Open carry case in Michigan

bandaid1 · June 3, 2015, 01:10 PM

Here is "Deffert V Moe" a Michigan Distric Court ruling on "open caring stops" DTD 01 June 2015 which is a interesting case IMO since it seems to be at odds with the 6th Circuit.
https://www.unitedstatescourts.org/f...6587/52-0.html

Here is a News story and video of the case:
http://www.mlive.com/news/grand-rapi...ids_polic.html

And here is the 13 May 2015 6th Circuit Ruling in "Northrup v. Toledo Ohio PD"
http://www.ca6.uscourts.gov/opinions...5a0092p-06.pdf

Both cases revolve around open carry and a Officer responding to a 911 anonymous call of a man open carrying a handgun. I find the Deffert v. Moe ruling interesting because to me, the judge actually states the real issue, then dismisses it when she writes that Sgt LaBrecque (Officer Moes supervisor, that responded to the scene) wrote to the commander, recommending that "Officer Moe "would benifit from additional training in handling 'open carry' issues"( on page 5/6). If that isn't a admission that Officer Moe didn't know what he was doing or how to handle it correctly, than what is it?

Not only that, but it seems to me that this distric judges ruling and the 6th circuit ruling are at odds. For example the 6th Cir said: "It has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen." (on page 7). This did not happen in the other case.

I think this distric court ruling doesn't fall in line with the Circuit court ruling, what doe you'll think?

Marty8613 · June 3, 2015, 01:20 PM

Walking down the street singing "Hakuna Matata". That IS suspicious.

bandaid1 · June 3, 2015, 05:08 PM

That whole part of the case about singing was strange. Would it have mattered is he was singing the Star Spangled Banner? Kind of like the description of his firearm "a Tactical Pistol". What the heck is a tactical pistol? I mean a pistol can be used in a tactical manner, but there aren't any criteria for that type of sidearm to be labeled as such.

Also what was the deal with pointing out that he was wearing camouflage pants? I hate to tell them, but woodland pattern utilities pants worn in the snow aint Camouflage.

The Distric Judge also makes a point that the gun owners argument is based on subjective issues that the responding office could not have know, and that it must be based on objective data that the officer knew. Then she makes subjective opinion that the officer somehow knew that the person was open carrying a tactical pistol with a tactical light and tactical laser prior to removing it from the holster. How is that objective data? Once it removed it is objective but not before. Hell, it could have been a chocolate pistol candy bar.

**Aguila Blanca** · June 3, 2015, 05:19 PM

Even if it was a "tactical" pistol with a "tactical" light and a "tactical" laser ... so what? Unless Michigan has a law against "tactical" lights and lasers on firearms, even if the officer knew the defendant was so equipped does not seem to offer any "clearly articulable facts" (to use Terry stop terminology) to suggest that a crime was being committed or had been committed.

**Frank Ettin** · June 3, 2015, 06:53 PM

There are really two Sixth Circuit cases that are material here: Northrup v. City of Toledo Police Department (Sixth Circuit, 14-4050, 2015) and Embody v. Ward (Sixth Circuit, 11-5963, 2012). Embody was actually cited in passing in Northrup (slip op., at 6).

Embody was also a civil suit following what Embody claimed was a wrongful detention for an investigation related to his open carrying of a firearm. But the Sixth Circuit found the temporary detention of Embody to satisfy Fourth Amendment reasonableness requirements because of the nature of the gun carried by Embody, Embody's conduct, and the totality of the surrounding circumstances.

So it appears that in the Sixth Circuit, at least, openly carrying a gun would not, by itself, justify a stop. But other surrounding circumstances, in addition to the openly carrying of a gun, could.

So it appears that if Deffert s appealed the Sixth Circuit will have an opportunity to add some clarity to what sort of additional surrounding circumstances could justify a stop by an LEO of someone openly carrying a gun.

scpapa · June 3, 2015, 08:20 PM

The model of the pistol is "FNP-45 Tactical". not a description of the gun, but the name of the gun.

Rick

bandaid1 · June 3, 2015, 10:00 PM

From the Distic Court opinion- this is about the issue of the threat as seen through the eyes of the Officer as he draw his gun after exiting his cruiser and made contact.

