OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Jeremiah Chesney commenced this action in this Court on March 13, 2014, asserting federal civil rights claims and a variety of state-law claims against the Defendant City of Jackson, Michigan, five Jackson police officers — Sergeant Paul Gross and Police Officers Timothy Black, William Mills, Peter Postma, and Cary Kingston — and the City of Jackson’s director of police and fire services, Matthew R. Heins.
Through the present motion filed on December 1, 2014, the individual Defendant law enforcement officers and the Defendant City of Jackson seek an award of summary judgment in their favor on each of the claims asserted against them in Plaintiffs complaint. In support of this motion, Defendants argue primarily (i) that Plaintiff has failed to identify expressive activity that could support his claim that he was detained and arrested in retaliation against his exercise of protected First Amendment rights; (ii) that Plaintiffs claim under the Second Amendment fails due to the lack of clearly established law that could have alerted the Defendant police officers to their alleged violation of Plaintiffs rights under this Amendment; (iii) that Plaintiff has failed to produce evidence of an unreasonable seizure or unlawful arrest that could sustain his federal Fourth Amendment claims or his state-law claims of assault and battery and false imprisonment; and (iv) that certain of Plaintiffs stаte-law claims are barred by the immunity conferred upon municipalities and their employees.
Defendants’ motion has been fully briefed by the parties. Having reviewed the parties’ briefs and their accompanying exhibits, as well as the remainder of the record, the Court finds that the relevant allegations, facts, and legal issues are sufficiently presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants’ motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court’s rulings on this motion.
II. FACTUAL BACKGROUND
The pertinent facts of this case are derived almost exclusively from the deposition testimony of Plaintiff Jeremiah Ches-ney.
Upon re-entering the Secretary of State office with his backpack, Plaintiff initially sat at a desk, but then got up and walked around, leaving his backpack and lunchbox at the desk. (See id. at 50, 52-53.) As he waited, nobody asked him about the fact that he was carrying a weapon, nor did he hear or observe anyone express any concern about this, but he did overhear “[indistinct whispering” at one point that apparently included “the word ‘gun.’ ” (Id. at 51.)
Upon the officers’ arrival at the Secretary of State office, Officers Black and Kingston proceeded into the Jackson Crossing mall and headed toward the mall entrance to the office, while Officer Mills went to the office’s outside entrance. As Officer Black stood in the mall and looked through a window into the Secretary of State office, attempting to locate the subject of the officers’ investigation, he asked “three or four” Secretary of State employees who had stepped outside the office “where the backpack was or if [the subject] had a backpack and where was the gun,” but he received only “shrugs of shoulders and no answers.” (Id. at 2.) Officer Black then observed a white male with long hair standing against the wall near the outside entrance to the office, but this individual did not appear to have a backpack. Another Secretary of State employee exited the office and pointed at this same individual, advising Officer Black that he had a gun on his hip, but the officer was unable to confirm this “[d]ue to the 50 to 60” occupants of the office at the time and the pillars in the office that obstructed his view. (Id. at 3.) Accordingly, Officer Black entered the office in order to get a better view of this individual, and upon observing that this man had “what appeared to be a black and silver handgun, being an automatic pistol, on his right waist area,” he motioned for Officer Mills to come into the
Officer Mills then entered the Secretary of State office at Officer Black’s direction, observing that there were “50-plus” people in the office, including small children and elderly individuals. (Id. at 4.) The officer approached the subject of the investigation, who he immediately recognized “from a prior contact” as Plaintiff Jeremiah Chesney,
Plaintiff testified at his deposition that “[t]he next thing I remember after stating that I did not wish to go outside is the four officers surrounding me, grabbing me, and forcing me outside.” (Id. at 61.) Officer Mills, in contrast, stated in his police report (i) that he asked Plaintiff “politely a second time to just step outside, so we could talk about what was going on,” (ii) that Plaintiff again “refused to do so, stating very firmly that he would not go outside, that he was staying inside the mall[,] and that I had no right to demand him or force him to go outside,” (iii) that Plaintiff was “very agitated” when asked to step outside and “raised his voice in a manner that made me believe that he was being very confrontational with me,” and (iv) that during the course of this interaction, Plaintiffs “behavior began to escalate even further and made me even more concerned for the safety of the other [occupants] inside the Secretary of State Office, that some type of confrontation would erupt[,] and I did not want that to occur to cause injuries or loss of life inside the Secretary of State Office.” (Police Report at 4.)
