20231026_C365852_46_365852.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 26, 2023
Plaintiff-Appellee, APPROVED FOR
PUBLICATION
December 14, 2023
9:10 a.m.
v No. 365852
Kalamazoo Circuit Court
CHRISTOPHER IAN MURAWSKI, LC No. 2022-001795-FH
Defendant-Appellant.
Before: RICK, P.J., and SHAPIRO and YATES, JJ.
PER CURIAM.
In this criminal interlocutory appeal, defendant appeals by leave granted1 the circuit court’s
order denying his motion to quash the felony information charging two counts of resisting and
obstructing a police officer, MCL 750.81d. On appeal, defendant asserts that the circuit court erred
by denying the motion to quash because the underlying arrest was unlawful. We reverse and
remand for entry of an order granting the motion to quash.
I. FACTUAL BACKGROUND
This appeal arises out of an altercation that occurred between defendant and three law
enforcement officers at Latitude 42 Brewing Company in Kalamazoo, Michigan. At the
preliminary examination, Michigan State Police Trooper Derek Reynolds testified that he was
initially dispatched to an Ethan Allen furniture store after receiving a dispatch indicating that a
man was causing a disturbance inside the store. When Trooper Reynolds arrived, store employees
told him that the man had left and went toward Latitude 42, which was located next door. Trooper
1
People v Murawski, unpublished order of the Court of Appeals, entered May 25, 2023 (Docket
No. 365852).
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Reynolds walked into Latitude 42 and spoke to a man who matched the description provided by
employees at Ethan Allen. This man was defendant.
Trooper Reynolds spoke with defendant, who denied going to the Ethan Allen store.
Trooper Reynolds then asked defendant if he was looking for directions because employees at
Ethan Allen reported that the man in the store was asking for directions. Defendant stated that he
was looking for directions to Kalamazoo. Trooper Reynolds provided basic directions to
Kalamazoo. Trooper Reynolds testified that defendant appeared to be intoxicated. While Trooper
Reynolds spoke with defendant, Sergeant Juvon Johnson of the Kalamazoo County Sheriff’s
Office spoke to the manager. The manager said that she would prefer that defendant leave, and
she wanted him “trespassed.” Sergeant Johnson later testified that to “trespass” someone meant
to inform the person that the establishment wanted them to leave the premises and that criminal
charges could result if he or she returned. In other words, the officers were asking defendant to
leave the establishment and not return at the establishment’s request.
Sergeant Johnson walked over and joined Trooper Reynolds while he was speaking with
defendant at the bar. Sergeant Johnson told Trooper Reynolds that the manager wanted defendant
to leave and wanted him trespassed. Trooper Reynolds told defendant that he did not do anything
wrong but that he had to leave Latitude 42. Defendant agreed to leave. Trooper Reynolds then
asked for defendant’s identification.2 Defendant refused to provide any identification. Trooper
Reynolds explained that he could not trespass defendant without knowing defendant’s name.
Trooper Reynolds asked for defendant’s identification several more times, but defendant
continued to refuse and cursed at Trooper Reynolds. Finally, Trooper Reynolds told defendant,
“[I]f you don’t give me your identification, we’re going to go to jail.” Defendant again said no.
Trooper Reynolds then grabbed defendant’s right wrist to arrest him. Defendant tensed and pulled
back. An altercation with defendant ensued, which included Trooper Reynolds, Sergeant Johnson,
and Officer Bryan McLain, also of the Kalamazoo County Sheriff’s Office, who came inside to
help with the arrest. During the altercation, defendant bit Sergeant Johnson and kicked Officer
McLain.
Defendant was ultimately arrested and charged with three counts of resisting and
obstructing a police officer; one count for each of the officers involved. At the preliminary
examination, Trooper Reynolds acknowledged that a person was not required to provide
identification if he or she did not do anything wrong. He clarified that when he told defendant that
defendant had not done anything wrong, he meant that defendant did not commit a crime by going
in a store and asking for directions. Trooper Reynolds also acknowledged that he could identify
someone without identification by asking for their name and date of birth. Moreover, it was
possible for him to trespass defendant without identification, but he explained that it was more
convenient to look at defendant’s photo identification than go back outside and look up defendant
2
Trooper Reynolds initially testified at the preliminary examination that he asked for defendant’s
identification because both Ethan Allen and Latitude 42 wanted him “trespassed.” However, on
recross-examination, Trooper Reynolds stated that never had a specific conversation with the
employee at Ethan Allen about trespassing defendant. He was advised by Sergeant Johnson that
the manager of Latitude 42 wanted defendant to be trespassed.
