Summary
In People v Little, 434 Mich. 752, 759; 456 N.W.2d 237 (1990), we applied the plain language of the statute in determining whether a set of facts fell within the statute.
Summary of this case from People v. PhilabaunOpinion
Docket No. 87021.
Decided June 5, 1990.
On application by the people for leave to appeal, the Supreme Court, in lieu of granting leave, reversed the judgments of the Court of Appeals and the circuit court and remanded the case to the circuit court for trial.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Richard Thompson, Prosecuting Attorney, Richard C. Williams, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
William E. Ziem for the defendant.
After being arrested for driving while intoxicated, the defendant allegedly assaulted a police officer. He was charged under the statute that prohibits obstructing an officer's efforts to keep the peace. The circuit court granted a motion to quash, evidently concluding that the statute only applies to obstructive behavior that precedes or accompanies an arrest. The Court of Appeals affirmed. We reverse, because the plain language of the statute covers the events that are said to have taken place in this case.
I
In the early morning hours of June 1, 1988, a uniformed Oakland County Sheriff's deputy stopped the defendant's pickup truck because the defendant was driving erratically. After the defendant failed field sobriety tests, and after a preliminary breath test indicated a blood-alcohol level of 0.237 percent, the deputy arrested the defendant. The defendant did not resist arrest. He was transported to the Walled Lake police station, where a second uniformed officer was waiting to administer a Breathalyzer test.
To date, the only testimonial record is the transcript of the preliminary examination, at which two police officers testified. The defendant has yet to provide his account. For purposes of this opinion, we accept the testimony of the officers.
At the station, the defendant was verbally abusive. He also spat upon the officer who was attempting to administer the Breathalyzer test. As the defendant prepared to spit on the officer again, the officer raised a hand toward the defendant. At that point, the defendant kicked the officer twice in the groin area.
The defendant was charged with a violation of MCL 750.479; MSA 28.747, which is sometimes referred to as the resisting-arrest statute. The complaint and warrant (and later the information) alleged that the defendant obstructed the officer's attempts to keep the peace.
Any person who shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township treasurer, constable or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or who shall resist any officer in the execution of any ordinance, by law, or any rule, order or resolution made, issued, or passed by the common council of any city board of trustees, or common council or village council of any incorporated village, or township board of any township or who shall assault, beat or wound any sheriff, coroner, township treasurer, constable or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served, or attempted to serve or execute the same, or who shall so obstruct, resist, oppose, assault, beat or wound any of the above named officers, or any other 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, punishable by imprisonment in the state prison not more than two years, or by a fine of not more than one thousand dollars. [MCL 750.479; MSA 28.747. Emphasis supplied.]
These documents allege that the defendant "did knowingly and wilfully obstruct, resist, oppose, assault, beat or wound [the officer], while [he] was engaged in lawful acts, attempts and efforts to maintain, preserve and keep the peace, to-wit: assisting in taking of breathalyzer. . . ."
II
At the conclusion of the defendant's preliminary examination, the assistant prosecutor moved that the defendant be bound over for trial, as charged. Defense counsel's response included an argument that MCL 750.479; MSA 28.747 was inapplicable to these facts. Counsel said that the defendant had been overcharged, and that this case should instead be prosecuted as a simple assault and battery.
MCL 750.81; MSA 28.276.
The district judge rejected the argument, and bound the defendant over on the original charge.
In circuit court, the defendant moved that the information be quashed. In his motion, he relied upon a case in which the Court of Appeals had described the elements of the crime in terms of events that take place at the time of an arrest. In answering the motion, the prosecutor relied upon a case in which the Court of Appeals described the offense more broadly.
The elements of the crime of resisting arrest are: (1) the defendant must have resisted arrest; (2) the arrest must be lawful; (3) the person making the arrest must have been at the time an officer of the law; (4) at the time of the arrest, the defendant must have intended to have resisted such officer; (5) at the time of the arrest, the defendant must have known that the person he was resisting was an officer; and (6) at the time of the arrest, the defendant must have known that the officer was making an arrest. See CJI 13:1:02. [ People v Julkowski, 124 Mich. App. 379, 383; 335 N.W.2d 47 (1983).]
