People v. Feeley , 312 Mich. App. 320 ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
September 15, 2015
Plaintiff-Appellant,
v No. 325802
Livingston Circuit Court
RYAN SCOTT FEELEY, LC No. 14-022259-AR
Defendant-Appellee.
Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.
SAWYER, P.J. (dissenting).
I respectfully dissent.
I disagree with the majority’s conclusion that Police Officer Douglas Roberts, a reserve
officer with the City of Brighton, is not, in fact, a police officer for purposes of MCL 750.81d.
The majority bases its conclusion on the fact that MCL 750.81d does not specifically list the job
title “reserve police officer” in its definition of “person” under the statute. I find this reasoning
unpersuasive.
MCL 750.81d(1) establishes as a two-year felony the following:
Except as provided in subsections (2), (3), and (4), 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 felony punishable by imprisonment for not more than 2 years or a fine
of not more than $2,000.00, or both.
Subsections (2), (3), and (4) establish greater penalties depending on the level of injury caused to
the victim. Furthermore, MCL 750.81d(7)(b) defines “person” as any of the following:
(i) A police officer of this state or of a political subdivision of this state
including, but not limited to, a motor carrier officer or capitol security officer of
the department of state police.
(ii) A police officer of a junior college, college, or university who is
authorized by the governing board of that junior college, college, or university to
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enforce state law and the rules and ordinances of that junior college, college, or
university.
(iii) A conservation officer of the department of natural resources or the
department of environmental quality.
(iv) A conservation officer of the United States department of the interior.
(v) A sheriff or deputy sheriff.
(vi) A constable.
(vii) A peace officer of a duly authorized police agency of the United
States, including, but not limited to, an agent of the secret service or department
of justice.
(viii) A firefighter.
(ix) Any emergency medical service personnel described in section 20950
of the public health code, 1978 PA 368, MCL 333.20950.
(x) An individual engaged in a search and rescue operation as that term is
defined in section 50c.
The majority finds great significance in the fact that the term “reserve police officer” is
not included in this list. I find no significance in that fact. The majority argues that, because this
list explicitly includes a number of categories that might implicitly be considered a “police
officer,” that must reflect a legislative intent to exclude other categories that are not explicitly
mentioned. I find this reasoning to be flawed.
The majority’s reasoning is correct only if we start from the presumption that the
Legislature has implicitly reached the same conclusion that the majority has reached: that a
“reserve police officer” is not, in fact, a “police officer.” That is, the Legislature would have
seen a need to explicitly include the category of “reserve police officer” in its listing only if the
Legislature did not consider a “reserve police officer” to already be included in the category of
“police officer of this state or of a political subdivision” under MCL 750.81d(7)(b)(i), or if it
wanted to explicitly exclude reserve officers from the definition. But there is no evidence in the
text of the statute that would suggest that the Legislature views a “reserve police officer” to be
anything other than a “police officer.” Nor is there any indication that the Legislature intended
to exclude reserve officers from the definition.
Next, it should not be overlooked that the statute, while providing an extensive definition
of “person” does not, however, provide a definition of “police officer.” Looking to Merriam-
Webster’s Collegiate Dictionary (11th ed), “police officer” is defined as “a member of a police
force.” And “police force” is defined as “a body of trained officers entrusted by a government
with maintenance of public peace and order, enforcement of laws, and prevention and detection
of crime.” Thus, we need to look at whether Officer Roberts is a “trained officer” entrusted by
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the City of Brighton with the “maintenance of public peace and order, enforcement of laws, and
prevention and detection of crime.”
Officer Roberts testified that he attended a 16-week police academy, that he was sworn as
an officer for the City of Brighton, that that oath included the obligation to uphold the laws of the
City of Brighton and the State of Michigan, and that he was issued a uniform and a weapon. He
worked a full shift, in a patrol car, along with a full-time officer. With respect to the specific
events of this case, Officer Roberts testified that he and the full-time officer that he was working
with were responding to a call for service regarding a fight in progress at a bar and that the
bouncers needed assistance. Defendant was identified as the person causing the problem and
Officer Roberts approached him and asked to speak with him. Defendant responded by running
away from Roberts, who identified himself as a police officer and ordered defendant to stop.
Defendant only complied after Officer Roberts repeated the command. While defendant did
stop, he looked at Officer Roberts, responded by saying, “fuck you,” and then reached behind his
back. Concerned that defendant was reaching for a weapon, Officer Roberts drew his own
weapon and ordered defendant to the ground. Defendant complied and, with the assistance of
two other officers who had arrived at the scene, defendant was taken into custody. I would
suggest that these facts establish that Officer Roberts is a “trained officer” who has been
entrusted by the City of Brighton and its police chief with the “maintenance of public peace and
order, enforcement of laws, and prevention and detection of crime.”
Moreover, I would note that this dictionary definition of “police officer” and its
application to reserve officers finds some support in legislative language, albeit in a different
statute. While I can find no use of the term “reserve police officer” in the statutes of this state,
the concealed pistol license statute does use the terms “reserve peace officer” and “reserve
officer,” defining them in MCL 28.421(1)(h) to mean
an individual authorized on a voluntary or irregular basis by a duly authorized
police agency of this state or a political subdivision of this state to act as a law
enforcement officer, who is responsible for the preservation of the peace, the
prevention and detection of crime, and the enforcement of the general criminal
laws of this state, and who is otherwise eligible to possess a firearm under this act.
In addition to the utilization of a definition similar to the dictionary definition of “police
officer,” there is another aspect that I find compelling: the reference to a reserve officer serving
on a “voluntary or irregular basis.” The distinction between a “police officer” and a “reserve
police officer” is not on the nature of their service to the city, but on the nature of their schedule.
Both are police officers in that their duty is to preserve the peace, prevent and detect crime, and
enforce the criminal laws of this state. The distinction is that a reserve officer does so on an
irregular basis. Or, as Officer Roberts testified in this case, he works two or three shifts a month
filling in for officers that are on vacation or have called in sick. That is, unlike a regular, full-
time officer, he does not have a regular schedule. But I see nothing in MCL 750.81d that draws
a distinction based on whether an officer enjoys a regular schedule in the performance of his or
her duties.
Finally, I would note that if we were to follow the majority’s rationale that all categories
of “persons” must be explicitly listed in the statute, that would necessarily exclude those whose
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job titles are something different than just “police officer.” For example, a number of
jurisdictions utilize “public safety” departments rather than police departments. Yet, MCL
750.81d(7)(b) does not include “public safety officer” in its list. I doubt that the Legislature
intended to exclude them from the coverage of the statute. Rather, I believe the Legislature
presumed that they, like reserve police officers, fall within the general category of “police
officer” as they too are charged with preserving the peace, prevention and detection of crime,
and enforcement of the law.
For these reasons, I conclude that Officer Roberts is a police officer of a political
subdivision of this state, namely the City of Brighton. Accordingly, defendant could be found
guilty under MCL 750.81d if he resisted or obstructed Officer Roberts in the performance of his
duties.
I would reverse the lower courts and direct the district court to bind defendant over for
trial if it finds that there is otherwise sufficient evidence to do so.
/s/ David H. Sawyer
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