From page 13.
"Here, Plaintiff was walking in a residential neighborhood across the street for a church in service on Sunday morning. He was wearing camouflage pants and a FNP-45 Tactical pistol secured in a leg holster, with a TRL-2 rail mounted tactical light with a laser attached to the pistol."

First problem: There is no way Officer Moe could have known what type of weapon he was carrying prior to disarming him. Nor would he have known that it had a light or laser on it.

"Plaintiffs appearance and behavior, which included singing "Hakuna Matana" loud enough to be herd from a police cruiser, was sufficiently alarming to a resident to call 911."

Second problem: 911 caller never said he was singing(see pages 2-4). Not sure why there is a issue about singing anyway. Maybe he was out of tune or something.

"Officer Moe, an Officer that spent more than eleven years assigned to the neighborhood where the Plaintiff was walking, did not recognize Plaintiff and attested that he thought Plaintiff "may have had mental issues and was about to commit a violent crime"

Third problem(s): Whether the cop recognized him or not is suppose to mean what? The officer sleeps on duty thus he doesn't pay attention to who lives on his beat, possibly? Not sure. The last part is what bothers me the most. What training has he received to ascertain that the Plaintiff may have Mental issues? How could he make such a assessment from his cruiser even if he had the education to make such a assessment? Sorry but this whole section is BS.

**Frank Ettin** · June 3, 2015, 10:19 PM

Let's not waste a lot of time on the District Court result. It's not precedent and really doesn't mean anything except to the parties.

But if this case is appealed, we can discuss how the Sixth Circuit deals with it in light of Northrup and Embody.

But I don't see how we can go any further here.

June 3, 2015, 01:10 PM	#1
bandaid1 Senior Member Join Date: May 9, 2013 Posts: 116	Open carry case in Michigan Here is "Deffert V Moe" a Michigan Distric Court ruling on "open caring stops" DTD 01 June 2015 which is a interesting case IMO since it seems to be at odds with the 6th Circuit. https://www.unitedstatescourts.org/f...6587/52-0.html Here is a News story and video of the case: http://www.mlive.com/news/grand-rapi...ids_polic.html And here is the 13 May 2015 6th Circuit Ruling in "Northrup v. Toledo Ohio PD" http://www.ca6.uscourts.gov/opinions...5a0092p-06.pdf Both cases revolve around open carry and a Officer responding to a 911 anonymous call of a man open carrying a handgun. I find the Deffert v. Moe ruling interesting because to me, the judge actually states the real issue, then dismisses it when she writes that Sgt LaBrecque (Officer Moes supervisor, that responded to the scene) wrote to the commander, recommending that "Officer Moe "would benifit from additional training in handling 'open carry' issues"( on page 5/6). If that isn't a admission that Officer Moe didn't know what he was doing or how to handle it correctly, than what is it? Not only that, but it seems to me that this distric judges ruling and the 6th circuit ruling are at odds. For example the 6th Cir said: "It has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen." (on page 7). This did not happen in the other case. I think this distric court ruling doesn't fall in line with the Circuit court ruling, what doe you'll think?

June 3, 2015, 06:53 PM	#5
Frank Ettin Staff Join Date: November 23, 2005 Location: California - San Francisco Posts: 9,475	There are really two Sixth Circuit cases that are material here: Northrup v. City of Toledo Police Department (Sixth Circuit, 14-4050, 2015) and Embody v. Ward (Sixth Circuit, 11-5963, 2012). Embody was actually cited in passing in Northrup (slip op., at 6). Embody was also a civil suit following what Embody claimed was a wrongful detention for an investigation related to his open carrying of a firearm. But the Sixth Circuit found the temporary detention of Embody to satisfy Fourth Amendment reasonableness requirements because of the nature of the gun carried by Embody, Embody's conduct, and the totality of the surrounding circumstances. So it appears that in the Sixth Circuit, at least, openly carrying a gun would not, by itself, justify a stop. But other surrounding circumstances, in addition to the openly carrying of a gun, could. So it appears that if Deffert s appealed the Sixth Circuit will have an opportunity to add some clarity to what sort of additional surrounding circumstances could justify a stop by an LEO of someone openly carrying a gun. __________________ "It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

