Chesney v. Jackson, City of et al
Filing
23
OPINION and ORDER granting Defendants' 12 Motion for Summary Judgment. Signed by District Judge Gerald E. Rosen. (JOwe)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEREMIAH CHESNEY,
Plaintiff,
Case No. 14-11097
v.
Hon. Gerald E. Rosen
CITY OF JACKSON, POLICE SERGEANT
PAUL GROSS, POLICE OFFICER TIMOTHY
BLACK, POLICE OFFICER WILLIAM
MILLS, POLICE OFFICER PETER POSTMA,
POLICE OFFICER CARY KINGSTON, and
MATTHEW R. HEINS,
Defendants.
____________________________________/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
March 21, 2016
PRESENT: Honorable Gerald E. Rosen
United States District Judge
I. INTRODUCTION
Plaintiff Jeremiah Chesney commenced this action in this Court on March
13, 2014, asserting federal civil rights claims and a variety of state-law claims
against the Defendant City of Jackson, Michigan, five Jackson police officers —
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Sergeant Paul Gross and Police Officers Timothy Black, William Mills, Peter
Postma, and Cary Kingston — and the City of Jackson’s director of police and fire
services, Matthew R. Heins.1 Plaintiff’s claims arise from a May 15, 2013 incident
in which four of the Defendant law enforcement officers forcibly removed
Plaintiff from a Michigan Secretary of State office and arrested him following a
report to the Jackson police department that an individual in the office had a gun
in a backpack and was acting suspiciously. This Court’s subject matter
jurisdiction rests upon Plaintiff’s assertion of claims under 42 U.S.C. § 1983
alleging violations of his rights under the U.S. Constitution. See 28 U.S.C. §
1331.
Through the present motion filed on December 1, 2014, the individual
Defendant law enforcement officers and the Defendant City of Jackson seek an
award of summary judgment in their favor on each of the claims asserted against
them in Plaintiff’s complaint. In support of this motion, Defendants argue
primarily (i) that Plaintiff has failed to identify expressive activity that could
support his claim that he was detained and arrested in retaliation against his
exercise of protected First Amendment rights; (ii) that Plaintiff’s claim under the
1
Plaintiff’s complaint names the County of Jackson, Michigan as an additional
defendant, but this party was dismissed in a stipulated order dated April 8, 2014.
2
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Second Amendment fails due to the lack of clearly established law that could have
alerted the Defendant police officers to their alleged violation of Plaintiff’s rights
under this Amendment; (iii) that Plaintiff has failed to produce evidence of an
unreasonable seizure or unlawful arrest that could sustain his federal Fourth
Amendment claims or his state-law claims of assault and battery and false
imprisonment; and (iv) that certain of Plaintiff’s state-law claims are barred by the
immunity conferred upon municipalities and their employees.2 In response,
Plaintiff contends (i) that his open carrying of a firearm in a place where he was
lawfully allowed to do so qualifies as expressive activity protected under the First
Amendment; (ii) that the Defendant police officers likewise transgressed upon a
claimed Second Amendment right to bear arms outside the home; (iii) that the
Defendant officers lacked reasonable suspicion to detain him and forcibly remove
him from the Secretary of State office, nor did they have probable cause to arrest
him following this removal; and (iv) that the same evidence supporting Plaintiff’s
2
Defendants raise other arguments in their motion that Plaintiff does not oppose.
First, Plaintiff concedes that his federal claims against the City of Jackson are subject to
dismissal, either as incompatible with existing law or as lacking in evidentiary support.
Next, Plaintiff acknowledges that he has not pled a separate claim for relief under the
Fourteenth Amendment to the U.S. Constitution. Finally, Defendant contends that
Plaintiff’s claim of conspiracy is barred by the intracorporate conspiracy doctrine, see
Jackson v. City of Columbus, 194 F.3d 737, 753 (6th Cir. 1999), and Plaintiff evidently
has abandoned his conspiracy claim by failing to address this argument — or, indeed, to
even mention this claim — in his response to Defendants’ motion.
3
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federal Fourth Amendment claims also permits him to go forward with his statelaw claims of assault and battery and false imprisonment.
Defendants’ motion has been fully briefed by the parties. Having reviewed
the parties’ briefs and their accompanying exhibits, as well as the remainder of the
record, the Court finds that the relevant allegations, facts, and legal issues are
sufficiently presented in these written submissions, and that oral argument would
not aid the decisional process. Accordingly, the Court will decide Defendants’
motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern
District of Michigan. This opinion and order sets forth the Court’s rulings on this
motion.
II. FACTUAL BACKGROUND
The pertinent facts of this case are derived almost exclusively from the
deposition testimony of Plaintiff Jeremiah Chesney.3 At around 5:00 p.m. on May
15, 2013, Plaintiff went to the Michigan Secretary of State branch office located in
the Jackson Crossing mall in Jackson, Michigan, seeking to obtain a new title for
one of his motorcycles. As he entered the office, Plaintiff was carrying a loaded
3
Notably, there is no indication in the record that any of the Defendant law
enforcement officers were deposed. Rather, apart from Plaintiff’s own deposition, the
police reports prepared by the Defendant officers provide the sole account of the events
giving rise to this litigation, and Plaintiff and Defendants alike cite to and rely on these
police reports in their summary judgment briefing.
4
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pistol in a holster on his hip,4 but he initially had no other items in his possession.
After waiting for about 20 minutes, Plaintiff went back to his car and returned to
the Secretary of State office with a black backpack and a lunchbox.5 Plaintiff
estimated that there were “probably 50 to 60 people” in the office at the time.
(Plaintiff’s Dep. at 50.)
Upon re-entering the Secretary of State office with his backpack, Plaintiff
initially sat at a desk, but then got up and walked around, leaving his backpack
and lunchbox at the desk. (See id. at 50, 52-53.) As he waited, nobody asked him
about the fact that he was carrying a weapon, nor did he hear or observe anyone
express any concern about this, but he did overhear “[i]ndistinct whispering” at
one point that apparently included “the word ‘gun.’” (Id. at 51.)
During this time, someone in the office — evidently a Secretary of State
employee, although the record is not entirely clear on this point — called the City
4
Defendants note that a “Code of Conduct” posted inside the Jackson Crossing
mall prohibits the carrying or display of firearms except by law enforcement officers.
(See Defendants’ Motion, Ex. 2.) Plaintiff evidently would not have seen this sign as he
entered the Secretary of State office, however, because he came in through an outside
entrance rather than the mall entrance to the office. Moreover, Defendants do not
contend that Plaintiff violated Michigan law by openly carrying a firearm in a Secretary
of State office.
5
Plaintiff explained that he “didn’t feel comfortable leaving my book bag in the car
with my computer inside,” so he decided to bring it into the office. (Defendants’ Motion,
Ex. 1, Plaintiff’s Dep. at 48.)
5
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of Jackson police department to report that “a subject with long hair was possibly
in possession of a handgun in a backpack, while at the Secretary of State Office.”
(Defendants’ Motion, Ex. 3, Police Report at 2.)6 Four of the Defendant police
officers — Sergeant Paul Gross and Police Officers Timothy Black, William
Mills, and Cary Kingston — were dispatched to the Secretary of State office to
investigate this report. As they traveled to the scene, the officers were advised
that the office “was a No Weapon Zone and that there were signs posted, stating
this.” (Id. at 2; see also id. at 4 (Officer Mills likewise reporting that the
dispatcher “advised that the Secretary of State Office was a weapons-free zone”).)7
The officers were further advised that “the subject was pacing back and forth,”
leading the individual who had called the police to be “nervous that something
6
This account of the call was given by one of the Defendant police officers,
Timothy Black. Another Defendant officer, William Mills, reported that he was advised
by a dispatcher that “there was a subject that had a loaded handgun inside the Secretary of
State,” and that this individual was a “white male with long dark hair, carrying a
backpack.” (Id. at 4.) Finally, a third Defendant officer, Sergeant Paul Gross, stated that
a dispatcher advised him “that there was a subject inside Jackson Crossing’s Secretary of
State Office who was in possession of a handgun, which was believed to be inside a
backpack.” (Id. at 7.)
7
As noted earlier, any such signs declaring a “weapons-free zone” were posted in
the Jackson Crossing mall, and not in the Secretary of State office, and Defendants
evidently do not contend that the branch office itself was a gun-free zone.
6
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else was going on.” (Id. at 4.)8 Sergeant Gross sought clarification from the
dispatcher whether the subject’s gun was “inside [his] backpack or on the outside
of the backpack, exposed in an open-carry fashion,” but he arrived at the scene
without receiving a response to this inquiry. (Id. at 7.)
Upon the officers’ arrival at the Secretary of State office, Officers Black and
Kingston proceeded into the Jackson Crossing mall and headed toward the mall
entrance to the office, while Officer Mills went to the office’s outside entrance.
As Officer Black stood in the mall and looked through a window into the
Secretary of State office, attempting to locate the subject of the officers’
investigation, he asked “three or four” Secretary of State employees who had
stepped outside the office “where the backpack was or if [the subject] had a
backpack and where was the gun,” but he received only “shrugs of shoulders and
no answers.” (Id. at 2.) Officer Black then observed a white male with long hair
standing against the wall near the outside entrance to the office, but this individual
did not appear to have a backpack. Another Secretary of State employee exited
the office and pointed at this same individual, advising Officer Black that he had a
gun on his hip, but the officer was unable to confirm this “[d]ue to the 50 to 60”
8
Defendants point out that this incident took place on May 15, 2013, the one-month
anniversary of the Boston Marathon bombings, which involved backpacks containing
home-made bombs.
7
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occupants of the office at the time and the pillars in the office that obstructed his
view. (Id. at 3.) Accordingly, Officer Black entered the office in order to get a
better view of this individual, and upon observing that this man had “what
appeared to be a black and silver handgun, being an automatic pistol, on his right
waist area,” he motioned for Officer Mills to come into the office through the
outside entrance, near where this individual was standing. (Id.)
Officer Mills then entered the Secretary of State office at Officer Black’s
direction, observing that there were “50-plus” people in the office, including small
children and elderly individuals. (Id. at 4.) The officer approached the subject of
the investigation, who he immediately recognized “from a prior contact” as
Plaintiff Jeremiah Chesney,9 and noticed that Plaintiff “was carrying a pistol in a
holster on his right side.” (Police Report at 4.) Officer Mills then asked Plaintiff
“just to step outside, so we could talk to him about what was going on,” (id.), but
Plaintiff responded that he “did not desire to step outside” and instead “was
willing to talk with [the officer] where we were,” (Plaintiff’s Dep. at 60).10
9
Plaintiff likewise testified that he recognized Officer Mills from a previous
interaction with this officer. (Plaintiff’s Dep. at 57.)
