People v Ventura -
It Ain't About 'Passive Force'

CAVEAT: This article is one of a series of editorial articles that express personal opinions and views. They are written with no pretensions to be error free. I will gladly correct substantial errors of fact. My opinions can change, depending upon my awareness and understanding of changes in factual information. It is my intent to remain focused on specific public issues, regarding the personalities involved. For all I know, all the characters are saints, concerning their private lives and other public business...

Changes may be requested by e-mailing the details to pmarkham@manistique.org



01/22/08

On 01/18/08, Michigan 93rd District Judge Luoma chose his interpretation of the following legislation, and the decision of the appeals case following, regarding an alleged forceful resistance to arrest, by defendant Alfred Burns' use of mystic "passive force", to justify his denial of Alfred Burns' motion to dismiss or quash Schoolcraft County Prosecutor Hollenbeck's "People v Burns" case. It is a mystery to me, how Burns acquired the knowledge and skill to use "passive force", that I last saw demonstrated in the "Pusher" episode of the "X-Files".

From what I witnessed, and understood, the decision by Luoma to allow Hollenbeck to pursue a felony charge, in 93rd District Court, based upon MCL 750.81d(1), belied both his and Hollenbeck's statements, verbal and written, stating the charge was a misdemeanor. It tells me that because Burns would not cop a plea to a false misdemeanor charge, then it was time to be creative, and create the false "passive force" substantiation of a felony charge, consistent with what was included in the written charges for which Burns was arraigned, that Hollenbeck and Luoma denied was the case.

The remaining questions in my mind are:

When, and what substantiated probable cause was established, and by whom, to proceed with any of the current civil infraction/misdemeanor/felony foolishness?

What Michigan court of competent jurisdiction will host a baseless and foolish felony trial of a resident of Schoolcraft County, Michigan, who went out of his way not to commit a crime, in his well documented and failed attempt to prompt someone to take an interest in enforcing various laws and constitutional rights that should have secured his property rights, rights of due process, and civil rights, from the deliberate violation by others sworn to uphold them?

Once again, I find myself able to understand why some, at home and abroad, resort to violent retribution when bullied by others.
THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931


750.81d    Assaulting, battering, resisting,
obstructing, opposing person performing duty;
felony; penalty; other violations; consecutive
terms; definitions.

Sec. 81d.

(1) Except as provided in subsections (2), (3),
and (4), an  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.






STATE  OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

FOR PUBLICATION
June 10, 2004
9:10 a.m.

Plaintiff-Appellant,

MICHAEL AARON VENTURA,

v

No. 248064

Livingston Circuit Court
LC No. 02-013273-FH

Defendant-Appellee.

Official Reported Version

Before:   Hoekstra,   P.J.,   and   O'Connell  and
Donofrio, JJ.

DONOFRIO, J.

The prosecution appeals as of right from an  order
granting   defendant's   motion   to   quash   the
information  and  dismiss  the  case.  Because  we
disagree with the  trial court's finding  that MCL
750.81d requires a showing that defendant's arrest
was lawful, we reverse.

Defendant, a minor at  the time of the  offense at
issue, was  charged under  the assault  chapter of
the   Michigan   Penal   Code   with   assaulting,
resisting, and obstructing  a police officer,  MCL
750.81d, and also with being a minor in possession
of  alcohol,  MCL  436.1703(1)(a).  Officer Robert
Light   testified   to   the   following   at  the
preliminary hearing. On October 26, 2002,  Officer
Light went  to defendant's  residence around  8:15
p.m.  to investigate  a complaint  about a  stolen
handgun. Officer Light testified that he initially
spoke  with  defendant  and  noticed  an  odor  of
alcohol  coming from  defendant's breath.  Officer
Light knew defendant was a minor and asked him  if
he  would  submit to  a  preliminary breath  test.
Defendant initially agreed, but then pulled  away.
Officer Light asked defendant to blow out a  "nice
strong breath" and  the officer observed  a strong
odor  of   alcohol  and   believed  he   might  be
intoxicated or under the influence of alcohol.

On the basis of his observations of defendant  and
the odor of alcohol on defendant's breath, Officer
Light informed defendant that he was under arrest.
Officer Light grabbed  one of defendant's  arms to
place defendant in handcuffs, but defendant  broke
free of  the officer's  grasp. Defendant's  sister
jumped   on   the  officer's   back   and  started
scratching  and   clawing  at   his  face.   After
receiving assistance  from other  officers at  the
scene,  Officer  Light  was  finally  able  to get
defendant handcuffed by utilizing pressure  points
underneath defendant's  nose and  chin and  placed
him under arrest.

