn ham- and arrested. One of the officers suffered struggle, of the injured elbow as result string treatment. The officers sought for which he medical occupants for patted the house and down entered obtained, After a search warrant was weapons. inside the house. marijuana officers found entry the trial court ruled that the officers’ Although yet did not they because into the house was unlawful exigent no circum- and there were have warrant Dissenting Markman, house,8 entry justify to the warrantless into stances “perform- that officers were not this does not mean Indeed, they entered the house. ing their duties” when acting in furtherance unquestionably the officers were interests and not in furtherance of employer’s of their They simply trying interests. were personal their own job by locating multiple do their who had outstanding protecting they warrants while minors who might drinking had reason to believe have been alcohol circumstances, it smoking marijuana. and Given these were reasonably disputed cannot be that the officers performing their duties as law enforcement officers and, defendant knew or had importantly, more that their duties.9 they performing reason to know that were Therefore, defendant had under no law resist obstruct them.10 ruling, Again, prosecutor appeal opinion because the did not that premised assumption “exigent that circum on there were no house, justify entry and thus stances” to the warrantless into the entry Nevertheless, noting “exigent was unlawful. it is worth that the exception requirement circumstances” to the does allow the warrant prevent to enter a home without a warrant the “imminent evidence,” $176,598, In destruction of re Forfeiture of 267-268; (1993), why “wanted 505 NW2d 201 when asked the officers residence,” testified, prevent “[W]e to ‘secure’ the one officer wanted to going destruction of evidence and so we were to secure it so noone marijuana it, they [sic] could flush or further eat or do whatever could to it,” destroy entry officer other testified that their “was based on probable destroyed cause that there was evidence that could be inside the Accordingly, assuming entry even residence.” the officers’ was question unlawful —and I undertake no effort to resolve that in this case— unlawful, they the officers did not believe at the time that it was certainly they performing believed that were their duties. 9 Indeed, argued defendant himself has never that the officers were not performing their duties the instant case. majority hypothetical posed The refers to a situation Justice argument at oral a male which while CAVANAGH search, sexually prisoner. majority assaults a female contends that why language “performing

this scenario demonstrates his or her 491 Mich Opinion by Dissenting Markman, J.

II. CONSTITUTIONALITY 750.81d, The next is so inter- issue whether unconstitutional, i.e., there is a preted, whether to resist conduct. right police constitutional unlawful argues right Defendant that there is such a and specifi- it from the Fourth Amend- cally argues derives ment, which provides: people persons, of the to be secure in their

houses, effects, against papers, and unreasonable searches violated, seizures, and shall not be and no Warrants shall issue, cause, upon probable supported by but Oath or affirmation, particularly describing place to be searched, Const, persons things and the [US to be seized. IV] Am Payton York,

Defendant cites v New 445 US 1371; L (1980), 100 S Ct 63 Ed 2d 639 for the proposi- tion that “the Fourth Amendment firm has drawn a line at the entrance to the house exigent [and] [a]bsent circumstances, reasonably threshold not be crossed without a Although certainly warrant.” this is true, says nothing it about whether an individual has In physically police words, to resist a officer. other the Fourth prohibits while Amendment from entering individual’s house without a warrant ab- exigent circumstances, sent the Fourth Amendment interpreted synonymous. duties” and “in their lawful acts” must be as Otherwise, majority contends, prisoner this female not would be risking resisting-and-obstructing allowed to resist the officer without charge. respectfully disagree. hypo- Cavanagh’s I The officer in Justice simply performing thetical situation cannot be said to have been his duties, unlawful, simply they not his because actions were but because “independent solely accomplished action[s] were [his] in furtherance of interests,” i.e., scope employment. own criminal of his outside Homed, prisoner 490 Mich at 11. And because the female would have reason to that the officer obvious know was not his duties sexually assaulting her, certainly she could resist the officer without risking being charged obstructing. Dissenting Opinion Markman, says nothing entitling physically about an individual to they resist the when do enter that individual’s Wright Georgia, house. Defendant also cites 373 US 284, 291-292; (1963), Ct L Ed 2d for 83 S proposition punished failing that “one cannot be for if obey the command of an officer that command is However, Wright itself violative of the Constitution.” says nothing about whether an individual has a go obey an officer’s beyond simply failing actually physically command and resist the officer. As earlier, noted the Legislature recognized this distinction expressly incorporated it into resisting-and- our obstructing 750.479(8)(a); statutes. MCL 750.81d(7)(a). Only the “failure to comply” form of obstruction these statutes is premised on officer’s lawful; command being “physical interference” al- ternative says nothing about the lawfulness of the command. Our resisting-and-obstructing statutes are completely consistent with Wright’s prohibition pun- on ishing person failing for obey officer’s unconsti- tutional Wright, command. 373 US at 291-292.11If the defendant in the instant simply case had refused to Strawn, recognized Bourgeois Supp 696, This was also v 452 F 2d (ED Mich, 2006), explained: which argument, police grounds That that can manufacture to arrest person wrongdoing simple by telling [sic] innocent of him to any authority

