Title: Warning: Federal Court Rules that 2nd Amendment Right is Now a Reason for Cops to Detain You Source:
Free Thought Project URL Source:http://thefreethoughtproject.com/fe ... iduals-open-carrying-firearms/ Published:Jun 17, 2015 Author:Jay Syrmopoulos Post Date:2015-06-18 08:56:15 by Deckard Keywords:None Views:1858 Comments:17
In a stunning violation of 2nd Amendment rights, the U.S. District Court of Western Michigan ruled police have the legal authority to detain individuals that choose to exercise their constitutional right to open carry a firearm. Open Carry is also specifically allowed under Michigan law.
The ruling means that people in Michigan who choose to exercise this constitutional right are now subject to being stopped by law enforcement for engaging in a completely lawful activity.
Officers detained Johann Deffert in early 2013. He was walking down the sidewalk with a holstered FNP-45 pistol, after receiving a 9-1-1 call from a woman who spotted Deffert with the open carried, but holstered, handgun on his person.
The dispatcher initially informed the caller that Michigan is an open carry state. However, the woman subsequently explained that she found Deffert’s presence alarming, due in part to his wearing of camouflage, although she admitted that he wasn’t threatening anyone. Somehow the dispatcher made the decision that someone engaging in a completely legal activity, as earlier in the call noted by the dispatcher, should now be inspected by police, due to caller saying they found wearing camo disturbing.
The absurdity in logic; that someone wearing camo takes the situation from being a completely legal situation not to be interfered with, and raises it to a level of needing police assistance, shows the extreme arbitrary nature of the entire situation.
The incident was captured on responding officer Moe Williams’ dash cam, and lasted 14 minutes. Williams had indicated he believed that perhaps Deffert was suffering from some type of mental illness, as he seemed to be “talking to nobody” when the officer arrived on scene. Upon further investigation, Deffert was revealed to have been happily singing the song “Hakuna Matata” from the Disney movie “The Lion King” while strolling down the sidewalk.
The video shows the officer command Deffert to lay face down on the ground upon arrival on the scene. Deffert was treated as if he were a criminal that needed to prove he was not doing anything wrong, as the officer detained him while running a mental and criminal background check. Deffert was polite and respectful throughout the encounter, but strongly asserted his rights regarding open carry laws in the state of Michigan.
Remember, all of this transpired despite Deffert’s total compliance with Michigan law, in respect to open carry of a firearm. Eventually, Deffert was released, as he had violated no laws, done nothing wrong, and there was no legitimate reason to hold him. Shortly after the incident, in what seemed like a vindication for Deffert at the time, Grand Rapids Police Sgt. Steve LaBreque recommended to Moe’s commanding officer, that Moe “would benefit from some additional training in handling ‘open carry’ issues.”
Several months later Deffert filed a federal lawsuit alleging his constitutional rights were violated and that he was assaulted and falsely imprisoned. The legality of open carry in the Michigan was never in question, only if law enforcement had the authority to detain an individual simply because they were open carrying a firearm, according to court records.
In the most convoluted of logic, U.S. District Judge Janet Neff claimed that officers do have such authority. Neff wrote that the officers were “justified in following up on the 9-1-1 call and using swift action to determine whether [Deffert’s] behavior gave rise to a need to protect or preserve life … in the neighborhood.”
When a call to 9-1-1 is made in regard to a completely legal activity, the police should not even be dispatched. If in fact the police needed to “determine whether [Deffert’s] behavior gave rise to a need to protect or preserve life … in the neighborhood,” they need not impeded a citizen from going about their legitimate and legal business,” as Neff asserts, but rather could passively watch from a distance to determine if there is any reasonable suspicion of criminal activity afoot, and if so act accordingly.
The most glaring problem with Neff’s logic, is that there is no reason for police to ever assess someones behavior who is simply engaging in constitutionally protected and lawful activity, regardless if another citizens takes issue with the activity. If the activity fails to rise to the level of criminality, then police have no business getting investigating or getting involved. The police, as public servants, aren’t paid to investigate non-crimes.
