                              STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 26, 2016
               Plaintiff-Appellant,

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

               Defendant-Appellee.


Before: BOONSTRA, P.J., and METER and BECKERING, JJ.

BECKERING, J. (concurring).

        This resisting and obstructing criminal case arises out of a post-Tigers game incident.
The heart of the issue on appeal entails whether defendant, Joseph Miskovich, was being subject
to a lawful arrest at the time Officer Michael Williams of the Detroit Police Department
undertook to arrest him. Namely, plaintiff contends that defendant had violated Detroit City
Ordinance § 38-2-2, which makes it illegal for any person to “knowingly and willfully interfere
with or obstruct any city employee in the performance of his duties . . . .” Defendant contends
that he did not violate the ordinance, as he was merely exercising his First Amendment right to
free speech at the time, making his arrest for such conduct unlawful and his right to resist legal.
I agree with the majority that sufficient evidence was presented to establish that Officer Williams
was acting lawfully when he arrested defendant for violating the ordinance. However, I write
separately to highlight defendant’s actions that physically obstructed Williams from performing
his duty.

        On September 25, 2014, Williams was directing traffic near Comerica Park after a Tigers
game. According to Williams’ testimony at defendant’s preliminary examination, he ordered a
group of pedestrians not to cross the street in order to let traffic 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, walked to the curb, and began writing
him a ticket for disobeying a lawful order. As Williams was issuing the ticket, defendant, who
was standing next to his friend, began protesting Williams’s decision to issue the ticket.
According to Williams, defendant was “yelling, upset, and cursing out loud,” saying, “why the
fuck are you writing him a ticket, he didn’t do anything wrong.” Williams continued to write the
ticket.

       According to Williams, he was attempting to issue the ticket and trying to explain the
basis for the ticket to defendant’s friend, but defendant’s proximity to both his friend and

                                                 -1-
Williams while engaging in obstreperous behavior made it difficult to complete the task.
Williams explained that he “couldn’t even give” defendant’s friend 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. Williams testified that he ordered
defendant to leave “multiple times.” Defendant refused, and responded “I don’t have to go
anywhere.” Eventually, Williams decided to arrest defendant, at 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 stand 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 duties 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 protected by the First Amendment.

         Defendant is correct in his contention that “the First Amendment protects a significant
amount of verbal criticism and challenge directed at police officers.” City of Houston v Hill, 482
US 451, 461; 107 S Ct 2502; 96 L Ed 2d 398 (1987). Here, however, 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 based on his verbal criticism of Williams.

        In reaching this conclusion, I am not swayed by the prosecution’s contentions that
defendant’s arrest can be justified based on how physically imposing he was due to his height.
Rather, my focus is on defendant’s actions that physically obstructed 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 writing 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 traffic at the same time he was
attempting to write a lawful citation, asked—and ultimately ordered—defendant to leave so that
he could finish the citation. Defendant refused to leave and persisted in his disruptive conduct.
According to Williams, defendant was standing next to the person 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 second time, and defendant again
refused.

        Defendant’s actions, including standing next to Williams, “right in [his] face,” yelling at
him to the point where he was unable to finish writing the ticket, and by disobeying at least two
lawful orders to leave, reveal that defendant physically obstructed Williams from performing his
duties. A pair of hypothetical situations posed by Justice Powell and discussed by the majority
in the United States Supreme Court in Hill, 482 US 451, reinforces this conclusion. In that case,

                                                -2-
Raymond Hill was arrested for shouting at two Houston police officers who had approached
another individual. Hill told the officers, “Why don’t you pick on somebody your own size?”
and responded in the affirmative when asked by one of the officers 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, to “in any manner oppose,
molest, abuse or interrupt any policeman in the execution of his duty . . . .” Id. at 455. The
Court considered the validity of the ordinance in the context of a First Amendment overbreadth
challenge.1 Id. at 458. In concluding that the ordinance was overbroad because it criminalized
lawful speech, the majority considered two hypothetical scenarios posed by Justice Powell. In
the first hypothetical, the Court explained that, under a properly 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 while the officer is directing traffic at a
busy intersection.” Id. at 462 n 11 (quotation marks omitted). In the second, the Court explained
that, under a properly tailored statute, a municipality could punish 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 that by shouting and running beside
the officer the person may physically obstruct the officer’s investigation.” Id.

        I find defendant’s conduct in the instant case to be similar to the examples cited in Hill.
The ordinance in this case prohibits obstruction, and I agree with the majority that the plain
language of the ordinance refers to a physical obstruction. Defendant 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 yelling at Williams prevented
Williams from completing the task of writing the ticket. Williams at least twice ordered
defendant to leave so that Williams could finish issuing the ticket to defendant’s friend, but
defendant refused to comply and persisted in his behavior. Consequently, 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 such a disruptive manner that he
physically prevented Williams from performing his duties. In this sense, defendant is like the
individual who stands near an officer and persistently attempts to engage the officer, see Hill,
482 US at 461 n 11, or like the individual who runs alongside and shouts at an officer who is
pursuing a fleeing felon, see id.

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



                                                              /s/ Jane M. Beckering




1
  The instant case does not involve an overbreadth challenge. Nor is the ordinance at issue in
this case as broad and encompassing as the ordinance at issue in Hill.


                                                 -3-