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in his computer system. After the preliminary hearing, the district court declined to bind defendant
over on Count 1 because the testimony did not establish clear evidence of resisting and obstructing
as it related to Trooper Reynolds. The district court bound over defendant on Counts 2 and 3,
related to defendant’s attempts to resist arrest by kicking and biting the other two officers.
In the circuit court, the prosecution moved to reinstate Count 1, while defendant moved to
quash Counts 2 and 3, arguing that both counts must be dismissed because the initial arrest was
unlawful. The circuit court denied both motions. This appeal followed.
II. ANALYSIS
Defendant argues that the circuit court erred by denying his motion to quash because the
arrest forming the basis of the remaining two charges of resisting and obstructing was unlawful.
We agree.
A. STANDARD OF REVIEW
This Court reviews a trial court’s decision on a motion to quash for an abuse of discretion.
People v Hawkins, 340 Mich App 155, 173; 985 NW2d 853 (2022) (quotation marks and citation
omitted). “A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes.” Id. (quotation marks and citation omitted). Additionally,
[t]he standard for reviewing a decision for an abuse of discretion is narrow; the
result must have been so violative of fact and logic that it evidences a perversity of
will, a defiance of judgment, or an exercise of passion or bias. A circuit court’s
decision with respect to a motion to quash a bindover order is not entitled to
deference because this Court applies the same standard of review to this issue as
the circuit court. This Court therefore essentially sits in the same position as the
circuit court when determining whether the district court abused its discretion. In
other words, this Court reviews the circuit court’s decision regarding the motion to
quash a bindover only to the extent that it is consistent with the district court’s
exercise of discretion. The circuit court may only affirm a proper exercise of
discretion and reverse an abuse of that discretion. Thus, in simple terms, we review
the district court’s original exercise of discretion. [Id. (quotation marks and citation
omitted).]
The appellate court reviews “de novo the bindover decision to determine whether the district court
abused its discretion, giving no deference to the circuit court’s decision.” People v Norwood, 303
Mich App 466, 468; 843 NW2d 775 (2013) (quotation marks and citation omitted). “When the
district court decision addresses whether the alleged conduct falls within the scope of a penal
statute, the issue presents a question of law that we review de novo.” Id. (quotation marks and
citation omitted). This Court also reviews de novo the trial court’s interpretation of the law related
to the motion to quash. People v Miller, 288 Mich App 207, 209; 795 NW2d 156 (2010).
B. LEGAL BACKGROUND
Here, we are tasked with determining whether sufficient evidence was presented at the
preliminary examination to justify binding defendant over for trial on the three counts of resisting
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and obstructing a police officer, MCL 750.81d. “At a preliminary examination, the prosecution
must present evidence establishing that the defendant committed the charged offense, and the
district court must find that probable cause exists to bind over a defendant for trial.” People v
Fairey, 325 Mich App 645, 648-649; 928 NW2d 705 (2018). “To satisfy this burden, the
prosecution must present evidence of each and every element of the charged offense, or enough
evidence from which an element may be inferred.” Id. at 649. Probable cause exists when “the
facts and circumstances within an officer’s knowledge and of which he has reasonably trustworthy
information are sufficient in themselves” to justify the belief that an offense either “has been or is
being committed.” People v Vandenberg, 307 Mich App 57, 69; 859 NW2d 229 (2014).
Resisting and obstructing a police officer results in a violation of MCL 750.81d(1), which
provides:
[A]n 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.
In People v Quinn, 305 Mich App 484; 853 NW2d 383 (2014), this Court set forth the elements
necessary to establish that a defendant violated MCL 750.81d(1). Specifically, the prosecution
must show:
(1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or
endangered a police officer, and (2) the defendant knew or had reason to know that
the person that the defendant assaulted, battered, wounded, resisted, obstructed,
opposed, or endangered was a police officer performing his or her duties. [Id. at
491 (quotation marks and citation omitted).]
In addition, this Court held that the prosecution must also establish a third element, namely “that
the officers acted lawfully as an actual element of the crime of resisting or obstructing a police
officer under MCL 750.81d.” Id. at 492; see also People v Moreno, 491 Mich 38, 51-52; 814
NW2d 624 (2012).
Thus, in the current case, the lawfulness of an arrest is considered a third element of the
crime that must also be established by the prosecution in order to bind defendant over for trial.
