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People v. Moreno

November 4, 2012       Leave a Comment
By: Jason Gower

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The Michigan Supreme Court has finally given Citizen's unlawfully seized or subject to unlawful police conduct a defense they can assert. The Justices have ruled that a citizen charged under MCL 750.81d can lawfully resist an unlawful arrest or unlawful order of law enforcement.

In People v. Moreno the defendant, Moreno, was charged with Resisting/Obstructing Arrest when he tried to close his door after telling the police they couldn't enter his home without a warrant. The police were allegedly searching for another individual. One of the officers present blocked the door from closing, there was a struggle leading to Moreno being arrested; one officer claimed to be injured from the struggle. The prosecutor charged the defendant with two counts of Resisting/Obstructing Police, with one count including the added element of causing injury requiring medical care or attention. The felony charges were punishable by imprisonment of two and four years respectively.

The Michigan Legislature didn't abrogate the common law right to resist a police officer's illegal activity when it enacted MCL 750.81d in 2002, the Court ruled. "As evidenced by the language of these two statues, it is clear that the [Michigan] Legislature changed some, but not all aspects of the common law governing the offenses of resisting and obstructing a peace officer. The Legislature made these changes using language that clearly set forth the changes it intended to make. In contrast, the Legislature expressed no intent to do away with the common-law right to resist an unlawful arrest. The most that could be said in favor of finding abrogation of that right is the omission of the phrase 'in their lawful acts' from MCL 750.81d." - wrote Justice Diane Hathaway the Author of the opinion.

The opinion was 5-2, with Justice's Stephen Markman and Robert Young dissenting.

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Jason Gower

Jason Gower is an experienced criminal defense attorney licensed to practice law in the State of Michigan.

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