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.