The common-law rule that a person may resist an unlawful arrest.

In People v Moreno, Jr, ___ Mich ___ (#41837, 4/20/2012) the defendant was charged with resisting and obstructing a police officer under MCL 750.81d after defendant struggled with officers who had entered his home unlawfully. Defendant was charged with resisting and obstructing a police officer in violation of MCL 750.81d.

In Michigan, obstructing a police officer has been recognized as a common-law crime, as well as an offense governed by statute.  However, the right to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our state’s common law.  In explaining the common-law right to resist an unlawful arrest, “one may use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest” and that “the basis for such preventive or resistive action is the illegality of an officer’s action, to which [a] defendant immediately reacts.”

The Supreme Court held that MCL 750.81d does not abrogate the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.  People v Ventura, 262 Mich App 370 (2004) was overruled 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, the Court reversed the judgment of the Court of Appeals and remanded the case to the trial court. On remand, the trial court was to grant defendant’s motion to quash the charges on the basis of its ruling that the officers’ conduct was unlawful.