In March of 2014, Michigander Johann Deffert was exercising his Second Amendment rights. He was peacefully openly carrying a holstered handgun in Grand Rapids. As Deffert passed a church, someone called 911. When the police arrived on the scene, Deffert had already walked well past the church. The officer drew his pistol and pointed it at Deffert . . .

The most threatening activity appears to be something the 911 caller never mentioned, which the officer characterised as “talking to nobody” (an ostensibly innocuous activity in these days of bluetooth and cell phones). The officer pointed his pistol at Deffert from across the street and ordered him to the frozen ground. The officer disarmed Deffert and handcuffed him.

Dashcam video captured most of the action. Deffert sued the Grand Rapids police, claiming his First, Fourth, and Second Amendment rights had been violated. A Michigan District Court found that the police had “reasonable suspicion” to detain Deffert. From mlive.com

“The court determines that under the totality of the circumstances, Officer Moe had reasonable suspicion to stop and only briefly detain Plaintiff,” U.S. District Judge Janet Neff wrote in a 27-page decision granting the city’s request for summary judgment.

The Detroit Free Press mischaracterises the issue this way [via freep.com]:

When a man armed with a loaded assault pistol strapped to his leg, dressed in camouflage, and singing to himself, began walking in front of a Grand Rapids church one snowy Sunday morning in March 2014, an alarmed churchgoer called 911. When police arrived, they took the man’s gun, and briefly handcuffed him while they questioned him. The man, Johann Deffert, an “open carry” gun advocate, then sued police saying they had violated his constitutional rights.

Look at the picture of Johann Deffert on the concrete above. See if you think the Freep gave an unbiased description of what happened. Deffert’s camouflage pants are hardly alarming in Grand Rapids, where hunting is a common activity.

The district court seems to have been unaware of (or uninterested in) Northrup v. City of Toledo Police Dep’t. [Click here for a description.]  Northrup holds that police may not stop and handcuff someone for the simple act of openly carrying a gun, where open carry is legal. Here is a quote from the case:

Clearly established law required Bright to point to evidence that Northrup may have been “armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968) (emphasis added). Yet all he ever saw was that Northrup was armed—and legally so.

To allow stops in this setting “would effectively eliminate Fourth Amendment protections for lawfully armed persons.” United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993); accord United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013); United States v. Roch, 5 F.3d 894, 899 (5th Cir. 1993).

The District court in Michigan, which falls under the Sixth Circuit, is claiming that the “totality of the circumstances” overrides the ruling that legally open carrying a firearm does not meet the requirements for “reasonable suspicion” that a crime is occurring, and therefore does not meet the requirements of a so-called Terry Stop.

I suspect Deffert will appeal to the Sixth Circuit. Perhaps the decision will turn on the notion of whether something never noticed by the officer is enough for reasonable suspicion of a crime. I wonder if the court will view the video, or if that is off limits in the appeal process.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.

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78 COMMENTS

  1. So keeping to yourself and singing while you walk is now considered “suspicious behavior”? Whats next, merely talking about guns in gun free zones is assault with a deadly weapon? What a joke. That officer should be ashamed of himself.

  2. How a holstered handgun (aka “loaded assault pistol strapped to his leg”) in an open carry state meets any court’s idea of probable cause is simply ridiculous.

    • Probable cause exists in the reasonable judgement by police that a person is or may be in the commission of a crime. Since there is no universally accepted marker that a person with an open firearm is not a criminal, the reasonable response is the the open carrier just might be a bad guy (because you don’t see too many good guys with openly displayed firearms). When faced with a person wielding/displaying/showing a firearm, the police position (and it is like ours) is that things can go bad quickly. Better to eliminate a potential threat early than respond to it.

      Is a full take-down reasonable when approaching a person with a weapon? Some places the cops engage the person in conversation, and maybe run W&W (if asked we gotta produce identification), advise the gun carrier to think about not being so alarming, and go on their way. Open carry may be legal wherever, but because so few practice that, it is reasonable to be suspicious of the carrier’s intentions.

      • Our (Democrat) attorney general stated otherwise. Since OC is legal without a license in Michigan, the AG and state police training guides that go out to all law enforcement in MI state that absent suspicion of a crime LEOs cannot stop someone for merely OCing.

