Michigan Man Sues Police Over Christmas Eve Arrest After Officer’s Account Is Contradicted By Videotape

-e7e7901c5b6b9359There is an interesting lawsuit out of Flint Township, Michigan over the arrest of John David McMorris who was arrested for a concealed weapon on Christmas Eve. McMorris, 21, was walking alongside a road when he was stopped by a Flint Township police officer. The officer arrested him for concealing a handgun. It is legal to openly carry a handgun. However, the video below shows the gun clearly in the open and McMorris even turned with his hands up to show the officer his .40-caliber Smith & Wesson pistol on his hip.

The officer tried to be McMorris a breathalyzer but his batteries appear to have died. The officer insisted that he could not see the gun (quite visible on the videotape) as he approached. The officer had passed McMorris 15 minutes earlier and flashed his brights. McMorris told the officer that he was not aware if the front of his coat was covering the gun, but that it was on his holster in plain view. The officer insisted that he did not see it and, because McMorris did not have a concealed weapons permit, he was under arrest.

McMorris was taken to jail and missed his holiday celebration. He was later released without any charges.

McMorris is asking for over $25,000 in actual and punitive damages for civil rights violations, false arrest and malicious prosecution.

Michigan is interesting because its open carry law is based originally not on statute but Article I, Section 6 of the Michigan Constitution, which states: “Every person has a right to keep and bear arms for the defense of himself and the state.”

A 1975 Michigan Court of Appeals opinion explained the subsequent law:

“The purpose of all concealment statutes is clear. At the time they were enacted, the open carrying of weapons upon the person, was not prohibited. The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from drawing concealed weapons and using them without prior notice to their victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume that he was unarmed.”

What makes this case so interesting is that the videotape evidence clearly contradicts the charge of the officer. However, as we have seen before, a baseless arrest (that incarcerated a citizen on Christmas Eve) did not result in any reported discipline of the officer or even an apology.

Here is the video.

42 thoughts on “Michigan Man Sues Police Over Christmas Eve Arrest After Officer’s Account Is Contradicted By Videotape”

  1. I think most of y’all may be jumping the gun (pun intended). You can’t see the gun when the officer first pulls up because he is facing the camera. He then raises his arms and turns sideways. The gun is then visible. It may be that raising his arms lifted the coat thereby revealing the gun, in which case it’s a concealed weapon. It may be that even with his arms down the gun was visible, in which case it is legal open carry. I’d have to see a side view with his arms down to opine on whether I think the arrest is legal or not. On the other hand, it’s certainly a close case and the guy is very cooperative. I’d think the cop would have been wiser to give him a friendly warning and send him on his way.

  2. A lot of states allow open carry. But thanks to youtube we really see how police treat this completely legal exercise of rights.
    And then, after violating the citizen’s rights the lying cop (exposed by irrefutable evidence) never faces administrative punishment or criminal charges.

  3. Cops hate citizens w/ guns and cameras. Just like in the old Soviet Union.

  4. Paul Schulte,

    BTW your point about state immunity, liability, etc. is well taken.

    There are two counts in the complaint based on state law (False Arrest, and Malicious Prosecution).

    If the plaintiff’s lawyer does not wise up and read Monell they will be of no consequence, because the federal court will dismiss the case against the local government based on acts of its employees:

    On the other hand, the language and legislative history of § 1983 compel the conclusion that Congress did not intend a local government to be held liable solely because it employs a tortfeasor — in other words, a local government cannot be held liable under § 1983 on a respondeat superior theory.

    (Monell v Dept. of Soc. Serv., 436 U.S. 658).

    I have to say that IMO the complaint is not well crafted.

  5. I wrote “There is no state immunity that can overcome section 1983 immunity.”

    I meant to say “There is no state immunity that can overcome section 1983 liability.”

  6. Paul Schulte

    Dredd – I appreciate the lesson in federal immunity, but if he is only suing for 25k this is not getting to federal court. It is the state immunity that I am concerned about. And to that group I would like to add prosecutors and other government officials.
    ===============
    See my previous comment (not directed to anyone in particular).

    There is no state immunity that can overcome section 1983 immunity.

  7. I just looked at the case file.

    The case was removed to the Federal District Court from the state court by the defendant’s lawyer.

    The reason is that John David McMorris’s Attorney did plead a civil rights case under 42 USC 1983.

    The complaint does not name the police officer in his individual capacity, but rather sues the municipality (“charter township of Flint”) under a notion of respondeat superior which is a big mistake.

    Municipalities have no respondeat superior liability under section 1983 as I recall.

    Thus, expect a motion to dismiss from the defendant to succeed and/or a motion for leave to file an amended complaint by the plaintiff.

  8. Just think how many cases like this one don’t have a video to corroborate the victim’s version of events. The Second Amendment is made null and void by State laws too often in this country. When will we wake up and rescind bad laws?

  9. Night time, walking along a highway, no buildings near, could spell danger to a passing motorist . McMorris – should have made sure the gun could be seen by any oncoming traffic. A kind hearted person who might have picked him up to give him a ride could have been in trouble …..if McMorris had been one who was in mind to cause trouble. And, for the Cop, No Permit, take him in, check on the permit and let him go. a lesson here for both

    Tough luck, next time walk with gun showing for all to see. Dumb law suit.
    So,……….. he missed his chance to get drunk, high or whatever….So sorry, ………S_it happens.. No wonder the taxpayer is taxed to death.

  10. Perhaps attorneys representing other defendants based on what this officer saw should consider these facts for impeachment. If he was acting in good faith, clearly his limited perception as reflected in the video and presumably the associated report would render any other observations unreliable.

  11. Paul Schulte

    I have long contended that if police officers lost their immunity from civil and criminal liability, a lot less of this would happen.
    =============
    Police officers are personally liable if they intentionally violate federal rights under color of state law(42 USC 1983).

    They have “qualified immunity” (a judge-made doctrine) in various circumstances, which is an affirmative defense putting the burden of proof on them.

    In this case John David McMorris would have to plead and prove a federal right and a violation of that right under color of state law.

    Upon doing so the officer would have to overcome it with the affirmative defense of qualified immunity.

    If he did not plead the federal statute, then the case willl turn on state law.

    1. Dredd – I appreciate the lesson in federal immunity, but if he is only suing for 25k this is not getting to federal court. It is the state immunity that I am concerned about. And to that group I would like to add prosecutors and other government officials.

  12. In the event if a clear difference between the spaoken word of a police officer and visual evidence to the contrary, the visual evidence shall be deemed to be lying.

  13. Paul you are so right. Police officers misbehave with virtually complete immunity and citizens suffer.

  14. The officer should have just let this thing go. Now look at where it went.

  15. I have long contended that if police officers lost their immunity from civil and criminal liability, a lot less of this would happen.

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