People v. Debono
| Decision Date | 16 March 2023 |
| Docket Number | 362041 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DANIEL JOSEPH DEBONO, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Wayne Circuit Court LC No. 21-008204-01-AR
Before: PATEL, P.J., and SWARTZLE and HOOD, JJ.
Defendant Daniel Joseph DeBono, appeals by leave granted[1] the circuit court's appellate order reversing the district court's dismissal and remanding for the district court to determine whether probable cause existed to bind DeBono over on three charges of assault with a dangerous weapon, MCL 750.82 ("felonious assault"). The circuit court correctly concluded that MCL 750.527, commonly referred to as the "riot act," provides a legal defense at trial instead of immunity. We, therefore, affirm.
This case arises out of allegations that DeBono, a Detroit Police Department (DPD) officer, assaulted three photojournalists by firing rubber bullets at them in the early morning hours of May 31, 2020. The complainants are Nicole Hester, a photographer with MLive, Gregory Herald, a freelance photographer, and Matthew Hatcher, another freelance photographer. They were in Detroit the evening of May 30, 2020, covering protests following the murder of George Floyd in Minneapolis. All three were wearing press credentials and carrying cameras and other equipment.
On May 30, 2020, around 10:00 p.m., the Detroit Police Chief declared an unlawful assembly and ordered law enforcement to disperse protesters from Downtown Detroit. This included members of the Mobile Field Force (MFF), a crowd control unit, to which DeBono was assigned as a grenadier. The declaration was in response to some of the protesters attacking and throwing objects at police outside of DPD headquarters. At the time of the declaration, the MFF was positioned outside of DPD headquarters. Following the declaration, police began making loudspeaker announcements, instructing people near DPD headquarters to disperse. The announcements were loud enough to be heard over a block away, and police made dozens of repeated announcements to disperse as they moved from DPD headquarters to the center of Downtown. It remains unclear if the announcements were made on or near the location of the alleged assault.
The alleged assault happened around 12:30 a.m. on May 31, 2020, near Woodward and State Street, approximately 0.7 miles from the DPD headquarters. While walking down Woodward, the complainants observed a confrontation between police and a protester. After pausing to observe and potentially take photographs, they were confronted by two other police officers. The complainants testified that they raised their hands and identified themselves as journalists. But within seconds, one of the officers fired at them. Based on a video exhibit published during the preliminary examination, the complainants were approximately 50 to 75 feet away from the officer that fired on them using rubber bullets. The prosecution alleges that DeBono was the officer that opened fire.
DeBono was charged with three counts of felonious assault. The district court held the preliminary examination over four days from July to October 2021. During the preliminary examination, the parties disputed whether MCL 750.527 provided DeBono with immunity from prosecution as a matter of law or an affirmative defense to be asserted at trial. At the end of the preliminary examination, the district court dismissed the case, concluding that DeBono was "exempt from criminal prosecution" under MCL 750.527.
In November 2021, the prosecution appealed to the circuit court, requesting that the circuit court reverse the order of dismissal and remand for the district court to bind over for trial. It argued that the evidence presented at the preliminary examination created a triable fact question on whether DeBono's actions were protected under MCL 750.527. The prosecution conceded that a riot did occur near DPD headquarters hours before the alleged assault, but it argued that the requirements for use of force under MCL 750.527 did not exist at the time and in the location of the alleged assault. Further, the prosecution argued that if MCL 750.527 covered DeBono's conduct it would violate the First Amendment's protections for freedom of the press, to peaceably assemble, and to petition the government.
DeBono argued that the district court properly dismissed the case because MCL 750.527 provides officers with immunity at law, rather than creating an issue for a jury. He argued that the circuit court should not consider the alternative constitutional issue because it was never raised before the district court.
After oral argument and supplemental briefing, the circuit court entered an order reversing the district court's dismissal order and remanding to the district court for continued proceedings. The circuit court concluded that MCL 750.527 provides an affirmative defense at trial, not immunity from prosecution. In doing so, the circuit court relied on statutory language. Specifically, the court observed that unlike other parts of the penal code that confer immunity, MCL 750.527 never uses the word "immunity." It also relied on the statute's use of the phrase "justified in the law," which it interpreted as creating a fact question for juries. Finally, it relied on persuasive authority interpreting Florida's nearly identical riot act. Because the district court did not make findings on whether there was probable cause to believe that DeBono committed the three charged assaults, the circuit court remanded to the district court to make a such findings. This appeal followed.
DeBono argues that the circuit court erred by concluding that MCL 750.527 provides a legal defense at trial instead of immunity as a matter of law. We disagree. The circuit court correctly concluded that the statutory language, particularly the phrase "shall be held guiltless and fully justified in law," provides an affirmative defense, not immunity.
We review questions of law, including issues of statutory interpretation, de novo. People v Ackah-Essien, 311 Mich.App. 13, 21; 874 N.W.2d 172 (2015).
The overriding goal of statutory interpretation is to ascertain and give effect to the Legislature's intent. The touchstone of legislative intent is the statute's language. The words of a statute provide the most reliable indicator of the Legislature's intent and should be interpreted on the basis of their ordinary meaning and the overall context in which they are used. An undefined statutory word or phrase must be accorded its plain and ordinary meaning, unless the undefined word or phrase is a "term of art" with a unique legal meaning. [People v Ryan, 295 Mich.App. 388, 400; 819 N.W.2d 55 (2012) (citation omitted).]
"When an undefined statutory term has been the subject of judicial interpretation, [this Court] presume[s] that the Legislature used the particular term in a manner consistent with the prior construction." Id. at 400-401 (citation omitted).
MCL 750.527 provides:
Death ensuing from efforts to disperse unlawful assemblies or riots-If, by reason of any of the efforts made by any 2 or more of the said magistrates or officers, or by their direction, to disperse such unlawful, riotous or tumultuous assembly, or to seize and secure the persons composing the same, who have refused to disperse though the number remaining may be less than 12, any such person, or any other person there present as spectators or otherwise, shall be killed or wounded, the said magistrates and officers and all persons assisting by their order, or under their direction shall be held guiltless and fully justified in law; and if any of the said magistrates or officers, or any person acting by their order, or under their direction, shall be killed or wounded, all the persons so unlawfully, riotously or tumultuously assembled, and all other persons who, when commanded or required, shall have refused to aid or assist the said magistrates or officers, shall be held answerable therefor. [Emphasis added.]
The circuit court correctly interpreted MCL 750.527 as providing a defense at trial for three reasons: (1) MCL 750.527 omits the word "immunity," which the legislature typically explicitly uses to confer immunity; (2) it contains the phrases "held guiltless" and "justified in the law," which implicate an issue for a jury at trial; and (3) other jurisdictions interpreting nearly identical statutes have concluded that the language of the statute provides a defense, not immunity, see Krickovich v State, 333 So3d 237 (Fla App, 2022).[2]
First, and most critically, the Michigan Legislature typically uses explicit language to provide immunity as a matter of law. See, e.g., MCL 750.411(4) (); MCL 750.239(4) (). MCL 750.527 does not explicitly confer "immunity," but it also does not state that the person cannot be arrested or prosecuted, language the legislature has used in other statutes to confer immunity on certain individuals. See, e.g., MCL 333.26424(a) and (b) (). Even the statute on which DeBono appears to rely specifically provides for "immun[ity] from civil or criminal liability ...." See MCL 722.625.[3]
Second separate from omitting an explicit grant of immunity, MCL 750.527's language appears to implicate fact questions for a jury. Courts use the language of "justification" when analyzing affirmative defenses. See People v Goree, 296...
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