In People v John Weatherspoon, 6 Mich. App. 229; 148 N.W.2d 889 (1967), a police officer was sitting in his patrol car doing some paperwork, when the defendant opened the door of the police car and assaulted the officer. The Court of Appeals then offered this analysis of the statute's applicability:
The position of the defendant is that the legislature did not intend this statute to punish offenders who commit a simple assault on any police officer while on duty. More simply stated, the argument is that when the officer was assaulted, he was not engaged in preserving the peace.
In People v Krum (1965), 374 Mich. 356 [ 132 N.W.2d 69], the Supreme Court upheld a conviction based on the above quoted statutory excerpt where the accused interfered with a State trooper's duty to inspect automobiles as they arrived at a blockade set up as part of a search for prison escapees. From a factual analysis, [the] "acts, attempts and efforts" [of the officer in John Weatherspoon] seem comparable to those being executed by the State trooper in People v Krum, supra. But more important than this parallel, is that on page 361 of the Krum Case, supra, the Court recognized the relationship between the statute and the general rule which provides:
"`The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.' (39 Am Jur, Obstructing Justice, § 8, p 506.)" (Emphasis supplied [by the Court of Appeals].)
The emphasized language leads us to conclude that the broad statutory clause "maintain, preserve and keep the peace" includes all of the duties legally executed by a police officer. A police officer is expected to be, and should be, in a constant state of readiness to quell any disturbance. [The officer] had parked his automobile at the intersection to watch for [John Weatherspoon's brother] who was wanted for assault. The mere fact that this officer was not in the act of making an arrest when he was assaulted does not necessarily mean that he was not preserving the peace. [ John Weatherspoon, 6 Mich. App. 231-232.]
The circuit court's decision was that the information should be quashed, and that the case should be remanded to district court for trial on a charge of assault and battery. The circuit judge explained:
I think that if you take a look at the legislative intent in terms of the resisting a police officer in the performance of his duties, the purpose is to be able to maintain the peace, and I think that's the maintaining the peace in the public. So that when we take a look at the broad scope and the definition of the obstruction, the resistance of a public officer in the performance of his duties, the reason they raised that from a misdemeanor to a high misdemeanor in essence was so that the public officer could not be interfered with in the public in terms of preserving the peace. That they would be able to continue their duties, that they would not be resisted in that and that they would not be preyed upon as in [ People v John Weatherspoon, 6 Mich. App. 229; 148 N.W.2d 889 (1967)].
But here you have someone who is already arrested and is incarcerated and it's a matter of being able to maintain control within the Jail setting. And I don't think that that's what that statute is for, and I will grant the motion of the Defendant and remand the matter to the District Court for trial on assault and battery.
After granting the prosecutor's application for leave to appeal, the Court of Appeals affirmed the order of the circuit court. 179 Mich. App. 445; 446 N.W.2d 309 (1989).
In stating its analysis, the Court of Appeals acknowledged some merit to the prosecutor's argument:
The stated purpose of § 479 seems to support the people's application of the statute, the purpose being to punish an assault upon a public officer in the discharge of his duty by a penalty more severe than that imposed for assaults on private citizens, People v Tompkins, 121 Mich. 431; 80 N.W. 126 (1899), United States v Feola, 420 U.S. 671; 95 S Ct 1255; 43 L Ed 2d 541 (1975), and protect officers from physical violence and harm. People v Kretchmer, 404 Mich. 59; 272 N.W.2d 558 (1978), People v Baker, 127 Mich. App. 297; 338 N.W.2d 391 (1983). Additionally, in Weatherspoon, supra, a panel of this Court found the broad statutory clause "maintain, preserve and keep the peace" to include all duties legally executed by a police officer. In so finding, the Court relied on People v Krum, 374 Mich. 356, 361; 132 N.W.2d 69 (1965) [cert den 381 U.S. 935 (1965)], wherein our Supreme Court recognized the statute's tie to the common-law crime of obstructing an officer, and acknowledged the general rule: "`The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.' (39 Am Jur, Obstructing Justice, § 8, p 506.)" [ Id. at 448.]
However, the Court of Appeals then indicated that its research had "failed to uncover precedent wherein the statute in question has been applied to a postarrest in-custody defendant." Id. at 448-449.
The Court of Appeals further noted that the Legislature has provided in MCL 750.506a; MSA 28.774(1) that a sentence for simple assault may be enhanced under the circumstances found in the present case. In reliance upon that statute, the Court of Appeals concluded that "the instant defendant should have been charged under MCL 750.506a; MSA 28.774(1)," and thus the Court of Appeals found "no abuse of discretion in the trial court's dismissal of the resisting and obstructing charge." Id. at 449.