        • Except the court say otherwise. The state AG is just another prosecutor. Just another lawyer. The courts decide what, when, where and how to apply the law. In this case, the judge used the “reasonable” element in deciding. BTW, SCOTUS has ruled in the past that failure of police to know or properly apply the law is no barrier to police action.

          • Yep, and the court made her decision out of whole cloth using facts not present in the police report or the police officer’s statement. It’s being appealed. The last time we did this the appellate court criticized the lower court for abusing its authority and the judge was roundly and openly criticized in the appellate court ruling.

            • grinding us down through interminable court cases is a winning strategy. who cares if the judge is overturned. the next appeal will be to a 3 judge panel, where the case might be overturned, then the full court where the judgement is affirmed, then SCOTUS? maybe.

              the left creates a money pit, all the while interfering with constitutional rights (civil rights, BTW, are not based on direct reading of the constitution in most cases, but through tortured logic of ‘what might the law be if we just imagine it says what we need at the moment?’)

              the left has all the money in the world (federal reserve printing presses), while citizens are limited.

              • This is why it is important that you support these court cases and challenges. And by support I don’t just mean saying, “I’m with you. Go get ’em!” I mean financially support the lawsuits.

                Also, the more cases that go to the appellate level or above create case law that can then be used in lower courts.

                This stuff is important.

              • It is getting difficult to pick and choose. The grabbers attack all along the line. I can’t be effective with nickel/dime contributions to every situation in need. But trying to focus resources on one or two means others in great need are short-changed. Case of analysis paralysis; another grabber tactic.

              • Focus on one or two in your home state, that’s all you can do. I’m not asking you to support every lawsuit you read about in the US. But each state has a couple (or more) where law enforcement has clearly crossed the line (or done blatantly illegal things where they should be in prison) and get away with it because people often don’t have the financial resources to go after them.

                And yes, you would think that if a copper is doing something wrong that would land him in prison that the state should be prosecuting him, but you’d be wrong.

                So my advice is to pick one close to your heart and donate $100 to their legal campaign or whatever you can. Some can afford more, some less.

    • I’ve been in the military, a police officer, a lifelong gun enthusiast (nearly 40 years), and a firearms instructor, and that is the first time in my life I heard “assault pistol” in any publication I have read. It is astounding how these people make this crap up.

    • You guys have never heard of assault pistols? You are obviously not Tactical Special Operators.

      It’s the pistols the Army Ranger Pistolero Battalions all storm into battle with, one in each hand, to assault and capture fortified enemy positions….while leaving their rifles back at base. Because rifles are heavy, and two pistols are way more assaulty than one rifle.

    • Obviously, with an “assault pistol”, this guy was so High Speed Low Drag that the officer was jealous and had to take him down.

      • OK, you guys have already written was what on my mind. I’m going to ask to see an “assault pistol” the next time I’m at the gun shop.

      • Doubt. If it were a G18, everyone in that town would be dead due to it shooting 9000 rounds a second from it lts high capacity bullet clipmagazine and M855 bullets.

  5. How a holstered handgun lawfully carried in an open-carry state (aka “a loaded assault pistol strapped to his leg”) adds up to reasonable suspicion probing someone out on the frozen ground at gunpoint and cuffing him (aka “briefly detaining”) is simply beyond me.

  6. Once again, this example shows the stupidity of “open carry.” Again, please note I did not say that open carry is unconstitutional — just dumb. ( I carry in Tennessee… concealed with a valid “carry” permit. )

    • Yes, it is always best not to exercise a fundamental right because, you know, it might offend someone.

  8. 1 – Appeal it. Where is the fund supporting people who can be test cases as this subject plays out – balancing the government’s essentially infinite coffers a bit?

    2 – Feed into the good / excessive policing discussion.

    3 – Feed into “what’s normal?” Wearing camo pants just ain’t normal, apparently. And this event is part of the (apparently justivied) “war on the unusual.(Not my term.)

    4 – What’s an acceptable “detention.” So relatively loose standards for a stop on suspicion collide with relatively broad empowerment on the basis of “officer safety.” One thinks that in general, to impose a cost, like discomfort, more than a slight suspicion is required.