June 3, 2015, 08:20 PM	#6
scpapa Member Join Date: December 23, 2007 Location: Central South Carolina Posts: 89	The model of the pistol is "FNP-45 Tactical". not a description of the gun, but the name of the gun. Rick __________________ NRA Training Counselor NRA Advanced Pistol Instructor NRA RTBAV Regional Counselor Member IALEFI, SCLEOA

June 3, 2015, 10:19 PM	#8
Frank Ettin Staff Join Date: November 23, 2005 Location: California - San Francisco Posts: 9,475	Let's not waste a lot of time on the District Court result. It's not precedent and really doesn't mean anything except to the parties. But if this case is appealed, we can discuss how the Sixth Circuit deals with it in light of Northrup and Embody. But I don't see how we can go any further here. __________________ "It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

June 3, 2015, 01:20 PM	#2
Marty8613 Senior Member Join Date: February 13, 2014 Location: Grapevine TX Posts: 378	Walking down the street singing "Hakuna Matata". That IS suspicious.

June 3, 2015, 05:08 PM	#3
bandaid1 Senior Member Join Date: May 9, 2013 Posts: 116	That whole part of the case about singing was strange. Would it have mattered is he was singing the Star Spangled Banner? Kind of like the description of his firearm "a Tactical Pistol". What the heck is a tactical pistol? I mean a pistol can be used in a tactical manner, but there aren't any criteria for that type of sidearm to be labeled as such. Also what was the deal with pointing out that he was wearing camouflage pants? I hate to tell them, but woodland pattern utilities pants worn in the snow aint Camouflage. The Distric Judge also makes a point that the gun owners argument is based on subjective issues that the responding office could not have know, and that it must be based on objective data that the officer knew. Then she makes subjective opinion that the officer somehow knew that the person was open carrying a tactical pistol with a tactical light and tactical laser prior to removing it from the holster. How is that objective data? Once it removed it is objective but not before. Hell, it could have been a chocolate pistol candy bar.

June 3, 2015, 05:19 PM	#4
Aguila Blanca Staff Join Date: September 25, 2008 Location: CONUS Posts: 18,496	Even if it was a "tactical" pistol with a "tactical" light and a "tactical" laser ... so what? Unless Michigan has a law against "tactical" lights and lasers on firearms, even if the officer knew the defendant was so equipped does not seem to offer any "clearly articulable facts" (to use Terry stop terminology) to suggest that a crime was being committed or had been committed.

June 3, 2015, 10:00 PM	#7
bandaid1 Senior Member Join Date: May 9, 2013 Posts: 116	From the Distic Court opinion- this is about the issue of the threat as seen through the eyes of the Officer as he draw his gun after exiting his cruiser and made contact. From page 13. "Here, Plaintiff was walking in a residential neighborhood across the street for a church in service on Sunday morning. He was wearing camouflage pants and a FNP-45 Tactical pistol secured in a leg holster, with a TRL-2 rail mounted tactical light with a laser attached to the pistol." First problem: There is no way Officer Moe could have known what type of weapon he was carrying prior to disarming him. Nor would he have known that it had a light or laser on it. "Plaintiffs appearance and behavior, which included singing "Hakuna Matana" loud enough to be herd from a police cruiser, was sufficiently alarming to a resident to call 911." Second problem: 911 caller never said he was singing(see pages 2-4). Not sure why there is a issue about singing anyway. Maybe he was out of tune or something. "Officer Moe, an Officer that spent more than eleven years assigned to the neighborhood where the Plaintiff was walking, did not recognize Plaintiff and attested that he thought Plaintiff "may have had mental issues and was about to commit a violent crime" Third problem(s): Whether the cop recognized him or not is suppose to mean what? The officer sleeps on duty thus he doesn't pay attention to who lives on his beat, possibly? Not sure. The last part is what bothers me the most. What training has he received to ascertain that the Plaintiff may have Mental issues? How could he make such a assessment from his cruiser even if he had the education to make such a assessment? Sorry but this whole section is BS.