Written by attorney Jared Clayton Austin

Resisting & Obstructing

Under MCL 750.81d(1),a person can be guilty of this offense by: assaulting, battering, wounding, resisting, obstructing, opposing, or endangering a person who the individual knows or has reason to know is performing his or her duties.

The most common type of person “performing his or her duties" that this applies to is police officers, but it can apply to firefighters and others as well.

Resisting and Obstructing a police officer in performance of his duties in my experience as a Michigan criminal defense attorney is one of the most common and overly charged statutes there is. It seems like everyone that has even the slightest hint of an unfavorable encounter with the police gets charged with R&O. The vast majority of these charges hinge on the “resisting" element which has been applied to some of the most benign circumstances including:

  • tensing or tightening up when an officer is placing handcuffs on you or placing you under arrest (aka refusing to relax)
  • not doing what the officer told you to do quick enough (Police: “Put your hands in the air!" Suspect: “Excuse me officer, I..." Too late!)
  • if the officer has to tell you twice (this is much like the second one where someone is often not given enough time to respond)

Often these situations involve a brief but tense encounter with the police in which an officer or officers are giving you very loud verbal commands and you only have a short amount of time to realize: 1) what is occurring and 2) comply or else risk being charged with a felony. Many times the suspects are in shock as to what is occurring as it is all happening so quickly and if their comprehension and reactions are too slow, they may find themselves facing prison time.

It is important to note that the police have a hard and dangerous job and no one should willfully place the police or themselves in potential danger by refusing to obey lawful commands of a police officer while performing his job. However, in many instances where these charges are brought, that is simply not the case. Police officers and prosecutors tend to have knee-jerk reactions to anything in a police report that may possibly indicate that someone did not immediately comply with an officer's directive, not taking into account the person's state of mind, the surrounding environment, or the time period in which they were given to respond.

This is also frequently used as an extra bargaining chip by prosecutors, especially in weak cases. Many defendants have given in and pled guilty to other charges in exchange for the R&O being dropped or reduced for fear of facing a felony conviction on their record.

What are the possible defenses?

One defense is that you were not acting willfully in trying to resist or obstruct the officer. This of course is a question of fact for a jury to decide, but depending on the facts and the circumstances you may have a compelling and persuasive argument that you were not intending to be non-complaint with the police officer.

The Moreno Decision and the Lawful Command Requirement

Thanks to a recent Michigan Supreme Court ruling in People v Moreno, a suspect can now challenge the lawfulness of the officer's actions. Prior to this ruling, whether or not an officer was acting lawfully with his directives was no defense to the charge. The court had reasoned that for the safety of the suspect and the officer it was best to comply with his demands and not run the risk of elevating the situation into a volatile or dangerous scenario where someone could get hurt. After all, the suspect still had the court as a venue to challenge either the police contact or seizure under the Fourth Amendment. Thankfully, the Supreme Court saw the error in this line of thinking and now if an officer is acting unlawfully or not in accordance with the Fourth Amendment or Constitution, a suspect does not have to comply with such an order.

However, there is a major caveat to this! If you choose to disobey an officer's directives with the belief that they are acting unlawfully, you do so at your own risk. The burden will be on you to convince the judge that their actions were unlawful and if the judge doesn't interpret it that way, you may be stuck with the charge unless the appellate courts think otherwise. So think long and hard before deciding not to do what an officer tells you to do.


Resisting & Obstructing:

  • Two years in prison
  • $2,000 fine

Resisting & Obstructing Causing Injury:

  • Four years in prison
  • $5,000 fine

Resisting & Obstructing Causing Serious Injury:

  • 15 years in prison
  • $10,000 fine

Resisting & Obstructing Causing Death:

  • 20 years in prison
  • $20,000 fine

Plea Bargains:

Or as I like to call it “plea negotiating." Depending on the particular facts of your case and how strong or how weak the case is against you will determine whether you should try negotiating an acceptable offer or taking it to trial. The most frequent offer for R&O is “Attempted R&O" which decreases the penalty from two years in prison to a one-year misdemeanor. This eliminates the possibility of prison as well as the stigma of having a felony attached to your record. Sometimes if the case is weak or if you have a clean record, some prosecutors may offer you Disturbing the Peace which is a low level misdemeanor and while the possibility of jail exits, it is not likely.

If you are charged with an R&O Causing Injury they may offer you a regular R&O which not only decreases the maximum penalty substantially, but it is not an assaultive crime. The decision on whether or not to accept or negotiate an offer is a decision made after consulting with a lawyer and carefully going over the merits of your case and what the pros and cons are of going to trial.

As you can see, R&O is a very serious charge which is why you need an experienced R&O attorney on your side. The stakes are too high to do it alone.

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