(1) If a person, lawfully imprisoned in a jail or other place of confinement established by law, for any crime or offense, or lawfully imprisoned in a jail or other place of confinement after being sentenced for a crime or offense and awaiting or in transit to or from a prison or other place of confinement, commits any offense defined in [MCL 750.81 through 750.86; MSA 28.276 through 28.281], the court may impose the appropriate penalties prescribed in [MCL 750.81 through 750.86; MSA 28.276 through 28.281] to run consecutively with any sentence which the person is already serving.
(2) If a person, lawfully detained in a jail or other place of confinement established by law, and awaiting arraignment, examination, trial or sentencing for any crime or offense, commits a subsequent offense defined in [MCL 750.81 through 750.86; MSA 28.276 through 28.281], if convicted of the crime or offense for which he was detained at the time he committed the subsequent offense, any sentences imposed for conviction of the prior offense and for conviction of the subsequent offense under [MCL 750.81 through 750.86; MSA 28.276 through 28.281] may run consecutively.
The prosecutor has applied to this Court for leave to appeal.
III
The Court of Appeals is correct that no previously reported decision is on point. However, it is clear that the events alleged in this case fall within the plain language of the statute.
Such an application of the statute accords with its purpose, which is to protect officers from physical harm. People v Kretchmer, supra at 64. Moreover, there is ample authority that an officer's efforts to "keep the peace" include ordinary police functions that do not directly involve placing a person under arrest. People v Krum, supra at 362, People v John Weatherspoon, supra at 232.
As noted above, the defendant has relied upon People v Julkowski, n 5 supra at 383, in which the Court of Appeals described the elements of the crime in terms that suggested that the offense can take place only in conjunction with a lawful arrest. For the Court of Appeals to have framed the elements in that fashion is quite understandable, in light of the facts of Julkowski, but those facts are quite unlike those of the present case. We observe that the Court of Appeals panel in Julkowski included a reference to CJI 13:1:02 which describes the elements in terms similar to those used by the Court of Appeals in Julkowski. But CJI 13:1:02 is only one of four alternatives to be employed in different factual scenarios. CJI 13:1:03 more closely corresponds to the facts of the present case, and we see no indication that the Court of Appeals meant in Julkowski that CJI 13:1:02 was the only correct account of the elements of this statutory offense.
The Court of Appeals acknowledged the general applicability of these principles. It nevertheless concluded that the circuit court was correct, largely in reliance upon the existence of a sentence-enhancement provision that permits the imposition of a consecutive sentence when an assault is committed by a person who is already under arrest. MCL 750.506a; MSA 28.774(1). The Court of Appeals said that because this defendant "should" have been charged under that sentence-enhancement provision, the trial court did not abuse its discretion.
We disagree. The Legislature's enactment of MCL 750.506a; MSA 28.774(1) does not indicate any legislative intent to limit the prosecutor's charging discretion. As we explained in People v Ford, 417 Mich. 66; 331 N.W.2d 878 (1982), the enactment of a statutory provision governing a set of facts does not automatically preclude the prosecutor from proceeding under a different statutory provision that also encompasses the alleged facts. See also, generally, People v Petrella, 424 Mich. 221, 261-263; 380 N.W.2d 11 (1985), and People v Johnson, 427 Mich. 98, 113-114; 398 N.W.2d 219 (1986) (opinion of BOYLE, J.).
An example of a clear legislative expression of its intent to limit prosecutorial charging discretion is found in 1988 PA 20, which established the offenses of first- and second-degree retail fraud. See MCL 750.356c(3), 750.356d(2); MSA 28.588(3)(3), 28.588(4)(2).
In deciding this case, it is not necessary for us to consider further the nature and extent of a prosecutor's charging discretion. As the prosecutor has observed in his argument to this Court, MCL 750.506a; MSA 28.774(1) is a sentence-enhancement measure, not a prohibition of particular conduct. We therefore believe it clear under Ford that the legislative enactment of MCL 750.506a; MSA 28.774(1) does not prevent the prosecutor from making the discretionary decision to prosecute this case under MCL 750.479; MSA 28.747.
In lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for trial on the information. MCR 7.302(F)(1).