Substantive Facts and Procedural History

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Defendant moved  to suppress  the evidence  and to
dismiss  the charges.  Defendant's counsel  stated
that  the officer  thought he  smelled alcohol  on
defendant's breath,  but when  the other  officers
searched the  house, there  was no  alcohol in the
house.  Defendant's counsel  further argued  that,
pursuant to People v Rutledge, 250 Mich App 1; 645
NW2d 332 (2002), once alcohol is in one's  system,
it  is  no  longer  possessed  or  consumed.   The
prosecutor  responded   that  Officer   Light  had
permission  to  go   into  the  home,   and  while
conducting his investigation, he smelled the  odor
of alcohol on defendant, who was under  twenty-one
years of age. The trial court made its ruling from
the bench  the next  day. The  trial court granted
defendant's motion. The trial court reasoned:

He was  arrested for  minor in  possession, having
consumed  alcohol.   The  record   in  this   case
indicates  that  the  only  possession  that   was
involved was  that which  was not  analyzed coming
from his stomach. I'm satisfied that what might be
in his  stomach would  not be  a valid  reason for
arresting  for possession  of alcohol  and so  I'm
disregarding that as the basis for the arrest.

The trial court continued by stating it was  clear
there was no direct evidence of the consumption of
alcoholic beverages by defendant. The trial  court
then  stated  that the  question  was whether  the
officer could arrest someone in his home without a
warrant for  consumption of  alcohol. Because  the
consumption obviously  did not  take place  in the
presence  of  the  officer,  the  trial  court was
satisfied that the officer did not have the  right
to arrest defendant.

The  trial  court  stated  the  next  question was
whether  defendant  had the  right  to resist  the
illegal  arrest  in  his  home.  The  trial  court
continued:

I say yes.  I know that  under our new  statute we
don't   have  definitive   definitions  from   the
appellate courts. Under the old statute there  was
the right to resist an illegal arrest. I  construe
a reasonable interpretation of the current statute
to  prohibitó-- to   allow  an   illegal  arrest
in someone's  cutilidge  [sic] and  that's  what
took place here. I'm satisfied that the motion to
quash in this case should be granted.

The court later  entered an order  consistent with
its bench rulings. It is from this order that  the
prosecutor appeals.

Analysis

The prosecutor argues  the trial court  erred when
it  dismissed   the  assaulting,   resisting,  and
obstructing  charge  on the  basis  of defendant's
right  to  resist  an  illegal  arrest  where  the
lawfulness of  an arrest  is not  an element under
the   amended   assault   chapter,   MCL  750.81d*
Defendant    counters     that    a     reasonable
interpretation of MCL  750.81d, while taking  into
account decades of  common law and  public policy,
would  be  that  the  Legislature  intended   that
officers still must

*This  includes  resisting  and  obstructing,   as
compared to  MCL 750.479  contained in  the public
offices and officer chapter.

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lawfully arrest citizens. We review this  question
of  statutory  interpretation  de  novo.  People v
Davis, 468 Mich 77, 79; 658 NW2d 800 (2003).

I

It  has been  long-standing law  in Michigan  that
under  the common  law and  the earlier  resisting
arrest  statute, MCL  750.479, that  "one may  use
such reasonable force  as is necessary  to prevent
an  illegal attachment  and to  resist an  illegal
arrest." People vKrum, 374 Mich 356, 361; 132 NW2d
69 (1965); see  also People v  Wess, 235 Mich  App
241, 244; 597 NW2d 215 (1999). The prior resisting
arrest statute,  MCL 750.479,  stated in  relevant
part:

Any person who shall knowingly and willfully . . .
obstruct, resist, oppose, assault, beat or wound .
. .  any person  or persons  authorized by  law to
maintain and preserve  the peace, in  their lawful
acts, attempts and  efforts to maintain,  preserve
and  keep   the  peace   shall  be   guilty  of  a
misdemeanor . . . .

This Court  has stated  the elements  of resisting
arrest under MCL  750.479 were: (1)  the defendant
resisted arrest,  (2) the  arrest was  lawful, (3)
the person arresting the defendant was an  officer
of the law at the time, (4) the defendant knew the
person was an officer, (5) the defendant knew  the
person was making an arrest, and (6) the defendant
intended to resist. People v MacLeod, 254 Mich App
222, 226; 656 NW2d 844 (2002), citing MCL 750.479;
People v Little, 434 Mich  752, 755 n 5; 456  NW2d
237  (1990).  Therefore,  under  MCL  750.749, the
right  to  resist  an  unlawful  arrest  was,   in
essence,  a  defense to  the  charge of  resisting
arrest, because the legality of the arrest was  an
element of the charged offense. People v Rice, 192
Mich App 240, 243; 481 NW2d 10 (1991).

On May 9, 2002, MCL 750.81d was enacted. It states
in relevant part:

(1) Except  as provided  in subsections  (2), (3),
and  (4),  an  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.

The  trial  court  found  that  the  newly enacted
statute, MCL 750.81d, also requires a showing of a
lawful arrest.