    • Johann Deffert has posted the following to the Michigan Open Carry fb page. https://www.facebook.com/groups/MichiganOpenCarry/

      As many of you know I am appealing my case Deffert v. Moe. If you could help me with some support that would be very much appreciated. My case set a very dangerous precedent. We must uphold out right to open carry without bigotry from local police departments. Thank you for your support.

      Here’s the link to the Johann Deffert legal fund if any of you would like to contribute.

      http://www.gofundme.com/w3n4h8

  12. In Cleveland, Deffert would be dead. Ask Tamir Rice. Of course, you’ll need to hold a seance.

    • Big difference. His pistol never left the holster. The kid in Cleveland was pointing his toy pistol at passers by.

  13. Frankly, I think the officer should be disarmed and have him detained while strangers hold a gun to his head.

  14. I’m feeling a replay of my “discretion and judgment” riff.

    So, perhaps *permitted* under the law, but the law is an – er – idiot, as some wag observed centuries ago. BUT, people working on our behalf are expected to use their *discretion* and *judgment* in delivering what we would prefer.

    I think the game is call it what it is – summary punishment for something that, while not illegal, the caller thinks should be. Doxing in meat space, SWATting-lite, or harassment under cover of authority.

    Camo-carry-guy getting rousted is exactly what the dime-dropper wanted. Certainly only disappointed that he wasn’t shot, mauled, or at the least given a “rough ride.” Because “them people” shouldn’t be allowed to do that kind of stuff. If you can’t win at the ballot box, win at other means, right?

    The problem ain’t (primarily) the cops here. It’s Mrs. Grundy using the cops to inflict summary justice. The cops should, I think, be more circumspect about being used in this way. Victims of this kind of harassment should call it out for what it is, in plain language.

  15. I hope he keeps that lawsuit going with appeals until he wins and it is on the front page of every newspaper in America.

  16. a man armed with a loaded assault pistol strapped to his leg, Uh huh. Assault anything in the liberal media. Assault rifle, assault pistol, assault dog, assault car, assault house, assault scissors, assault pencil, assault cat, assault computer…..I give up.

  17. While most of Michigan is very gun friendly, Grand Rapids has a mayor who is vehemently anti-gun. If it wasn’t for state preemption of local gun laws in Michigan, Grand Rapids would definitely be as bad as places like Chicago and all the anti-gun states for gun owners. One of the man, many reasons I stay away from Grand Rapids (well, that and the high violent crime rate, I wonder if the two have anything to do with each other? sarc.)

  18. Sounds like Michigan needs some open carry activists with *GASP* Long guns. This guy was carrying a type of gun, in a specific location and manner not approved by the opinion of other pro gun rights activists. Whenever something is legal, not harming anyone, and lies within the private matter of a specific individual not infringing on other people’s rights – there is some pro-gun guy somewhere (usually reading about it here) who doesn’t like it. These open carrier’s are apparently “attention whore’s” and “police baiters.” If it was that dangerous – they don’t need to be there.

  19. Facts are not generally pertinent in an appeal. Appeals are almost strictly tied to the process and interpretation of the law in lower court decisions. The appellant must demonstrate the lower court was wrong in applying the law at issue. Getting to the facts of whether the police acted appropriately is another matter. What will most likely happen is a review of the police discernment of the situation (whether the officer reached a reasonable conclusion), and if, given that discernment, the lower court properly applied the law. I think it is actually rare that appellate courts act as “finders of fact” regarding the originating action. This is where the “presumption of good faith action” by the police becomes a bullet-proof defense for the police (re the numerous cases where law enforcement went to the wrong address and destroyed the location, seriously harmed the occupants, and said, “oooops, my bad”. courts are terrified of opening the door to nuisance and flimsy charges of misconduct by the police.

    • Others have told me that your assessment is correct. One of the main contentions here is that the judge inserted information that the officer did not know, and was not in the 911 call. For example, the officer said that he thought Deffert was “talking to nobody”, so the officer did not know that he was singing, and the 911 caller never mentioned it.

      The judge also repeatedly mentioned the make of the pistol as a “Tactical pistol with a light attached”, something the officer could not know until after he had proned Deffert out, because the pistol was in the holster.

      There is also the weird focus on “camouflage” because he was wearing camouflage pants. So what? he was wearing a light colored jacket with reflective stripes as well.