RILEY, C.J., and BRICKLEY, CAVANAGH, BOYLE, and GRIFFIN, JJ., concurred.
I concur in the result only.
The defendant, Kenneth P. Little, was arrested for drunk driving and transported to the police station. On evidence tending to show that he struck a police officer while the officer was attempting to administer a Breathalyzer test, Little was charged with obstructing and resisting an officer in his "lawful acts, attempts and efforts to maintain, preserve and keep the peace, to wit: assisting in taking of breathalyzer . . . ."
The information charged that Little
on or about June 1, 1988 did knowingly and wilfully obstruct, resist, oppose, assault, beat or wound Christopher Helgert, a police officer with the Wolverine Lake Police Department, while said officer was engaged in lawful acts, attempts and efforts to maintain, preserve and keep the peace, to-wit: assisting in taking of breathalyzer; Contrary to the statute in such case made and provided and against the peace and dignity of the People of the State of Michigan.
Sec. 750.479, CL 1979; MSA 28.747. [ 750.479-B]. Misdemeanor: 2 Years or $1,000.00
Resisting and obstructing police officer preserving peace
Any person who shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township treasurer, constable or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or who shall resist any officer in the execution of any ordinance, by law, or any rule, order or resolution made, issued, or passed by the common council of any city board of trustees, or common council or village council of any incorporated village, or township board of any township or who shall assault, beat or wound any sheriff, coroner, township treasurer, constable or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served, or attempted to serve or execute the same, or who shall so obstruct, resist, oppose, assault, beat or wound any of the above named officers, or any other 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, punishable by imprisonment in the state prison not more than two years, or by a fine of not more than one thousand dollars. [MCL 750.479; MSA 28.747.]
Little was bound over by the magistrate on the basis of the testimony of two police officers which tended to show that Little spat on the Breathalyzer, was about to spit on one of the officers who then raised his hand, and that Little then kicked the officer twice in the groin. Little was subdued by the officers.
Little moved to quash the information, claiming that administering a Breathalyzer test is not, unless the officer is "out on the road," maintaining, preserving, and keeping the peace. The circuit judge agreed and quashed the information. She said that the purpose of the statute is to protect against interference with the performance in public places of the officer's duties, and that it was not intended that the statute apply to the acts committed by Little while he was detained in a jail setting.
The Court of Appeals affirmed, stating that "our research has failed to uncover precedent wherein the statute in question has been applied to a postarrest, in-custody defendant." 179 Mich. App. 445, 448-449; 446 N.W.2d 309 (1989). The Court added that there is another statute applicable where an offense is committed by a person lawfully imprisoned or detained that "enhances the punishment for a simple assault" under the circumstances of the instant case. Id., p 449.
MCL 750.506a; MSA 28.774(1).
The Court concluded:
As we conclude the instant defendant should have been charged under MCL 750.506a; MSA 28.774(1), we therefore find no abuse of discretion in the trial court's dismissal of the resisting and obstructing charge. [ Id.]
I agree with the majority that the consecutive sentencing so provided has no bearing on the question whether Little was properly charged under § 479 of the Penal Code and that the question whether he was properly charged is not one that is confided to the discretion of the circuit judge when reviewing the magistrate's exercise of discretion.
The per curiam opinion reverses the decision of the Court of Appeals "because the plain language of the statute covers the events that are said to have taken place in this case."
Ante, p 753. The body of the opinion repeats that statement:
[I]t is clear that the events alleged in this case fall within the plain language of the statute. [ Ante, p 759.]
I
The per curiam opinion appears to acknowledge that "`keep the peace'" are key words, but does not state what is the "plain meaning" of the "plain language" of the statute.
Moreover, there is ample authority that an officer's efforts to "keep the peace" include ordinary police functions that do not directly involve placing a person under arrest. People v Krum [ 374 Mich. 356, 362; 132 N.W.2d 69 (1965)], People v John Weatherspoon [ 6 Mich. App. 229, 232; 148 N.W.2d 889 (1967)]. [ Ante, p 759.]
Nor, on somewhat hasty and inadequate research, have I found a definition of "preserve" or "keep the peace." It appears, however, that there is plentiful authority concerning what constitutes "breaking the peace." This Court said:
It appears that the expression "keep the peace" was originally "keep the King's peace."
