People of the CITY OF DETROIT, Plaintiff-Appellant,
v.
Arlene SMITH and Marketta Green, Defendant-Appellees.
Docket No. 208869.
Court of Appeals of Michigan.
Submitted January 5, 1999, at Detroit. Decided April 13, 1999, at 9:00 a.m. Released for Publication July 27, 1999.*248 Charles S. Bergman, Assistant Corporation Counsel, for the plaintiff.
Before: HOEKSTRA, P.J., and DOCTOROFF and O'CONNELL, JJ.
HOEKSTRA, P.J.
Defendants in this case were charged with violating a city ordinance prohibiting anyone from interfering with a city worker's performance of his duty. Specifically, they attempted to prevent a police officer from arresting their relative. We granted leave for plaintiff to appeal a Recorder's Court order reversing defendants' district court convictions and granting defendants a new trial. We reverse and remand.
On July 11, 1996, a Detroit police officer, working as a community relations officer, was patrolling a shopping center. According to the officer, he was in a clothing store when Lavada Smith entered the store and, in a loud voice, began using profanity. Because she ignored his requests to stop using such language, he attempted to arrest her as she was leaving the store. The officer claimed that Lavada's cousin, defendant Marketta Green, and grandmother, defendant Arlene Smith, tried to prevent him from arresting her by striking him and pulling her away. He also claims that they tore off his name plate and badge and took his radio. Arelene Bates Smith, another of Arlene Smith's granddaughters, also joined the fray.
Lavada was charged with disorderly conduct. The three women who tried to prevent her arrest were charged with violating a city ordinance that prohibits interference with, or obstruction of, a city employee's performance of his duty. All of the defendants pleaded not guilty and requested jury instructions on self-defense and defense of others and the right to resist an unlawful arrest. The trial court initially reserved ruling on the issue until it was briefed and the defense met its burden of production concerning self-defense, but it ultimately denied the requests.
The jury found Lavada not guilty of disorderly conduct, but found the other three women guilty of interfering with a *249 city employee. The trial court assessed fines and costs of $100 for each conviction. Two of the defendants, the appellees herein, appealed their convictions to the Recorder's Court. That court ruled that the trial court erred in refusing to give jury instructions regarding self-defense, defense of others, and the right to resist an unlawful arrest, and it remanded the case for a new trial. Plaintiff appeals the Recorder's Court ruling, arguing that the trial court was correct when it refused to instruct the jury with regard to those defenses.
It is well settled in Michigan that "one may use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest." People v. Krum, 374 Mich. 356, 361, 132 N.W.2d 69 (1965). The right to resist an unlawful arrest is, in essence, a defense to the charge of resisting arrest, because the legality of the arrest is an element of the charged offense. People v. Rice, 192 Mich.App. 240, 243, 481 N.W.2d 10 (1991). However, in this case, none of the defendants were charged with resisting arrest. Therefore, instruction regarding the right to resist an unlawful arrest, whether only for Lavada or for all the defendants, would have been improper. Id. at 243-244, 481 N.W.2d 10.
The Recorder's Court also ordered the trial court to instruct the jury with regard to the defendants' right to self-defense and defense of others. In essence, defendants argued that the police officer assaulted Lavada, and they simply came to her aid. However, this argument is nothing more than a reassertion of the right to resist a third person's unlawful arrest. A claim of self-defense or defense of others first requires that a defendant has acted in response to an assault. The assault alleged in this case is the officer's arrest of Lavada. An arrest can be an assault if the arrest is illegal. People v. Eisenberg, 72 Mich.App. 106, 111, 249 N.W.2d 313 (1976). Fundamentally, the Recorder's Court held that defendants had the right to assist Lavada in resisting her arrest if that arrest was illegal.
While Michigan remains part of a shrinking minority of states that retain an arrestee's right to resist an illegal arrest, we decline to extend that right to third-party intervenors. Other courts and legislatures have found the right to resist an unlawful arrest to be outmoded in our contemporary society. For example, in State v. Valentine, 132 Wash.2d 1, 935 P.2d 1294 (1997), the Washington Supreme Court examined the common-law right to resist unlawful arrest and concluded that the right arose at a time when mere imprisonment often resulted in death or serious physical harm. Id. at 14-16, 935 P.2d 1294. However, under modern law governing criminal procedures, arrestees enjoy the right to reasonable bail, the right to counsel at critical stages of the trial, and the right to a prompt judicial determination of probable cause. State v. Thomas, 262 N.W.2d 607, 611 (Iowa, 1978). Since 1966 the number of states permitting resistance to an unlawful arrest has declined from forty-five to twenty. Valentine, supra at 17-18, 935 P.2d 1294. In those states where the common-law rule has been overturned by judicial decision, courts have regularly voiced concern that allowing this kind of "outmoded common law rule ... fosters unnecessary violence in the name of an obsolete self-help concept...." Thomas, supra at 611.
Given its waning support in other jurisdictions, and in light of the considerable protections intended to guarantee the expeditious processing and humane treatment of those arrested, we can find no basis for escalating the potential harms already inherent in an arrest situation by extending the precarious right to use force against government officials to third-party intervenors. Nor will we extend that protection to allow defendants to plead defense of others where the charges take the form of "interfering with a city worker," as opposed to resisting arrest. To hold that *250 one can argue defense of others when charged with interfering with a city worker's performance of his dutywhere the employee is a police officer, and the duty takes the form of an arrestwould be to elevate form over substance.
We reverse the order of the Recorder's Court and reinstate both defendants' convictions and defendant Green's sentence. However, defendant Smith died during the pendency of these appeals. Accordingly, the assessment of costs against her should stand, but the purely penal aspect of her sentence should be abated ab initio because it no longer serves a purpose. See People v. Peters, 449 Mich. 515, 517, 537 N.W.2d 160 (1995).
Reversed. We remand for modification of defendant Arlene Smith's judgment of sentence as indicated. We do not retain jurisdiction.