"The goal of judicial interpretation of a  statute
is to ascertain and  give effect to the  intent of
the  Legislature."  Davis,  supra,  468  Mich  79,
citing People v Pasha, 466 Mich 378, 382; 645 NW2d
275  (2002).  To  accomplish  this  objective, the
court must begin by examining the language of  the
statute.  Id.  "If  the  language  is  clear   and
unambiguous, 'no further construction is necessary
or allowed to expand what the Legislature  clearly
intended to  cover.'" Id.,  quoting Pasha,  supra,
466 Mich 382. "[A] court may read nothing into  an
unambiguous  statute  that   is  not  within   the
manifest intent of the Legislature as derived from
the words of the statute itself."

Id., quoting  Roberts v  Mecosta Co  Gen Hosp, 466
Mich 57, 63; 642 NW2d 663 (2002). This

Court has also stated:

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"Courts  must  read the  statutory  language being
construed in light  of the general  purpose sought
to be accomplished. Where the language is so plain
as  to leave  no room  for interpretation,  courts
should not read into  it words that are  not there
or  that  cannot  fairly  be  implied."  [People v
Ramsdell,  230  Mich  App  386,  393;  585  NW2d 1
(1998), quoting  Lumley v  Univ of  Michigan Bd of
Regents,  215  Mich  App 125,  129;  544  NW2d 692
(1996) (citations omitted).]

Examining the language of the MCL 750.81d,  unlike
in  MCL  750.479,  we  find  no  reference  to the
lawfulness  of the  arrest or  detaining act.  The
language of  MCL 750.81d  is abundantly  clear and
states  only  that  an  individual  who  resists a
person the individual knows or has reason to  know
is performing  his duties  is guilty  of a felony.
MCL 750.81d. Because  the language of  the statute
is clear and unambiguous, further construction  is
neither necessary nor permitted, and we decline to
"'expand what the Legislature clearly intended  to
cover'" and  "read in"  a lawfulness  requirement.
Davis, supra,  468 Mich  79, citing  Pasha, supra,
466 Mich 382.

"Courts  and legislatures  in other  jurisdictions
have found the right to resist an unlawful  arrest
to be outmoded in our contemporary society." Wess,
supra, 235  Mich App  245. In  Wess, after finding
that  a  citizen's right  to  use such  reasonable
force  as  is  necessary  to  prevent  an  illegal
attachment and  to resist  an illegal  arrest does
not extend to third-party intervenors, this  Court
discussed the status of Michigan's unlawful-arrest
theory. The Wess Court stated:

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 and to bring  Michigan
in line with the  majority view as articulated  in
State v Valentine,  132 Wash 2d  1; 935 P  2d 1294
(1997). We 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. [Wess, supra,  235 Mich
App 244-245 n 1.]

When  the  Legislature  enacts  statutes,  it  has
knowledge of  existing laws  on the  same subject,
People v Ramsdell, 230 Mich App 386, 393; 585 NW2d
1 (1998),  and 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.  When
prosecuting a  charge drawn  upon MCL  750.81d, we
adopt the modern  rule that a  person may not  use
force to resist an arrest made by one he knows  or
has  reason  to  know  is  performing  his  duties
regardless of whether the arrest is illegal  under
the circumstances of the occasion.

Assaulting, resisting,  or obstructing  an officer
while he  is performing  his duty  must be avoided
for the safety of  all society, regardless of  the
legality of the arrest.  It is the immediate  harm
that can be attendant to an arrest when a  subject
engages in  assaultive, resistant,  or obstructive
behavior that the Legislature seeks to  eradicate.
Solid  mechanisms are  in place  to guarantee  the
safety  of  those arrested,  and,  to correct  any
injustices that may result from an illegal arrest.
The statute at issue,  MCL 750.81d, now serves  as
another mechanism to reduce

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the  likelihood  and  magnitude  of  the potential
dangers inherent in  an arrest situation,  thereby
dually protecting both the general public and  its
police officers.

II

Finally,  the prosecutor  states in  his brief  on
appeal  that  defendant's  arrest  for  minor   in
possession  was  not  statutorily  permitted   but
argues that it was constitutionally valid. Despite
the  prosecutor's   concession  that   defendant's
arrest   was   invalid  under   MCL   764.15,  our
resolution  of   the  first   issue  permits   the
prosecutor  to prosecute  defendant for  resisting
arrest under MCL 750.81d; therefore, we decline to
further comment on the issue.

Conclusion

A person  may not  use force  to resist  an arrest
made by  one he  knows or  has reason  to know  is
performing his  duties regardless  of whether  the
arrest  is illegal  when charged  pursuant to  MCL
750.81d. Because  MCL 750.81d  does not  require a
showing  that  defendant's arrest  was  lawful, we
reverse.

Reversed  and  remanded  for  further  proceedings
consistent  with this  opinion. We  do not  retain
jurisdiction.

/s/ Pat M. Donofrio /s/ Joel P. Hoekstra /s/ Peter
D. O'Connell

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