People v. Moreno will have widespread effect, likely impact Godboldo case
By Diane Bukowski
May 18, 2012
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.
(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.