MOTION TO DISMISS

PLEASE TAKE NOTICE Patrick A. Maizy, Attorney at Law, as attorney for Defendant in the above-captioned cause, motions this honorable court for summary disposition of the charge related to the above-captioned case:

Facts

  1. On 12/2/19, police were called to the ________________ by an individual inside the home who reported hostile behavior on the part of ________ (hereinafter “_____”).

  2. Upon nearing the vicinity of the home, police came into contact with _____.

  3. Police were ultimately able to diffuse the situation.

  4. Defendant [REDACTED] was said to have then stepped out from the inside of the home onto its balcony and is said to have threatened _____.

  5. Again ____became hostile.

  6. Police were able to diffuse the situation by directing [REDACTED] into the house.

  7. Defendant hereby restates paragraphs 4-6.

  8. 8. Police then escorted _____to a nearby mental health facility and proceeded to cite [REDACTED] for an Obstruction of Justice.

Arguments

I. Practically Certain

The ordinance at bar makes it unlawful for any person to knowingly obstruct, resist, or oppose any police officer, directly or indirectly, in making or attempting to make an arrest, or in the discharge or attempt to discharge any of his lawful duty. Inkster Code of Ordinances, §131.06. Counsel for Defendant contends that because Defendant could not have been “practically certain,” as Black’s Law Dictionary, in relevant part, defines knowingly, that his conduct would prevent the lawful discharge of the officers’ duty, it is not “tenable” for Defendant to be found guilty beyond a reasonable doubt of the underlying offense. (See 785 F.3d 1080, standing for the proposition that to merely set a building on fire is not enough to meet the burden of ‘knowingly’ creating a substantial risk to a firefighter’s safety, as firefighters are professionals and as such can be expected to know how to maneuver around certain risk). In the case at bar, by merely threatening a detained, hostile subject, Defendant could not have been practically certain that the officers would not have been able to still discharge their lawful duty. As such, a material element of the offense at bar cannot be shown to exist.

II. Overbroad

The municipal ordinance in question is substantially overbroad in that it criminalizes “words or actions which … tend to prevent … any police officer from the discharge of his lawful duties.” See Inkster Code of Ordinances, §131.06. In Houston v Hill, 482 US 451, the United States Supreme Court held that “[a] municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his duty is substantially overbroad, and therefore invalid on its face under the First Amendment,” prior to which the Court of Appeals found that a “significant range of protected speech and expression [was] punishable by the literal wording of the statute,” 789 F.2d at 1110. In citing Hoffman Estates v The Flipside, 455 US 489, Kolender v. Lawson, 461 US 352, and Winters v. New York, 333 US 507, the court in Hill indicated that criminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. Hill at 464. The court went on to indicate that “we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.” Id. at 465. In Hill, the conduct of the defendant was directed at the officer, and was intended to distract the officer, in hopes of thereby preventing the officer’s lawful discharge of duty. In the case at bar, the failure to immediately “go back inside,” [note: Sellers did ultimately go back inside very soon after being commanded to do so] as per the officer’s command, was constitutionally-protected expression, and was in no way conduct intended to prevent the officer’s discharge of duty.

WHEREFORE, based on the foregoing, Defendant respectfully requests this Honorable Court dismiss the charge laid out in the above-captioned case.