The idea that someone needs to prove their innocence for engaging in a constitutionally protected activity is contrary to everything America teaches its children to believe about liberty and freedom.
The case will most likely be appealed to the United States Court of Appeals for the Sixth Circuit. The National Rifle Association and others have offered to assist in the appeal.
It will be interesting to see what open carry advocates across the nation, and specifically those in Texas, a hotbed of open carry activism, think about this ruling; and how they would respond if this were to become the standard of law in their state.
Sound off in the comments!
Be sure to share this critical information with all your liberty loving friends!
" It will be interesting to see what open carry advocates across the nation, and specifically those in Texas, a hotbed of open carry activism, think about this ruling; and how they would respond if this were to become the standard of law in their state. "
Yes it will. I am anxious to see what, if any response comes from them.
"In a stunning violation of 2nd Amendment rights, the U.S. District Court of Western Michigan ruled police have the legal authority to detain individuals that choose to exercise their constitutional right to open carry a firearm. Open Carry is also specifically allowed under Michigan law."
Violation? Oh no, no, no. Allowed under Michigan law? So what?
Just a few years ago, everyone was screaming that the second amendment applied to the states. Well, the Heller and McDonald courts heard you and gave you what you wanted.
And I stood on the rooftop and warned you that the federal courts interpret the second amendment and now THEY will define "to bear arms" -- AND that definition will apply to ALL states. Now they're doing it.
Next, look for the federal courts to say that concealed carry is not protected under the second amendment. That "arms" do not include handguns. That "to keep arms" means keep in a state armory.
Upon further investigation, Deffert was revealed to have been happily singing the song “Hakuna Matata” from the Disney movie “The Lion King” while strolling down the sidewalk.
Ok,that looks like proof of mental instability to me.
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
Next, look for the federal courts to say that concealed carry is not protected under the second amendment. That "arms" do not include handguns. That "to keep arms" means keep in a state armory.
I'm 50/50 on this one. On one hand I honestly don't give a damn what a corrupt illegal political stooge in a black dress says because it is irrelevant to me. I am still going to carry every day of my life regardless of what they say about the legality of it.
After all,what standing does a criminal have to determine what is illegal for me?
I do feel sorry for anyone caught up in the games being played that leaves their weapon at home to avoid arrest and then ends up as a murder victim because of it,and I do feel sorry for anyone that submits to arrest and fine/jail time for doing what they have a RIGHT to do,though.
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
Anyone that points a gun at me needs to understand this:
One of us is going to die.
And there ya have it.
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
Next, look for the federal courts to say that concealed carry is not protected under the second amendment. That "arms" do not include handguns. That "to keep arms" means keep in a state armory.
I can tell you this, I personally don't have a problem If I'm stopped and questioned about open carry ( it will never happen because I don't do that unless I'm hunting)... however, if the Feds ever determine that my Glock isn't protected as my right to own, and they come after it to confiscate with no other factors besides I can't have it per fed law, they'll get it muzzle first.
I don't plan on living forever.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
That seems to be a common response. Idiotic and macho, but common. You gave that power to the federal government and now that they're exercising it, you go all David Koresh on them.
Wouldn't it have been easier (and less bloody) to insist that state constitutions protect our individual right to keep and bear arms; and that the second amendment protected the state formation of militias from federal infringement?
Wouldn't that have fit right in with "state's rights" and "10th amendment" claims? You don't have to be a constitutional scholar to know the Founding Fathers wanted a limited federal government.
Giving the federal government the power to define and regulate our individual right to keep and bear arms goes against those principles.
That seems to be a common response. Idiotic and macho, but common. You gave that power to the federal government and now that they're exercising it, you go all David Koresh on them.
its not macho. It's my right. When the gov comes for my guns simply because they don't feel I should have ANY KIND OF GUN, like a handgun, they'll get it muzzle first. I don't need the USSC to determine if that's a constitutional violation.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy
Not quite as at least one but possibly both of "us" is going to die.
