With the recent death of a civilian at the hands of police in Minnesota, the country is reverberating. Protests—both violent and peaceful—have erupted in major cities everywhere, including here in Michigan. People want to make sure that all police brutality ends, and that a simple encounter with police does not end in tragedy. Police want to make sure that people don’t resist their commands and thus turn a routine investigation into a forceful confrontation.
When a police encounter turns into an arrest, even the slightest resistance from the civilian can result in an additional serious charge commonly referred to “Resist/Obstruct,” or “R/O.” This charge, pursuant to MCL 750.81, is actually headlined as follows:
750.81d Assaulting, battering, resisting, obstructing, opposing person performing duty; felony; penalty; other violations; consecutive terms; definitions.
As you can see, the Michigan legislature decided to lump all sorts of actions---assault, battery, obstruction, together under this law. So, a person who mildly resists an arrest (say by questioning the officer) might be charged exactly the same way as a person who forcefully resists (say by pushing or punching the officer). In both instances, the person faces very grave consequences if convicted of this offense.
Dan Geherin, owner of the Geherin Law Group PLLC (GLG Michigan), is an ex-prosecutor and board-certified criminal trial attorney in Ann Arbor who exclusively handles cases with a criminal justice element. As part of this practice, GLG represents hundreds of clients charged with R/O offenses each year. His firm also handles civil rights cases in which police brutality is apparent.
Over the years, Dan has fielded questions like this:
“Is R/O a felony, or misdemeanor offense?”
“Will I go to jail or prison for R/O?”
“Can I resist an unlawful arrest?”
“How can I prove my innocence (or show that police acted improperly) if it’s my word vs. theirs?”
R/O is a felony by definition, carrying with it up to two years in prison for a “traditional” violation, and many more years if the officer is injured or killed. Also, this time can be imposed consecutively to any other sentence, meaning those two years can “stack up” on another sentence. So, if a person is convicted of, say, a felony OWI and R/O, he might serve consecutive sentences for each offense. And, prosecutors are often particularly tough on R/O cases, wanting to “protect” the officers with whom they work every day. Judges are no different. However, sometimes prosecutors charge R/O as an “Attempt,” meaning it becomes a 1-year maximum misdemeanor offense. Still, consecutive sentences can apply, and still judges/prosecutors treat the attempt charge aggressively.
Michigan law does allow a person to lawfully resist an unlawful arrest. Also, the prosecution must show that the officer was within his/her lawful duty at the time of the encounter, and that the defendant knew or should have known that it was police. This can be a common defense when undercover officers make an arrest. Lastly, the prosecutor must show that the arrestee did something affirmative---resisted, obstructed etc.—more than just words or questioning.
Gone are the days where a police officer’s written report was all that existed in these cases. Now, nearly every police agency in Michigan has either dashcam video or body-camera video, or both. Defending and litigating these offenses absolutely requires an attorney to make deep-dives into obtaining all video/audio/written evidence of the encounter. Only then can proper decisions and analysis be made about the propriety of the arrest, and the level of alleged resistance.
If you find yourself charged with R/O offenses, you want the best trial attorney in Ann Arbor on your side. GLG Michigan has a long and verifiable history of fighting and winning R/O cases, both in the criminal and civil arena. For questions about R/O or about any criminal case in Ann Arbor or throughout Southeastern Michigan, please contact Dan Geherin and his team at GLG Michigan. We have the resources, experience, and will to match the prosecution and protect our clients’ interests. Schedule online or call 24/7 (734) 263-2780.
GLG Michigan: Handling criminal justice and civil rights cases—from investigation through trial—in Ann Arbor, Washtenaw County and throughout Southeastern Michigan.