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Deffert v. Moe

United States District Court, W.D. Michigan, Southern Division

June 1, 2015

WILLIAM MOE, et al., Defendants.


JANET T. NEFF United States District Judge

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”) (JSF[1] ¶ 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:

THE CALLER: Hi, I just got out of church and I was driving down Michigan Street, and I don’t know if it’s illegal, but it looks like, maybe he’s not, but looks like the guy has got, a, a gun strapped to his right leg on the outside of his pants.
THE DISPATCHER: Okay, he’s got it in a holster?
THE DISPATCHER: Okay, it’s not illegal to open carry.
THE CALLER: Oh, god, kind of alarming.
THE DISPATCHER: Well, you’ll probably be seeing more and more of it since all the school shootings and stuff people are exercising their open carry laws.
THE CALLER: All right. It’s just kind of scary, because he’s wearing camouflage and, and do you have to have a license or?
THE CALLER: Just asking.
THE DISPATCHER: To have a handgun you have to have a, a weapons permit, yeah.
THE CALLER: Right. Because it is, it has to be a handgun, because it’s-
THE CALLER: But you can even carry a rifle down the street?
THE DISPATCHER: Well, brandishing a rifle and open carrying a handgun in a holster is two different things.
THE CALLER: It just seemed alarming to me.
THE DISPATCHER: Okay. Where was this on Michigan Street?
THE CALLER: 1700 block of Michigan.
THE DISPATCHER: Uh-huh, and the person was in all camouflage?
THE CALLER: The shirt, it looked like a Columbia jacket, but it’s green.
THE CALLER: But the pants were camouflage and the holster is clearly on the outside of his pants on his right leg.
THE DISPATCHER: Okay. Which way was he walking?
THE CALLER: He was walking, up, towards higher numbers.
THE DISPATCHER: Okay, but he wasn’t threatening anybody?
THE CALLER: No, he was by himself.

(JSF ¶ 10).

The emergency operations communicator dispatched the following call to officers: “1721 and 1723 check the 1700 block of Michigan Northeast for a suspicious person. Caller saw an unknown male wearing a jacket and camouflage pants, appears to have a, a handgun in a leg holster. He was last seen walking eastbound on Michigan” (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: “looks like he’s talking to nobody. He’s got ...

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