Michigan Supreme Court Reaffirms Right to Physically (But Nonlethally) Resist Illegal Police Conduct

The case is People v. Moreno (Mich. Apr. 23, 2012) (5 to 2). A 2004 Michigan Court of Appeals decision had held the contrary, but the Michigan Supreme Court overruled that precedent.

Under the old common law rule, people were allowed to use nondeadly force to resist an illegal arrest or search. But, to quote the dissent, “As of 1999, 39 states had eliminated the common-law right, ‘twenty-three by statute and sixteen by judicial decision.'” The question in this case was whether a Michigan statute had likewise eliminated the common-law right; the majority concluded that the statute hadn’t done so. The decision was on its face about how to interpret the statute, but I take it that the majority thought the common-law rule at least made enough sense that they shouldn’t reverse it themselves.

Note that the same issue has recently come up in Indiana, where the Indiana Supreme Court (by a 3 to 2 margin) eliminated the common-law right using its own power to change the common law; a month ago, the Indiana Legislature in turn reinstated the right.