Moreno, 491 Mich at 51-52. For an arrest to be deemed lawful, the prosecution must demonstrate
that the arresting officer
ha[d] probable cause, either that a felony or misdemeanor was committed by the
individual in the officer’s presence, or that a felony or specified misdemeanor (i.e.,
a misdemeanor punishable by imprisonment for more than 92 days) occurred
outside the officer’s presence and that the individual in question committed the
offense. [Vandenberg, 307 Mich App at 69.]
A defendant has a “common-law right to resist unlawful arrests or other unlawful invasions of
private rights.” Moreno, 491 Mich at 58.
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Whether an arrest is lawful necessarily implicates a defendant’s Fourth Amendment right
to be free from unreasonable searches and seizures. The right against unreasonable searches and
seizures is guaranteed by both the United States and Michigan Constitutions. US Const, Am IV;
Const 1963, art 1, § 11. “Generally, seizures are reasonable for purposes of the Fourth Amendment
only if based on probable cause.” Quinn, 305 Mich App at 492 (quotation marks and citation
omitted). On the other hand,
[u]nder certain circumstances, a police officer may approach and temporarily detain
a person for the purpose of investigating possible criminal behavior even though
there is no probable cause to support an arrest. A brief detention does not violate
the Fourth Amendment if the officer has a reasonably articulable suspicion that
criminal activity is afoot. Whether an officer has a reasonable suspicion to make
such an investigatory stop is determined case by case, on the basis of an analysis of
the totality of the facts and circumstances. A determination regarding whether a
reasonable suspicion exists must be based on commonsense judgments and
inferences about human behavior. [Id. (quotation marks and citation omitted,
alteration in original).]
“In order for any police procedure to have constitutional search and seizure implications, a search
or seizure must have taken place.” People v Frohriep, 247 Mich App 692, 699; 637 N.W.2d 562(2001). Constitutional safeguards only vest after the defendant has been seized. Id. A defendant
is generally not “seized” until a police officer “physically hinder[s] defendant’s departure and
instruct[s] him to stay in the officer’s presence.” People v Jenkins, 472 Mich 26, 34; 691 NW2d
759 (2005).
This case specifically concerns a situation where a defendant was “seized” and arrested
after failing to produce identification upon request from a police officer. Whether the prosecution
can establish probable cause to bind a defendant over on a charge of resisting and obstructing under
such circumstances is a highly fact-driven consideration. In Quinn, for example, the defendant
was charged with resisting and obstructing arrest after failing to provide identification to police
who were investigating an apartment complex in an area associated with several recent thefts. 305
Mich App at 485-487. The defendant was charged with resisting and obstructing under
MCL 750.81d. Id. at 485, 488. He argued that the arrest was unlawful and violated his Fourth
Amendment rights. Id. at 488. At the time, the issue of lawfulness of an arrest was governed by
People v Ventura, 262 Mich App 370; 686 NW2d 748 (2004). Under Ventura, the lawfulness of
an arrest was not considered an element that needed to be proven in order to convict a defendant
of resisting and obstructing arrest. Quinn, 305 Mich App at 488; Ventura, 262 Mich App at 375-
376. Thus, relying on Ventura, the trial court denied the defendant’s motion. Quinn, 305 Mich
App at 488. The defendant was later convicted as charged. Id.
After the defendant was convicted, our Supreme Court decided Moreno, 491 Mich 38.
Moreno overruled Ventura, and held that the Legislature did not abrogate the common-law right
to resist arrest when it enacted MCL 750.81d. Id. at 55-56. It also expressly noted that “the
Legislature retained the concept that the offense of resisting and obstructing requires that an
officer’s actions are lawful.” Id. at 56. The Quinn defendant filed a postconviction motion for a
directed verdict of acquittal, arguing that under Moreno, his detainment and arrest were unlawful,
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and that he had the right to resist the arrest. Quinn, 305 Mich App at 488. The trial court denied
the motion, finding that Moreno did not apply retroactively. Id. at 489.
The defendant appealed, again arguing that he should have been be granted a directed
verdict on the charge of resisting and obstructing because the police officer’s actions were unlawful
under Moreno. Id. at 491-493. This Court agreed that Moreno applied retroactively, but ultimately
found that a rational trier of fact could conclude that the officer’s actions were lawful. Id. at 493.
