-1- STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED May 26, 2016

v No. 325727 Wayne Circuit Court JOSEPH STEVE MISKOVICH, LC No. 14-008948-FH

Defendant-Appellee.

Before: B OONSTRA , P.J., and M ETER and B ECKERING , JJ.

B ECKERING

, J. ( concurring ).

This resisting and obstructing criminal case arises out of a p ost-Tigers game incident. The heart of the issue on appeal e ntails whether defendant, Jos eph Miskovich, was being subject
to a lawful arrest at the time Officer Michael Williams of the Detroit Police Department undertook to arrest him. Namely, pl aintiff contends that defen dant had violated Detroit City Ordinance § 38-2-2, which makes it illegal for any person to “k nowingly and willfully interfere with or obstruct any city employee in the performance of his du ties . . . .” Defendant contends that he did not violate the ordinance, as he was merely exercis ing his First Amendment right to free speech at the time, making his arrest for such conduct unl awful and his right to resist legal. I agree with the majority that sufficient evidence was presente d to establish that Officer Williams was acting lawfully when he arrested defendant for violating th e ordinance. However, I write separately to highlight defenda nt’s actions that physically obs tructed Williams from performing his duty.

On September 25, 2014, Williams was directing traffic near Com erica Park after a Tigers game. According to Williams’ te stimony at defendant’s prelimin ary examination, he ordered a group of pedestrians not to cross the street in order to let tr affic proceed through the intersection.
Defendant’s “best friend” violated Williams’ orders to wait and crossed the street anyway, interfering with traffic. Williams stopped the individual, wal ked to the curb, and began writing him a ticket for disobeying a lawful order. As Williams was is suing the ticket, defendant, who was standing next to his friend, began protesting Williams’s de cision to issue the ticket. According to Williams, defendant was “yelling, upset, and cursi ng out loud,” saying, “why the fuck are you writing him a tick et, he didn’t do anything wrong. ” Williams continued to write the
ticket.

According to Williams, he was attempting to issue the ticket a nd trying to explain the
basis for the ticket to defenda nt’s friend, but defendant’s pro ximity to both his friend and-2- Williams while engaging in obstreperous behavior made it diffic ult to complete the task. Williams explained that he “couldn’t even give” defendant’s fri end the ticket with defendant “right in my face, yelling . . . .” Williams ordered defendant to step back and leave the area, but defendant refused. Williams told defendant he was interfering and ordered defendant to leave a second time; defendant again refused. All the while, defendant was “yelling” and acting “irate.” While this was occurring, traffic was starting to back up. Wil liams testified that he ordered defendant to leave “multiple times.” Defendant refused, and re sponded “I don’t have to go anywhere.” Eventually, Williams decided to arrest defendant, a t which point defendant resisted and attempted to run away.

As noted, the issue in this case concerns whether defendant’s arrest for violating Detroit City Ordinance § 38-2-2 was lawful, such that defendant can sta nd trial for resisting and obstructing under MCL 750.81d(1). The ordinance provides:

It shall be unlawful for any person to knowingly and willfully interfere with or obstruct any city employee in the performance of his du ties as a city employee.

Defendant argues that he was arrested solely for his speech, in particular, his vulgar language, and argues that his speech was pr otected by the First Amendment

.

Defendant is correct in his contention that “the First Amendme nt protects a significant
amount of verbal criticism and ch allenge directed at police off icers.” City of Houston v Hill , 482 US 451, 461; 107 S Ct 2502; 96 L Ed 2d 398 (1987). Here, howev er, I find the prosecutor submitted sufficient evidence to establish that probable cause existed to lawfully arrest defendant for violating Detroit Ordinance § 38-2-2 because he physically interfered with Williams’s duties, i.e., defendant’s arrest was not ba sed on his verbal criticism of Williams.