10
Plaintiff explained at his deposition that he had been waiting at the Secretary of
State office for roughly an hour when the officers arrived, so he “didn’t exactly feel like
leaving” the office at that point and “losing [his] position” in line. (Id. at 50, 60.)
8
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Plaintiff testified at his deposition that “[t]he next thing I remember after
stating that I did not wish to go outside is the four officers surrounding me,
grabbing me, and forcing me outside.” (Id. at 61.) Officer Mills, in contrast,
stated in his police report (i) that he asked Plaintiff “politely a second time to just
step outside, so we could talk about what was going on,” (ii) that Plaintiff again
“refused to do so, stating very firmly that he would not go outside, that he was
staying inside the mall[,] and that I had no right to demand him or force him to go
outside,” (iii) that Plaintiff was “very agitated” when asked to step outside and
“raised his voice in a manner that made me believe that he was being very
confrontational with me,” and (iv) that during the course of this interaction,
Plaintiff’s “behavior began to escalate even further and made me even more
concerned for the safety of the other [occupants] inside the Secretary of State
Office, that some type of confrontation would erupt[,] and I did not want that to
occur to cause injuries or loss of life inside the Secretary of State Office.” (Police
Report at 4.)11 Accordingly, Officer Mills stated in his report that he and Sergeant
11
Plaintiff acknowledged at his deposition that it was “entirely possible” that
Officer Mills, or perhaps another officer, repeated the request that he step outside the
office before the officers forced him out the door, and he agreed that he refused each such
request and generally was non-compliant with the officers’ appeals for him to accompany
them out of the office. (Plaintiff’s Dep. at 61-63, 75.) Plaintiff further testified that it
was “possible” that he raised his voice during this interaction, though he stated that he did
so “in order to be heard,” and that Officer Mills likewise raised his voice in repeating his
9
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Gross each grabbed one of Plaintiff’s arms and escorted him out the door of the
office, and that Plaintiff responded by “tens[ing] up,” “pulling away,” and
insisting in a “very loud” voice that the officers let him go and that they “had no
right to do what [they] were doing.” (Police Report at 5.)12 Officer Mills advised
Plaintiff “to relax, that we were going to go outside,” and Officer Black removed
the pistol from Plaintiff’s holster as Sergeant Gross and Officer Mills escorted
Plaintiff from the premises. (Id. at 5.)13 Plaintiff testified that he “did not attempt
to physically resist leaving [the office] once [the officers] laid their hands on me,”
but he acknowledged that he tensed his arms and struggled with the officers as
they led him out of the office. (Plaintiff’s Dep. at 67.)
request that Plaintiff step outside. (Id. at 62-63.) Plaintiff denied, however, that he
became confrontational, combative, agitated, annoyed, or upset during this initial
interaction with Officer Mills. (See id. at 62, 75.)
12
Officer Black likewise stated in his report that as Sergeant Gross and Officer
Mills grabbed Plaintiff’s arms and led him out of the building, Plaintiff “straightened his
arms out and attempted to resist and continued to scream and yell about his rights.” (Id.
at 3.) Similarly, Sergeant Gross’s report states that Plaintiff “immediately tensed up and
refused to be escorted” as he and Officer Mills attempted to lead him out of the office, so
that it was necessary to “forcibly remov[e]” him from the premises. (Id. at 8.)
13
Sergeant Gross explained in his report that Officer Black was instructed to
disarm Plaintiff as he was taken from the office in light of Plaintiff’s “failure to comply
with Officer Mill[s]’[] commands and directives, in addition to his escalating defiant and
unpredictable behavior,” leading Sergeant Gross to conclude that “there was no resolution
in efforts to speak with [Plaintiff] or with getting him to cooperate with this investigation,
while also maintaining the safety of the 50 to 60 men, women and children that were
sitting nearby.” (Id. at 8.)
10
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Once Plaintiff was taken from the Secretary of State office, Sergeant Gross
asked for his identification, but Plaintiff “ignored” this request and instead
expressed “confus[ion] as to why I had been forcibly removed” and “demanded to
know why I was assaulted, why I was attacked.” (Id. at 69-70.) Sergeant Gross
advised Plaintiff that the officers were investigating a report of a gun in a
backpack, and Plaintiff stated in response “that there was no need for me to
identify myself or to disclose that I was carrying a pistol because I was not
carrying it concealed.” (Id. at 70-71.) Plaintiff further insisted that “at no point
was my gun in my bag,” and that any caller to the police who claimed otherwise
had made a false report. (Id. at 71.)14
After Plaintiff repeatedly refused to provide any identification, one of the
Defendant officers took his driver’s license from him. (Plaintiff’s Dep. at 69-70,
72-73.) In addition, after “several minutes of discussion,” Plaintiff gave Sergeant
Gross his license to carry a concealed weapon. (Id. at 73.) In the meantime,
14
Similarly, Sergeant Gross stated in his report that Plaintiff refused to produce a
license authorizing him to carry a concealed weapon, even after being advised that the
officers were investigating a report of a gun in a backpack. (Police Report at 8.) Rather,
Plaintiff told Sergeant Gross that he was not carrying a concealed weapon and he
“question[ed] the caller’s information” to the contrary. (Id.) Sergeant Gross described
Plaintiff as “extremely defiant,” “confrontational,” and “uncooperative” during this
interview, refusing to provide such information as “his phone number, where he lived and
where he worked,” “recit[ing] certain federal, state and city . . . laws” that he believed the
officers had violated, and indicating “that he did nothing wrong and that he was protected
by federal laws for carrying [his] weapon.” (Id.)
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Plaintiff’s backpack and lunchbox were retrieved from the Secretary of State
office and placed on the hood of Officer Mills’ patrol car. (Police Report at 5.)15
In addition, Officer Mills conducted a records check of Plaintiff and determined
that he had a valid license to carry a concealed weapon, that he had no outstanding
warrants, and that the gun that had been taken from him was legally registered to
him. (Id.)
Following a discussion between Sergeant Gross and Officer Mills, it was
determined that Plaintiff would be arrested on a charge of resisting and obstructing
a police officer, in light of his refusal to leave the Secretary of State office despite
the officers’ several requests that he do so. (See id. at 5, 9.) Accordingly, Plaintiff
was informed that he was under arrest and was ordered to put his hands behind his
back, but he testified that he was not “initially compliant” with this directive, and
instead “sought clarification” as to “why I was under arrest.” (Plaintiff’s Dep. at
75-76.) Sergeant Gross and Officer Mills stated in their reports that as they
attempted to place Plaintiff in handcuffs, he “began tensing up and refused to put
his hands behind his back,” leading Sergeant Gross and Officers Mills and
Kingston to “forcibly put [Plaintiff’s] hands behind his back” so that he could be
15
The record does not disclose whether these items were searched or, if so, what
was found in them. There is no claim that any sort of weapon was found in Plaintiff’s
backpack.
12
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handcuffed. (Police Report at 9; see also id. at 5-6.) Officer Mills further stated
that he “grabbed [Plaintiff’s] extremely long hair” and “pull[ed] his head
backward” to obtain his compliance with the officers’ effort to handcuff him,
advising Plaintiff that “once he was handcuffed, I would allow his hair to be let
go.” (Id. at 6.)
After he was secured in handcuffs, Plaintiff was placed in the back of
Officer Mills’ patrol car and transported to the Jackson County jail. (See id. at 6,
9.) Plaintiff apparently was held in jail for two days until his arraignment, and the
charge against him ultimately was dismissed at the prosecutor’s discretion. This
suit followed in March of 2014, with Plaintiff asserting federal claims under 42
U.S.C. § 1983 alleging violations of his rights under the First, Second, and Fourth
Amendments to the U.S. Constitution, and also asserting state-law claims of
assault and battery, false imprisonment, and replevin.16
III. ANALYSIS
A.
The Standards Governing Defendants’ Motion
16
As noted earlier, to the extent that Plaintiff’s complaint could be construed as
asserting a separate federal § 1983 claim resting on the protections and guarantees of the
Fourteenth Amendment, Plaintiff has clarified in his response to Defendants’ present
motion that he is not pursuing any such claim. In addition, it is evident from the parties’
summary judgment briefing that Plaintiff has abandoned the conspiracy claim asserted in
Count VI of his complaint.
13
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Through the present motion, the five individual Defendant law enforcement
officers and the Defendant City of Jackson seek an award of summary judgment in
their favor on Plaintiff’s federal civil rights claims under 42 U.S.C. § 1983 and his
state-law claims of assault and battery, false imprisonment, and replevin. Under
the Federal Rule governing Defendants’ motion, summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the
Supreme Court has explained, “the plain language of Rule 56[] mandates the entry
of summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
2552 (1986).
In deciding a motion brought under Rule 56, the Court must view the
evidence “in a light most favorable to the party opposing the motion, giving that
party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.
Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving
party may not rely on bare allegations or denials, but instead must support a claim
of disputed facts by “citing to particular parts of materials in the record, including
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depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, any supporting or opposing
affidavits “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “[a] mere scintilla
of evidence is insufficient” to withstand a summary judgment motion; rather,
“there must be evidence on which the jury could reasonably find for the nonmoving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and
citation omitted).
B.
The Defendant Law Enforcement Officers Are Entitled to Qualified
Immunity from Liability for Plaintiff’s Federal Claims Under 42 U.S.C.
§ 1983.
1.
The Standards Governing the Defendant Officers’ Appeal to the
Doctrine of Qualified Immunity
In counts I through III of his complaint, Plaintiff alleges that the individual
Defendant law enforcement officers violated his rights under the First, Second,
and Fourth Amendments to the U.S. Constitution.17 In seeking an award of
17
Plaintiff further alleges in his complaint that the Defendant City of Jackson and
Defendant Matthew R. Heins, the City’s director of police and fire services, are subject to
liability for these alleged violations of his federal constitutional rights by virtue of having
adopted policies, ratified the actions of the Defendant police officers, or failed to train the
15
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summary judgment in their favor on these claims, the Defendant officers invoke
the doctrine of qualified immunity as affording them protection from liability for
any of the federal constitutional violations alleged by Plaintiff. Under this
doctrine, “government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
2738 (1982). Qualified immunity is an affirmative defense and a defendant
government official has the threshold burden to plead it, “but the plaintiff bears
the burden of showing that the defendant’s conduct violated a right so clearly
established that a reasonable official in [the defendant’s] position would have
clearly understood that he or she was under an affirmative duty to refrain from
such conduct.” Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002). “The
ultimate burden of proof is on the plaintiff to show that the defendant is not
entitled to qualified immunity.” Sheets, 287 F.3d at 586.