This Court explained:
Specifically, a rational trier of fact could conclude that the fact that two individuals
were outside in the parking lot of an apartment building at 1:00 a.m., in an area
where there had been recent thefts, coupled with the fact that they walked quickly
away from [the officer] into the apartment building and up the stairs to the second-
floor landing, and indicated that they did not live in the apartments, created
circumstances sufficient to warrant a brief detention. [Id.]
This Court further found that a rational trier of fact could conclude that the officer “had a
reasonably articulable suspicion that criminal activity was afoot and that her repeated requests to
[the men] to produce their identification, and her request to defendant to exit the apartment, were
lawful.” Id. Accordingly, the Court declined to grant a directed verdict. Id. The Court ultimately
granted the defendant’s request for a new trial, however, because the jury was not instructed to
determine whether the officer’s actions were lawful. Id. at 494-495.
As noted, in Moreno, our Supreme Court ruled that the defendant was not properly charged
with resisting and obstructing under MCL 750.81d(1) after officers entered his home without a
warrant and engaged in a struggle that resulted in his arrest. 491 Mich at 41-43. The arresting
officer sustained a torn hamstring and a bruised elbow as a result of the defendant’s struggle to
resist arrest. Id. at 43. The defendant moved to quash the charges, arguing that the arrest was
unlawful, but the trial court denied the motion. Id. This Court affirmed. Id. On appeal, the
Supreme Court reversed, holding that because the arrest was unlawful, the charges of resisting and
obstructing must therefore be quashed. Id. at 58. Although Moreno primarily concerned a
question of whether the lawfulness of an arrest should be considered an element of resisting and
obstructing, the Supreme Court’s holding clearly indicates that if an arrest is unlawful, a defendant
should not be bound over to be tried for resisting and obstructing. Id.Bearing all of this in mind, we note that the parties disagree over whether the lawfulness
of an arrest is a question for the jury. The prosecutor contends that Quinn controls our analysis
here, and that the lawfulness of an arrest is always a question for the jury. However, the prosecutor
overlooks that Quinn involved a postconviction motion for directed verdict, which is a far different
procedural posture from the motion to quash that is before us in this case. Here, the prosecutor
was not tasked with convincing a jury that defendant’s arrest was lawful. Instead, the prosecutor
was tasked with establishing probable cause to bind defendant over on three charges of resisting
and obstructing. One of the elements that the prosecutor had to prove in the district court was
whether the arrest was lawful. Thus, at the pretrial stage, the lawfulness of an arrest is not a jury
question. This was clearly demonstrated in Moreno, where our Supreme Court determined that a
motion to quash a charge of resisting and obstructing should be granted where the prosecutor failed
to establish that the arrest was lawful. 491 Mich at 58. Quinn is readily distinguishable because
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it involved a direct appeal from a defendant who had already been convicted of resisting and
obstructing under MCL 750.81d. 305 Mich App at 485, 491-492.
This Court’s ruling in Vandenberg also illustrates this point. See Vandenberg, 307 Mich
App 57. There, the defendant was convicted of resisting and obstructing arrest, MCL 750.81d,
and making or exciting any disturbance or contention, MCL 750.170. Id. at 58. Relevant to this
appeal, this Court reversed and remanded for a new trial after finding that the defendant’s
conviction “may have been premised on resistance to an unlawful arrest[.]” Id. at 70. While
discussing the elements of resisting and obstructing, this Court stated that “pursuant to Moreno,
the lawfulness of the arrest was an element of the offense, and it presented a factual question for
the jury.” Id., citing Quinn, 305 Mich App at 491-492. Like Quinn, Vandenberg is distinguishable
because this Court only discussed the element of lawfulness in terms of its relation to a jury’s
findings of fact and ultimately, the jury’s verdict. In this case, we have no jury verdict to review,
and are simply tasked with determining whether the prosecution established probable cause to bind
defendant over on the second and third counts of resisting and obstructing. Thus, the procedural
posture of this case is more akin to that in Moreno, which was heard by our Supreme Court after
this Court affirmed a circuit court order denying the defendant’s motion to quash. 491 Mich at 43-
44. At no point did the Moreno Court conclude that the lawfulness of the offense was a question
for the jury that would prevent a court from granting a motion to quash. Instead, the Moreno Court
found that the defendant’s arrest was not lawful and reversed and remanded for entry of an order
granting the defendant’s motion to quash on that basis. Id. at 44. We therefore reiterate that
Moreno controls here. The prosecutor must be able to establish that the arrest was lawful in order
to survive a defendant’s motion to quash a charge of resisting and obstructing.