leave his own home without lawful to do so and then arresting violating directive, disturbing proposi- him for that is a Michigan appellate tion. The Court does not read the intermediate sanctioning argument, court’s decision in Ventura as and the proposition questionable validity. is of constitutional is, Ventura, Bourgeois recognized App 377, That at which person may by held that “a not use force to resist an arrest made one he regardless knows or has reason to know is his duties of whether illegal occasion,” the arrest is under the circumstances of the did not hold person may command, and, comply that a not refuse to with an unlawful thus, resisting-and-obstructing interpre- neither our statutes nor Ventura’s protection. tation of them runs afoul of constitutional 491 MICH 38 Dissenting by Markman, home, he not have the officers into his could been allow obstructing, but because he charged officers, he can be so charged. resisted the physically case that summary, single In defendant has not cited a has some constitu- his that a supports proposition tional right resist a officer who physically Indeed, in unlawful conduct. all the cases of engaging See, support proposition. which I am aware the opposite Curtis, 2d example, for 70 Cal 74 Cal (1969) (“There P2d 33 is no Rptr constitu- policy removing tional to the state’s impediment legality of an arrest from the controversies over Retail Rebellion and courtroom.”); Miller, streets to the (2011) Amendment, the Second Ind L 952-953 J (“[N]o Court decision has ever held that Supreme right against to defend an unlawful arrest is a consti- right.”). tutional as to a mere common law opposed That there is no constitutional to resist obviously conduct is also the fact supported Code,12 Act,13 that the Model Penal Uniform Arrest Code, adopted “[T]he Model Penal the American Law Institute in being denies the ‘to resist an arrest which the actor knows is ” by peace although Heliczer, made the arrest is unlawful.’ 373 F2d (citations omitted). at 246 n 3 “The Model Penal eliminated the Code ‘(1) grounds: development aggrieved on two of alternate remedies for an (2) arrestee, likely the use of force the arrestee was to result in ” greater injury State, preventing to the without the arrest.’ Barnes v (Ind, 2011), Levin, 572, quoting 946 NE2d 575 Hemmens & 29 Sw U L R at 23. 13 by The Uniform Arrest Act was a model act “drafted a committee officers, comprised police prosecutors, attorneys, judges, of defense attor neys Levin, general, professors.” and law Hemmens & 29 Sw U L R at 18. It “ provided ground ‘[i]f a has to believe that he is reasonable being by peace officer, duly using a it arrested is his to refrain from force or any weapon regardless legal in arrest of whether or not there is a ” using prevented illegality basis for the arrest’ and “it an arrestee from charges assault, manslaughter, ofthe arrest as a defense to or murder.” Id. 18-19, Warner, Act, 315, quoting at Arrest 28 Va L R 345 Uniform 79 by Dissenting Opinion Markman, J. right. have abolished majority “a of states”14 2011).15 572, (Ind, State, 576 Barnes v 946 NE2d

III. CONCLUSION decision to majority’s from the respectfully I dissent and to Appeals of the Court of judgment reverse the Before overrule Ventura. “twenty- right, eliminated the common-law As of 39 states had Levin, judicial by by Hemmens & decision.”

three statute sixteen (2d ed), LaFave, p Criminal Law L R at 24. See also Substantive Sw U “outlawing provision many a (noting state codes include modern officer, though against the arrest a known the use of force unlawful,” some of such an enactment and that “even the absence view”). the common law courts have abandoned (15th ed), p Torcía, Law 280: See 4 Wharton’s Criminal states, rule has been In the traditional common-law some arrest, unlawful, may changed. A not resist an lawful being by peace a officer. The

which he knows or believes is made dangerous purpose change confronta- obvious of this is to avoid require lawfulness to he resolved tion and the issue of arrest’s (3d Perkins, not in the street but in a court. See also Criminal Law ed), p 554: easy problems complicated [T]he are that it is for involved so regard the arrestee to be mistaken in to the either the officer or require of the arrest and it seems wise to such issues to lawfulness by present be decided in court rather than force and the trend . .. provide privilege is to that there is no to resist an arrest which being peace if arrestee knows is made even the arrest is unlawful. See, Gomes, example, App for Commonwealth v 59 Mass Ct (2003): 795 NE2d presents police entry [T]he into a residence often lawfulness of fact-dependent questions lawyers peculiarly close and as to which only judges may disagree. questions, Such which are even reflection, dispassionate are

resolved later with the benefit of particularly split-second judgments required ill-suited to citizenry. in their interactions with the “Such close magistrate question properly rather is more decided a detached highly participants volatile than in what well be a imbroglio.” [Citations omitted.] Dissenting Opinion by J. Markman, it 750.479 made unlawful to resist a but if only that officer was what was later However, determined to constitute a “lawful act.” 2002, the Legislature amended MCL 750.479 and also enacted a addressing new statute subject, 750.81d, neither of which contains the “lawful act” requirement. By this, doing clearly excluded consideration of the lawfulness of the police officer’s conduct as a relevant in forcibly element re- sisting an officer long as as the police officer was “performing duties,” his or her “in it did so no Therefore, uncertain terms.” I would affirm the judg- ment of which, the Court of Appeals, reliance on Ventura, held that defendant was properly charged with resisting and obstructing officer under MCL 750.81d after he physically struggled with officers who had entered his home. C.J., concurred

YOUNG, MARKMAN,

Case Details

Case Name: People v. Moreno

Court Name: Michigan Supreme Court

Date Published: Apr 20, 2012

Citation: 814 N.W.2d 624

Docket Number: Docket 141837

Court Abbreviation: Mich.