Federal Civil Rights suit filed in Michigan over 'open-carry' ordinance

imported post

May 12, 2009

FOR IMMEDIATE RELEASE:

The Law Offices of Steven W. Dulan, PLC announces federal civil rights suit against City of Grand Haven and Ottawa County over open-carry ordinance.

The suit, brought under Title 42, Section 1983 of the U.S. Code, was filed on behalf of Christopher Fetters, an off-duty Air Force Security Officer who was attending the Coast Guard Festival in Grand Haven last year. Mr. Fetters was openly carrying a holstered pistol, which is legal under Michigan law, as in most states. He was arrested and detained and charged with a violation of a Grand Haven city ordinance prohibiting open carry of firearms. His gun was initially seized, although it was later returned.

Michigan law prohibits local units of government from making any law with respect to firearms, (MCL 123.1102.) The public policy goal of the statute is to provide a uniform system of gun laws statewide so that citizens do not have to guess regarding what local rules might exist as they move from one locality to the next.

The complaint alleges, among other issues, violations of Mr. Fetters' civil rights under the 2d, 4th, and 14th , Amendments to the U.S. Constitution, and Article I, Section 6 of the Michigan Constitution, which reads, "Every person has a right to keep and bear arms for the defense of himself and the state," when he was physically restrained, disarmed, and subjected to verbal harassment and ridicule by law enforcement personnel.

Criminal charges were later dropped by the Grand Haven City Attorney's Office, after being informed of the unenforceability of their ordinance. No allegations were ever made that Mr. Fetters ever threatened anyone, or in any other way disturbed the peace on the day of his arrest. He is demanding damages for violation of his civil rights as a citizen of the United States and of Michigan.

The case has been filed in the U.S. Court, Western District of Michigan in Grand Rapids and has been assigned Case Number 1:09-CV-00190.

-END-

Steven W. Dulan is a current member of the Board of Directors of MCRGO.

imported post

Interesting.... Looks like MCRGO has more love for OC than MGO does...

imported post

zigziggityzoo wrote:

Interesting.... Looks like MCRGO has more love for OC than MGO does...

Click to expand...

Mr. Dulan was retained as a private attorney in this case and as far as I know MCRGO is not involved. Mr. Dulan is on the Board of MCRGOs which is coincident to the suit.

imported post

ruralresident wrote:

The case has been filed in the U.S. Court, Western District of Michigan in Grand Rapids and has been assigned Case Number 1:09-CV-00190.

Click to expand...

It seems odd that this would be filed in federal court. It seems like the ordinance is illegal under state law, and that would be the appropriate venue.

imported post

swillden wrote:

ruralresident wrote:

The case has been filed in the U.S. Court, Western District of Michigan in Grand Rapids and has been assigned Case Number 1:09-CV-00190.

Click to expand...

It seems odd that this would be filed in federal court. It seems like the ordinance is illegal under state law, and that would be the appropriate venue.

Click to expand...

Federal law provides for the possibility of financial penalties to be paid for out of the individual defendant's own pocket, shouldthe public official violate a person's civil rights under the color of law, hence the Federal case.

The Federal law is a very powerful one. There are a number of similar gun-related civil rights lawsuits in the works across the nation now.

imported post

Grand Haven is about to get spanked.

imported post

Statesman wrote:

Grand Haven is about to get spanked.

Click to expand...

No!

The officers that violated his rights are about to get spanked...

imported post

make em pay. only thing that makes sense to these fools is money.

imported post

Actually, they may be protected under qualified immunity. And I mean "may" be protected. If they honestly believed at the time of the unlawful act that the police officers were acting lawfully under the color of the ordinance, then they may not be sued individually. This argument is backed up in several cases before the court, most notably those cases where the police go to serve a warrant that they honestly believe to be valid but does not end up being valid because of some reason outside of the officers knowledge.

PLEASE DO NOT GET ME WRONG....I am completely for this guy getting his just rewards because obviously his rights were violated. There can be no doubt about that. But the rights were violated by the city ordinance itself, thus resulting in the illegal actions by the officers through what is probably no fault of their own.

Now, one would beg to ask the following question....should the officers be sued individually for enforcing a law that they "should" have known to be unconstitutional under federal law? Probably not, but their department is screwed with a capital S. I say this because their training officer, their legal department, and their supervisors should have been well aware of this. This is where the lawsuit should follow. The federal court is the right place to try this case as a civil tort, but the case should be against the city itself and those responsible for passing such an ordinance. I WANT TO MAKE THIS VERY CLEAR...I believe that if the officers knew in fact that theordinance was unconstitutional when they enforced then that would be a very different story. We shall see...