C. APPLICATION
We first address the district court’s handling of defendant’s charges. As an initial matter,
we agree with the district court that Trooper Reynolds’s arrest of defendant in this case was
unlawful.3 In explaining its rationale for declining to bind defendant over on Count 1, the district
court stated:
So, in terms of not giving the ID, the issue then was raised as whether or
not a person has to give their ID if they have not done anything wrong, is the
language. And here, I think all the officers testified pretty clearly that, if you have
not done anything wrong you do not have to provide your ID . . . .
So, I understand that you were going to be on your way out and I think in
the interaction with you and Officer Reynolds, before Officer Reynolds reached for
your wrist to make the arrest, I think that first interaction, there’s definitely—it
definitely leaves open the question for me as to whether or not the elements were
even met because at that point, when Officer Reynolds reaches for [defendant]’s
wrist to make the arrest, yes there appears to be some resistance but other than not
showing the ID and the repeated conversation and back and forth where he’s saying,
3
We take no issue with the district court’s ruling on Count 1, and address it only because of its
factual relevance to the circuit court’s denial of defendant’s motion to quash Counts 2 and 3.
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“well you did nothing wrong, but give me your ID,” give me your ID, give me your
ID, give me your ID. I think where we have the [resisting and obstructing] in that
particular situation is not—that link is really not there for me. So, in terms of count
one, I’m not going to bind over.
The record indicates that staff at Ethan Allen called the police because defendant was causing a
disturbance in the store. Trooper Reynolds spoke to defendant at Latitude 42, and Sergeant
Johnson was informed by the manager that she wanted defendant to leave and for him to be
“trespassed,” which simply meant that she wanted the police to ask defendant to leave and to
threaten him with legal action if he returned. While talking with defendant, Trooper Reynolds
asked defendant to show him his identification, purportedly in an effort to facilitate the “trespass”
per the request of Latitude 42’s manager. Trooper Reynolds did not ask defendant his name, date
of birth, or any other identifying information, appearing solely concerned with whether defendant
could produce a license or some form of identification. He told defendant, “[I]f you don’t give me
your identification, we’re going to go to jail.”
Trooper Reynolds later conceded at the preliminary examination that he had no intention
of arresting defendant for trespassing and that defendant was never required to show his
identification. Specifically, Trooper Reynolds testified:
Q. So, you had told him, “you didn’t do anything wrong,” and he said at
the time that he didn’t need to show [] ID if he didn’t do anything wrong, correct?
A. Well, he did because I was going to trespass him.
Q. But you never told him that, correct?
A. Correct, but when I’m telling him I need to see his ID, then I need to see
his ID.Q. So you’re saying—lets go back. He’s required to give you his ID even
if he does nothing wrong?
A. No.
* * *
Q. Do you remember, you never had a conversation with the people at
Ethan Allen about—specifically about trespassing him, correct?
A. Specifically, no. I don’t think so.
Q. Do you remember driving, on your short drive over from the Ethan Allen
next door to Latitude 42 saying that, “we don’t really have anything to arrest him
for, we’ll just ask him to leave,” correct?
A. Yes, I believe so.
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Q. So, you had that conversation on your way over to Ethan Allen that you
had no reason to arrest him []. And you never spoke with the people at Ethan Allen
about trespassing him, correct?
A. Specifically, no.
Trooper Reynolds went on to concede that he did not need to see defendant’s identification to
“trespass” him.
The evidence adduced at the preliminary examination clearly establishes that Trooper
Reynolds arrested defendant solely for failing to hand over some form of identification. Failing
to provide identification upon request by a police officer is not itself a crime or statutory offense
in Michigan. Further, no additional evidence in the record indicated that the officers had a
“reasonably articulable suspicion that criminal activity [wa]s afoot[.]” Quinn, 305 Mich App
at 492. Without proof that defendant had either engaged in a crime, or was imminently going to
commit a crime, his failure to provide identification to police was not a lawful justification for his
arrest. Id. Thus, we agree with the district court’s decision to dismiss Count 1 of the felony
information.
However, we conclude that the district court abused its discretion by binding defendant
over for trial on Counts 2 and 3, which concerned his attempts to resist arrest in relation to Sergeant
Johnson and Officer McLain. The district court explained its rationale for the bindover, stating:
I think what begins to elevate this into activity that is clearly disobeying commands
and actively moving more into an area of resistance is when we have the testimony
of you biting Officer Johnson. We also have the testimony of the kicking of Officer
McLain.