Anything is possible,but nobody lives forever and it is better to die fighting on your feet than it is to die while some nurse is changing your diaper and drool bag in a "home".
Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
Anything is possible,but nobody lives forever and it is better to die fighting on your feet than it is to die while some nurse is changing your diaper and drool bag in a "home".
I guess that depends on the quality of one's life at the time.
least one but possibly both of "us" is going to die.
I am getting older and slower so that may be a possibility. But. I die I go straight into the arms of Jesus, the other guy? Well he, she or it may be a different story.
Warning: Federal Court Rules that 2nd Amendment Right is Now a Reason for Cops to Detain You
Clearly, this title mischaracterizes the court opinion. It found that the RKBA was not "clearly established" under the Second Amendment in March 2013, explicitly relying on this to uphold the officers' claim of limited immunity in 2013.
The Court opinion said nothing about the 2nd Amendment right now in 2015. It rather makes notorious in 2015 that "[i]t is undisputed that Plaintiff was legally entitled to openly carry his pistol (JSF ¶ 9)." Opinion at 2.
I have other issues with the Court opinion.
At 2:
On the day in question, a person in Plaintiff’s vicinity called 911 to report a man with a gun, as follows:
THE CALLER: Hi, I just got out of church and I was driving down Michigan Street, and I don’t know if it’s illegal, but it looks like, maybe he’s not, but looks like the guy has got, a, a gun strapped to his right leg on the outside of his pants.
THE DISPATCHER: Okay, he’s got it in a holster?
THE CALLER: Yeah.
THE DISPATCHER: Okay, it’s not illegal to open carry.
Clearly, the RKBA was known well enough in 2013 that the dispatcher could immediately respond about it to the caller.
Following the Court's logic, anyone enjoying open carry could be subject to a cop drawing down on him because the right to bear arms was purportedly not clearly established in 2013. The Second Amendment was ratified in 1791. There was no Michigan law prohibiting open-carry. The Second Amendment was notoriously well known, and nobody could possibly have known of a limiting Michigan law in 2013. The right to open carry had not been limited by state law or court decision.
It was noted that he needed to possess a weapons permit. A driver needs to possess a license. Motorists are not pulled over to see if they have a license.
The Fourth Amendment defense is that the officer was performing a community caretaking function.
Overall, it seems a strained effort by the Court.
If it is unsafe to approach a person performing open carry in order to perform a simple interview, does that alone justify a detention, seizing the person? If the logic of the Court is followed, open carry would always justify a cop drawing down and performing a 4th Amendment seizure and handcuffing the person, or at least if he is wearing camo pants and singing Hakuna Matata from The Lion King. While the Court takes note of Deffert's camo pants, I take note that camo pants worn on a city street does not make effective camouflage. I believe the military took note that jungle camo does not work effectively in the desert.
But let us assume that Dylann Roof went to church while exercising his right to open carry (assuming it exists in South Carolina). He is peaceful and there is no disturbance, but someone feels threatened and calls the cops to do some community caretaking. The cop arrives and what is he to do? Should he just approach Roof? Roof might pull his weapon and start shooting. Should he draw down and safely detain Roof until he determines whether all is well? Should the cop see no reason to do a Terry stop, report seeing nothing but a guy sitting around lawfully engaged in open carry, and leave? Then what happens when after an hour, Roof kills nine people?
Deffert v Moe, pp 19-23, RKBA, 2nd Amendment in March 2013
At 21:
Accordingly, the right Plaintiff alleges Defendants violated—the right to bear arms for the purpose of self-defense outside the home—was not “clearly established” under the Second Amendment in March 2013. Therefore, Defendants Moe and Johnston are entitled to qualified immunity from Plaintiff’s Second Amendment claim in Count II.
