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PEOPLE v. WESS (1999)

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Court of Appeals of Michigan.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randolph A. WESS, Defendant-Appellant.

Docket No. 205655.

Decided: April 13, 1999

Before:  HOEKSTRA, P.J., and DOCTOROFF and O'CONNELL, JJ. Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Richard H. Browne, Chief, Appellate Division, Thomas R. Grden, Assistant Prosecuting Attorney, for the people. Nancy A. Plasterer, Bloomfield Hills, for the defendant on appeal.

Following a jury trial, defendant was convicted of resisting and obstructing an officer in the discharge of his duty, M.C.L. § 750.479;  M.S.A. § 28.747.   Defendant was sentenced to two years' probation.   He appeals as of right, and we affirm.

Ferndale police officers investigated a complaint that noise from a party was disturbing neighboring residents.   The owner of the home where the party was being held proved uncooperative, and the police ultimately arrested him.   Defendant, a close friend of the homeowner, saw the police arresting his friend and began running toward the arresting officers.   When he ignored their warnings to stop, the police sprayed him with pepper spray, pushed him to the ground, and arrested him.   Defendant was charged with interfering with the officers' attempt to investigate the complaint and to consummate the homeowner's arrest.   At trial, defense counsel sought to show that the homeowner's arrest was illegal and argued that defendant violated no law if he only resisted another's unlawful arrest.   However the trial court did not allow this line of defense, and it declined to instruct the jury regarding “lawful arrest” and a citizen's right to resist an unlawful arrest.


 Defendant's first argument on appeal is that the trial court's refusal to allow defendant to pursue his unlawful-arrest theory as a defense, and to instruct the jury accordingly, denied him due process of law.   We disagree.

 This Court reviews jury instructions in their entirety to determine if there is error requiring reversal.  People v. Daniel, 207 Mich.App. 47, 53, 523 N.W.2d 830 (1994).   Instructions must cover each element of each offense charged, along with all material issues, defenses, and theories that have evidentiary support.  Id. Conversely, an instruction that is without evidentiary support should not be given.  People v. Johnson, 171 Mich.App. 801, 804, 430 N.W.2d 828 (1988).

 M.C.L. § 750.479;  M.S.A. § 28.747 establishes criminal penalties applicable to “[a]ny person who shall knowingly and wilfully ․ 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․”  This legislation is intended to protect police officers engaged in “ordinary police functions,” including those “that do not directly involve placing a person under arrest.”   People v. Little, 434 Mich. 752, 759, 456 N.W.2d 237 (1990).   Further, resisting arrest and interfering with an officer's attempts to keep the peace or perform some other official duty are two different crimes.   People v. Rice, 192 Mich.App. 240, 243, 481 N.W.2d 10 (1991).   Although the lawfulness of an arrest is an element of the former, it is not an element of the latter.   Id.

In this case, overwhelming evidence established that the activity with which defendant allegedly interfered was most properly characterized as part of the officers' investigation of the noise complaint, not simply the homeowner's arrest.   The investigation and arrest were not mutually exclusive events.   Rather, the homeowner's arrest was a natural result of the events that stemmed from the officers' investigation.   Accordingly, we conclude that the issues of the lawfulness of the homeowner's arrest and of a citizen's right to resist unlawful arrest were not relevant matters for the jury to consider in this case.

 Furthermore, to the extent that the homeowner's arrest was a component of the official activity with which defendant interfered, he was not entitled to an instruction regarding resisting an illegal arrest when the arrest resisted was not his own.   While it is well settled in Michigan that “one may use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest,” People v. Krum, 374 Mich. 356, 361, 132 N.W.2d 69 (1965), we decline to extend the defense to third-party intervenors.1