You may have defenses at trial as to why you engaged in that activity of
assaulting those police officers but in terms of meeting the probable cause standard,
based upon that testimony, I am going to bind over on counts two and three because
the testimony pretty much provided clearly that there was assaulting that was
happening against police officers who were asking you to show your ID and leave
the premises and at that point, you weren’t. And so, for those two charges I am
going to bind over.
The district court’s rationale for binding defendant over on Counts 2 and 3 focused primarily on
the measures that defendant took to attempt to avoid the arrest, including biting Sergeant Johnson
and kicking Officer McLain. However, the district court overlooked that the prosecution still
needed to establish that the arrest was lawful. See Moreno, 491 Mich at 58. For the reasons
already explained in relation to Count 1, we conclude that the arrest was unlawful. Moreover,
defendant properly resisted arrest. Under Moreno, “one may use such reasonable force as is
necessary to prevent an illegal attachment and to resist an illegal arrest[.]” 491 Mich at 47(quotation marks and citation omitted). “[T]he basis for such preventive or resistive action is the
illegality of an officer’s action, to which [a] defendant immediately reacts.” Id. (quotation marks
and citation omitted). The arrest did not become lawful merely because defendant resisted arrest
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by biting and kicking. Accordingly, the district court abused its discretion by binding defendant
over for trial on Counts 2 and 3 of the felony information.
Also at issue on appeal is the circuit court’s handling of defendant’s motion to quash
Counts 2 and 3. The circuit court denied the motion to quash, explaining:
Where Defendant’s argument ultimately fails is that the right to resist an
unlawful arrest must be reasonable.
Defendant cites People versus Dillard which is at 115 Mich App 640, 1982,
which introduces the longstanding principle that a person should use no more force
than reasonably appears necessary to repel—excuse me—to repel a threat into the
resisting and obstructing context.
Dillard involved the threatening of an officer with a shotgun while resisting
an unlawful arrest and whether that was a reasonable form of resistance. Defendant
uses Dillard to argue that the alleged biting and kicking was reasonable under the
circumstances, however Defendant fails to recognize that the determination of
reasonableness under the circumstances is not a question of law, but a question to
be decided by the ultimate fact finder, that is the jury.
Therefore, the examining magistrate’s finding of probable cause on counts
2 and 3 of the original complaint and on all the elements to these charges falls well
within a principle range of outcomes.
The circuit court thus ruled that whether defendant “reasonably” resisted arrest was a
question for the jury to decide, which precluded it from granting the motion to quash. The circuit
court cited no law in support of the notion that such is the case, and engaged in no analysis of the
elements of resisting and obstructing, including whether the arrest was unlawful, see Moreno, 491
Mich at 51-52. Much like the district court, the circuit court entirely overlooked that the prosecutor
had to prove the lawfulness of the arrest as an element of resisting and obstructing under
MCL 750.81d. Quinn, 305 Mich App at 492; Moreno, 491 Mich at 47, 49. Further, the Moreno
Court reiterated the longstanding principle that “the right to resist unlawful arrests, and other
unlawful invasions of private rights, is well established in our state’s common law,” id. at 46-47,
but did not conclude that the “reasonableness” of that resistance is a jury question, even where the
officer tore his hamstring and bruised his elbow while attempting to arrest the defendant. Id. at 43.
We hold that like the defendant in Moreno, defendant’s motion to quash should have been
granted. The arrest leading to the second and third counts of resisting and obstructing against
defendant was unlawful. Sergeant Johnson and Officer McLain were engaged in this unlawful
arrest when defendant bit Sergeant Johnson and kicked Officer McLain. As noted herein,
defendant “may use such reasonable force as is necessary to prevent an illegal attachment and to
prevent an illegal arrest[.]” Id. at 47 (quotation marks and citation omitted). Defendant had every
right to exercise reasonable force to resist the illegal arrest. This had no bearing on whether the
prosecution could establish probable cause that the arrest was lawful. Because the arrest
underlying Counts 2 and 3 was unlawful, the circuit court abused its discretion in failing to grant
the motion to quash. See Hawkins, 340 Mich App at 173.
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III. CONCLUSION
Reversed and remanded for entry of an order granting defendant’s motion to quash. We
do not retain jurisdiction.
/s/ Michelle M. Rick
/s/ Douglas B. Shapiro
/s/ Christopher P. Yates
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