Deffert v. Moe
| Decision Date | 01 June 2015 |
| Docket Number | Case No. 1:13–cv–1351. |
| Parties | Johann DEFFERT, Plaintiff, v. William MOE, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Steven W. Dulan, The Law Offices of Steven W. Dulan, East Lansing, MI, for Plaintiff.
Elliot J. Gruszka, Kristen Lee Rewa, Margaret P. Bloemers, Grand Rapids, MI, for Defendants.
Now pending before the Court is Defendants' Motion for Summary Judgment (Dkt. 44). Plaintiff filed a response to Defendants' motion (Dkt. 45), and Defendants filed a reply (Dkt. 47). Plaintiff also recently filed a Notice of Supplemental Authority (Dkt. 51). Having conducted a Pre–Motion Conference in this matter and having fully considered the parties' written submissions, stipulated statements of fact and accompanying exhibits, the Court finds that the relevant facts and arguments are adequately presented in these materials and that oral argument would not aid the decisional process. See W.D. Mich. LCivR 7.2(d). For the reasons that follow, the Court concludes that Defendants' motion is properly granted.
Plaintiff is a resident of the City of Grand Rapids, Michigan ("the City") (JSF1 ¶ 1). Defendants William Moe and Timothy Johnston are police officers employed by the Grand Rapids Police Department (GRPD) (id. ¶¶ 3–4). This case arises from an incident on Sunday, March 3, 2013 when, at about 12:00 p.m., Plaintiff was walking down the public sidewalk along Michigan Avenue between Mayfield and Lakeside Drive in Grand Rapids, Michigan, openly carrying an FNP–45 Tactical pistol (id. ¶ 6). Plaintiff's pistol was secured in a leg holster (id. ¶ 7). At the time, Plaintiff had a TLR–2 rail mounted tactical light with a laser sight attached to the pistol (id. ¶ 8).
It is undisputed that Plaintiff was legally entitled to openly carry his pistol (JSF ¶ 9). Specifically, the parties agree that openly carrying a pistol is lawful in Michigan, so long as the person is carrying the firearm with lawful intent and the firearm is not concealed, according to Michigan State Police Legal Update Bulletin No. 86 (id. ¶ 35). It is also not in dispute that all Grand Rapids Police Department Officers received a copy of MSP Bulletin No. 86 from the GRPD Training Unit Commander (id. ¶ 36). Further, the Grand Rapids Police Department has trained GRPD officers on the subjects of firearms laws and "open carry" through emails and in-house training sessions (id. ¶ 37).
On the day in question, a person in Plaintiff's vicinity called 911 to report a man with a gun, as follows:
(JSF ¶ 10).
The emergency operations communicator dispatched the following call to officers: (JSF ¶ 11). Officer Moe, identified by his cruiser number 1721, responded to the call (id. ¶ 12). Moe located a male in the 2000 block of Michigan with a handgun on him, and reported to dispatch: (id. ¶ 13).
Plaintiff was not talking on a cellular telephone (JSF ¶ 14). Rather, he was singing "Hakuna Matata," a song from the movie "The Lion King" (id. ¶ 15). Officer Moe followed behind Plaintiff in his cruiser until Plaintiff turned to cross the street and saw Moe's cruiser (id. ¶ 16). Officer Moe stopped his cruiser in the middle of the street and approached Plaintiff on foot, with his service firearm drawn and pointed toward Plaintiff (id. ¶ 17). Officer Moe ordered Plaintiff to lie on the ground on his stomach (id. ¶ 18). Plaintiff complied (id. ). Plaintiff repeatedly offered his identification to Officer Moe (id. ¶ 19). While Plaintiff was on the ground, Officer Moe handcuffed him behind his back and removed Plaintiff's pistol from its holster (id. ¶ 20). The following conversation transpired:
(id. ¶ 21). Plaintiff further explained that he was walking home after eating breakfast at a nearby restaurant (id. ).
Shortly thereafter, Officer Johnston arrived on the scene and moved Officer Moe's vehicle, parking it just north of the driveway where Moe had detained Plaintiff (JSF ¶ 22). Officer Moe helped Plaintiff to his feet and had him sit sideways in the back of Moe's cruiser with his legs hanging outside the open door (id. ¶ 23). After Plaintiff was seated, Moe returned to the driver's seat of the cruiser to run Plaintiff's information through Michigan's Law Enforcement Information Network (LEIN) (id. ¶ 24). After Johnston moved his own vehicle in front of Officer Moe's, he walked over to where Plaintiff was seated (id. ¶ 25). Officer Moe (seated in the front seat), Plaintiff (still sitting sideways in the backseat) and Officer Johnston (standing facing Plaintiff) engaged in a spirited conversation on matters of public policy (id. ¶ 26). Officer Johnston did not have physical contact with Plaintiff during the stop (id. ¶ 33).
Plaintiff asked Officer Moe to call a supervisor to the scene (JSF ¶ 27). Sergeant Stephen LaBrecque arrived on scene and removed the handcuffs (id. ¶ 28). Officer Moe unloaded the pistol and returned it to Plaintiff, along with the ammunition and his identification (id. ¶ 29). Plaintiff was not arrested or charged with any crime (id. ¶ 30). The entire contact lasted approximately thirteen minutes (id. ¶ 31). Sgt. LaBrecque wrote a memorandum to Captain Pete McWatters, Officer Moe's commander, recommending that Officer Moe "would benefit from some additional training in handling ‘open carry’ issues" (id. ¶ 32).
Plaintiff initiated this case on December 20, 2013, amending his Complaint on February 24, 2014. Plaintiff alleges the following six claims against the City and Officers Moe and Johnston:2
(Dkt. 14). Defendants filed an Answer (Dkt. 16), and, pursuant to the Court's Case Management Order (Dkt. 12), the parties subsequently engaged in discovery and a case evaluation hearing in July 2014 (Dkt. 22). Following a Pre–Motion Conference in December 2014, the Court issued a briefing schedule on Defendants' proposed motion for summary judgment (Dkt. 37). The parties filed their motion papers in March 2015 (Dkts. 40–50).
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). The court must consider the evidence and all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir.2013) ; U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir.2013) (citation omitted).
The moving party has the initial burden of showing the absence of a genuine issue of material fact. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200 (6th Cir.2010). The burden then "shifts to the nonmoving party, who must present some ‘specific facts showing that there is a genuine issue for trial.’ " Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "There is no genuine issue for trial where the record ‘taken as a whole could not lead a rational trier of fact to find for the non-moving party.’ " Burgess, 735 F.3d at 471 (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 ). "The...
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