Can Mere Words Be Resisting & Obstructing a Police Officer? Don't I have a First Amendment Right to Criticize Government Agents? Michigan Criminal Lawyer Brian J. Prain Uncovers the Truth...
At Prain Law, PLLC, not only do we do NOTHING but Criminal Defense, we also concentrate on defending those accused of a very limited range of Criminal Charges. Michigan Resisting and Obstructing charges under MCL 750.81d(1) fall into that category. Every day, a person accused of Resisting and Obstructing a Police Officer asks: "Can mere words be Resisting & Obstructing a Police Officer?" It's a great question, and I always thank people for allowing me to unravel this legal mystery for them. So follow me as I explore the answer to the question "Can mere words be Resisting & Obstructing a Police Officer in Michigan?"
Before we get started, I just want to let you know that if all you did was use words, and there was no physical component, then you have a good defense to a Resisting and Obstructing charge. You must first understand that the Michigan crime commonly known as "Resisting & Obstructing a Police Officer" for short is found in MCL 750.81d(1), and it actually covers a wide range of 7 different types of alleged actions upon a Police Officer: Assaulting, Battering, Wounding, Resisting, Obstructing, Opposing, or Endangering. To "obstruct" includes the "use or threatened use of physical interference or force or a knowing failure to comply with a lawful command." The Jury Instruction for Michigan Resisting and Obstructing charges states that "a person must actually resist by what they said or did, but physical force/violence is not necessary."
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Therefore, if the Police allege that you used ONLY WORDS, then out of the 7 theories above, what we are really dealing with are 2 of them: "Obstructing" or "Opposing." The law gives no standard definition for exactly what defines "Opposing." In answering the question "Can mere words be Resisting & Obstructing a Police Officer in Michigan?", we must ask another question: "Are the words or speech that the Police claim are Resisting and Obstructing considered 'protected speech' under the First Amendment?" WHAT YOU ARE ABOUT TO LEARN IS SOMETHING MANY LAWYERS DO NOT KNOW ABOUT THE LAW...
In 1987, the U.S. Supreme Court gave us this wonderful quote: "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." City of Houston, Texas v. Hill, 482 U.S. 451 (1987). In that case the U.S. Supreme Court found an ordinance similar to Michigan's Resisting and Obstructing (or "R&O") law unconstitutional for being over broad, and further said that "[a]lthough the preservation of liberty depends in part upon the maintenance of social order, the First Amendment requires that officers and municipalities respond with restraint in the face of verbal challenges to police action, since a certain amount of expressive disorder is inevitable in a society committed to individual freedom, and must be protected if that freedom would survive." Michigan has a similar case called People v. Rapp.
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In Michigan, Resisting and Obstructing a Police Officer is a Felony punishable by up to 2 years in Prison. So can mere words be Resisting & Obstructing a Police Officer in Michigan? Yes, but the words have to be unprotected speech under the First Amendment, such as "obscenity" or "fighting words," that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" (i.e. threatening violence against an Officer, etc.). Also note that a verbal expression or statement could be evidence of a "knowing failure to comply with a lawful command."
Still confused about the issue "Can mere words be Resisting & Obstructing a Police Officer"? Don't worry, it's a confusing legal topic that many lawyers do not even understand. Can you imagine hiring a lawyer to defend you against a Michigan Resisting & Obstructing charge who told you that you "had no case" and you should "just plead guilty" because that lawyer didn't know about the U.S. Supreme Court decision in Hill? It happens in every courtroom in Michigan daily. But luckily you found out about Prain Law, PLLC. We actually defend R&O cases. Call Prain Law, PLLC for a free consultation where we'll help you understand whether or not your words are protected under the First Amendment and therefore cannot be Resisting & Obstructing a Police Officer. Call anytime at (248) 731-4543.