In reaching this conclusion, I am not swayed by the prosecutio n’s contentions that defendant’s arrest can be justified based on how physically imp osing he was due to his height. Rather, my focus is on defendant’s actions that physically obst ructed Williams from performing
his duties. And there are several. Williams testified that he was attempting to write a ticket to defendant’s friend and to explain to the friend why he was writ ing the ticket. Meanwhile, defendant was standing near Williams and was pestering him, so much so that Williams had trouble finishing the citation. Williams, who was directing tr affic at the same time he was attempting to write a lawful citation, asked—and ultimately ord ered—defendant to leave so that he could finish the citation. Defendant refused to leave and p ersisted in his disruptive conduct. According to Williams, defendant was standing next to the perso n to whom Williams was writing the ticket and was “right in [Williams’s] face,” to the point where Williams “couldn’t even give” the ticket. Williams ordered defendant to leave a s econd time, and defendant again
refused.

Defendant’s actions, including standing next to Williams, “rig ht in [his] face,” yelling at him to the point where he was unable to finish writing the tick et, and by disobeying at least two lawful orders to leave, reveal that defendant physically obstru cted Williams from performing his duties. A pair of hypothetical situations posed by Justice Pow ell and discussed by the majority in the United States Supreme Court in Hill , 482 US 451, reinforces this conclusion. In that case,-3- Raymond Hill was arrested for shouting at two Houston police of ficers who had approached another individual. Hill told the officers, “Why don’t you pic k on somebody your own size?” and responded in the affirmative when asked by one of the offic ers if he was “interrupting me in my official capacity as a Houston police officer[?]” Id . at 453-454. Hill was arrested under a Houston ordinance that made it unlawful, among other matters, t o “in any manner oppose, molest, abuse or interrupt any policeman in the execution of hi s duty . . . .” Id . at 455. The Court considered the validity of the ordinance in the context o f a First Amendment overbreadth challenge. 1 Id . at 458. In concluding that the ordinance was overbroad becau se it criminalized lawful speech, the majority cons idered two hypothetical scenari os posed by Justice Powell. In the first hypothetical, the Cour t explained that, under a prope rly tailored statute, “a municipality constitutionally may punish an individual who chooses to stand near a police officer and persistently attempt to engage the officer in conversation whil e the officer is directing traffic at a busy intersection.” Id . at 462 n 11 (quotation marks omitted). In the second, the Co urt explained that, under a properly tailored statute, a municipality could p unish an individual who ran next to and shouted at an officer pursuing a fleeing felon because “[w] hat is of concern in that example is not simply contentious speech, but rather the possibility th at by shouting and running beside the officer the person may physical ly obstruct the officer’s in vestigation.” Id

.

I find defendant’s conduct in the instant case to be similar t o the examples cited in Hill

. The ordinance in this case prohi bits obstruction, and I agree w ith the majority that the plain language of the ordinance refers to a physical obstruction. De fendant was not, as he contends, merely voicing his displeasure with Williams’s conduct in this case. He was physically preventing Williams from performing his duties. Specifically, his conduct of standing in the immediate proximity of Williams, “right in [his] face,” and yel ling at Williams prevented Williams from completing the task of writing the ticket. Willi ams at least twice ordered defendant to leave so that Williams could finish issuing the ti cket to defendant’s friend, but defendant refused to comply and pe rsisted in his behavior. Con sequently, this is not a case, as defendant contends, where he was arrested simply for cursing at a police officer or for criticizing the officer. Rather, it is a case where defendant acted in suc h a disruptive manner that he physically prevented Williams from performing his duties. In t his sense, defendant is like the
individual who stands near an o fficer and persistently attempts to engage the officer, see Hill

, 482 US at 461 n 11, or like the individual who runs alongside a nd shouts at an officer who is pursuing a fleeing felon, see id

.

Accordingly, I concur in the majority’s decision to reverse th e circuit court’s order quashing the information.

/s/ Jane M. Beckering

1 The instant case does not invo lve an overbreadth challenge. N or is the ordinance at issue in this case as broad and encompassing as the ordinance at issue i n Hill

.