At the Volokh Conspiracy, Eugene Volokh writes about the Michigan Supreme Court upholding the right to forcibly (but not lethally) resist illegal police conduct.  Oh boy.

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.

I can hear the cries of “yesssss” from the crowd, those who fear the militarization of the police, the evisceration of civil liberties, the deceit and cowardice that permeates a system that purports to protect the rights of individuals from the power of government.  Step back a moment.

The Moreno case reflected a fact pattern that was relatively limited, where the police, without a warrant, tried to enter a person’s home.

On the morning of the incident, Officer Troy DeWys and Officer Matthew Hamberg were searching for Shane Adams. Adams had several outstanding warrants.  Defendant’s house was in the immediate vicinity of where Adams’s vehicle was parked, so the officers knocked on defendant’s front and back doors to inquire about Adams. While outside the house, Officer DeWys heard voices and people running inside the house. He identified himself as a police officer and stated that he wanted to ascertain the identities of the people inside the house. Officer Hamberg looked through a basement window and could see empty bottles of alcohol and people trying to hide.

Approximately 15 minutes after the officers had knocked on the doors, Mandy McCarry opened the front door. Officer DeWys smelled “intoxicants and burnt marijuana.” McCarry admitted that underage persons were consuming alcohol inside the house, but Officer DeWys told her that he was not interested in writing “a bunch of minor in possession tickets.” Officer DeWys told McCarry that he just wanted to identify who was inside the house. Officer DeWys asked McCarry if she knew the owner of the vehicle parked in the street. McCarry asked the officers if they were looking for Adams and stated that he was not inside the house. McCarry told the officers that they could not come inside the house without a warrant.

Officer DeWys then informed McCarry that the officers were entering the house to “secure it” while they waited for a warrant. At that time, defendant came to the front door and demanded that the officers obtain a warrant before entering his house. Defendant then attempted to close the door, but Officer Hamberg put his shoulder against the door to prevent defendant from closing it. A struggle ensued between defendant and the officers. Ultimately, the officers pulled defendant from his doorway, physically subdued him, and arrested him. Officer DeWys suffered a torn hamstring and bruised elbow in the struggle.

It never ceases to amaze me how a cop always ends up the one with an on-the-job injury that allows him to receive salary without having to work. But I digress.

There are two distinct approaches, and relative problems, with the right to resist unlawful police conduct.  First, there is likely no right more fundamental to “life, liberty and the pursuit of happiness” than the right not to be subject to the command of, and the force of, those people to whom the government gives shields and guns, together with the authority to use them against their own people.

Second, there is no surer way to end up in prison, maimed or dead. 

A basic tenet of law is that there is no right without a remedy.  A more pragmatic truism is comply now, grieve later.  Being legally right and dead has its downside.  What is rather remarkable about the facts in Moreno is that when Moreno tried to stop the officers from entering his home, they didn’t pull out a gun and blow his head off.  To their credit, Moreno was alive to fight the case, and ultimately prevail, because the police struggled but did not shoot.

The legally right person cannot count on this happening. 

The asessment of who is in the legal right is extremely difficult to make after the fact, and essentially impossible to know at the moment a decision must be made to resist with force the conduct of the police.  If some judge years later decides that the civilian was correct, that the conduct of the police officers was unlawful, then the decision to resist is vindicated.  In the meantime, of course, the civilian gets to enjoy the ride, even though he eventually beats the rap.

Mind you, the eventual argument over whether a civilian’s self-diagnosis of the lawfulness of police conduct is subject to the cops analysis to the contrary.  Whether it’s a matter of testilying or differing perceptions of what occurred, there is a strong likelihood that the police will have a story that makes their conduct appear abundantly lawful, and that the judge will embrace their recitation of facts regardless of what the civilian and his 27 witnesses (three of whom are nuns) has to say.

It’s one thing if resistance is necessary in a life or death situation.  Another old adage is that it’s better to be judged by 12 than carried by six.  Or when a police officer engages in flagrantly criminal conduct, such as raping a woman.  But these are outlier situations, rather than the more typical general unlawful stop and seizure, or (as in Moreno) blatant violation of the 4th Amendment by the forcible entry into a home without a warrant.

While the Moreno decision dealt with the vitality of the common law right to resist in the face of a statute that could be interpreted to have eliminated the right, the existence and recognition of the right of a person to be free of unlawful police conduct, to fight it, to resist the violation of his right and person, raises some of the most difficult issues conceivable. 

That the right exists is, theoretically, a fundamental requisite of a free society.  But until someone comes up with a viable way to restore life to a legally correct person with a bullet in his head, it lacks an adequate remedy to make it a good idea.  Resistance may not be futile, but it comes at enormous risk.