Friday, June 12, 2015

Did Michigan Court Violate Sixth Circuit Decision on Open Carry?

In March of 2014, Johann Deffert was exercising his second amendment rights by peacefully openly carrying a holstered handgun in Grand Rapids.  As he passed a Church, someone called 911, perhaps to harass the open carrier.  Such harassment has become common, and is advocated by disarmists.  When the police arrived on the scene, Deffert was already well past the Church.  The officer drew his pistol and pointed it at Deffert.

The most threatening activity appears to be something the 911 caller never mentioned, and which the officer characterised as "talking to nobody", certainly an innocuous activity in these days of bluetooth and cell phones.  The officer pointed his pistol at Deffert from across the street and ordered Deffert to the frozen ground.  Then the officer disarmed him and handcuffed him.   Dashcam video captured most of the action.  Deffert sued over his First, Fourth, and Second amendment rights being violated.

A Michigan District Court found that the police had "reasonable suspicion" to detain Deffert.  From
"The court determines that under the totality of the circumstances, Officer Moe had reasonable suspicion to stop and only briefly detain Plaintiff," U.S. District Judge Janet Neff wrote in a 27-page decision granting the city's request for summary judgment.
The Detroit Free Press mischaracterises the issue this way;  from
When a man armed with a loaded assault pistol strapped to his leg, dressed in camouflage, and singing to himself, began walking in front of a Grand Rapids church one snowy Sunday morning in March 2014, an alarmed churchgoer called 911. When police arrived, they took the man's gun, and briefly handcuffed him while they questioned him. The man, Johann Deffert, an "open carry" gun advocate, then sued police saying they had violated his constitutional rights.
You can look at the picture of Johann Deffert on the cold concrete above, and see if you think the Freep gave an unbiased description of what happened.  The pants are reported to be camouflage, hardly alarming in Grand Rapids, where hunting is a common activity.   He had applied for a concealed carry permit, but it had not yet been issued.  Like most states, Michigan has never made open carry illegal.  It is only illegal in six states at present, with Texas Governor Abbott about to make it five, as he signs the Texas open carry reform into law.

I wonder if the district court had been made aware of Northrup v. City of Toledo Police Dep't.    A brief description of the case is available here.   It holds that where open carry is legal, the police may not simply stop and handcuff someone for openly carrying a gun.  Here is a quote from the case:
Clearly established law required Bright to point to evidence that Northrup may have been “armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968) (emphasis added). Yet all he ever saw was that Northrup was armed—and legally so. To allow stops in this setting “would effectively eliminate Fourth Amendment protections for lawfully armed persons.” United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993); accord United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013); United States v. Roch, 5 F.3d 894, 899 (5th Cir. 1993).
It seems the District court in Michigan, which falls under the Sixth Circuit, is claiming that the "totality of the circumstances" overrides the ruling that legally open carrying a firearm does not meet the requirements for "reasonable suspicion" that a crime is occurring, and therefore does not meet the requirements of a "Terry Stop". 

I suspect that there will be an appeal to the Sixth Circuit.  Perhaps the decision will turn on the notion of whether something never noticed by the officer is enough for reasonable suspicion of a crime.  I wonder if the court will view the video, or if that is off limits in the appeal process.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included. Link to Gun Watch

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