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