The Right to Resist: Will Michigan Repeal the "Rapist Doctrine"?

by William Norman Grigg
Dec. 07, 2011

“Don’t resist – you’ll just make it worse.”

Until recently, the only people expected to make that demand of their innocent victims were rapists and police officers. Fortunately, women are no longer expected to submit to sexual assault, but rather to fight back by whatever means are available – unless the assailant is one of the State’s costumed enforcers, in which case resisting sexual assault would be a felony.

This admission was pried from Gregory J. Babbitt, assistant prosecuting attorney for Michigan’s Ottawa County, during the October 4 oral argument before the state supreme court in the case of People v. Moreno. At issue in that case is the question of whether a citizen has a legally protected right to resist an unlawful search or unjustified arrest by a police officer.

In a colloquy with Babbitt, associate justice Michael Cavanaugh described a scenario in which a woman in police custody was sexually assaulted during a body search. In that situation, Cavanaugh inquired, could the victim be charged under the State’s “resisting and obstructing” statute?

“Technically, you could do that,” Babbitt grudgingly replied, while insisting that “as a prosecutor, I wouldn’t do that.” Rather than putting up physical resistance and thereby risking criminal prosecution, the victim should simply endure the assault and then file a civil complaint after the fact. That approach, of course, this would most likely result in a settlement that protects the offender at the expense of the local tax victim population.

If citizens have no right to resist illegal violations of their property and persons by the police, “What is left of the Fourth Amendment?” one of the judges asked Babbitt.

“Well, life isn’t perfect,” Babbitt replied with a shrug – which to people of his ilk means that in any conflict between individual liberty and institutionalized power, it is the former that must yield. Otherwise, mere Mundanes “will be able to make the determination as to whether the police officers [are] acting properly or not,” he said, his voice freighted with horror over the prospect. “We can’t have individuals ... making that decision in the heat of the moment.”

Of course, that is precisely what Babbitt insisted must be done – as long as the “individuals” in question are emissaries of the State. That claim is complicated by the fact that Michigan’s self-defense act explicitly recognizes the right to use appropriate defensive force to prevent the “imminent unlawful use of force by another individual” – without limiting the application of that right to aggression committed by private citizens.

Furthermore, as the Michigan Court of Appeals recognized in a 1999 ruling (People v. Wess), the statute -- as it read at the time -- expressly recognized the individual right "to use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest."

In the dicta of that ruling the court pleaded with the legislature to change the law:

"We share the concerns of other jurisdictions that the right to resist an illegal arrest is an outmoded and dangerous doctrine, and we urge our Supreme Court to reconsider this doctrine at the first available opportunity.... [W]e see no benefit to continuing the right to resist an otherwise peaceful arrest made by a law enforcement officer, merely because the arrestee believes the arrest is illegal. Given modern procedural safeguards for criminal defendants, the `right' only preserves the possibility that harm will come to the arresting officer or the defendant."

Of course, there is no such thing as a “peaceable arrest.” Forcible detention is a violent act, as is an armed invasion of one’s property. Like similar measures protecting the common law right to resist arrest, Michigan’s SDA recognized there is no moral reason why a police officer’s judgment that a search or arrest is “legal” is any sounder or more authoritative than that of any other citizen.

However, the Michigan state legislature – prompted by the Court of Appeals -- modified the relevant section of the state code (MCL 705.81d) by removing the clause recognizing the common law right to prevent an unlawful arrest (that is, an armed kidnapping) by a police officer.

This created a potential conflict between the SDA and the state’s resisting and obstructing statute – and that conflict came to a head three years ago when two Holland, Michigan police officers attempted to search the home of Angel Moreno without a warrant.

On December 30, 2008, Officers Matthew Hamberg and Troy DeWeis knocked on Moreno’s door while searching for an individual suspected of violating probation. Moreno made the mistake of speaking with Hamberg through an open door, thereby giving the policeman an opportunity to say that he detected the odor of marijuana (even though DeWeis did not).