Application of the doctrine of qualified immunity entails two inquiries.
officers, such that they can be said to have caused the alleged constitutional violations. In
his response to Defendants’ motion, however, Plaintiff concedes that he has failed to
uncover evidence in support of his federal claims of municipal liability. Thus, the Court
need only address Plaintiff’s federal § 1983 claims against the five individual Defendant
law enforcement officers named in the complaint.
16
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“First, the court must determine whether, based upon the applicable law, the facts
viewed in the light most favorable to the plaintiff[] show that a constitutional
violation has occurred.” Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).
Next, “[i]f the court finds a constitutional violation, it must then consider whether
the violation involves clearly established constitutional rights of which a
reasonable person would have known.” Burchett, 310 F.3d at 942. The two steps
of this qualified immunity inquiry need not be rigidly performed in the same
sequence in each and every case; rather, the Supreme Court has explained that
judges “should be permitted to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances of the particular case at hand.” Pearson v. Callahan,
555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009).
The Supreme Court has emphasized that the doctrine of qualified immunity
“gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions,” and “protects all but the plainly
incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563
U.S. 731, ___, 131 S. Ct. 2074, 2085 (2011) (internal quotation marks and citation
omitted). Thus, in determining whether a government official has violated a
“clearly established” constitutional right under the second prong of the qualified
17
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immunity standard, a court must inquire whether “[t]he contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,
3039 (1987). “We do not require a case directly on point, but existing precedent
must have placed the . . . constitutional question beyond debate.” al-Kidd, 563
U.S. at ___, 131 S. Ct. at 2083. Moreover, “[b]ecause the focus is on whether the
officer had fair notice that her conduct was unlawful, reasonableness is judged
against the backdrop of the law at the time of the conduct.” Brosseau v. Haugen,
543 U.S. 194, 198, 125 S. Ct. 596, 599 (2004).
According to the Sixth Circuit, “[a] right is not considered clearly
established unless it has been authoritatively decided by the United States
Supreme Court, the Court of Appeals, or the highest court of the state in which the
alleged constitutional violation occurred.” Durham v. Nu’Man, 97 F.3d 862, 866
(6th Cir. 1996). Along the same lines, the Supreme Court has emphasized that
“absent controlling authority,” a right may be deemed clearly established only
through “a robust consensus of cases of persuasive authority.” al-Kidd, 563 U.S.
at ___, 131 S. Ct. at 2084 (internal quotation marks and citation omitted). Finally,
the inquiry into clearly established rights “must be undertaken in light of the
specific context of the case, not as a broad general proposition.” Brosseau, 543
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U.S. at 198, 125 S. Ct. at 599 (internal quotation marks and citation omitted).
2.
Plaintiff’s First Amendment Claims of Retaliatory Seizure and
Arrest
Against this backdrop, the Court turns first to Plaintiff’s claim that the
Defendant police officers violated his protected First Amendment right of free
speech by seizing and arresting him in retaliation against his expressive “act of
openly carrying a pistol in public,” an act that was “intended, in part, to increase
awareness that open carry is lawful in Michigan and to rally public support” for
this lawful activity. (Complaint at ¶ 49.) Defendants seek summary judgment in
their favor on this claim, arguing (i) that Plaintiff’s act of openly carrying a gun in
a Secretary of State office does not qualify as protected free speech under the First
Amendment, and (ii) that there is no evidence that the actions taken by the
Defendant officers were motivated by Plaintiff’s alleged exercise of his right to
free speech. The Court agrees on both scores.
As the Supreme Court has explained, although “[t]he First Amendment
literally forbids the abridgment only of ‘speech,’” conduct that is “sufficiently
imbued with elements of communication [may] fall within the scope of the First
and Fourteenth Amendments.” Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct.
2533, 2539 (1989) (internal quotation marks and citation omitted). In particular,
19
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conduct is eligible for First Amendment protection where (i) there is an “intent to
convey a particularized message,” and (ii) the surrounding circumstances give rise
to a great “likelihood . . . that the message would be understood by those who
viewed it.” Spence v. Washington, 418 U.S. 405, 410-11, 94 S. Ct. 2727, 2730
(1974). The record here fails as a matter of law to establish either of these
elements of a First Amendment claim arising from Plaintiff’s conduct in the
Secretary of State office.
First, while Plaintiff maintains in his response to Defendants’ motion that he
was openly carrying a firearm at the Secretary of State office “in order to promote
awareness of and educate others, including law enforcement, on the legality of
open carry,” (Plaintiff’s Response Br. at 16), he cites nothing in the record to
support this bare assertion by his counsel. Rather, Plaintiff testified that he went
to the Secretary of State office “to get a new title” for his motorcycle, (Plaintiff’s
Dep. at 53), and at no point in his deposition testimony did he refer to the
educational mission claimed in his summary judgment briefing and alleged in his
complaint. More generally, Plaintiff testified that he had openly carried a firearm
without incident in prior trips to the Jackson Crossing mall, and that he routinely
carries a gun whenever he can legally do so, (see id. at 50, 90), suggesting that
Plaintiff did not view his visit to the Secretary of State office as an especially
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noteworthy occasion for promoting awareness of Michigan’s open carry law.
Even assuming there was evidence that Plaintiff acted with the requisite
intent to convey a particularized message, the circumstances surrounding
Plaintiff’s visit to the Secretary of State office do not give rise to a significant
likelihood that this message would be understood by others in the office. First,
Plaintiff was not carrying a sign, wearing a message on his clothing, handing out
leaflets, or engaging in any other activity that could have clarified or lent
additional support to his alleged advocacy for the right to openly carry a firearm.
Nor did Plaintiff interact with anyone else in the Secretary of State office in an
effort to draw attention to his purported message that Michigan law permits the
open carrying of guns. Rather, Defendants aptly observe that Plaintiff was
“simply wearing his gun in an open manner,” (Defendants’ Motion, Br. in Support
at 8), evidently relying on this conduct alone to convey his desired message. As
Defendants point out, courts in this and other circuits have held that gun
possession alone is unlikely to convey a particular message that would be
understood by those who witnessed it. See, e.g., Deffert v. Moe, 111 F. Supp.3d
797, 814 (W.D. Mich. 2015); Northrup v. City of Toledo Police Division, 58 F.
Supp.3d 842, 848 (N.D. Ohio 2014), rev’d in part on other grounds, 785 F.3d
1128 (6th Cir. 2015); Baker v. Schwarb, 40 F. Supp.3d 881, 895 (E.D. Mich.
21
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2014); Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003); Burgess v.
Wallingford, No. 11-cv-1129, 2013 WL 4494481, at *9 (D. Conn. May 15, 2013),
aff’d, 569 F. App’x 21 (2d Cir. June 12, 2014).18
18
In light of these rulings, even if the Court were to determine that Plaintiff’s open
carrying of a firearm in this case was eligible for First Amendment protection as
expressive conduct, it could not be said that the Defendant officers’ alleged transgression
of this right violated clearly established law. Rather, the only case cited by Plaintiff as
lending support to his claim of expressive conduct, Smith v. Tarrant County College
District, 694 F. Supp.2d 610 (N.D. Tex. 2010), is readily distinguishable, and this district
court decision from another circuit could not be said, in any event, to inform the
understanding of the Defendant police officers as to the prevailing First Amendment
standards in their jurisdiction.
In Smith, 694 F. Supp.2d at 613, the plaintiff students were “members of Students
for Concealed Carry on Campus (‘SCCC’), a national organization created in the wake of
the shootings at Virginia Tech” that sought to persuade college officials to “allow
students who are licensed to carry a concealed firearm to do so on college campuses.” As
part of the SCCC’s advocacy, the plaintiff students wished to engage in “empty-holster
protests,” in which they would “wear empty holsters during their normal campus activities
to symbolize the fact that they [we]re unarmed and potentially defenseless against a
gunman such as the one at Virginia Tech.” 694 F. Supp.2d at 613. The students also
“planned to wear . . a t-shirt bearing the SCCC logo — a mortarboard atop a revolver —
and hand out leaflets detailing SCCC’s viewpoints in between classes.” 694 F. Supp.2d
at 613.
Importantly, the court in Smith did not consider, much less rule upon, the question
whether the “empty-holster” protest qualified as expressive activity. Rather, the court and
the parties alike evidently assumed that each of the advocacy efforts planned by the
plaintiff SCCC members — including their wearing of empty holsters and SCCC T-shirts
and their distribution of leaflets — were eligible for First Amendment protection, and the
pertinent question before the court was whether the defendant college had identified
sufficient grounds for limiting these activities to a campus “free-speech” zone rather the
school’s classrooms and adjacent hallways. See Smith, 694 F. Supp.2d at 624-32. The
court found that the college’s appeal to a “disruptive activities” provision in its student
handbook did not provide a sufficient basis for prohibiting the plaintiff students from
wearing empty holsters in classrooms, where the concern that this protest might be
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Moreover, the record lacks evidence that anyone at the Secretary of State
office actually perceived the message that Plaintiff purportedly sought to convey.
Plaintiff testified that before the police arrived, nobody asked him about the fact
that he was carrying a gun or expressed concern that he was doing so, and that he
heard only “[i]ndistinct whispering” that seemed to include “something about the
word ‘gun.’” (Plaintiff’s Dep. at 51.) In addition, the caller to the Jackson police
department evidently reported that an individual in the Secretary of State office
“was in possession of a handgun, which was believed to be inside a backpack,”
(Police Report at 7; see also id. at 2 (stating that a dispatcher advised Officer
disruptive rested solely on “the speculation of [college] officials.” 694 F. Supp.2d at 62832.
