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Resisting and Obstructing Police Officers: Broad Application Under Michigan Law

Pursuant to MCL 750.81d, 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 duties is guilty of a felony." The "persons" referred to in this statute include police officers, conservation officers, sheriffs, deputy sheriffs, constables, federal law enforcement agents, firefighters and emergency medical service personnel. "Obstruct" is defined to mean "the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command". This crime is often referred to as "R&O", or 'resisting and obstructing', and does not even require physical contact to constitute a crime.

The offense is most often applied to persons who have unpleasant encounters with police officers and the penalties available are as follows:

  1. Resisting and obstructing a person performing his or her duty without physical injury is a felony punishable by up to 2 years in state prison or a fine up to $2,000.00, or both.
  2. Resisting and obstructing a person performing his or her duty causing a bodily injury requiring medical treatment or medical care of that person is a felony punishable by up to 4 years in state prison or a fine up to $5,000.00, or both.
  3. Resisting and obstructing a person performing his or her duty causing a serious impairment of a body function of that person is a felony punishable by up to 15 years in state prison or a fine up to $10,000.00, or both.
  4. Resisting and obstructing a person performing his or her duty causing death of that person is a felony punishable by up to 20 years in state prison or a fine up to $20,000.00, or both.

In addition to the above penalties, a jail or prison sentence for a conviction of resisting and obstructing may run consecutive to any jail or prison term from a conviction arising out of the same transaction. For example, if you are convicted of larceny from a vehicle (up to 5 years in prison) and resist the police officer trying to arrest you for that offense (up to 2 years in prison), then you may face a combined 7 years in prison for both crimes together.

There is no dispute that opposing police officers to the extent that injuries and deaths occur should be dealt with harshly. Judges and prosecutors will show little mercy in dealing with people that will cause harm to law enforcement trying to do their jobs. There is clearly conduct that warrants the pursuit of felony convictions and prison time to any reasonable observer. However, it is frequently the case in Michigan that prosecutors will charge resisting and obstructing for the most benign infractions against officers. Remember, "obstructing" can mean the failure to comply with any lawful command and does not even require physical contact. In my practice, I have seen resisting and obstructing charges authorized when the defendant did not put his hands in the air after being told the first time. I have seen resisting and obstructing charges authorized when the defendant did not slide over to the other side of the patrol car's backseat fast enough after being ordered to do so during arrest. I have even seen these charges in completely non-violent situations where defendants have opted to question the officers rather than strictly comply with their directions on the first demand.

A frequent trick of prosecuting attorneys is to add a resisting and obstructing felony to several misdemeanor charges when it looks like they have a weak case. The plea offer from the prosecutor will be to offer the defendant to plead to the misdemeanors and the felony will be dismissed, causing the defendant to think that he or she is getting a good deal. In reality, the misdemeanor charges were probably winnable, and the defendant may have gone to trial but for eliminating the risk of a felony conviction. The resisting and obstructing charge at question was minor but the defendant likely feared being "outclassed" by the police officer at trial in a battle for credibility. In this scenario, the prosecutor secures a conviction and the defendant plead guilty to charges that may not have been provable beyond a reasonable doubt. For this reason, resisting and obstructing is one of Michigan's most overcharged offenses.

In 2012, the Michigan Supreme Court held in People v. Moreno that individuals have the common-law right to resist illegal police conduct such as unlawful arrests and unlawful entries into constitutionally protected areas under the Fourth Amendment. Proving that the officer's conduct is illegal is an absolute defense to resisting and obstructing but defendants take the risk of a judge or jury believing that the officer's conduct was unlawful under the circumstances. Defendants may also assert that they did not actually engage in any conduct that constitutes resisting and obstructing, which may be either easy or very difficult in a world where police officers have body cameras and patrol cars have surveillance videos. No matter what defense is asserted, it is important to have a criminal defense attorney on your side that understands the law in this area so that you might be on equal footing with the prosecutor and police in a court of law. Never accept a plea bargain from the prosecutor without understanding your legal options and defenses at hand. Do not be another statistic for criminal convictions obtaining as a result of pleading after being overcharged by a weak resisting and obstructing felony.

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