The Legality of Open Carry – A Difficulty for Some Folks, Including Law Enforcement

Apparently it’s difficult for some people, including those in law enforcement, to accept the fact that the open carry of firearms is legal in Michigan. This leads to civil rights suits against police departments, editorial boards looking like they’ve spent the past 3/4 of their life living under a rock, and a citizenry of sheep. Read on…

On 3 March 2013, a woman leaving church called into the Grand Rapids Police Department to report a man walking down the sidewalk with a holstered firearm. The dispatcher explained to the caller that the open carry of a holstered firearm was legal in the State of Michigan. Despite this, the dispatcher called out for a unit to investigate a suspicious person. The call and the dispatch can be heard here.

That man, Johann Deffert, was subsequently the victim of an illegal felony stop. Upon his arrival, Officer Moe immediately exited his vehicle, drew his weapon on Mr. Deffert, and ordered him to the ground. Mr. Deffert was detained for approximately 10-15 minutes before being released without being arrested for a crime. He’s subsequently retained counsel and has filed suit against the GRPD, the Chief of GRPD, and the three officers involved.

Representing Mr. Deffert is Steve Dulan, a board member for the Michigan Coalition of Responsible Gun Owners, as well as an adjunct professor at Cooley. Mr. Dulan has represented a similar case that arose from a situation in Grand Haven where an open carrier was detained at the Coast Guard Festival.

The Deffert case is being tracked over at the Michigan Open Carry forum. The first post is an updating list of documents and articles concerning the case. I would *highly* advise watching the unedited dash cam footage – it’s quite damming.

In Michigan, it’s legal to openly carry a holstered pistol or a slung long arm. Additionally, local municipalities are prohibited from enacting their own firearms restrictions as a result of MCL 123.1102. In fact, our favorite former governor Jennifer Granholm, issued an opinion when she was the AG stating that open carry is legal. That’s not stopping people from being stupid about it though.

Law enforcement will cost you, the taxpayer, for their negligence on this matter

One of the most shining examples of this is described above: Three GRPD thugs officers, acting under the color of law, detaining someone for merely openly carrying a firearm.

As a quick refresher, Terry v. Ohio essentially states that an individual can be stopped and frisked by police, but only so long as there is articulable reasonable suspicion (a lower standard than probable cause, but higher than a mere hunch) that a crime has been, is being, or is going to be committed by the individual. Watch the dashcam video and listen to the dispatch recording. There is NOTHING that would meet this requirement for Terry, much less a full on felony stop.

Oh yeah, did I mention you should watch the video? I’ll give you a teaser: You get to see Officer Moe pointing his weapon at the driver of a passing vehicle!

Despite the city attorney’s office backing the stop as legitimate, the evidence looks damming for the defendants. At a minimum, this will probably result in a settlement. Of course, the individuals responsible won’t be the ones paying, either.

Media malcontents really don’t care about the facts or logic

Another example of people having issues comprehending this is the mLive editorial board. While the reporting done by John Agar (see the MOC forum post for links to his articles) seems to have been pretty neutral, the editorial was not (Mr. Agar was not part of the board). Sure, it’s an editorial piece, so it’s expected to have a slant. However, the issue is that they make factually questionable assertions that don’t have logic supporting it.

The mLive editorial in question claims that Mr. Deffert’s advocacy actions were not responsible. Let’s take a look at some quality thoughts from the editorial linked above:

It’s time to pair ‘open carry’ gun rights with responsibility. That was lacking when advocate Johann Deffert challenged police after residents spotted him with a holstered gun near a church (watch video of the encounter above).

Can someone explain to me how calling out to the cops that what they are doing is illegal is irresponsible? Oh, wait, it’s not.

Deffert and other advocates are exploiting a legal gray area, wherein open carry is neither prohibited nor explicitly allowed for in Michigan. State police and others have issued memos noting open carry is legal because no law exists barring the practice.

If law does not prohibit an action, that action is legal. I don’t know how they come up with this “gray area” idea, but it’s wrong. Worse yet, Tom Lambert, one of the board members for Michigan Open Carry (as well as a fellow geek and someone I talk to on damn near a daily basis) even tried explaining that to them, yet no retraction was made. Frilliant.