Courts and legislatures in other jurisdictions have found the right to resist an unlawful arrest to be outmoded in our contemporary society.   For example, in State v. Valentine, 132 Wash.2d 1, 935 P.2d 1294 (1997), the Washington Supreme Court examined the common-law right to resist unlawful arrest and found that the policy concerns that once supported the right were, for the most part, no longer serious concerns.   Specifically, the court noted that the right arose at a time when mere imprisonment often resulted in death or serious physical harm.  Id. at 14-16, 935 P.2d 1294.   Our modern judicial processes have been reformed so that arrestees enjoy the right to reasonable bail, the right to counsel at critical stages of the trial, and the right to a prompt judicial determination of probable cause.  State v. Thomas, 262 N.W.2d 607, 611 (Iowa, 1978).   According to the Valentine court, since 1966 the number of states permitting resistance to an unlawful arrest has declined from forty-five to twenty.  Valentine, supra at 17-18, 935 P.2d 1294.   In those states where the common-law rule has been overturned by judicial decision rather than statute, courts have regularly voiced concern that allowing this kind of “outmoded common law rule ․ fosters unnecessary violence in the name of an obsolete self-help concept․”  Thomas, supra at 611.

Given its waning support in other jurisdictions, and in light of the considerable protections intended to guarantee the expeditious processing and humane treatment of those arrested, we can find no basis for escalating the potential harms already inherent in an arrest situation by extending to third-party intervenors the precarious right to use force against government officials.   The Court of Special Appeals in Maryland, while retaining the common-law rule as it relates to the arrestee, refused to expand the rule to third-party intervenors, noting:

A third party is usually in an even worse position than the arrestee to make an adequate assessment of the initial legality of an arrest.   Accordingly, the policy reasons for not permitting him to go to the aid of one arrested illegally are even stronger than those ․ for refusing to permit the arrestee himself to resist arrest.  [Glover v. State, 88 Md.App. 393, 408, 594 A.2d 1224 (1991).]

Other courts have reached similar conclusions.   In City of St. Louis v. Treece, 502 S.W.2d 432 (Mo.App., 1973), the Missouri Court of Appeals concluded that the risk incurred by extending the right to resist an illegal arrest to a third-party intervenor was too great:

The potential for a melee exists where there is resistance to arrest by an individual being arrested.   Much more predictable, then, is the general affray that could result by permitting third persons to interfere with and enter into the volatile circumstances attendant to an arrest particularly where ․ a crowd has gathered.  [Id. at 435.] 2

Finally, the principle that third persons may not interfere or hinder an illegal arrest has found support in federal law.   See United States v. Vigil, 431 F.2d 1037 (C.A.10, 1970).3

Because defendant cannot claim the right to resist another's illegal arrest, the legality of the homeowner's arrest was irrelevant to determining whether defendant was guilty of obstructing an officer in the discharge of his duty.   Therefore, even if the only event with which defendant interfered was the arrest, and not the investigation generally, the trial court did not err in refusing to instruct the jury regarding defendant's right to resist an illegal arrest.


 Defendant also argues that the trial court erred in admitting for impeachment purposes evidence of defendant's earlier misdemeanor convictions.   Defendant does not dispute that he interfered with the police officer's efforts to arrest the homeowner.   Rather, he simply contends that because the arrest was illegal, the interference was justified.   As discussed above, defendant does not enjoy the right to resist another's arrest, even if the arrest is unlawful.   Therefore, assuming arguendo that the trial court abused its discretion in admitting the evidence under MRE 609, any error was harmless in light of the overwhelming evidence of defendant's guilt.  People v. Parcha, 227 Mich.App. 236, 247, 575 N.W.2d 316 (1997).



1.   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.

2.   Like the court in Treece, we would qualify our decision today by noting that “[t]his decision should not be interpreted as a condonation or tolerance of precipitous police action or abuses in making illegal arrests.”  Treece, supra at 435.   We are not deciding the question whether one may intervene where a police officer is using clearly excessive force.

3.   “[A] third person does not have the right to intervene, and assist the person the officer is endeavoring to arrest to resist the arrest, if the third person knows or has good reason to believe the officer is a peace officer authorized to make arrests․”  Vigil, supra at 1042.


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