Deffert v. Moe, MISD, 1:13-cv-01351-JTN, Doc #52, 06/01/15
At 19-23:
2. Second Amendment (Count II)
In Count II, Plaintiff alleges that “Defendant Officers’ decision to seize Plaintiff’s pistol, without justification or provocation, violated his Second Amendment individual right, as incorporated by the Fourteenth Amendment, to keep and bear arms” (Dkt 14, Amend. Compl. ¶ 43). As for the City’s liability, Plaintiff alleges that his injury was “a direct and proximate result of Defendant Officers’ actions and the policies, practices, and customs of the Grand Rapids Police Department and the City of Grand Rapids described above” (id. ¶ 44).
(a) Qualified Immunity
In support of summary judgment in their favor on Count II, Defendants point out that “the right [to bear arms is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” (Defs.’ Br., Dkt 46 at 15, quoting Heller, 554 U.S. at 626).
19
- - - - -
Defendants argue that Officers Moe and Johnston are immune from civil liability because any Second Amendment right to openly carry a gun was not “clearly established” in March 2013 (id.). Plaintiff responds that “[i]t is obvious that bearing arms outside one’s home is a right that has been protected under the Second Amendment since its adoption” (Pl.’s Resp., Dkt 45 at 15). Relying on McDonald v. City of Chicago, 561 U.S. 742 (2010), Plaintiff asserts that the “core” of the Second Amendment right to bear arms is “to be able to defend oneself” and that that right “must logically follow to wherever oneself is located” (id. at 16). Plaintiff opines that “Officer Moe’s targetting [sic] of Plaintiff for the exercise of his Second Amendment right to carry a firearm is an injury of that right just as surely as the arrest of an individual for the expression of political opinion would be an injury of the First Amendment right to freedom of speech” (id.).
Courts may exercise their sound discretion in deciding to first address (1) whether facts alleged or shown by plaintiff make out violation of constitutional right, or (2) if so, whether that right was clearly established at the time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236 (2009); Jefferson v. Lewis, 594 F.3d 454, 460 (6th Cir. 2010). Here, the Court turns first to the latter inquiry and determines that Defendants are entitled to summary judgment of Count II because the right Plaintiff claims was not clearly established at time of Defendants’ alleged misconduct.
Deciding whether a law is “clearly established” in an inquiry that must be “undertaken in light of the specific context of the case, not as a broad general proposition.” Floyd v. City of Detroit, 518 F.3d 398, 405 (6th Cir. 2008) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). In McDonald, 561 U.S. at 791, the Supreme Court held that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” In Heller, in turn,
20
- - - - -
the Court had struck down the District of Columbia’s firearms regulations, but only to the extent those regulations interfered with a resident’s “right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense.” 554 U.S. at 576. As Defendants emphasize, the Supreme Court in Heller expressly declared that “the right secured by the Second Amendment is not unlimited” and similarly instructed that the right to bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626.
As Plaintiff himself concedes, “neither the Sixth Circuit nor the Supreme Court have spoken on the specific issue of open carry” (Pl.’s Resp., Dkt 45 at 16). See Tyler v. Hillsdale Cnty. Sheriff’s Dept., 775 F.3d 308, 316 (6th Cir. 2014) (collecting cases in support of the proposition that “the full breadth of the Second Amendment has not been determined”), Reh’g en Banc Granted, Opinion Vacated (Apr. 21, 2015); see also Powell v. Tompkins, 783 F.3d 332, 348 n.10 (1st Cir. 2015) (collecting cases in support of the proposition that no consensus exists among the circuits as to whether, and to what extent, the limited Second Amendment individual right described in Heller extends beyond the hearth and home setting); Baker v. Schwarb, 40 F. Supp. 3d 881, 894 (E.D. Mich. 2014) (collecting cases in support of the proposition that “application of the Second Amendment (and specifically the right to bear arms for the purpose of self-defense) outside of the home, is unsettled”). Accordingly, the right Plaintiff alleges Defendants violated—the right to bear arms for the purpose of self-defense outside the home—was not “clearly established” under the Second Amendment in March 2013. Therefore, Defendants Moe and Johnston are entitled to qualified immunity from Plaintiff’s Second Amendment claim in Count II.
