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McMorris v. Fries

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

June 25, 2015



PATRICK J. DUGGAN, District Judge.


This is a civil rights case brought pursuant to 42 U.S.C. § 1983. Plaintiff John David McMorris alleges that he was arrested for carrying a concealed weapon without probable cause by Defendant Sergeant Russell Fries of the Flint Township Police Department in violation of his rights under the Fourth Amendment to the United States Constitution. As a result of the arrest, Plaintiff spent approximately two days in jail. Plaintiff also brings pendent state law claims under the Michigan Constitution and for false arrest and intentional infliction of emotional distress.

The matter is now before the Court on Sgt. Fries' motion for summary judgment. Plaintiff filed a response but Sgt. Fries did not file a reply.[1] Upon review of the record and briefs, the Court concludes that oral argument would not aid the decisional process. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the Court will deny Sgt. Fries' motion. However, the Court will summarily dismiss Plaintiff's claim under the Michigan Constitution and his claim for intentional infliction of emotional because he has abandoned those claims.


The incident leading to this lawsuit took place in the late hours of Christmas Eve and the early hours of Christmas Day 2013. That night, Sgt. Fries was on duty in a marked police cruiser and responding to a request to check the welfare of the occupants of a trailer home. Fries Dep. at 17 (ECF No. 13-2). En route to the trailer home, Sgt. Fries first observed Plaintiff, who was walking by himself in "quite cold" temperatures near the snow-covered gravel shoulder of a road adjacent to Flint's Bishop International Airport. Id. at 19-20. As he drove past Plaintiff, Sgt. Fries activated his high beam lights and "look[ed] at Plaintiff [from] head to toe." Id. at 42. Sgt. Fries testified in his deposition that he "did not see any weapon on [Plaintiff]" and that "[i]n [his] opinion [Plaintiff] wasn't armed at that time." Id. at 21. Although Sgt. Fries "thought it was suspicious that there's a guy walking out in the cold near the airport, " he did not stop Plaintiff because "[the] welfare check took precedence." Id. at 20.

After completing the welfare check, Sgt. Fries returned to the area in which he earlier observed Plaintiff, intending to "give him a ride home." Id. at 21. The record contains audio and video footage of the events that occurred next, captured by the camera in Sgt. Fries' cruiser.[2] As Sgt. Fries approached Plaintiff in his cruiser, Plaintiff immediately raised his arms in the air and then turned his body so that his right profile was facing in Sgt. Fries' direction. As Plaintiff raised his arms higher, the bottom of his jacket inched upward, exposing his waistline and revealing a gun and holster attached to the right side of Plaintiff's waist. On the one hand, Sgt. Fries testified that he could not discern that Plaintiff was armed until Plaintiff raised his arms in the air, causing his jacket to lift in a manner that exposed his waistline. Fries Dep. at 23-24. On the other hand, Plaintiff testified that his gun was fully visible that night and not covered by his jacket: "My coat didn't cover my weapon." Pl. Dep. at 90-92. The video footage does not resolve this factual dispute. Due to the distance, camera angle, and glare, it is not clear from the footage whether, or to what extent, the gun was visible before Plaintiff lifted his arms. In addition, the record does not contain video footage of Sgt. Fries' drive to the welfare check earlier in the evening during which Sgt. Fries first observed Plaintiff.

Sgt. Fries exited his cruiser and approached Plaintiff on foot. Sgt. Fries asked Plaintiff if he had a concealed pistol license. Plaintiff responded that he did not, but stated that he was legally carrying the gun pursuant to Michigan's open carry law. Sgt. Fries then told Plaintiff that his gun was not visible earlier in the evening because his jacket was covering it. Although Plaintiff at first apologized and told Sgt. Fries that he "did not know his coat was covering [his gun], " Plaintiff was adamant later, while seated in Sgt. Fries' cruiser, that his gun remained visible over his jacket the entire evening. However, Sgt. Fries insisted that he could not see Plaintiff's gun until Plaintiff raised his arms in the air, exposing his waistline, and placed Plaintiff under arrest for carrying a concealed weapon in violation of Mich. Comp. Laws § 750.227, which makes it unlawful to carry a concealed pistol without a license.

Plaintiff remained in jail until the afternoon of December 26, 2013; no charges were brought against Plaintiff at that time. However, charges were brought against Plaintiff for violating § 750.227 on July 28, 2014 - about seven months after the incident and five and a half months after Plaintiff commenced this lawsuit. See People v. McMorris, No. 14-036112 (Genesee Cnty. Cir. Ct.). The criminal case against Plaintiff proceeded to trial. After the prosecution rested its case-in-chief, Plaintiff moved for a directed verdict of acquittal pursuant to Michigan Court Rule 6.419(A), which requires a court to direct a verdict for the accused where "the evidence is insufficient to sustain a conviction." The court granted the motion because the evidence adduced at trial did not demonstrate that Plaintiff's gun was concealed when he was stopped by Sgt. Fries and the prosecution failed to offer any evidence demonstrating that Plaintiff was carrying a gun earlier in the evening. Because there was no evidence that Plaintiff possessed a gun when Sgt. Fries observed Plaintiff en route to the welfare check, and no evidence that the gun Plaintiff possessed later was concealed, the state court directed a verdict in favor of Plaintiff and dismissed the criminal charges against him.[3]

Plaintiff filed this lawsuit in state court in February 2014, and the case was subsequently removed to this Court. In his original complaint, Plaintiff named only the Charter Township of Flint as a Defendant. On July 25, 2014, Plaintiff filed an amended complaint adding Sgt. Fries as a Defendant. Plaintiff sues Sgt. Fries in both his individual and official capacities. On August 6, 2014, the parties stipulated to the dismissal of the Charter Township of Flint without prejudice.

Sgt. Fries filed the present motion for summary judgment on August 15, 2014. Plaintiff filed a response on September 5, 2015, but Sgt. Fries did not file a reply. On September 19, 2014, at the request of the parties, the Court stayed these proceedings pending the outcome of the criminal case brought against Plaintiff. On June 8, 2015, the Court lifted the stay after the parties notified the Court that the criminal case had concluded. Shortly thereafter, the Court permitted the parties to file supplemental briefs at their request. Plaintiff's supplemental brief was due by June 23, 2015, and Sgt. Fries' supplemental brief due within fourteen days of the date on which Plaintiff filed his brief. Inexplicably, Plaintiff has failed to file a supplemental brief, and the time to do so has now expired. The matter is now ready for decision.


Federal Rule of Civil Procedure 56 instructs courts to "grant summary judgment 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). A court assessing the appropriateness of summary judgment asks "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Amway Distribs. Benefits Ass'n v. Northfield Ins. ...

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