On April 20, 2012, the Michigan Supreme Court held that a person could not be charged with resisting and obstructing a police officer if the person struggled with officers who had entered the person’s home unlawfully. By statute, MCL 750.81d, it is a crime to resist or obstruct a police officer. Under the common law, however, a person may resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas. The Court considered whether the criminal statute abrogated that common-law right, and it held that it does not.
In Michigan v Moreno, No. 141837, the defendant was charged with resisting and obstructing a police officer under MCL 750.81d. The facts underlying the charge were straightforward. Two officers were searching for another man, Mr. Adams, whose car was parked near Mr. Moreno’s house. The officers knocked on Mr. Moreno’s front and back doors to ask about Mr. Adams. They heard voices and people running inside the house, and, through a basement window, they could see empty bottles of alcohol and people trying to hide. After 15 minutes, a woman opened the door. She was visibly intoxicated, and the officers smelled marijuana through the door. After questioning, she told the officers that Mr. Adams was not in the house. She also told them they could not come in without a warrant.
The officers then annouced that they were going to enter the house and secure it until a warrant arrived. Mr. Moreno came to the front door and demanded they obtain a warrant before entering. He tried to close the front door; one officer put his shoulder against the door to stop him. A physical struggle ensued between Mr. Moreno and the officers. Ultimately, the officers pulled Mr. Moreno from his doorway, physically subdued him, and arrested him. One officer tore a hamstring and bruised his elbow in the altercation.
Mr. Moreno was charged with assaulting, resisting, or obstructing a police officer, and he was also charged with assaulting, resisting, or obstructing a police officer causing injury, under MCL 750.81d(1) and (2). He moved to quash the charges on the ground that the officers had unlawfully entered his house. The trial court found that the officers had unlawfully entered the house and that there were no exigent circumstances that could provide an exception to the warrant requirement. It denied his motion to quash, however, after concluding that a “lawful” action by an officer is not a requirement of MCL 750.81d. On appeal, the Court of Appeals affirmed, citing to an earlier Court of Appeals’ case, Ventura, in holding that MCL 750.81d abrogated the common-law right to resist an unlawful arrest.
The Michigan Supreme Court reversed, overturning both Moreno and Ventura. It acknowledged that the Legislature can abrogate a common law right, but it held that the Legislature must do so by speaking in “no uncertain terms.” It further noted that the common law remains in force unless modified, and modifications are strictly and narrowly construed.
Interpreting the statutory language of MCL 750.81d, the Court held that it did not abrogage the common law right to resist unlawful police action because the statute did not clearly indicate that a person could not resist unlawful police conduct. The Court then turned to the legislative history, and held that it, too, did not support abrogation; to the contrary, it was “helpful in demonstrating that the Legislature did not intend to abrogate the right to resist an unlawful at by an officer.” Accordingly, the Court held that the common-law right remained in force, and it reversed the Court of Appeals and trial court decisions and remanded to the trial court with instructions to grant Mr. Moreno’s motion to quash the charges.
In dissent, Justice Markman, writing for himself and Justice Young, would hold that the Legislature abrogated the common-law right to resist arrest. He would rely for this conclusion on the 2002 change in the statutory languge. Prior to 2002, the statute made it unlawful to resist a “lawful act” by an officer. In 2002, that language was omitted with regard to resisting arrest, although it was retained with regard to obstructing an officer. The new language criminalizes resisting an officer who was “performing his or her duties.” Justice Markman would hold that “duties” “clearly” includes unlawful acts, as long as the officers were acting in the interests of the state and not their own personal interests. He therefore would hold that the statute “clearly” abrogates the common-law right to resist unlawful police action. He further would hold that this statute, as he would interpret it, would be constitutional under the Fourth Amendment because he would hold that there is no constitutional right to physically resist unlawful police action.