      If talking to nobody (common in this day of bluetooth) and wearing camouflage pants while exercising your second amendment rights meets the requirement to have a pistol pointed at you and be proned out at gunpoint and handcuffed… there are no standards.

      Camouflage as an element in the totality of the event? It is not as if it is gang colors, or has been tied to any significant number of crimes.

      In the officer’s favor, they let Deffert go after 13 minutes.

      • Perhaps an appellate court would overturn the conviction because the judge violated procedure in introducing evidence unknown to the LEO at the decision moment. The result would likely be a re-trial of fact, determining if the LEO decision was reasonable (still, something the appellate court cannot address). It would seem there are actually two courses open to the defendant: civil rights violation of reasonable search and seizure; violation of 2A in that the defendant was legally proceeding along a public thoroughfare and the arrest deprived him of his weapon without legal cause. Both avenues would be trial court venues.

        Never discount the fact that any appellant court (local, state, federal) will do just about anything to avoid dealing with a constitutional rights issue.

  20. Was he carrying an HK Mark 23? When it first came out it was advertised/hyped as an assault pistol. Even recent articles about the weapon call it an “offensive pistol”. Remember the ad with the tactical operator rising from the swamp with his suppressed Mk 23 at the ready?

  23. Outrageous! Re so called “assault” Pistol
    “In the U.S. state of Hawaii, an assault pistol is defined as a semi-automatic pistol that accepts a detachable magazine and two or more other characteristics such as a threaded barrel or a shroud.[2][3]”
    In the U.S. state of Maryland, assault pistols are 15 named semi-automatic pistol models, such as the Heckler & Koch SP89 and the Intratec TEC-9, and copies of those models.[4][5]”

  24. Every time I open a door on my truck, I look to the rear and front for hazards – even if I’m squeezed in between my vehicle and a brick wall, ’cause you just never know.

    More’n once, that’s been considered a “furtive movement.”

    Blah blah blah.

  26. Around here the number of armed church-goers is far larger than those who are not….. For one of them to call the law on someone openly carrying is highly unlikely. Stories like this make me happy I got out of major population centers; I’ll trade living in a dry county over living among the ‘phobes & nervous cops.

  27. What is it with the cop hard on to make people prostrate themselves in the mud/grass/pavement. You want to chat, man up go come talk. This, apparently taught, behavior of wannabe stormtrooper is just a societal embarrassment and general silliness.

  28. Was he taunting people at the church? Still, I get the point, the cops should have handled differently. If you are not breaking the law, well, you aren’t. This happens all the time in other circumstances where someone wants the cops to go after someone yet nothing against the law has yet occurred. If this guy has a good legal team I believe he will see victory.

    • While I was living in Colorado Springs, a ‘phobe who worked in a bike-shop in Old Town called the CSPD on me when he spotted my .38 S&W in the center console as I was getting out of my car. He told them I was “methodically loading a pistol, and talking about murder/suicide, and that I was a veteran with PTSD (I have veteran plates). Ten minutes later as I was enjoying a coffee, 6 CSPD officers showed up and arrested me for having a pistol in my car without a permit….. nevermind that one isn’t required. I rotted in jail for a month before the witness recanted, and they let me go. It took another year to get my firearms back.

  29. I’m betting that if his “assault pistol” had been concealed none of this would have happened. It looks like he was wearing enough winter gear to conceal a 5hp Briggs & Stratton. Too bad he wanted to be macho.

    • Mr. Deffert was carrying in the only way he legally could.
      At the time of this incident he was waiting on his CPL (Concealed Pistol License) application to be approved, a process that can take anywhere from 2 weeks to 6 months here in MI.

  31. A little background on the case.

    The woman who called 911 wasn’t panicked, she said said that she saw a man wearing a pistol on his side walking down the street. The 911 operator asked if the man was waving the gun around or anything, and the woman said, “no, he’s just walking with the gun in a holster.” The 911 operator informed the lady that open carry was legal. The woman said, okay, that she didn’t know it was legal. So far, so good. Then it went south. The 911 operator said, “we’ll send a car out anyway.” And then Officer Moe was dispatched on a “suspicious person” call.

