Michigan Court Of Appeals Holds Reserve Police Officer Commands Meaningless

On September 15, 2015, the Michigan Court of Appeals held in a criminal case that, under current Michigan law, a person who does not obey the commands of a reserve police officer cannot be guilty of the felony known as resisting or obstructing a police officer under MCL 750.81d.

In People v Feeley, Docket No. 325802, the Michigan Court of Appeals addressed the issue of whether the district court erred in refusing to bind over a defendant in a criminal case on the charge of resisting or obstructing a police officer when the district court found that reserve police officers, as opposed to full-time, active-duty police officers, are not part of the statute that governs the obligation of citizens to obey lawful police commands.

The Court first recited the brief facts of the case:

Defendant was arrested and charged with resisting and obstructing a police officer, MCL 750.81d, for failing to comply with the command of a Brighton reserve police officer. At the conclusion of the preliminary hearing, the district court denied the prosecution’s bindover request on the grounds that failure to comply with the command of a reserve police officer was not within the scope of the statute. The prosecution appealed by right to the circuit court which affirmed and the prosecution appealed to this Court by leave granted . . . .

The Court's analysis of whether reserve police officers fall within the purview of the resisting and obstructing a police officer statute followed:

. . . The cases relied upon by the prosecution are inapposite. In People v McRae, 469 Mich 704, 711-715; 678 NW2d 425 (2004), the Supreme Court held that a reserve police officer was a “state actor” for Fourth Amendment purposes. The case involved applying constitutional standards. There is no basis to conclude that because a reserve police officer has been held to be a state actor under certain circumstances that he is also a “police officer” for purposes of the resisting and obstructing statute. Indeed, a completely private citizen may be held to be a state actor for Fourth Amendment purposes. Id. at 711. The term “state action” is broad and of no application here; for example, a public university and its employees are generally state actors, but no one could argue that, by virtue of that legal classification, they are also “police officers” for purposes of the crime of resisting and obstructing.

In Bitterman v Village of Oakley, 309 Mich App 53; ___ NW2d ___ (2015), this Court considered whether information concerning reserve police officers fell within the “law enforcement exception” to disclosure under the Freedom of Information Act (FOIA), MCL 15.231 et seq. We reject the prosecution’s reliance on Bitterman because the term “law enforcement officer, agent, or informant” used in MCL 15.243(1)(s)(viii) is undoubtedly broader than the term “police officer.” Indeed, as this Court opined, reserve police officers likely fit within the FOIA term. Bitterman, slip op at 9. The term “police officer” in the resisting and obstructing statute is markedly narrower. If the Legislature had intended “police officer” as used in the statute to be read so broadly, it would not have needed to include a lengthy list of law enforcement professionals (and firefighters, etc.) to whom the law applies, notably omitting reserve police officers.

The prosecution and the dissent make reasonable policy arguments in support of their view that the failure to obey a properly supervised reserve police officer should result in some level of criminal liability. However, the decision whether to criminalize such actions and, if so, what sanctions to impose, is a matter reserved for the Legislature. See People v Ayers, 213 Mich App 708, 716; 540 NW2d 791 (1995) (“[T]he power to define crime and fix punishment is wholly legislative[.]”).