Under the common law, a person had a right to defend his or her home against the unlawful entry by the police.   For example, in People v Clements, 68 Mich 655 (1888) a man was convicted of resisting a county sheriff and sentenced to nine months imprisonment.  The sheriff was attempting to seize “a pair of horses, wagon, and harness, whiffletrees, and two horse blankets.”   The man insisted that he had a right to exempt that property from attachment because it was his wife’s and also because it was worth less than $250.00 like it said in the exemption statute.  (Exempt property is property that cannot be take by creditors no matter what.)  Because he resisted the sheriff’s unlawful taking of his property, the prosecutor charged him and obtained a conviction.  The trial judge refused to instruct the jury that the defendant had a right to resist.  Instead, the trial judge instructed the jury that the sheriff should be give the benefit of the doubt. ” … Public officers are presumed to act honestly and faithfully in the discharge of their duties … .”

 

On appeal, the conviction was reversed.  The Michigan Supreme Court held that when the sheriff attempts to seize property he believes he can seize, “he does it … at his own peril.  The law will not protect him in doing that which it has expressly commanded him not to do.  Neither is the [defendant] compelled to submit to such a trespass without reasonable resistance.”  The court further held that to hold otherwise, would result in “every poor debtor [being] at the mercy of the sheriff and constabulary of the county … .”   That was the state of the law from 1888 until 2004.

 

In 2002, the Michigan legislature updated the language of statute for resisting and obstructing a police officer, which can be found at MCL 750.81d.   Then in 2004, the Michigan Court of Appeals ruled in People v Ventura, 262 Mich App 370 (2004),  that the new resisting and obstructing statute no longer required that the police officer’s acts be “lawful.”

 

However, the weak and short opinion by Judge Donofrio utterly failed to consider the first rule of interpreting laws related to the common law.  In order for the citizens to lose their common law rights under a new statute, the statute actually has to say that it trumps the common law right.

 

So eight years later (and who knows how many wrongful  prosecutions and convictions in the mean time), the Michigan Supreme Court finally got around to over-ruling Ventura.   In People v Moreno, 491 Mich 38 (2012), the cops went to the defendant’s house because they were looking for someone.  The cops told the defendant they wanted consent to search, and he said “No — get a warrant.”   So the cops told him that they were still coming in to “secure” the house while they got the warrant.  Again, the defendant said “No.”  The defendant put his shoulder against the door to close it, and of course, the cops pushed back, pushed in, a fight ensued, and the defendant was arrested.   On appeal, the Michigan Supreme Court expressly over-ruled the “assumptions” in Ventura.  According to the Michigan Supreme Court, it was clear that the resisting and obstructing law did not eliminate a citizen’s common law right to defend against an unlawful police entry.   The Court held that a prosecutor must prove that the police officer’s conduct was lawful before obtaining a conviction for resisting and obstructing a police officer.

 

Recently, in a unpublished decision, the Michigan Court of Appeals held that a person cannot be convicted of resisting and obstructing a police officer by refusing to come out of a house simply because the cops ask him to come out.  In People v Nyilas, unpublished per curiam opinion, Michigan Court of Appeals, (No. 311721, August 13, 2013), the defendant assaulted his girlfriend and went home.  The police surrounded his home and asked him to come out.  He ignored them.  The police got a search warrant and an arrest warrant, and a “tactical team” invaded the home and arrested him.  They never even told him that they obtained warrants.  Nevertheless, he was charged and convicted for resisting a “lawful” command of the police by refusing to come out of his home.  On appeal, that conviction was reversed.  After pointing out the sanctity of the home under Constitutional law, in italics, the court said: “And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.”

 

If you are wrongfully charged with resisting and obstructing a police officer because he were defending your home against unlawful police entry, then contact Nye & Associates for a free consultation about your criminal matter.

 

 

 

 

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