If there is a point to make about gun rights, open carry advocates need to make it in a way that doesn’t alarm the general public or make police officers’ jobs more difficult.

As is commonly heard around the office here: lulzwut?

So essentially what they’re saying is that open carry advocates need to advocate for open carry…. without open carrying. Clearly, the stupid is strong with these people.

The public jumps in on the stupid train as well

If you look at any of the comment threads for the mLive articles covering this case, you’ll be affronted by a mass amount of people who can’t (or choose not to) understand logic or facts. Even worse are the proclaimed supporters of the 2nd Amendment who claim that Deffert wasn’t acting responsibly – despite the factual and logical counterpoints presented in refute.

“We don’t know what he might do with that gun! He might be in possession illegaly! Better to check him out!” they proclaim. Well, if we follow that logic, maybe I should call the police on every police officer I don’t recognize. After all, who’s to say he’s actually an officer, and not someone that isn’t up to any good? Impersonating cops certainly happens, and it must be prevented!

Getting all bent over a legal activity, one that abrogates the rights of NO ONE, is sad. The fact that rights are being abrogated because of these views is even worse.

Oh yeah, and if people are going to get uppity about one guy openly carrying, just wait til they see a bunch of us openly carrying.

You Betcha! (1)Nuh Uh.(0)

  22 comments for “The Legality of Open Carry – A Difficulty for Some Folks, Including Law Enforcement

  1. Steve Hill
    January 24, 2014 at 6:14 pm

    First, there is a Law allowing Open Carry as well as Concealed, it is Article 1 Section 6 of the Michigan Constitution that states "Every Person Shall have the Right to Keep and Bear Arms for defense of Self, and State" The U.S. Constitution Article 6 is very clear that the Constitution is Supreme Law of the Land, hence the 2nd Amendment of the U.S. Constitution "The Right of the "People to Keep and Bear Arms shall not be Infringed". I know the Argument in certain circle is that these are not Laws per say, but I argue as this article does that Something that is not illegal, is by definition legal, and in this case they cannot make a law against open carry because it is protected under Constitutional Law, both U.S. and State..

    You Betcha! (1)Nuh Uh.(0)
  2. Blair Baker
    January 25, 2014 at 9:33 am

    Perhaps open carry should be presented in a less intimidating way. Speaking at civic events, renting booths at art fairs, etc. wearing your finest holsters and eye pleasing weapons may get people to engage in discussion of the law. Announcing a large group of openly armed people attending an event or even walking down the street makes it appear you're looking for a fight. If fair goers or event participants observe armed citizens among them they may feel less threatened as they have been approved to be there. Just saying......

    You Betcha! (0)Nuh Uh.(1)
    • January 25, 2014 at 10:54 am

      So then I would ask: At what point would you consider it ok to open carry in public while going about your daily routine?

      You Betcha! (0)Nuh Uh.(1)
      • Blair Baker
        January 25, 2014 at 11:33 am

        Open carry all u want, any time u want. I don't care. It's legal. But if you don't want to scare the bejesus out of people and putting yourself through the police response I suggest a softer approach to convince people of the law.

        You Betcha! (1)Nuh Uh.(0)
        • January 25, 2014 at 11:34 am

          So do you think that the police response based on fear is justified then, even though the activity itself is legal?

          You Betcha! (1)Nuh Uh.(0)
        • Ed Ruesink
          February 1, 2014 at 1:31 pm

          Again, you are saying, "Open carry all you want. Just don't do it where people can see you."

          You Betcha! (1)Nuh Uh.(1)
    • Tom Lambert
      January 27, 2014 at 10:46 am

      I disagree Blair. I would say a large group of armed people is clearly NOT looking for a fight.

      You Betcha! (1)Nuh Uh.(1)
  3. Blair Baker
    January 25, 2014 at 1:31 pm

    The police response is policy, if they get a call they have to investigate. If a gun is involved they act dynamically. You must remember who they deal with 24/7. If the call is not a problem they will proceed accordingly. Until they determine the degree of threat they will control the situation until they are satisfied it is safe.
    If you are using a stop to get exposure in the mainstream media, good luck with that.
    I thought you wanted to educate the citizens about the legality of open carry. I just think it's not a 'one size fits all' situation, multiple fronts and efforts and times are an option.

