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

“Don’tresist – you’ll just make it worse.”

Untilrecently, the only people expected to make that demand of their innocent victimswere rapists and police officers. Fortunately, women are no longer expected tosubmit 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 caseresisting sexual assault would be a felony.

Thisadmission was pried from Gregory J. Babbitt, assistant prosecuting attorney forMichigan’s Ottawa County, during the October 4 oralargument before the state supreme court in the case of People v. Moreno. At issue in that case is the question of whether a citizenhas a legally protected right to resist an unlawful search or unjustifiedarrest by a police officer.

Ina colloquy with Babbitt, associate justice MichaelCavanaugh described a scenario in which a woman in police custodywas sexually assaulted during a body search. In that situation, Cavanaughinquired, could the victim be charged under the State’s “resisting andobstructing” statute?

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

Ifcitizens have no right to resist illegal violations of their property andpersons by the police, “What is left of the Fourth Amendment?” one of thejudges asked Babbitt. 

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

Ofcourse, that is precisely what Babbitt insisted must be done – as long as the “individuals”in question are emissaries of the State. That claim iscomplicated by the fact that Michigan’s self-defense act explicitly recognizesthe right to use appropriate defensive force to prevent the “imminent unlawfuluse of force by another individual” – without limiting the application of thatright 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 atthe time -- expressly recognized the individual right "to use such reasonableforce as is necessary to prevent an illegal attachment and to resist an illegalarrest."

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

"Weshare the concerns of other jurisdictions that the right to resist an illegalarrest is an outmoded and dangerous doctrine, and we urge our Supreme Court toreconsider this doctrine at the first available opportunity.... [W]e see nobenefit to continuing the right to resist an otherwise peaceful arrest made bya law enforcement officer, merely because the arrestee believes the arrest isillegal. Given modern procedural safeguards for criminal defendants, the`right' only preserves the possibility that harm will come to the arrestingofficer or the defendant." 

Ofcourse, there is no such thing as a “peaceable arrest.” Forcible detention is aviolent act, as is an armed invasion of one’s property. Like similar measuresprotecting the common law right to resist arrest, Michigan’s SDA recognized thereis 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 theCourt of Appeals -- modified the relevant section of the state code (MCL705.81d) by removing the clause recognizing the common law right to prevent anunlawful arrest (that is, an armed kidnapping) by a police officer. 

Thiscreated a potential conflict between the SDA and the state’s resisting andobstructing statute – and that conflict came to a head threeyears ago when two Holland, Michigan police officers attempted to searchthe home of Angel Moreno without a warrant.

OnDecember 30, 2008, Officers Matthew Hamberg and Troy DeWeis knocked on Moreno’sdoor while searching for an individual suspected of violating probation. Morenomade 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).

WhenMoreno 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 inorder 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, instigatinga brief scuffle that ended when Hamberg told his companionto 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 wasfound, no drug-related charges were filed. For trying to resist a patently illegalhome invasion, Moreno charged with felonious assault on a police officer. 

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

Michigancourts have been predictably reluctant to apply that principle to the mostviolent segment of society – the State’s armed enforcement caste. 

Ina 2004 ruling (People v. Ventura) dealing with the right toresist an unlawful arrest, the same Michigan Court of Appeals, which had badgeredthe state legislature to modify the SDA, cited that modification as a positivestatement of legislative intent. In a transcendently cynical passage, the courtwrote that "it is not within our province to disturb our Legislature'sobvious affirmative choice to modify the traditional common-law rule that aperson 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.

Duringhis presentation before the court, Babbitt -- in the mistaken belief that he had precedent on his side -- repeatedly insistedthat 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  “modernview" of the matter, which is that “we don’t want violence between the citizens and thepolice.”

Indeed:The modern – which is to say, Leninist – view is that all violent encountersbetween citizens and agents of the State should be one-sided affairs, with thelatter 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 thecourt. Among them was ChiefJustice Robert P. Young, Jr., who asked Babbitt what “textual” supportexisted for the proposition that the legislature had abrogated the common lawright to resist arrest.

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

“Ithink you answered it, then,” Young replied, thereby -- one imagines -- causing that trickle offlop sweat to become a torrent. “Don’t you lose if you can’t answer thatquestion?”   

Babbitt was allowed a briefinterval in which to dither and dissimulate before Young summarized the matterwith brutal concision:

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

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

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

Butwhat if the Michigan State Supreme Court definitively rejects the "rapist doctrine" -- and the state legislature doeslikewise? 

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