Even if Smith were a decision from within this circuit, it could not be said to have
clearly established that Plaintiff’s open carrying of a firearm was entitled to First
Amendment protection as expressive conduct. As explained, Smith did not even consider
what sorts of activities might count as speech under the First Amendment, but instead
accepted as a given that the “empty holster” protest at issue in that case was a form of
symbolic speech. Indeed, because an empty holster by itself serves no apparent purpose,
this activity carries an inherent message that is not replicated through an individual’s open
carrying of a firearm in accordance with Michigan law. Moreover, the “empty holster”
protest in Smith was part of a larger advocacy effort that clearly implicated the First
Amendment guarantee of free speech, as it included passing out leaflets and wearing Tshirts with the logo of the SCCC organization. Here, in contrast, Plaintiff’s open carrying
of a gun was unaccompanied by any other means of conveying a message in support of
Michigan’s open carry law. Thus, the decision in Smith does not overcome the Defendant
officers’ appeal to qualified immunity, and Plaintiff does not point to any other ruling that
would have alerted a reasonable officer in Defendants’ position that Plaintiff was engaged
in expressive activity protected by the First Amendment.
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Black that an individual was “possibly in possession of a handgun in a
backpack”)), and that this individual “was pacing back and forth,” causing the
caller to become “nervous that something else was going on,” (id. at 4). This
record does not tend to suggest that Plaintiff’s alleged advocacy of Michigan’s
open carry law was understood as such by other visitors to the Secretary of State
office. See Baker, 40 F. Supp.3d at 895 (noting that “[b]ased upon the numerous
emergency calls” placed by “concerned citizens” who witnessed the plaintiffs
walking down the street with pistols and long guns, the individuals who placed
these calls evidently did not “perceiv[e] Plaintiffs as open carry activists
demonstrating their First . . . Amendment rights,” but instead “were simply
alarmed and concerned for their safety and that of their community”).
Finally, even assuming that there was evidentiary support for Plaintiff’s
assertion that his open carrying of a firearm constituted protected First
Amendment activity, the record is bereft of evidence that the Defendant police
officers retaliated against Plaintiff for his exercise of this protected activity.
Officer Mills stated in his police report that upon approaching Plaintiff in the
Secretary of State office, he “asked [Plaintiff] immediately just to step outside” in
order to determine “what was going on,” given the officer’s uncertainty whether
Plaintiff was alone and “what his intention was,” as well as his “concern[] for the
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safety of the other [people] inside” the office. (Police Report at 4.) Similarly,
Sergeant Gross reported that Plaintiff “immediately became upset and agitated”
upon being approached by Officer Mills, leading the sergeant to “believe that the
public’s safety was of extreme concern at that moment and that there was a high
probability that the safety of these individuals, including employees, was in
jeopardy.” (Id. at 8.)19 Indeed, Plaintiff himself testified that after he was forcibly
removed from the Secretary of State office and “demanded to know why” the
officers had treated him in this fashion, Sergeant Gross advised him that the
officers were investigating a report of “a gun in a bag.” (Plaintiff’s Dep. at 70.)
This record would not permit the inference that the Defendant officers acted
in retaliation against Plaintiff’s advocacy of Michigan’s open carry law. Instead,
the record indicates that the officers (i) were investigating a report of a handgun in
a backpack, rather than an exercise of open carry rights, and (ii) took action
against Plaintiff, including leading him outside the Secretary of State office and
then placing him under arrest, as a result of the officers’ concerns for the safety of
others and their belief that Plaintiff was resisting their attempts to investigate his
19
As noted earlier, Plaintiff evidently did not depose any of the Defendant officers,
so the statements in their police reports concerning their motives for acting as they did
stand uncontradicted in the record. This leaves Plaintiff facing an uphill evidentiary
battle in his effort to show that the Defendant officers retaliated against his exercise of
rights protected by the First Amendment.
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activities and ascertain his intentions. Given the lack of evidence that the
Defendant officers acted in retaliation against Plaintiff’s exercise of his right of
free speech — or, indeed, that they even perceived Plaintiff as exercising such a
right — the officers are entitled to summary judgment in their favor on Plaintiff’s
First Amendment claims of retaliatory seizure and arrest.
3.
Plaintiff’s Claim of an Abridgment of His Second Amendment
Right to Bear Arms
In count II of his complaint, Plaintiff alleges that when the Defendant police
officers “seize[d] Plaintiff’s pistol without justification or provocation,” they
thereby “violated his Second Amendment individual right to keep and bear arms.”
(Complaint at ¶ 45.) As discussed below, the Court finds that the Defendant
officers are entitled to qualified immunity from liability for this claimed violation,
where the posited Second Amendment right upon which this claim rests is not
clearly established.
In District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 282122 (2008), the Supreme Court struck down on Second Amendment grounds a
District of Columbia law that banned handgun possession in the home and “also
require[d] that any lawful firearm in the home be disassembled or bound by a
trigger lock at all times, rendering it inoperable.” In so ruling, the Court found
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that the law in question transgressed an interest that the Second Amendment
“elevates above all other[s]” — namely, “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635, 128
S. Ct. at 2821. The Court emphasized, however, that “[l]ike most rights, the right
secured by the Second Amendment is not unlimited,” and that “[f]rom Blackstone
through the 19th-century cases, commentators and courts routinely explained that
the right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” 554 U.S. at 626, 128 S. Ct. at 2816. The
Court noted, for example, that “the majority of 19th-century courts to consider the
question held that prohibitions on carrying concealed weapons were lawful under
the Second Amendment or state analogues,” and it cautioned that “nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government
buildings.” 554 U.S. at 626, 128 S. Ct. at 2816-17.
As this summary makes clear, Heller does not address the circumstances
presented here — namely, the possession of a firearm outside the home. “While
the Supreme Court spoke of a right of law-abiding, responsible citizens to keep
and bear arms in case of confrontation outside the context of an organized militia,
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it did not say, and to date has not said, that publicly carrying a firearm
unconnected to defense of hearth and home and unconnected to militia service is a
definitive right of private citizens protected under the Second Amendment.”
Powell v. Tompkins, 783 F.3d 332, 348 (1st Cir. 2015); see also Tyler v. Hillsdale
County Sheriff’s Department, 775 F.3d 308, 316 (6th Cir. 2014) (“The Supreme
Court has not fleshed out the extent of the right protected by the Second
Amendment.”), opinion vacated and rehearing en banc granted (April 21, 2015);
Peruta v. County of San Diego, 742 F.3d 1144, 1150 (9th Cir. 2014) (finding it
“obvious” that “neither Heller nor [the Supreme Court’s subsequent decision in
McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010)] speaks
explicitly or precisely to the scope of the Second Amendment right outside the
home or to what it takes to ‘infringe’ it”), request for rehearing en banc granted,
781 F.3d 1106 (9th Cir. 2015); Moore v. Madigan, 702 F.3d 933, 935 (7th Cir.
2012) (“[T]he Supreme Court has not yet addressed the question whether the
Second Amendment creates a right of self-defense outside the home.”). Thus,
although Plaintiff views certain language in Heller as supportive of the
“assumption that the right to keep and bear arms extends beyond the home,”
(Plaintiff’s Response Br. at 11), he does not (and cannot) assert that Heller by
itself defines the contours of the Second Amendment right to keep and bear arms
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with sufficient clarity that a reasonable police officer in Defendants’ position
would have clearly understood that Plaintiff had a Second Amendment right to
openly carry a gun as he conducted his business at a Secretary of State office.
What is more, Plaintiff expressly acknowledges that “the Sixth Circuit Court
of Appeals has not yet spoken on the issue of the right to bear arms outside the
home since the Heller decision.” (Plaintiffs’ Response Br. at 12.) In recognition
of the Court of Appeals’ silence on this subject, both the Sixth Circuit itself and a
number of district courts in this circuit have invoked the doctrine of qualified
immunity to dismiss Second Amendment claims similar to the one asserted by
Plaintiff here, reasoning that the Second Amendment rights posited by the
plaintiffs in these cases were not clearly established. See Embody v. Ward, 695
F.3d 577, 581 (6th Cir. 2012) (ruling that the defendant park ranger was entitled to
qualified immunity because “[n]o court has held that the Second Amendment
encompasses a right to bear arms within state parks”); Deffert, 111 F. Supp.3d at
812 (finding that “the right Plaintiff alleges Defendant 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”);20 Northrup, 58 F.
20
Notably, Plaintiff’s counsel here also represented the plaintiff in Deffert. The
incident giving rise to that case — the plaintiff’s detention following a 911 call that a man
dressed in camouflage pants was walking along a public sidewalk in Grand Rapids,
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Supp.3d at 849 (observing that “[n]either the parties nor my own research has
identified any case in which the Second Amendment was held to cover” the right
claimed in that case, an “individual’s right to openly carry a handgun on a public
sidewalk”); Baker v. Smiscik, 49 F. Supp.3d 489, 500-01 (E.D. Mich. 2014)
(finding that the Second Amendment right claimed by the plaintiff to “openly
carry firearms in a private business establishment” was not “clearly established at
the time of his encounter with the [defendant police] officers”); Baker, 40 F.
Supp.3d at 894 (holding that “the right Plaintiffs say Defendants violated — the
right to bear arms for the purpose of self-defense outside the home — is not
clearly established under the Second Amendment”).
Against this substantial weight of authority invoking the doctrine of
qualified immunity to dismiss § 1983 claims resting on a posited Second
Amendment right to openly carry a firearm outside the home, Plaintiff points to
decisions by other Courts of Appeals that recognize, or at least assume, that the
protection of the Second Amendment extends outside the home. See Peruta, 742
F.3d at 1166 (determining, in a case challenging the defendant county’s policies
Michigan with a pistol in a holster strapped to his leg —occurred roughly two months
before the incident at issue here, and it appears that the plaintiff in Deffert asserted largely
the same federal and state-law claims that Plaintiff has brought in this case. See Deffert,
111 F. Supp.3d at 801-04.
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for obtaining a license to carry a concealed weapon, that the Second Amendment
right to bears arms “includes the right to carry an operable firearm outside the
home for the lawful purpose of self-defense”); Drake v. Filko, 724 F.3d 426, 431
(3d Cir. 2013) (declining, for purposes of determining the constitutionality of a
New Jersey law regulating the issuance of permits to carry handguns in public, to
“definitively declare that the individual right to bears arms for the purpose of selfdefense extends beyond the home,” but nonetheless recognizing that this Second
Amendment right “may have some application beyond the home”); Woollard v.
Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (addressing a challenge to a
Maryland handgun permitting scheme, and “assum[ing]” for the purposes of this
analysis “that the Heller right exists outside the home”); Moore, 702 F.3d at 942
(opining that the Second Amendment right to bear arms for self-defense, as
recognized by the Supreme Court in Heller, “is as important outside the home as
inside,” and thus declaring unconstitutional an Illinois statute that generally
prohibited the carrying of guns in public); Kachalsky v. County of Westchester,
701 F.3d 81, 89 (2d Cir. 2012) (addressing a challenge to the State of New York’s
handgun licensing scheme, and “proceed[ing] on the assumption” that the Second
Amendment right recognized in Heller “must have some application in the very
different context of the public possession of firearms” (footnote omitted)); Ezell v.
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City of Chicago, 651 F.3d 684, 708 (preliminarily enjoining a Chicago ordinance
that banned all firing ranges in the city on the ground that it was a “serious
encroachment on the right to maintain proficiency in firearm use,” which in turn
was “an important corollary to the meaningful exercise of the core right to possess
firearms for self-defense”). These cases, in Plaintiff’s view, undermine
Defendants’ suggestion in their motion that the right to bear arms outside the
home remains “unsettled.”
These decisions fall short in several respects, however, of demonstrating
that the Second Amendment right claimed by Plaintiff here was clearly established
at the time of the incident giving rise to this suit. First, these out-of-circuit rulings
cannot serve as notice to the Defendant officers of the contours of the Second
Amendment right to keep and bear arms in the Jackson, Michigan jurisdiction in
which they are employed. See Durham, 97 F.3d at 866; Baker, 49 F. Supp.3d at
500. Moreover, while the absence of controlling precedent on this issue may be
overcome by a “robust consensus of cases of persuasive authority,” al-Kidd, 563
U.S. at ___, 131 S. Ct. at 2084 (internal quotation marks and citation omitted),
Plaintiff has identified only two circuits, the Seventh and Ninth, that have
expressly recognized a Second Amendment right to bear arms for self-defense that
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extends beyond the home, see Peruta, 742 F.3d at 1166;21 Moore, 702 F.3d at 942;
Ezell, 651 F.3d at 708, while the remaining cases cited by Plaintiff merely assume
without deciding that such a right exists, see Drake, 724 F.3d at 431; Woollard,
712 F.3d at 876; Kachalsky, 701 F.3d at 89. Upon recently surveying this case
law, the First Circuit aptly observed that “[d]ebate continues among [the] courts”
as to whether the Second Amendment encompasses a right to “publicly carry[] a
firearm unconnected to defense of hearth and home and unconnected to militia
service.” Powell, 783 F.3d at 348. As the Supreme Court has emphasized, “[i]f
judges thus disagree on a constitutional question, it is unfair to subject police to
money damages for picking the losing side of the controversy.” Wilson v. Layne,
526 U.S. 603, 618, 119 S. Ct. 1692, 1701 (1999).
Finally, even if the out-of-circuit decisions cited by Plaintiff could be
viewed as reflecting some sort of emerging consensus that the Second Amendment
right to bear arms extends outside the home, each of these cases addressed the
constitutionality of a state or local gun regulation, and not the lawfulness of a
21
As Defendants point out, the Ninth Circuit issued its Peruta decision in 2014,
after the incident giving rise to Plaintiff’s claims in this case, and this ruling therefore
could not serve as notice of the state of the Second Amendment law at the time the
Defendant officers took the actions challenged by Plaintiff. In addition, the Ninth Circuit
has vacated this decision upon granting a request for en banc rehearing. See Peruta v.
County of San Diego, 781 F.3d 1106 (9th Cir. 2015).
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police officer’s encounter with a private citizen who is openly carrying a gun
outside the home. Surely, then, any broader Second Amendment principles that
might be gleaned from this case law concerning the constitutionality of gun
regulations would not readily translate into clearly established law that governed
the Defendant officers’ specific interaction with Plaintiff. Rather, this Court
concludes, in accordance with the uniform weight of authority in cases decided
within this circuit, that the Second Amendment right posited by Plaintiff here —
i.e., the right to openly carry a firearm outside the home — was not clearly
established at the time of the incident giving rise to this suit.
4.
Plaintiff’s Claims of Unlawful Detention and Arrest in Violation
of the Fourth Amendment
In Plaintiff’s third and final federal § 1983 claim, as set forth in count I of
his complaint, he alleges that the Defendant police officers violated the Fourth
Amendment protection against unreasonable seizures by (i) forcibly leading
Plaintiff out of the Secretary of State office without reasonable suspicion that he
was engaged in criminal activity, and then (ii) arresting him without probable
cause following his removal from the office. Defendants again argue that
qualified immunity shields them from liability for these Fourth Amendment
claims, contending (i) that the totality of the circumstances confronting them upon
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their arrival at the Secretary of State office gave rise to reasonable suspicion that
Plaintiff was engaged in criminal activity, and (ii) that Plaintiff’s refusal to comply
with the Defendant officers’ lawful commands provided probable cause to arrest
him for resisting a police officer. The Court agrees.
(a)
Plaintiff’s Claim of Unlawful Detention
Turning first to the Defendant officers’ initial interaction with Plaintiff upon
their arrival at the Secretary of State office, Defendants concede that the officers
did not have probable cause at that point to arrest Plaintiff for any criminal
offense. Rather, Defendants look to the familiar principles of Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868 (1968) and its progeny, under which a law enforcement
officer may conduct a “temporary investigative stop” so long as he has “reasonable
suspicion of criminal activity based on specific and articulable facts known to the
officer at the time of the stop.” Embody, 695 F.3d at 580 (internal quotation marks
and citation omitted). The reasonable suspicion needed to warrant a Terry stop
“requires more than just a mere hunch, but is satisfied by a likelihood of criminal
activity less than probable cause, and falls considerably short of satisfying a
preponderance of the evidence standard.” Smoak v. Hall, 460 F.3d 768, 778 (6th
Cir. 2006) (internal quotation marks and citation omitted). This Court must
“examine the totality of the circumstances to determine whether reasonable
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suspicion existed to justify a Terry stop” of Plaintiff in the Secretary of State
office. Smoak, 460 F.3d at 779 (internal quotation marks and citation omitted).
The Court finds that the Defendant officers’ initial encounter with Plaintiff
was supported by reasonable suspicion of criminal activity. When Officer Mills
first approached Plaintiff, he and the other Defendant officers had been informed
by a police dispatcher that an individual with long hair in the Secretary of State
office was “possibly in possession of a handgun in a backpack,” that the mall in
which this office was located was a “weapons-free zone,” and that the individual
who had triggered the call to the Jackson police department was “pacing back and
forth” in the office, leading the caller to be “nervous that something else was
going on.” (Defendants’ Motion, Ex. 3, Police Reports at 2, 4, 7.) Upon the
officers’ arrival at the Secretary of State office, they observed that there were
roughly 50 or 60 people in the office, and they immediately identified Plaintiff as
matching the description given by the dispatcher. (See id. at 3, 4.) In addition,
when Officers Mills entered the office and approached Plaintiff, he noticed that
Plaintiff was carrying a pistol in a holster on his right hip. (See id. at 4.)
Under the totality of these circumstances, then, the facts known to the
Defendant officers indicated (i) that Plaintiff had entered a crowded Secretary of
State office bearing a backpack with a handgun, (ii) that he was acting
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suspiciously by pacing back and forth in the office, and (iii) that he was carrying a
weapon on his person. The Court is satisfied that these circumstances gave rise to
reasonable suspicion that Plaintiff was engaged in criminal activity, including (but
not limited to) carrying a concealed weapon in a backpack. While Plaintiff makes
much of the fact that he apparently was not carrying his backpack when the
Defendant officers saw and approached him, (see Plaintiff’s Response Br. at 8),
this alone would not dispel the officers’ reasonable suspicion of criminal activity,
particularly where Plaintiff was reported as acting suspiciously. Indeed,
Defendants point out that this incident occurred on the one-month anniversary of
the Boston Marathon bombing, in which backpacks containing explosives had
been left unattended and then detonated. Against this backdrop, it cannot be said
that an unattended backpack would undermine a finding of reasonable suspicion,
especially where the information available to the Defendant officers indicated that
there was a gun in this unattended bag.
To be sure, Plaintiff correctly points out that it would not have been
unlawful for him to carry a gun in his backpack, provided that he had a license to
carry a concealed weapon. See Mich. Comp. Laws § 750.227(2).22 In its recent
22
As it turns out, Plaintiff had a license to carry a concealed weapon, and he
produced it to Sergeant Gross after the Defendant officers removed him from the
Secretary of State office. This after-the-fact discovery, however, does not defeat a
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decision in Northrup, 785 F.3d 1128, the Sixth Circuit observed that state laws
authorizing the possession of firearms under certain circumstances — e.g., laws
permitting the open carrying of guns or the carrying of concealed weapons with a
permit — may affect the Fourth Amendment calculus, since “[w]here it is lawful
to possess a firearm, unlawful possession is not the default status.” 785 F.3d at
1132 (internal quotation marks and citations omitted).23 In Plaintiff’s view, the
reasoning in Northrup defeats Defendants’ claim of reasonable suspicion here,
since the Sixth Circuit’s decision illustrates that the Defendant officers could not
have subjected Plaintiff to a Terry stop based on the mere “possibility” that he
might have lacked the necessary permit to lawfully carry a concealed weapon in
his backpack. See Northrup, 785 F.3d at 1132-33. Rather, as the court explained
in that case, involving the detention and disarming of an individual who was
openly carrying a handgun in a holster on his hip as he walked down a public
finding of reasonable suspicion. “[W]hether a detained suspect is later determined not to
have violated the law does not bear on whether the detaining officer had a reasonable
suspicion to justify detention while pursuing an investigation.” Baker, 49 F. Supp.2d at
499 n.7; see also Illinois v. Wardlow, 528 U.S. 119, 126, 120 S. Ct. 673, 677 (2000)
(explaining that “Terry accepts the risk that officers may stop innocent people”).
23
At the time of the parties’ initial summary judgment briefing in this case,
Defendants relied on the district court’s decision in Northrup, but the Sixth Circuit had
not yet ruled on the appeal from this decision. Following the Sixth Circuit’s recent ruling
in Northrup, the parties were granted leave to file supplemental briefs addressing the
impact of this appellate decision on Defendants’ present motion, and the Court has
reviewed and considered these supplemental briefs in resolving Defendants’ motion.