In general terms the offense is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace. Each case where the offense is charged must depend upon the time, place, and circumstances of the act. [ People v Johnson, 86 Mich. 175, 177; 48 N.W. 870 (1891). Emphasis added.]
Reading that definition together with the statutory language, "maintain and preserve" or "keep the peace," it appears that the act of the defendant must have occurred in a setting where the officer was seeking to maintain and preserve "public order" or "tranquility" and, thus, that the defendant's conduct interfered with the officer's "lawful acts, attempts and efforts to maintain, preserve and keep [public order or tranquility]."
See In re Richter, 226 Neb. 874, 876; 415 N.W.2d 476 (1987) (the phrase, "[p]reservation of the peace," in an obstructing and resisting statute, was defined as "maintaining the tranquillity enjoyed by members of a community where good order reigns").
The only persons in the room where the Breathalyzer was located were two police officers and Little. In that setting, the officers were not seeking to maintain and preserve public order or tranquility. Thus, Little's acts did not interfere with the officer's efforts to maintain and preserve public order or tranquility.
A different question might be presented if a number of persons had been arrested and the officers were maintaining and preserving, at the station house, the tranquility of those who had been arrested and others who may have been there with them.
II
In People v Krum, 374 Mich. 356; 132 N.W.2d 69 (1965), the Court held that the defendant was properly convicted of obstructing an officer in his efforts to maintain, preserve, and keep the peace on evidence that he interfered with an officer who was conducting a roadblock.
Krum and two companions were returning from a fishing trip and were stopped at the Mackinac Bridge by state police who were looking for prison escapees. A passenger responded to a trooper that they could not search the car without a search warrant. The trooper ordered the car driven to the side of the bridge out of the line of traffic. An argument ensued between the defendant and the trooper.
The trooper then resumed his station where he was observing cars as they crossed the bridge, and Krum returned to his car. Krum then approached the trooper again. The trooper testified that in this second encounter, Krum
interposed himself between the trooper and the car to be inspected, finally brushing against the trooper and moving the automatic carbine from the position in which it was held by the trooper; that the trooper told defendant he was under arrest and ordered him to go to the police car; that defendant answered, "I don't have to and you can't make me"; that the trooper than took him by the wrist and, when he wouldn't move, pulled him over to the police car. [ Id., p 359.]
In People v John Weatherspoon, 6 Mich. App. 229; 148 N.W.2d 889 (1967), the defendant was convicted of violating the statute on evidence that he opened the door of a police car and assaulted an officer. The Court of Appeals, referring to Krum, said that the officer was engaged in preserving the peace when he was assaulted. The Court of Appeals explained:
[The defendant in Krum] interfered with a State trooper's duty to inspect automobiles as they arrived at a blockade set up as part of a search for prison escapees. From a factual analysis, Officer Nevelle's "acts, attempts and efforts" seem comparable to those being executed by the State trooper in People v Krum, supra. But more important than this parallel, is that on page 361 of the Krum Case, supra, the Court recognized the relationship between the statute and the general rule which provides:
"`The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.' (39 Am Jur, Obstructing Justice, § 8, p 506.)" (Emphasis supplied [by the Court of Appeals].)
The emphasized language leads us to conclude that the broad statutory clause "maintain, preserve and keep the peace" includes all of the duties legally executed by a police officer. A police officer is expected to be, and should be, in a constant state of readiness to quell any disturbance. Officer Nevelle had parked his automobile at the intersection to watch for Elmer Weatherspoon who was wanted for assault. The mere fact that this officer was not in the act of making an arrest when he was assaulted does not necessarily mean that he was not preserving the peace. [ Id., pp 231-232.]
In People v Stiles, 99 Mich. App. 116; 297 N.W.2d 631 (1980) (per curiam), police officers were investigating a domestic dispute between the defendant and his wife. An officer entered one of the rooms in the apartment to talk to the defendant and to keep the parties separated; a scuffle ensued, and the defendant assaulted one of the officers. The Court of Appeals said:
It is clear that the officer was legally performing his duty when he approached the apartment in response to the call that a family disturbance was occurring therein. It further appears that the officer was accomplishing a lawful and proper police function of preserving law and order by attempting to ascertain whether defendant was still present in the apartment and by attempting to keep the parties separate. [ Id., pp 119-120.]