David

imported post

dlofton wrote:

Actually, they may be protected under qualified immunity. And I mean "may" be protected. If they honestly believed at the time of the unlawful act that the police officers were acting lawfully under the color of the ordinance, then they may not be sued individually. This argument is backed up in several cases before the court, most notably those cases where the police go to serve a warrant that they honestly believe to be valid but does not end up being valid because of some reason outside of the officers knowledge.

PLEASE DO NOT GET ME WRONG....I am completely for this guy getting his just rewards because obviously his rights were violated. There can be no doubt about that. But the rights were violated by the city ordinance itself, thus resulting in the illegal actions by the officers through what is probably no fault of their own.

Now, one would beg to ask the following question....should the officers be sued individually for enforcing a law that they "should" have known to be unconstitutional under federal law? Probably not, but their department is screwed with a capital S. I say this because their training officer, their legal department, and their supervisors should have been well aware of this. This is where the lawsuit should follow. The federal court is the right place to try this case as a civil tort, but the case should be against the city itself and those responsible for passing such an ordinance. I WANT TO MAKE THIS VERY CLEAR...I believe that if the officers knew in fact that theordinance was unconstitutional when they enforced then that would be a very different story. We shall see...

David

Click to expand...

Ignorance of the law is no excuse.

BTW: It's not a matter of unconstitutionality but rather Michigan Preemption Link

Another point being that the preemption law is so simple, short, concise, 19 years old and wide reaching that the officer's SHOULD HAVE KNOWN ABOUT IT.

In fact they DID KNOW ABOUT IT because Chris Fetters told them about it BEFORE they made the arrest and charged him with the crime of violating the unenforceable city ordinance.

So I'll say it again....they gunna get spanked.

imported post

dougwg wrote:

dlofton wrote:

Actually, they may be protected under qualified immunity. And I mean "may" be protected. If they honestly believed at the time of the unlawful act that the police officers were acting lawfully under the color of the ordinance, then they may not be sued individually. This argument is backed up in several cases before the court, most notably those cases where the police go to serve a warrant that they honestly believe to be valid but does not end up being valid because of some reason outside of the officers knowledge.

PLEASE DO NOT GET ME WRONG....I am completely for this guy getting his just rewards because obviously his rights were violated. There can be no doubt about that. But the rights were violated by the city ordinance itself, thus resulting in the illegal actions by the officers through what is probably no fault of their own.

Now, one would beg to ask the following question....should the officers be sued individually for enforcing a law that they "should" have known to be unconstitutional under federal law? Probably not, but their department is screwed with a capital S. I say this because their training officer, their legal department, and their supervisors should have been well aware of this. This is where the lawsuit should follow. The federal court is the right place to try this case as a civil tort, but the case should be against the city itself and those responsible for passing such an ordinance. I WANT TO MAKE THIS VERY CLEAR...I believe that if the officers knew in fact that theordinance was unconstitutional when they enforced then that would be a very different story. We shall see...

David

Click to expand...

Ignorance of the law is no excuse.

BTW: It's not a matter of unconstitutionality but rather Michigan Preemption Link

Another point being that the preemption law is so simple, short, concise, 19 years old and wide reaching that the officer's SHOULD HAVE KNOWN ABOUT IT.

In fact they DID KNOW ABOUT IT because Chris Fetters told them about it BEFORE they made the arrest and charged him with the crime of violating the unenforceable city ordinance.

So I'll say it again....they gunna get spanked.

Click to expand...

Furthermore, dlofton, this law has already been ruled on by the Michigan Court Of Appeals, so there is already case law on it. Also, the legality of OC had already been in at least two "Legal Updates" (a Michigan State Police publication put out for all LEO in Michigan), and Just a month before this happened, the MI AG's officer released a statement to all the major local networks that OC is legal.

Add to that that the requirement of Terry is that the officer must articulate Reasonable Suspicion of criminal activity. An officer can't just say that he thinks it's illegal, he has to KNOW that it's illegal. And, I would hope that you are aware that there is no firearm exception to Terry.

Since there was no legal activity, there is no RS of something that isn't there. This young man even had the MSP legal updates with him to show the officers, and one of the MSP troopers who was there told him that OC is not legal in MI. There is little chance that the officers will get off on not knowing that they were making a stop for a violation of a law that had been vioded by the Michigan Court of Appeals.

imported post

I see exactly what you are saying and I while I agree with you that there simply is very little chance that they did not know that OC is legal, I am saying that there is legal precedent that actions by the police, albeit illegal, do not warrant tort action against the individual officer. It is usually cited when the police are acting in good faith. Now, here is the problem. If the police officers were acting in good faith and honestly did not know that OC was legal, then thay are screwed. But the reality is that probably were aware that is it legal and they will get slammed.