21
- - - - -
(b) The City
With regard to the City’s liability for the Second Amendment violation alleged in Count II, Plaintiff briefly argues that “[t]hrough its requirement of licensing, Grand Rapids restricts the right to carry that is guaranteed under the Second Amendment” (Pl.’s Resp., Dkt 45 at 18). Plaintiff’s argument implicates Grand Rapids City Code § 9.173.3, which the parties agree provides that “[n]o person shall carry any firearm upon his or her person in any public street, alley or other place open to the public in the City of Grand Rapids,” unless the person is licensed by the state to do so, or the weapon is unloaded and visibly inoperable (id. at 12, 17; Defs.’ Reply, Dkt 47 at 6 n.3).
Officer Moe attested that “[n]o city ordinance factored into [his] decision to detain Deffert” (Moe Aff. ¶ 41), and Plaintiff acknowledges that the ordinance is not enforced (Pl.’s Resp., Dkt 45 at 11-12). Plaintiff’s argument amounts to nothing more than his assertion that the existence of an unenforced ordinance caused a violation of his Constitutional rights, an assertion that the Court finds a wholly unpersuasive basis for holding the City liable in this case. Again, municipalities may be held liable for the constitutional violations of their employees only where the municipality’s policy or custom led to the violation. Robertson, 753 F.3d at 622 (citing Monell, 436 U.S. at 694-95). Plaintiff’s argument is not supported on this record.
Further, as Defendants point out, Plaintiff does not specifically argue that § 9.173 violates the Second Amendment, only that the ordinance conflicts with state law (Defs.’ Br., Dkt 46 at 17; Pl.’s Resp., Dkt 56 at 17-18). The ordinance’s illegality under state law can neither add to nor subtract from its constitutional validity. See Snowden v. Hughes, 321 U.S. 1, 11 (1944) (“[An action’s] illegality under the state statute can neither add to nor subtract from its constitutional
22
- - - - -
validity.”)). Section “1983 claims are designed to vindicate federal law, not state law.” Embody, 695 F.3d at 581.
In short, all three Defendants are entitled to summary judgment of Count II in their favor.
#16. To: misterwhite calls grandisland a 'macho idiot', --- Y'ALL (#9)
I can tell you this, I personally don't have a problem If I'm stopped and questioned about open carry ( it will never happen because I don't do that unless I'm hunting)... however, if the Feds ever determine that my Glock isn't protected as my right to own, and they come after it to confiscate with no other factors besides I can't have it per fed law, they'll get it muzzle first.
I don't plan on living forever.
GrandIsland
Well put. Anyone who flaunts their right to carry openly (in an urban non-hunting area) can be stopped and questioned about their mental stability.
misterwhite ---- That seems to be a common response. Idiotic and macho, but common. You gave that power to the federal government and now that they're exercising it, you go all David Koresh on them.
No, it's idiotic of you to claim we gave away our right to carry to ANY LEVEL of govt.
Wouldn't it have been easier (and less bloody) to insist that state constitutions protect our individual right to keep and bear arms; and that the second amendment protected the state formation of militias from federal infringement?
It's obvious that some of our States do NOT protect our rights. -- And that you support that those States have the 'right' to do so. --States have NO such constitutional powers.
Wouldn't that have fit right in with "state's rights" and "10th amendment" claims? You don't have to be a constitutional scholar to know the Founding Fathers wanted a limited federal government. ---- Giving the federal government the power to define and regulate our individual right to keep and bear arms goes against those principles.
As does giving that power to local and State govts. -- ALL levels of govt are restrained by our constitution.
He seems to forget this country was founded by men who decided to stand up for what they believed in and showed the Brits the muzzles of their muskets.
“Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