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sidewalk:
While open-carry laws may put police officers . . . in awkward
situations from time to time, the Ohio legislature has decided its
citizens may be entrusted with firearms on public streets. The Toledo
Police Department has not authority to disregard this decision — not
to mention the protections of the Fourth Amendment — by detaining
every ‘gunman’ who lawfully possesses a firearm. And 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. We thus affirm the district court’s conclusion that, after
reading the factual inferences in the record in [the plaintiff’s] favor,
[the defendant officer] could not reasonably suspect that [the
plaintiff] needed to be disarmed.
785 F.3d at 1133 (citations omitted).
The Court agrees with Defendants that Northrup is distinguishable here. In
that case, the claim of reasonable suspicion for a Terry stop rested on two facts
alone: (i) the plaintiff’s open possession of a firearm, and (ii) a 911 call reporting
a “guy walking down the street” who was “carrying a gun out in the open.”
Northrup, 785 F.3d at 1130-31.24 Here, in contrast, the Defendant officers were
dispatched to a crowded Secretary of State office to investigate a report of an
individual with a gun in a backpack who was acting suspiciously by pacing back
and forth in the office, and the officers learned in addition upon their arrival at the
24
Notably, the police dispatcher who received the 911 call informed the caller that
it was legal for the plaintiff to openly carry a handgun so long as he had a permit to carry
a concealed weapon. 785 F.3d at 1130. The caller had a “change of heart” in light of this
information, but “the dispatcher sent an officer to the scene anyway.” 785 F.3d at 1130.
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office that Plaintiff was carrying a gun in a holster on his hip. Under analogous
circumstances, both the Court of Appeals and other district courts in this circuit
have found that a Terry stop was warranted for further investigation of possible
criminal activity. See Embody, 696 F.3d at 580-81 (finding that although the
plaintiff had a permit that allowed him to carry a handgun in a state park, the
defendant park ranger nonetheless had “ample reason for suspicion that [the
plaintiff] possessed an illegal firearm,” where the barrel of the plaintiff’s weapon
was just “a half-inch shy of the legal limit” and thus “reasonably could look more
like a rifle than a handgun,” leading other park visitors to be “frightened at the
sight of a man in camouflage carrying an AK-47 across his chest,” and where the
plaintiff “had painted the barrel tip of the gun orange,” raising a reasonable
suspicion that the plaintiff was trying to make his gun look like a toy in order to
“disguise an illegal weapon”); Deffert, 111 F. Supp.3d at 809-10 (finding that the
defendant officer had reasonable suspicion to conduct a Terry stop of the plaintiff,
based on the plaintiff’s open carrying of a gun down a public sidewalk while
“wearing camouflage pants” and “singing ‘Hakuna Matata’ loudly enough to be
heard from a police cruiser,” all of which was “sufficiently alarming to a resident
to call 911” and led the defendant officer to suspect that the plaintiff “may have
had mental issues and was about to commit a violent crime” (internal quotation
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marks and citation omitted)); Baker, 49 F. Supp.3d at 498 (holding that “[t]he
unusual display of multiple firearms” by the plaintiff, “coupled with a 911 call
seeking assistance in removing [the plaintiff] from” the donut shop he had entered,
“support a reasonable suspicion that [the plaintiff] might be engaged in a criminal
trespass of the premises or endangering other customers” (footnote and citation
omitted)); Baker, 40 F. Supp.3d at 884-85, 891 (concluding that there was
reasonable suspicion for a Terry stop of the two plaintiffs, who had triggered a
“flood of 911 calls from concerned citizens” by walking down a public sidewalk
“while carrying pistols in holsters and long guns slung over their shoulders,” and
who responded “elusively (if not defiantly)” to the defendant police officers’
initial inquiries about what they were doing, where “[r]easonable officers may well
have been concerned” under these circumstances about “what [the plaintiffs]
would do next”).
In light of this case law, even if it could be said that Northrup represents the
closest fit to the facts presented here — a premise which, as explained above, the
Court does not accept — the doctrine of qualified immunity would protect the
Defendant police officers from any arguably mistaken judgment that they had
reasonable grounds to suspect Plaintiff of engaging in criminal activity. First, of
course, Northrup was decided two years after the incident giving rise to this suit,
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and thus could not serve as notice to the Defendant officers that their actions
might be unlawful. Moreover, the Court reads Northrup as establishing that
public gun possession alone does not give rise to reasonable suspicion that this
possession by itself might be unlawful, particularly in light of state laws that
authorize the open carrying of a firearm. Yet, this does not call into question the
case law — including the Sixth Circuit’s own prior decision in Embody — holding
that the circumstances surrounding an individual’s public possession of a firearm
can give rise to reasonable suspicion that this possession might be unlawful or that
other criminal activity might be afoot. As explained, the Court finds that such
surrounding circumstances were present here — or, at a minimum, that a
reasonable person in the position of the Defendant officers would have believed
that a Terry stop was warranted to investigate the lawfulness of Plaintiff’s
activities.
Nonetheless, Plaintiff insists that the Defendant officers exceeded the scope
of a permissible Terry stop when they forcibly removed him from the Secretary of
State office after he refused the officers’ request to leave voluntarily.25 As the
25
As a threshold matter, Plaintiff questions whether the Defendant officers were
even engaged in a Terry stop at the time they removed him from the office. As both he
and Defendants agree, the officers did not even need reasonable suspicion in order to
approach Plaintiff and ask him questions. See Northrup, 785 F.3d at 1131; O’Malley v.
City of Flint, 652 F.3d 662, 668 (6th Cir. 2011) (confirming that “[t]he Fourth
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Sixth Circuit has explained, the existence of reasonable suspicion is “only one
aspect” of the Terry inquiry, and a court must also consider the manner in which
the Terry stop is conducted. Smoak, 460 F.3d at 779. In particular, the “scope of
activities during an investigatory stop must reasonably be related to the
circumstances that initially justified the stop,” and this inquiry entails
consideration of “the length of the detention, the manner in which it is conducted,
and the degree of force used” in the course of the stop. 460 F.3d at 779, 781
(internal quotation marks and citation omitted). “If the manner in which an
Amendment does not apply to consensual encounters with the police”). Because the
Defendant officers merely requested that Plaintiff step outside the Secretary of State
office, and did not order him to do so, Plaintiff reasons that he was free to refuse this
request (as he did) and go about his business, and he argues that the Defendant officers
improperly “escalated the contact” at this point, even though he had done nothing more
than appropriately decline the officers’ request and bring the consensual encounter to an
end. (Plaintiff’s Response Br. at 10.)
The logic of this argument is flawed. Even if the Defendant officers’ conduct
upon initially approaching Plaintiff was consistent with a consensual encounter, this does
not mean that the officers necessarily were limited to the scope of a consensual encounter
in their subsequent dealings with Plaintiff. Rather, the officers could have hoped to
secure Plaintiff’s cooperation through a wholly consensual approach, but then shifted to
more Terry-like investigative measures once this cooperation was not forthcoming. So
long as the Defendant officers had a reasonable suspicion of criminal activity when they
initially approached Plaintiff, they were free to employ the investigative techniques of a
consensual encounter or a Terry stop as they saw fit, and their initial choice of the former
approach did not foreclose the option to move to the latter as warranted by circumstances.
A citizen/officer encounter need not be pigeonholed, labeled, and analyzed solely by
reference to how the encounter is initiated, nor is it legally relevant to the question before
the Court that Plaintiff might have perceived this encounter as consensual in nature.
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investigatory stop is conducted is unreasonable, the seizure then ripens into an
arrest, which must be supported by probable cause.” 460 F.3d at 779. In
Plaintiffs’ view, the Defendant officers violated these standards governing a Terry
stop by grabbing his arms and escorting him from the Secretary of State office
after he declined to leave the premises voluntarily.
The Court finds that the Defendant officers’ limited use of force in their
initial encounter with Plaintiff did not exceed the scope of a lawful Terry stop. “It
is well recognized that the right to make an . . . investigatory stop necessarily
carries with it the right to use some degree of physical coercion or threat thereof to
effect it.” Dorsey v. Barber, 517 F.3d 389, 399 (6th Cir. 2008) (internal quotation
marks and citation omitted). In recognition of this principle, the Sixth Circuit has
found in a number of cases that the use of some degree of force was consistent
with a Terry stop. See, e.g., Embody, 695 F.3d at 581 (holding that “[o]rdering
[the plaintiff] to the ground at gun point was not an excessive intrusion given the
existence of a loaded weapon, the risk to officer (or public) safety if [the plaintiff]
had been up to no good and the danger to law enforcement whenever it disarms an
individual suspected of crime”); O’Malley, 652 F.3d at 670-71 (finding that the
plaintiff was appropriately handcuffed and detained, where it was “not disputed
that [the plaintiff] told [the defendant police officer] that he had a gun in his
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vehicle, was angry, raised his voice, turned his back and lifted his shirt, and called
[the defendant officer’s] inquiry ‘bulls–t’”); United States v. Atchley, 474 F.3d
840, 849 (6th Cir. 2007) (citing the defendant’s “nervous behavior” as a factor that
supported placing him in handcuffs “as a safety precaution”); Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 309 (6th Cir. 2005) (determining that the defendant
police officers were “justified in drawing their weapons and using handcuffs to
restrain” the plaintiff, where they were “responding to a call that a burglary was in
progress” and the plaintiff had informed them that “he was armed with a stun
gun”); Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 81415 (6th Cir. 1999) (stating that when police officers “reasonably fear that suspects
are armed and dangerous,” they may take such measures as “order[ing] the
suspects out of a car,” “draw[ing] their weapons,” and handcuffing the suspects as
“reasonably necessary to protect the officers’ safety during the[ir] investigation”).
In addition, Defendants point more specifically to a Second Circuit decision in
which the court deemed it “well established that officers may ask (or force) a
suspect to move as part of a lawful Terry stop.” United States v. Gori, 230 F.3d
44, 56 (2d Cir. 2000) (collecting cases from a number of circuits).