I just want the board to fully understand that not all police officers know every law. I have been an officer for more than 15 years and I can say without a doubt that I do not know every law, ordinance, statute, Vernon civil code, CCP, or case law that has ever been created for the State of Texas. I am certain that there is not one single lawyer, police officer, or judge that can realistically say that they do either. But that is NOT an excuse not to use your resources and find out what they law is when you don't know...and that is exactly what these officers should have done. They should have used their resources and looked them up. But there is the problem we have at hand: their resource was an ordinace passed by their city legislature and on the books, albeit an unlawful one. And since the ordinance was passed unlawfully it is for this reason that I believe the tort action should not be against the officers but against the city itself. Besides, the plaintiff stands to get a whole lot more money out of the city than from the individual officer.

David

imported post

dlofton wrote:

I see exactly what you are saying and I while I agree with you that there simply is very little chance that they did not know that OC is legal, I am saying that there is legal precedent that actions by the police, albeit illegal, do not warrant tort action against the individual officer. It is usually cited when the police are acting in good faith. Now, here is the problem. If the police officers were acting in good faith and honestly did not know that OC was legal, then thay are screwed. But the reality is that probably were aware that is it legal and they will get slammed.

I just want the board to fully understand that not all police officers know every law. I have been an officer for more than 15 years and I can say without a doubt that I do not know every law, ordinance, statute, Vernon civil code, CCP, or case law that has ever been created for the State of Texas. I am certain that there is not one single lawyer, police officer, or judge that can realistically say that they do either. But that is NOT an excuse not to use your resources and find out what they law is when you don't know...and that is exactly what these officers should have done. They should have used their resources and looked them up. But there is the problem we have at hand: their resource was an ordinace passed by their city legislature and on the books, albeit an unlawful one. And since the ordinance was passed unlawfully it is for this reason that I believe the tort action should not be against the officers but against the city itself. Besides, the plaintiff stands to get a whole lot more money out of the city than from the individual officer.

David

Click to expand...

I see what your saying. Your saying that they weren't just acting on a hunch, but on a law they were told to enforce, and therefore are not actionable, while the city is.

If that's the case, then Just about any officer can say that yet, the city can also say they had made the officers aware of it during training.

imported post

dlofton wrote:

. . . I just want the board to fully understand that not all police officers know every law. I have been an officer for more than 15 years and I can say without a doubt that I do not know every law, ordinance, statute, Vernon civil code, CCP, or case law that has ever been created for the State of Texas. . . .

Click to expand...

Of courseofficers, including you, may not know every law. So you enforce what you know, and you get in touch with your supervisor or the prosecutor on things you don't know or are unsure of before you make a possiblyunlawful detention or arrest.

Ignorance of the law is not an excuse, as we so often hear, right? But it's a two way street.It'snot an excuse for illegal activity by citizens or unlawful detentions or arrests by police, correct? If an officer observes something heis unfamiliar with and can't quite articulate reasonable suspicion or probable cause for a violation of law, he should immediately contact his supervisor while keeping the subject in view. That seems tome an easy and reasonable course of action. It sure would save a lot of taxpayer money which goes out to settle such preventablelawsuits.

imported post

Any officer who doesn't know every law seriously needs to read what happened to other officers who also didn't know the law and tried to enforce it unlawfully.

John Bad Elk vs United States

imported post

As I recall, the officers telephoned the Prosecutor's office before the arrest was made. I looked for the information regarding this, but the link to the Tribune is dead and I really couldn't find the original information. Perhaps the county prosecutor will be ultimately responsible for this fiasco.

imported post

In regard to the rationale for filing in federal court, note that the press release mentions the 2nd, 4th and 14th amendments. This suggests their lawsuit may be structured so as to require the federal court to rule on incorporation of the 2nd amendment against the states. Any decision made in lower federal courts will eventually come before the supreme court. In order to get the incorporation issue before SCOTUS, I believe it will be necessary to get conflicting opinions from lower federal courts. That probably means a number of these incorporation lawsuits need to be filed in a number of circuits and make their way toward what will certainly be conflicting opinions that will have to be resolved by SCOTUS.

imported post

copy of the complaint?

imported post

mark edward marchiafava wrote:

Any officer who doesn't know every law seriously needs to read what happened to other officers who also didn't know the law and tried to enforce it unlawfully.

John Bad Elk vs United States

Click to expand...

Wow, illuminating, I have not heard of this decision before, I imagine many others have not, either. This site continues to impress.

imported post

And the truly sad part is lots of persons here will continue to be ignorant as they choose to remain so.
John Bad Elk vs United States should be required reading for every "law enforcement" officer.