Did Michigan Court Violate Sixth Circuit Decision on Open Carry?

Gun Watch ^ | 12 June, 2015 | Dean Weingarten

[marktwain]

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 Deffer 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 mlive.com:

"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 freep.com:

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 were 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

[marktwain]

So, having a pistol pointed at you, being proned out and handcuffed, is simply a "brief detention".

It does not sound like "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" to me.

[1010RD]

According to the papers it wasn’t just a simple everyday pistol. It was a loaded assault pistol.

[cripplecreek]

Deffert clearly did nothing wrong. I remember the dashcam video and the cop acted like he had an active shooter situation when Deffert was just walking down the street minding his own business.

[Sasparilla]

Northrup v City of Toledo Police is a short and concise explanation of the legality of stops of those carrying openly.
For anyone who carries open or is considering it, this is a fast must read.
But, keep in mind that it is only binding precedent in Court in states that are
located in the 6th Circuit.
It sure seems like the Michigan District Court blew it, and so did the Circuit Court. But maybe the man’s attorney failed to cite the case in his brief, and the Judges just took the easy way out. Courts often have the attitude of if you dont like our decision, then appeal it knowing appeals are very expensive.

[Noumenon]

I’ve got to get me one of them there assault pistols.

[Drango]

One can only hope the reporters, editors and their families of the Detroit Free Press are briefly detained. Repeatedly.

[1010RD]

I had one and had to keep it chained in a safe we kept at the bottom of our swimming pool. It was liable to just go and assault people at random. Psycho gun. Be careful.

[HiTech RedNeck]

The story has accounted for Moe. But how about Curly and Larry? (Badoom tish.)

[HiTech RedNeck]

It sounds like a passerby panicked at the sight.

With all the media drumbeat about how Guns Are Just Bad, such a thing is quite expectable.

In the meantime, rather than committing a battery on the man, why not an “excuse us sir, someone at the church panicked, can you tell us what you are about” — I think Heinlein (sp?) had a good idea, an armed society ought to be polite, and even though by rights he could have been difficult, likely he would have told the officer and then, maybe having been warned about the fear of the people at the church, he would have gone his way.

[Sir Napsalot]

So what is a loaded ‘defense’ pistol, “according to the papers” then?

[kiryandil]

I find it EXTREMELY disturbing that We The Peasants have let this country get to the point where standard operating procedure for the ubiquitous Authorities is to humiliate a detained peasant by making him or her do the ground lick, with hands handcuffed behind the back.

At the time of the Founding, and through the lives of the Founders, they didn't have polices EVERYWHERE, and the constable-types of the times certainly didn't make it a point to make the detainees belly-crawl like a 18th century Chinese coolie.

[kiryandil]

According to the papers it wasn’t just a simple everyday pistol. It was a loaded assault pistol.

Good thing the US Navy didn't have a carrier task force deployed on the Grand River.

He might have sunk several of the screening vessels.

[marktwain]

“It sure seems like the Michigan District Court blew it, and so did the Circuit Court. But maybe the man’s attorney failed to cite the case in his brief, and the Judges just took the easy way out. Courts often have the attitude of if you dont like our decision, then appeal it knowing appeals are very expensive.”

It turns out that Michigan is in the Sixth Circuit. Judge Joan actually cited Northrup v City of Toledo Police in this summary judgement.

It shows how far from reality she is.

[dila813]

assault pistol?

[marktwain]

Don’t blame me. Blame the Detroit Free Press.