This case law amply supports the degree of force used by the Defendant
officers here in conducting a Terry stop and investigating their reasonable
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suspicions of unlawful activity. As they approached Plaintiff, the officers had
been told that this individual had brought a backpack with a gun into the Secretary
of State office and had been pacing nervously back and forth in the office, and
they could see for themselves that Plaintiff was carrying a firearm in a holster on
his hip. Under these circumstances, where Plaintiff was armed and there was
reason to suspect he had engaged in criminal activity, the Defendant officers
reasonably could have wished to avoid publicly questioning Plaintiff in a busy
government office while surrounded by 50 or more people, including women and
children. Indeed, the officers’ anticipation of, and desire to prevent, a public and
potentially dangerous confrontation before a crowd of innocent bystanders was
seemingly vindicated when Plaintiff rebuffed the officers’ initial, and admittedly
“polite[],” (see Plaintiff’s Response Br. at 9), request that he voluntarily
accompany them out of the office. Accordingly, the Defendant officers were
entitled to use some degree of force to ensure that they could conduct their
investigation in a more safe location outside the Secretary of State office, and the
record indicates that the officers used no more force than was reasonably
necessary to achieve this purpose. In addition, given Plaintiff’s concession that he
tensed his arms and struggled with the Defendant officers as they led him out of
the office, (see Plaintiff’s Dep. at 67), and given the inherent risk of danger, to
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both the officers and the public, posed by a Terry stop of an armed individual, the
officers acted reasonably in seizing Plaintiff’s pistol as they struggled to remove
him to a location where they could more safely investigate his activities.26
(b)
Plaintiff’s Claim of Unlawful Arrest Without Probable Cause
Having resolved Plaintiff’s claim of unlawful detention in violation of the
Fourth Amendment, the Court turns to the question whether the Defendant officers
had a lawful basis for arresting Plaintiff after they had removed him from the
Secretary of State office and concluded their investigation of his activities. Under
core Fourth Amendment principles, the government’s seizure of a person must be
“reasonable,” U.S. Const. amend. IV, and a seizure that rises to the level of an
arrest must be supported by probable cause. See Kaupp v. Texas, 538 U.S. 626,
630, 123 S. Ct. 1843, 1846 (2003); Michigan v. DeFillippo, 443 U.S. 31, 36-37,
99 S. Ct. 2627, 2631-32 (1979). The Supreme Court “repeatedly has explained
that ‘probable cause’ to justify an arrest means facts and circumstances within the
26
At a minimum, the Court finds that qualified immunity shields the Defendant
officers from liability for the force they used during their Terry stop of Plaintiff. Apart
from the above-cited case law, in which courts in this circuit and elsewhere approved the
use of analogous types and degrees of force under circumstances similar to those
presented here, it is noteworthy that Plaintiff has cited no case whatsoever that could have
alerted the Defendant officers to the unlawfulness of their actions. As it is Plaintiff’s
burden to show that the Defendant officers are not entitled to qualified immunity, see
Sheets, 287 F.3d at 586, the Court readily concludes that Plaintiff has not met this burden.
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officer’s knowledge that are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.” DeFillippo, 443
U.S. at 37, 99 S. Ct. at 2632. Moreover, “[w]hether an officer is authorized to
make an arrest ordinarily depends, in the first instance, on state law.” 443 U.S. at
36, 99 S. Ct. at 2631.
In this case, the Defendant officers’ investigation dispelled their suspicion
that Plaintiff might have unlawfully possessed a firearm, since Plaintiff eventually
produced his license to carry a concealed weapon and there is no evidence, in any
event, that a gun was found in his backpack. Nonetheless, the Defendant officers
arrested Plaintiff for resisting an officer in violation of a City of Jackson
ordinance.27 The question, then, is whether the facts and circumstances within the
27
The pertinent Jackson ordinance provided at the time that “[n]o person shall
willfully and knowingly hinder, oppose, obstruct or resist any law enforcement officer or
official or employee of the city in performing his duties as such.” City of Jackson
Ordinances § 18-31, available at
https://www.municode.com/library/mi/jackson/codes/code_of_ordinances?nodeId=PTIIC
OOR_CH18OF_ARTIIOFAFGOFU&codeArchiveDate=2014-12-23.
Similarly, Defendants point to a Michigan statute that prohibits an individual from,
among other things, “obstruct[ing] . . . a person who the individual knows or has reason to
know is performing his or her duties.” Mich. Comp. Laws § 750.81d(1). This same
statute confirms that a “person” includes “[a] police officer of this state or a political
subdivision of this state,” and it defines “obstruct[ion]” as “the use or threatened use of
physical interference or force or a knowing failure to comply with a lawful command.”
Mich. Comp. Law §§ 750.81d(7)(a), 750.81d(7)(b)(i).
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knowledge of the Defendant officers established probable cause to believe that
Plaintiff had violated this ordinance.
The Court finds that Plaintiff’s arrest was supported by probable cause.
When the Defendant officers first approached Plaintiff to investigate reports that
an individual at the Secretary of State office had a gun in a backpack and was
behaving suspiciously, they asked Plaintiff to step outside the office so that the
officers could continue their inquiry into this armed individual’s activities away
from the 50-plus other people in the office at the time. (See Defendants’ Motion,
Ex. 3, Police Report at 4.) Plaintiff, however, refused this request, and instead
offered that he was willing to speak with the officers inside the Secretary of State
office. (Plaintiff’s Dep. at 60.) The officers repeated their request that Plaintiff
accompany them out of the office, but Plaintiff refused each such request,
acknowledging that he generally was non-compliant with the officers’ appeals and
that it was “possible” that he raised his voice during this interaction. (Id. at 61-63,
75.) In response, Sergeant Gross and Officer Mills each grabbed one of Plaintiff’s
arms and they forcibly removed him from the Secretary of State office, with
Plaintiff testifying that he tensed up his arms and struggled with the officers as
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they led him from the building. (Id. at 67.)28 This lack of cooperation continued
outside the office, with Plaintiff (i) “ignor[ing]” repeated requests for
identification and instead “demand[ing] to know why I was assaulted, why I was
attacked,” (ii) “remind[ing] [Sergeant] Gross that there was no need for me to
identify myself or to disclose that I was carrying a pistol because I was not
carrying it concealed,” and (iii) advising the Defendant officers that if a caller to
the police had reported that he had a gun in his backpack, this individual was
“guilty of a felony” for providing “false information.” (Plaintiff’s Dep. at 69-71.)
Under comparable circumstances, the Sixth Circuit and courts in this
District have found that there was probable cause, under either Michigan law or a
municipal ordinance, to arrest an individual who obstructed a police officer’s
investigation of the circumstances giving rise to a Terry stop. In King v. Ambs,
519 F.3d 607, 611 (6th Cir. 2007), for example, the plaintiff “was arrested after
repeatedly interrupting an officer who was questioning a third party.” Because the
plaintiff’s “speech interrupted [the defendant officer] in a way that made it
difficult, if not impossible, to conduct actual questioning,” the court held that there
was probable cause to arrest the plaintiff for violating a “disorderly conduct”
28
The officers, for their part, stated in their reports that as they escorted Plaintiff
from the office, he tensed up, pulled away, and protested in a loud voice that the officers
had no right to do what they were doing. (See Police Report at 3, 5, 8.)
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ordinance that is materially indistinguishable from the Jackson ordinance cited by
Defendants here. King, 519 F.3d at 610, 612. Similarly, in Devoe v. Rebant, No.
05-71863, 2006 WL 334297, at *1-2, *4 (E.D. Mich. Feb. 13, 2006), the court
found that there was probable cause to arrest the plaintiff for hindering and
obstructing a police officer in violation of Michigan law and a local ordinance,
where the plaintiff refused to comply with several requests for identification and
then resisted the defendant officers’ attempts to place him in the rear seat of a
police car.
Indeed, the case law lends support to the proposition that a refusal to
comply with a police officer’s request for identification, without more, may
provide probable cause to arrest the non-compliant individual for resisting and
obstructing a police officer in the performance of his duties. In Risbridger v.
Connelly, 275 F.3d 565, 567-68 (6th Cir. 2002), for instance, witnesses identified
the plaintiff as having been involved in a fight in an alley, and the defendant
police officer arrested the plaintiff and charged him with violating a municipal
disorderly conduct ordinance after he refused repeated requests to produce his
identification.29 The Sixth Circuit held that the defendant officer was entitled to
29
Again, the East Lansing ordinance at issue in Risbridger, 275 F.3d at 568, does
not differ in any material respect from the Jackson ordinance under which Plaintiff was
arrested.
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qualified immunity, observing that when this officer “approached plaintiff based
on at least reasonable suspicion that an assault had occurred and that plaintiff was
involved, he had probable cause to believe plaintiff was hindering or obstructing
an officer in the discharge of his duties by refusing to identify himself.”
Risbridger, 275 F.3d at 569 (footnote omitted).30
30
The issue of probable cause was largely undisputed in Risbridger. Instead, the
principal question before the court was whether the plaintiff’s Fourth Amendment rights
were violated when he was “subject[ed] . . . to criminal sanctions for refusing to provide
identification during a valid Terry stop.” 275 F.3d at 570. The court declined to decide
this issue, and instead found, in light of “the Supreme Court’s express reservation of
th[is] question” at the time, “as well as the lack of clear precedent from our circuit,” that
the defendant officer was entitled to qualified immunity with respect to this claimed
Fourth Amendment violation. 275 F.3d at 572.
Shortly after Risbridger was decided, this same Fourth Amendment issue was
raised before this Court in Marrs v. Tuckey, 362 F. Supp.2d 927, 935-38 (E.D. Mich.
2005). In the meantime, however, the Supreme Court had ruled in Hiibel v. Sixth Judicial
District Court, 542 U.S. 177, 188, 124 S. Ct. 2451, 2459 (2004), that “[a] state law
requiring a suspect to disclose his name in the course of a valid Terry stop is consistent
with Fourth Amendment prohibitions against unreasonable searches and seizures.” In
light of Hiibel, this Court concluded that the plaintiff in Marrs could not “claim any
Fourth Amendment protection against the Defendant state troopers’ requests that she
identify herself during the course of their initial, limited investigative detention of her.”
Marrs, 362 F. Supp.2d at 937 (footnote omitted). Nonetheless, the Court denied the
defendant state troopers’ request for qualified immunity as to the plaintiff’s claim that the
troopers lacked probable cause to arrest her for refusing repeated requests for
identification, where the Michigan “resisting and obstructing” statute cited in support of
this arrest, Mich. Comp. Laws § 750.479, had been construed at the time as requiring
actual or threatened physical interference with a police officer’s performance of his
duties, and where the facts of that case indicated that the plaintiff had only passively
resisted the defendant troopers’ requests that she identify herself. See Marrs, 362 F.
