Making Law

In the legal world “making law” refers to a case that creates, expands, or changes existing law.  Sometimes these are cases having huge significance, like Roe v. Wade or Brown v. Board of Education. The vast majority however are cases nobody has ever heard of that change or expand an existing law or principal. A lawyer can have entire career and never have a case like that. I’ve had one, and it involved Rick Miller, a current candidate for Sherriff, and a guy named Richard Ora Hale.

Back in 1979 I was Clare County Prosecuting Attorney. Rick Miller, who retired as Undersheriff, was a Deputy Sherriff working road patrol.  The facts, as I can remember them after this much time, were these:

While on patrol, Rick came across a car down in the ditch. The driver was slumped over the wheel. When Rick got to him he proceeded to shower Miller with insults [really it was a few words starting with F, but this sounds better in a family newspaper] and concluded by calling him “Dyke.” We later surmised that Mr. Hale, because he had been drinking, had Miller confused with Leon Dyke who at that time was a Harrison policeman. Harrison had a Police Department then.

Anyway, what followed is what the Court of Appeals called a “fracas” in which Hale repeatedly kicked Miller. Hale was wearing shoes, a fact that later became important.

I charged Hale with Felonious Assault, a 4 year felony. MCL 750.82 makes it a felony to assault someone else with, amongst other things, “…any dangerous weapon.” We charged that Hales shoes were “dangerous weapons.”

We had some law to support this. In a previous case the Michigan Supreme Court in a case called People v. Goolsby had ruled that a car can be a “dangerous weapon” if it is used as such. In that case Goolsby had knocked a police officer down and then run over his foot with a car. The Supreme Court said it’s how something is used, not necessarily what it is, that determines if it’s a dangerous weapon under the felonious assault statute.

We had a jury trial and the jury found Richard Ora Hale guilty of felonious assault on Rick Miller for, again as the Court of Appeals put it, “repeatedly [kicking] the Clare County deputy in the groin area.”

The case went up on appeal on a couple of issues, but the main issue was whether a shoe, if used for kicking, is a “dangerous weapon.” In 1980 a unanimous Court of Appeals ruled that even though a shoe is not dangerous per se, it could be considered such ….if used in a dangerous manner. That case has never been reversed, and that’s how, in our own little way we made law.