    You Betcha! (2)Nuh Uh.(0)
    • January 27, 2014 at 7:05 am

      Blair,

      I should have been more clear: Do you think then that there was reasonable articulable suspicion to detain Mr. Deffert?

      If so, what were the components that would lead to this?

      You Betcha! (0)Nuh Uh.(1)
  4. January 25, 2014 at 6:39 pm

    Just a small editorial comment - In Terry v. Ohio, the S. Ct. held two things: (1) Reasonable articulable suspicion of crime afoot is grounds to for the police to temporarily seize a person' for further investigation; and (2) if the police officer develops reasonable suspicion that the person is both "armed and presently dangerous," then the Fourth amendment permit's a light pat down of exterior clothing. The important insight is that "Reasonable articulable suspicion of crime afoot" is not enough by itself to support a pat down intrusion upon the citizen.

    You Betcha! (1)Nuh Uh.(0)
    • January 27, 2014 at 7:20 am

      Mike,

      When I wrote this, I was operating under the auspice that there wasn't reasonable suspicion to stop Mr. Deffert in the first place. With that said, I haven't read the entire opinion.

      Glad to see this has gotten visibility of the OCDO folks!

      You Betcha! (1)Nuh Uh.(0)
  5. Blair Baker
    January 28, 2014 at 9:53 am

    Tom, perhaps not but I am curios if that same group were to have a booth/ table at that event if they would be better received by the patrons and media.

    You Betcha! (1)Nuh Uh.(0)
  6. Brad Pagels
    January 29, 2014 at 4:25 pm

    MOC continues to educate the general public with multiple open carry seminars each month. i am a dues paying member there and support the message this organization is trying to get out to the general public. i avidly open carry. i also legally have a CPL in the state of Michigan. its my choice if i want every one to see my lawfully carried firearm or conceal it lawfully as well. when is the last time someone saw a criminal open carrying a gun holstered on their hip and in plain view? it doesnt happen that way. i often get asked if i am a cop or some kind of law enforcement, i am not. i am exercising my right to protect myself from becoming a defenseless victim. protecting my life is not something i take lightly and i do everything within the law to do so. luckily macomb county is very open carry friendly and the police are trained to handle calls from people reporting law abiding citizens openly carrying their legally registered firearms. untill the police are trained in how to handle these situations the lawsuits will keep coming in when people's rights are blatently violated such as Mr. Defferts were. i hope he take grand rapids for every penny he can squeeze out of them 🙂

    You Betcha! (0)Nuh Uh.(1)
  7. Blair Baker
    January 30, 2014 at 3:55 pm

    Thanks for making my point Brad. Carry on.

    You Betcha! (0)Nuh Uh.(1)
    • January 30, 2014 at 8:46 pm

      I'm still trying to figure out what your point actually is.

      From what I'm seeing, it's essentially "advocate open carry in certain, controlled situations, but don't actually advocate open carry by open carrying".

      By the way, still waiting to hear whether or not you believe that there was reasonable suspicion to detain Deffert.

      You Betcha! (0)Nuh Uh.(1)
      • Blair Baker
        January 31, 2014 at 9:31 am

        Yes,I believe there was reasonable suspicion to detain Deffert.
        It doesn't matter whether you understand my point, OC is going to peruse its agenda it's way as it should. The best we can hope for is agree to disagree.

        You Betcha! (0)Nuh Uh.(1)
        • Corinthian Scales
          January 31, 2014 at 9:53 am

          And, I believe you have a severe case of rectal cranial inversion.

          You Betcha! (0)Nuh Uh.(0)
        • January 31, 2014 at 11:48 pm

          Ok, so, what exactly would you articulate as being reasonable suspicion?

          You Betcha! (1)Nuh Uh.(0)
  8. Blair Baker
    January 31, 2014 at 12:14 pm

    HAhaha. There it is. You win. Bye bye.

    With folks such as yourself claiming to be something they are not, we all lose. - CS

    You Betcha! (1)Nuh Uh.(0)

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