Supp.2d at 938-42. As observed in Devoe, 2006 WL 334297, at *4 & n.6, this aspect of
Marrs has been superseded by an amendment to the Michigan “resisting and obstructing”
statute, which now expressly provides that the statutory term “obstruct” encompasses
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More recently, in Combs v. City of Birmingham, No. 12-14528, 2013 WL
4670699, at *1, *9 (E.D. Mich. Aug. 30, 2013), a court in this District held that an
arrest for resisting a police officer was supported by probable cause, where the
youthful-looking plaintiff was openly carrying a loaded assault rifle as he
“stroll[ed] the streets of downtown Birmingham,” Michigan, but he “repeatedly
refused the [defendant] police officers’ request for identification to verify he was
at least 18,” and thus old enough to possess a firearm without adult supervision.
In so ruling, the court viewed the Supreme Court’s decision in Hiibel as
“reaffirm[ing]” the principle recognized in Terry that “demanding and obtaining
certain identifying information from a suspect may be a critical and legitimate
component [of] a Terry stop.” Combs, 2013 WL 4670699, at *9. Because the
defendant police officers’ requests for identification “were reasonably related to
the circumstances justifying [the] legal Terry stop” of the plaintiff, the court found
that the plaintiff’s refusal to comply with these requests gave rise to probable
cause to arrest him for resisting and obstructing a police officer. 2013 WL
4670699, at *9.
These cases confirm that Plaintiff’s conduct here rose to the level of
both “the use or threatened use of physical interference or force” and “a knowing failure
to comply with a lawful command,” Mich. Comp. Laws § 750.479(8)(a).
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resisting or obstructing the Defendant officers as they sought to investigate a
report that someone in the Secretary of State office had a gun in a backpack and
was acting suspiciously. As discussed earlier, the facts known to the Defendant
officers upon their arrival at the Secretary of State office gave rise to reasonable
suspicion that Plaintiff was engaged in criminal activity. In addition, the Court
has already determined that the officers acted within the scope of a reasonable
investigation into these suspicions of criminal conduct when they approached
Plaintiff, asked him to accompany them out of the office, and then forcibly
removed him from the office after he refused to leave the premises voluntarily. In
this initial encounter with the Defendant officers, Plaintiff refused the officers’
requests that he accompany them out of the Secretary of State office, and he
concedes that he put up at least some resistance as the officers escorted him out of
the building. This obstructive conduct then continued upon Plaintiff’s removal
from the office, as he refused requests for his identification, insisted that he had no
obligation to either identify himself or produce a license to carry a concealed
weapon, and demanded to know why the officers had “assaulted” and “attacked”
him. These activities plainly impeded the Defendant officers as they exercised
their authority under Terry to investigate their reasonable suspicions of criminal
activity, and it follows that Plaintiff’s actions provided probable cause to arrest
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him for violating the City of Jackson’s “resisting and obstructing” ordinance.
Plaintiff’s sole effort to avoid this conclusion is not persuasive. In his view,
the Defendant officers “had only engaged Plaintiff in a consensual encounter” at
the time they approached him and asked him to step outside the Secretary of State
office, and he thus acted within his rights by “stat[ing] that he would prefer to
[remain] where he was.” (Plaintiff’s Response Br. at 10.) As discussed earlier,
however, Plaintiff’s perception that he and the officers were engaged in a
“consensual encounter” does not operate to limit the authority of the Defendant
officers to take the measures appropriate to a Terry stop, so long as the officers
had the requisite reasonable suspicion of criminal activity that would warrant these
measures. The mere fact that the Defendant officers might have preferred to
obtain Plaintiff’s voluntary compliance with their investigative efforts did not
preclude them from securing this compliance through more coercive means that, as
explained earlier, nonetheless remained consistent with a lawful Terry stop.
Alternatively, even if the Court were to conclude that the Defendant officers
lacked probable cause to arrest Plaintiff, Plaintiff’s Fourth Amendment claim
arising from this arrest would nonetheless be defeated by qualified immunity. As
discussed, the facts of this case are similar to those presented in a number of prior
decisions, including two published Sixth Circuit precedents, holding that there
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was probable cause to arrest the plaintiffs in those cases for resisting and
obstructing a police officer in violation of a Michigan statute or local ordinance.
Against this backdrop of case law that tends to confirm the lawfulness of the
actions taken by the Defendant police officers in this case, Plaintiff has utterly
failed to identify any decision whatsoever, whether in this circuit or elsewhere,
that might serve as notice to the Defendant officers that their arrest of Plaintiff
would violate his rights under the Fourth Amendment. It readily follows once
again, then, that Plaintiff has not met his burden to show that the Defendant
officers are not entitled to qualified immunity.
C.
Defendants Are Entitled to an Award of Summary Judgment in Their
Favor on Plaintiff’s State-Law Claims of Assault and Battery, False
Imprisonment, and Replevin.
In counts IV, V, and VII of his complaint, Plaintiff has asserted state-law
claims of assault and battery, false imprisonment, and replevin. The Court need
not address these claims at any length, because Plaintiff’s perfunctory discussion
of these claims in his response to Defendants’ pending motion fails to provide any
basis for denying Defendants’ request for summary judgment in their favor as to
each of these claims.
Turning first to Plaintiff’s claim of assault and battery, the Defendant
officers’ challenge to this claim rests in part on an appeal to the immunity
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conferred upon governmental employees under Michigan law. In particular, under
Michigan’s Governmental Tort Liability Act (“GTLA”) as construed by the
Michigan Supreme Court, the individual Defendant police officers are immune
from liability for the state-law intentional tort claims asserted in Plaintiff’s
complaint if — among other elements that are not at issue here — their actions
“were undertaken in good faith, or were not undertaken with malice.” Odom v.
Wayne County, 482 Mich. 459, 480, 760 N.W.2d 217, 228 (2008).31 In contrast to
the objective standard of reasonableness that governs a qualified immunity inquiry
under § 1983, the good faith standard under Michigan’s governmental immunity
law is “subjective, not objective.” Romo v. Largen, 723 F.3d 670, 677 (6th Cir.
2013); see also Cohn v. DeWeese, No. 09-12187, 2010 WL 3906227, at *21 (E.D.
Mich. Sept. 30, 2010). Nonetheless, both the Sixth Circuit and this Court have
recognized that “[t]he question of an officer’s good faith under Michigan law
overlaps considerably, if not entirely, with [the federal qualified immunity]
31
A different provision of Michigan’s GTLA immunizes the Defendant City of
Jackson from tort liability so long as it was “engaged in the exercise or discharge of a
governmental function.” Mich. Comp. Laws § 691.1407(1). In their present motion,
Defendants argue that the individual Defendant police officers were engaged in a
governmental function as they investigated a report of criminal activity, and Plaintiff does
not contend otherwise (or even address this question) in his response to Defendants’
motion. Accordingly, Plaintiff’s state-law tort claims against the Defendant City are
barred by governmental immunity.
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analysis of whether the officer’s actions were objectively reasonable under the
circumstances.” Malory v. Whiting, No. 11-1468, 489 F. App’x 78, 86 (6th Cir.
July 13, 2012); see also Cohn, 2010 WL 3906227 at *21-22.
Against this backdrop, the Court’s earlier analysis of Plaintiff’s Fourth
Amendment claims applies with equal force to Plaintiff’s state-law claim of
assault and battery. As previously explained, the force used by the Defendant
officers to remove Plaintiff from the Secretary of State office was within the
reasonable scope of the coercive measures that are permissible under federal law
when carrying out a Terry stop and investigating reasonable suspicions of criminal
activity. In addition, the Court has determined that Plaintiff’s arrest was supported
by probable cause, and Plaintiff does not point to evidence of actions taken by the
Defendant officers in the course of this arrest that could possibly be characterized
as undertaken with malice.
Indeed, in his response to Defendants’ motion, Plaintiff evidently
acknowledges that his state-law claim of assault and battery rises or falls with his
federal Fourth Amendment claims. Specifically, Plaintiff states that he is content
to “rely on his argument . . . on his Fourth Amendment claim” to demonstrate “the
unreasonableness of [the] Defendant Officers’ use of force.” (Plaintiff’s Response
Br. at 16-17.) Even assuming that this “argument” is not so perfunctory as to
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reflect the abandonment of Plaintiff’s state-law claim of assault and battery, see
Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005), the Court has
already upheld, as a matter of Fourth Amendment law, the reasonableness of the
Defendant officers’ use of force in securing Plaintiff’s compliance with their
directive that he step outside the Secretary of State office so that the officers could
more safely and effectively pursue their investigation into Plaintiff’s suspected
criminal activity. It follows under this same reasoning that Plaintiff has failed to
produce evidence of actions undertaken with malice by any of the Defendant
officers as they investigated Plaintiff’s activities and placed him under arrest.
Next, Defendants correctly observe that “[i]n order to prevail on a claim of
false arrest or false imprisonment” under Michigan law, Plaintiff “must show that
[his] arrest was not legal, i.e., that it was made without probable cause.” Tope v.
Howe, 179 Mich. App. 91, 445 N.W.2d 452, 459 (1989). In light of the Court’s
conclusion that the Defendant officers had probable cause to arrest Plaintiff for
resisting and obstructing a police officer in violation of a City of Jackson
ordinance, Plaintiff cannot sustain his state-law claim of false imprisonment
arising from this arrest.
Turning, finally, to Plaintiff’s state-law claim of replevin, Defendants
observe without dispute that the individual Defendant police officers are not in
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possession of Plaintiff’s firearm, and thus cannot be held liable under a state-law
theory through which Plaintiff seeks the return of this firearm. As for the
Defendant City, to the extent that it is not immune from liability for its
engagement in the governmental function of law enforcement when it allegedly
came into possession of Plaintiff’s gun, Defendants point to Plaintiff’s admission
at his deposition that he has never requested that this weapon be returned to him.
(See Plaintiff’s Dep. at 92.) The Michigan Supreme Court has held that a “demand
for . . . surrender” of the property at issue “is a prerequisite to an action in
replevin.” Myers v. Sawvel, 219 Mich. 252, 189 N.W. 88, 89 (1922).
IV. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’
December 1, 2014 motion for summary judgment (docket #12) is GRANTED.
s/Gerald E. Rosen
United States District Judge
Dated: March 21, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 21, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, (313) 234-5135
60
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