The most threatening activity appears to be something the 911 caller never mentioned, which the officer characterised as “talking to nobody” (an ostensibly innocuous activity in these days of bluetooth and cell phones). The officer pointed his pistol at Deffert from across the street and ordered him to the frozen ground. The officer disarmed Deffert and handcuffed him.
Dashcam video captured most of the action. Deffert sued the Grand Rapids police, claiming his First, Fourth, and Second Amendment rights had been 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 [via 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.
Look at the picture of Johann Deffert on the concrete above. See if you think the Freep gave an unbiased description of what happened. Deffert’s camouflage pants are hardly alarming in Grand Rapids, where hunting is a common activity.
The district court seems to have been unaware of (or uninterested in) Northrup v. City of Toledo Police Dep’t. [Click here for a description.] Northrup holds that police may not stop and handcuff someone for the simple act of openly carrying a gun, where open carry is legal. 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).
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 so-called Terry Stop.
I suspect Deffert will 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.