People v. Moreno will have
widespread effect, likely impact Godboldo case
DETROIT – In a landmark 5-2 decision
April 20, the Michigan Supreme Court upheld the “common-law” right to resist
unlawful arrests, warrantless home invasions, and other unlawful conduct by the
police.
“This ruling is extremely precedent-setting,”
Craig Haehnel, attorney for Angel Moreno, Jr., said. “I think it puts curbs on
the police. The Court of Appeals had ruled that you essentially have no right
to self-defense against police officers. You just can’t have a free society
where you cannot resist illegal conduct by the police. It takes you to nothing
but a police state.”
Mr. Moreno, Jr. of Holland,
Michigan, now 22, was charged in Dec. 2008 with violating a widely used state
statute for physically resisting an attempt by two Holland police officers,
Troy DeWys and Matthew Hamberg, to shove their way into his home.The officers
claimed they wanted to “secure the premises” while they got a warrant.
Both the trial and appeals courts
held that the officers’ entry was illegal but still upheld the charges against
Mr. Moreno, Jr.
The statute involved, MCL 750.81d,
says in part, “. . . .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 two-year felony. It
adds additional prison time if the person in question is injured.
“While the Legislature has the
authority to modify the common law, it must do so by speaking in ‘no uncertain
terms,’” Justice Diane Hathaway, writing for the majority, said. “Neither the
language of MCL 750.81d nor the legislative history of this statute indicates
with certainty that the Legislature intended to abrogate the common-law right
to resist unlawful arrests or other invasions of private rights. We cannot
presume that the Legislature intended to abrogate this right.
“Therefore, we overrule People v
Ventura, 262 Mich App 370; 686 NW2d 748 (2004), to the extent that it held that
the Legislature affirmatively chose to modify the traditional common-law rule
that a person may resist an unlawful arrest. Because the Court of Appeals in
this case relied on Ventura and extended its holding to the context of illegal
entries of the home, we reverse the judgment of the Court of Appeals and remand
this matter to the trial court. On remand, we instruct the trial court to grant
defendant’s motion to quash the charges on the basis of its ruling that the
officers’ conduct was unlawful.” (Click on People v Moreno MSC opinion to read
entire ruling.)
Mr. Haehnel said, “I’ve been
outraged ever since the Ventura decision came down. Under its logic, Rodney
King and Malice Green could have been charged with resisting and obstructing
for defending themselves.”
In the 1991 King case, Los Angeles
police were captured on videotape severely beating Mr. King. An all-white
jury’s acquittal of the officers ignited a national storm of protest. Detroit
police officers Larry Nevers and Walter Budzyn beat laid-off steelworker Malice
Green to death in 1992. An all-Black jury convicted them of second-degree
murder, a verdict that was overturned on appeal. Michigan legislators then
abolished Detroit’s Recorder’s Court, whose judges and juries were required to
be residents of majority-Black Detroit.
Mr. Haehnel said the People v.
Moreno decision, along with the overturn of Ventura, is retroactive and will
affect many cases across Michigan.
“I have two cases pending now that
Moreno relates to,” he noted. “In one, the videotape of the whole thing going
down shows quite clearly the police didn’t have reason to arrest my client.
They told him to get out of his home. He had been the victim of an assault, but
they arrested him instead.”
Mr. Haehnel and Attorney Racine
Miller, who researched the case for an amicus brief filed by the 2,000 member
Michigan Association for Justice, agreed that a key point in oral arguments was
a question Justice Michael F. Cavanagh put to Ottawa County Assistant
Prosecutor Gregory Babbitt.
Justice Cavanagh asked whether a
woman could be charged under Ventura for resisting a male officer who searched
her by putting his hands down her underwear. Mr. Babbitt said technically she
could be.
Justice Marilyn Kelly said that the
woman’s only recourse under the Ventura interpretation of the statute would be
to sue the officer, and noted that the average citizen cannot always afford to
sue.
Cops Michael Parish and Michael
Osman
(VOD: In fact, Detroit police
officers Michael Parish and Michael Osman already carried out rapes of Black
males on the streets of Detroit in 2006 by pulling their pants down and
penetrating them under the guise of drug searches, according to numerous
complainants and witnesses. The two are still on the force. Byron Ogletree was
acquitted of numerous charges brought after he resisted a similar attack by the
pair that year.)
Justice Robert Young told Mr.
Babbitt, “You don’t win unless you can persuade us that the statute he was
charged with abrogates the common law rule.” Young nevertheless voted to
dissent from the majority decision, along with Justice Robert Markman.
In their dissenting opinion, Justice
Markman wrote, “. . . the Legislature clearly excluded consideration of the
lawfulness of the police officer’s conduct as a relevant element in forcibly
resisting an officer as long as the police officer was ‘performing his or her
duties,’ and it did so ‘in no uncertain terms.’”
They also said the right to resist
unlawful conduct by the police is “outmoded in today’s modern society.”
Neither Attorney Babbitt nor anyone
from the Ottawa County Prosecutor’s office was available for comment on Moreno.
Ms. Miller said she believes the
Moreno decision will impact ongoing criminal proceedings in another prominent
case, that of Maryanne Godboldo. In March, 20l1, Godboldo stood off an army of
police equipped with helicopters, tanks and assault weapons to prevent them
from entering her home to take her 13-year-old daughter.. The police said they
had a “court order” initiated by the state’s Child Protective Services
authorizing them to take the child.
When Godboldo emerged at the end of
the stand-off, they charged her under MCL750.81d as well as other statutes
including gun charges, claiming she fired a gun inside the house during the
stand-off.
Both 36th District Court Judge
Ronald Giles and Wayne County Circuit Court Judge Gregory Bill dismissed all
charges against Ms. Godboldo after her attorneys demonstrated that the court
order was illegal. It had been rubber-stamped with Family Court Chief Judge
Leslie Kim Smith’s signature by a probation officer unauthorized to remove
children from their home, without any judicial review.
A major issue in the case was that
CPS worker Mia Wenk, not licensed in any medical profession, had decided the
child should be put back on a dangerous psychotropic drug, Risperdal. Ms.
Godboldo had earlier authorized administration of the drug only with the
written provision that she could take her off it at any time.
Judges Giles and Bill also concluded
that the prosecution did not provide sufficient evidence on the gun charges.
Wayne County Prosecutor Kym Worthy
has sought leave to appeal, over one month late.
“The Supreme Court ruling in Moreno
shot the appeal out of the water,” Attorney Miller said. “Ms. Godboldo had a
right to resist the police entry into her home. The only way the prosecutor can
continue is to come up with new charges not involving that statute or Ventura.”
The daily media in Michigan has
given scant coverage to the Moreno decision, choosing instead to focus on Chief
Justice Young’s subsequent attack on Justice Hathaway, the author of the
decision. He has alleged she entered into improper real estate deals involving
short sales.
Attorney Miller said she believes Young’s attack on Hathaway
is nothing but retaliation for the Moreno decision.