    Officer Moe drove up (from behind) Deffert and noticed he was wearing a holstered pistol and it looked like he was talking. (Is that suspicious? Bluetooth, anyone? I sit on my front porch and see people walking down my subdivision all the time, some talking on phones/bluetooth devices). So he performed a felony stop on him and proned him out at gunpoint in the winter.

    Deffert was just walking home from having breakfast at a local restaurant. He just happened to walk past a church–on the opposite side of the street–to get home. The judge summarily dismissed the case using all sorts of facts that were not even in the officer’s report, such as seeing his tacticool pistol, “loitering” around a church (he wasn’t), and singing to himself (officer Moe didn’t know that). Officer Moe didn’t see Deffert doing anything suspicious or against the law, hence the civil rights case.

    In the AA report, Moe’s supervisor (I think) said that Officer Moe needed “further instruction” on how to behave on open carry calls. All of this is publicly available in the 911 audio, the police report, and the lawsuit, which we have.

    As others have stated here, the mayor of Grand Rapids hates guns, particularly open carry, and has publicly stated that he hopes people are “confused” on what is legal. Grand Rapids refuses to take their gun laws that violate preemption off the books, even though they supposedly aren’t enforcing them. That’s why Michigan Open Carry has written/supported a new law to hold public officials responsible for knowingly violating the law similar to what some other states have.

    • Good info. Thanks.

      This is the nub for me:

      “As others have stated here, the mayor of Grand Rapids hates guns, particularly open carry, and has publicly stated that he hopes people are “confused” on what is legal.”

      So, here’s the thing. Officials of this or that have become “confused” themselves, with all the noise about “leadership”, conflated with politics, conflated with government. In their governing and administrative roles they are our agents. Do what the laws say, to make our lives better (in our opinion), using the authority we have delegated to you. If you want to advance an agenda or whatever, *make the case*. Getting elected does not create the power to do what you want. Getting appointed even less so.

      They have it backwards. I think this is a permanent problem. The same mutation that has people wanting to be the public face of this or that *also* has them thinking they should be in charge, as in impose their opinion on others.

      “That’s why Michigan Open Carry has written/supported a new law to hold public officials responsible for knowingly violating the law similar to what some other states have.”

      Yeah. “No means no.” or something. Back in the day, AIR, this kind of “what I want by other means” was more prevalent locally. Now it’s pervasive at all levels off admin-meddling, and seems to migrate then embed at the biggest scope / most general / most universal. There’s gotta be a theorem or something about this.

      Immediately, “officer friendly” needs to get called out. Public records laws enforced, then the date crawled and published – look what Boss Hog is doing outside the laws. Right up the chain – detailed, fine-grained inventories of what the boneheads are doing with their discretion.

  32. Well there are multiple problems here.

    First, if it was legal, it was legal. “Totality of circumstances” has nothing to do with it.

    Now, sure, if they had stopped and briefly detained him, sure, ok, but they didn’t. Being put on the ground, handcuffed, and weapons taken away hardly sounds like being briefly detained to me. Sounds more like, as we call it in the military, getting “jacked up.”

    However, why is the author mentioning hunting? Who hunts with a pistol in a city or town in broad daylight? What is he hunting? Squirrels? I don’t think hunting has or had anything to do with it, so it’s not relevant.

    The only thing that’s relevant is that they took his guns for essentially nothing. Legal to open carry is legal, period.

    • Hunting is mentioned because he was wearing camouflage pants. Hunters often have camouflage clothing, so mentioning that hunting is common was to show that there was nothing problematic about wearing camouflage pants.

      The camouflage pants were part of the “totality of the circumstances” used by the judge to sumarily dismiss the case.

      To anyone who had not noticed camouflage was quite a popular fashion among young people, and may still be.

  33. I’m waiting for the MSM to announce the new 2015 summer Assault ensemble.. rumor has it This years stylish garb consists of the much anticipated assault pistol, to go with the ever popular assault rifle, next year they plan to introduce the assault knife, followed by the stick, ( Painted in scary black of coarse )

  34. He should have kept his damn mouth shut, and he wouldn’t have had to be their even half the time. And, yes, I’m speaking from experience. The many times I’ve been stopped for resembling a black suspect who just committed a crime taught me to just enjoy a good cup of “Shut The F*** UP”, let them find that I’m not a felon so I can go on my merry way.

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