In Krum, Weatherspoon, and Stiles, the officers were seeking to preserve the tranquility of the citizenry. In Krum, they were seeking to apprehend two prison escapees. In Weatherspoon, the officer was looking for the defendant's brother who was wanted for assault and battery, was "in a constant state of readiness to quell any disturbance," and was thereby acting to maintain, preserve and keep the tranquility. In Stiles, the officers were attempting to prevent a recurrence of the domestic dispute that had necessitated their arrival on the scene.
In the instant case, however, the officers were not on patrol or in a place where other citizens were present. At the police station, they were not seeking to maintain, preserve and keep public order or tranquility, but rather were seeking to administer a Breathalyzer test.
III
The gist of the offense is not assault — the defendant in Krum did not assault the officer — but rather the "obstruction of justice" that results from interference with the performance of specific law enforcement activities, originally the service of process or execution of a city or township ordinance, and only later "keeping the peace."
1840 PA 39; 1846 RS, ch 156, § 23.
1863 PA 202.
1869 PA 24; 1931 PA 328, § 479.
The statute does not proscribe obstruction, resistance, or opposition to all "lawful acts, attempts and efforts" of an officer. Refusing to take a Breathalyzer test, even assaulting a police officer, is not necessarily "obstruction of justice" within the intendment of this statute. The obstruction must occur while the officer is attempting to serve process or execute a city or township ordinance or is acting to maintain, preserve or keep the peace — public order or tranquility.
Any assault on an officer while on patrol in a public setting might be seen as an interference with his ongoing efforts to maintain and preserve public order or tranquility. An officer on patrol tends to keep the peace by his presence. Citizens tend to slow down for a police car. It is reassuring to see police officers. Their mere presence is generally sufficient to maintain and preserve public order or tranquility. An interference with an officer on patrol might thus be seen as obstructing and resisting an ongoing effort to maintain and preserve public order or tranquility.
When, however, the officer is at the station house, his mere presence does not ordinarily tend to maintain and preserve public order or tranquility. The police generally separate the public from a person who is being detained, and thus there generally is no public to be tranquilized by the presence of the officer. While sitting at his desk or administering a Breathalyzer test, an officer is, to be sure, performing a police function. He is not, however, truly "in a constant state of readiness to quell any disturbance" — he is not at that time keeping the peace.
The statement in Weatherspoon that the "statutory clause `maintain, preserve and keep the peace' includes all of the duties legally executed by a police officer" must be read in context. In Weatherspoon, the officer was assaulted while looking for a person who was wanted for assault and battery. The statement in 39 Am Jur, p 506, quoted in Krum, supra, p 361, that "obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions" is another generalization that cannot properly be read as excising from § 479 the qualification that the officer has been obstructed, resisted, opposed, or assaulted while "in [his] lawful acts, attempts and efforts to maintain, preserve and keep the peace. . . ." Reading the statute as including all "duties legally executed by a police officer" reads out of the statute everything after the words "lawful acts, attempts and efforts," i.e., reads out of the statute "to maintain, preserve and keep the peace."
In this regard, the following passage from 58 Am Jur 2d, Obstructing Justice, § 69, p 1120, is instructive:
The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute.
Observation: The various statutes have the same purpose, but may differ in their description of the offense. Their wording varies to such an extent that each statute must be read to determine just what acts constitute the crime in the particular jurisdiction. [Emphasis added.]
I do not wish to be understood as belittling the spittle of Little. It is not, however, a violation of the statute to fail to obey every command or direction given by a police officer.
IV
"Breaking the peace" may not be the other side of the coin of "keeping the peace." The prosecutor may be right, and the Court of Appeals, in the instant case, wrong.
There is at least a conflict in the decisions of the Court of Appeals, and the law is not settled. Peremptory disposition is not appropriate.
I adhere to the view that peremptory reversal should be reserved for those cases in which the law is settled and no factual assessment is required.
Roek v Chippewa Valley Bd of Ed, 430 Mich. 314, 322; 422 N.W.2d 680 (1988) (LEVIN, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich. 867; 451 N.W.2d 304 (1990) (LEVIN, J., dissenting).
See Schweiker v Hansen, 450 U.S. 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error"); Leis v Flynt, 439 U.S. 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal `should be reserved for palpably clear cases of . . . error.' Eaton v Tulsa, 415 U.S. 697, 707 [ 94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]").
I would either grant or deny leave to appeal.