When Moreno refused to consent to a search, Hamberg said that he would get a warrant – and then lied by saying that it was necessary for him to enter the house in order to “secure” it.

To his credit, Moreno told Hamberg to get off his porch, and began to close the door. Hamberg bulled his way into the house, instigating a brief scuffle that ended when Hamberg told his companion to attack the victim with his Taser. (Had DeWeis acted as the law requires, rather than out of tribal loyalty to his State-licensed gang, he would have intervened to prevent the invasion of Moreno's home.) Although a trivial amount of marijuana was found, no drug-related charges were filed. For trying to resist a patently illegal home invasion, Moreno charged with felonious assault on a police officer.

The State admits that Hamberg’s search was “unlawful,” which means that he was acting as an armed, violent intruder, rather than as a peace officer. This means that Moreno had a legally recognized right to employ deadly force, if necessary, to defend himself and his home. As the Michigan State Supreme Court acknowledged in People v. Riddle (2002), “regardless of the circumstances one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his `castle,’ there is no safer place to retreat….”

Michigan courts have been predictably reluctant to apply that principle to the most violent segment of society – the State’s armed enforcement caste.

In a 2004 ruling (People v. Ventura) dealing with the right to resist an unlawful arrest, the same Michigan Court of Appeals, which had badgered the state legislature to modify the SDA, cited that modification as a positive statement of legislative intent. In a transcendently cynical passage, the court wrote that "it is not within our province to disturb our Legislature's obvious affirmative choice to modify the traditional common-law rule that a person may resist an unlawful arrest."

The same court had previously neglected to show such pious respect for the "Legislature's obvious affirmative choice" in explicitly protecting the right to resist arrest. However, under state precedents more than a century old, the Michigan legislature cannot tacitly repudiate a common law right. As Justice Brian K. Zahra noted during the oral arguments, the legislature is required to make an "express abrogation" of protection for a common law right.

During his presentation before the court, Babbitt -- in the mistaken belief that he had precedent on his side -- repeatedly insisted that deletion of the passage recognizing the right to resist arrest was materially equivalent to formal abrogation of that common law right. This was dictated by the “modern view" of the matter, which is that “we don’t want violence between the citizens and the police.”

Indeed: The modern – which is to say, Leninist – view is that all violent encounters between citizens and agents of the State should be one-sided affairs, with the latter entitled to exercise “power without limit, resting directly on force” and the latter required to endure whatever is inflicted on them.

Remarkably, Babbitt’s argument was met with withering skepticism by several members of the court. Among them was Chief Justice Robert P. Young, Jr., who asked Babbitt what “textual” support existed for the proposition that the legislature had abrogated the common law right to resist arrest.

“I can’t answer that question, because it doesn’t say `We are abrogating the common law right to use self-defense,'” Babbitt replied, perspiration condensing on his brow as he realized where the conversation was headed.

“I think you answered it, then,” Young replied, thereby causing that trickle of flop sweat to become a torrent. “Don’t you lose if you can’t answer that question?”

Babbitt was allowed a brief interval in which to dither and dissimulate before Young summarized the matter with brutal concision:

“I’m posing a very simple question to you, the answer to which, I think, is dispositive: If the arrest is unlawful, if the intrusion is unlawful, and a physical melee ensues because of the resistance of the resident, under the common law rule, he can do that…. You don’t win [the case] unless you can persuade us that the [statute under which] he was charged abrogates the common law rule. Tell me why, when the text is silent on the common law rule, you still win.”

At that point, Babbitt must have understood – but could hardly be expected to admit – that as a matter of both common and statutory law, the “rapist doctrine” is indefensible.

It’s quite possible, perhaps even likely, that the state supreme court will contrive some way to preserve that doctrine. If the court’s ruling in State v. Moreno vindicates the right of citizens to resist unlawful police violence, the state legislature will be tag-teamed by prosecutors and police unions demanding an explicit repudiation of that common law right.

But what if the Michigan State Supreme Court definitively rejects the "rapist doctrine" -- and the state legislature does likewise?
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William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

Copyright © 2011 William Norman Grigg