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6th Circuit: Michigan resisting and obstructing a police officer is not a crime of violence

In a decision released today, the Sixth Circuit held that a state conviction for violation of Michigan’s resisting and obstructing a police officer statute, Mich. Comp. Laws § 750.81d(1), is not a crime of violence.  U.S.S.G. § 4B1.2(a).

For its part, 18 U.S.C. § 16—the section of the U.S. Code referenced byINA § 101(a)(43)(F)–defines a COV as:

“The term “crime of violence” means–(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Subsection (1) of the Sentencing Guidelines is almost identical to subsection (a) of the U.S. Code.  As such, the Mosley Court’s discussion of (1) is of particular relevance to immigration practitioners.

The Sixth Circuit first held that the Michigan statute does not contain a use of force element.  Mosley, slip op. at 2.  “An individual may violate the statute by committing any one of several prohibited actions, and at least one of the prohibited actions does not involve the use—attempted, threatened or real—of physical force.”  Mosley, slip op. at 2.  Specifically, the Sixth Circuit explained that obstruction of a police officer may occur “without attempting or threatening to use force.”  Mosley, slip op. at 2.

The Court then performed what it described as a “change[] [in] the landscape” that resulted from the Supreme Court’s recent decision in United States v. Chambers, 129 S. Ct. 687, 690 (2009).  According to the Mosley Court,

“It is now clear that, before we examine the ordinary behavior underlying a conviction under the statute, we must decide at the outset how to classify violations, and most significantly we must decide whether the statute should be treated as involving more than one category of offense for federal crimes-of-violence purposes.”  Mosley, slip op. at 6.

The Court then explained that the Michigan statute

“contains at least one obvious fault line. The offense not only covers an individual who ‘assaults, batters, [or] wounds’ a law enforcement officer, but it also covers an individual who ‘obstructs’ an officer, Mich. Comp. Laws § 750.81d(1), which includes “a knowing failure to comply with a lawful command,” id. § 750.81d(7)(a). An ‘assault[]’ of an officer and a ‘knowing failure to comply’ with an
officer’s lawful command, it seems to us, involve ‘behavior’ that ‘differs so significantly’ that they must be treated ‘as different crimes.’”  Mosley, slip op. at 4 (citing Chambers, 129 S. Ct. at 690).

The Sixth Circuit then “quickly conclude[d]” that knowing failure to comply with a lawful command does not involve purposeful, violent, or aggressive conduct, thus it is not a COV.  Mosley, slip op. at 5.

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