Once Plaintiff was taken from the Secretary of State office, Sergeant Gross asked for his identification, but Plaintiff “ignored” this request and instead expressed “eonfus[ion] as to why I had been forcibly removed” and “demanded to know why I was assaulted, why I was attacked.” (Id. at 69-70.) Sergeant Gross advised Plaintiff that the officers were investigating a report of a gun in a backpack, and Plaintiff stated in response “that there was no need for me to identify myself or to disclose that I was carrying a pistol because I was not carrying it concealed.” (Id. at 70-71.) Plaintiff further insisted that “at no point was my gun in my bag,” and that any caller to the police who claimed otherwise had made a false report. (Id. at 71.)
After Plaintiff repeatedly refused to provide any identification, one of the Defendant officers took his driver’s license from him. (Plaintiffs Dep. at 69-70, 72-73.) In addition, after “several minutes of discussion,” Plaintiff gave Sergeant Gross his license to carry a concealed weapon. (Id. at 73.) In the meantime, Plaintiffs backpack and lunchbox were retrieved from the Secretary of State office and placed on the hoоd of Officer Mills’ patrol car. (Police ■ Report at 5.)
Following a discussion between Sergeant Gross and Officer Mills, it was determined that Plaintiff would be arrested on a charge of resisting and obstructing a police officer, in light of his refusal to leave the Secretary of State office despite the officers’ several requests that he do so. (See id. at 5, 9.) Accordingly, Plaintiff was informed that he was under arrest and was ordered to put his hands behind his back, but he testified that he was not “initially compliant” with this directive, and instead “sought clarification” as to “why I was under arrest.” (Plaintiffs Dep. at 75-76.) Sergeant Gross and Officer Mills stated in
After he was secured in handcuffs, Plaintiff was placed in the back of Officer Mills’ patrol car and transported to the Jackson County jail. (See id. at 6, 9.) Plaintiff apparently was held in jail for two days until his arraignment, and the charge against him ultimately was dismissed at the prosecutor’s discretion. This suit followed in March of 2014, with Plaintiff asserting federal claims under 42 U.S.C. § 1983 alleging violations of his rights under the First, Second, and Fourth Amendments to the U.S. Constitution, and also asserting state-law claims of assault and battery, false imprisonment, and replevin.
III. ANALYSIS
A. The Standards Governing Defendants’ Motion
Through the present motion, the five individual Defendant law enforcement officers and the Defendant City of Jackson seek an award of summary judgment in their favor on Plaintiffs federal civil rights claims under 42 U.S.C. § 1983 and his state-law claims of assault and battery, false imprisonment, and replevin. Under the Federal Rule governing Defendants’ motion, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[ ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
In deciding a motion brought under Rule 56, the Court must view the evidence “in a light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J. Reynolds Tobacco Co.,
B. The Defendant Law Enforcement Officers Are Entitled to Qualified Immunity from Liability for Plaintiffs Federal Claims Under 42 U.S.C. § 1983.
1. The Standards Governing the Defendant Officers’ Appeal to the Doctrine of Qualified Immunity
In counts I through III of his complaint, Plaintiff alleges that the individual Defendant law enforcement officers violated his rights under the First, Second, and Fourth Amendments to the U.S. Constitution.
Application of the doctrine of qualified immunity entails two inquiries. “First, the court must determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiff[ ] show that a constitutional violation has occurred.” Burchett v. Kiefer,
The Supreme Court has emphasized that the doctrine of qualified immunity “gives government officials breathing
According to the Sixth Circuit, “[a] right is not considered clearly established unless it has been authoritatively decided by the United States Supreme Court, the Court of Appeals, or the highest court of the state in which the alleged constitutional violation occurred.” Durham v. Nu’Man,
2. Plaintiffs First Amendment Claims of Retaliatory Seizure and Arrest
Against this backdrop, the Court turns first to Plaintiffs claim that the Defendant police officers violated his protected First Amendment right of free speech by seizing and arresting him in retaliation against his expressive “act of openly carrying a pistol in public,” an act that was “intended, in part, to increase awareness that open carry is lawful in Michigan and to rally public support” for this lawful activity. (Complaint at ¶49.) Defendants seek summary judgment in their favor on this claim, arguing (i) that Plaintiffs act of openly carrying a gun in a Secretary of State office does not qualify as protected free speech under the First Amendment, and (ii) that there is no evidence that the actions taken by the Defendant officers were motivated by Plaintiffs alleged exercise of his right to free speech. The Court agrees on both scores.
As the Supreme Court has explained, although “[t]he First Amendment literally forbids the abridgment only of ‘speech,’ ” conduct that is “sufficiently imbued with elements of communication [may] fall within the scope of the First and Fourteenth Amendments.” Texas v. Johnson,
First, while Plaintiff maintains in his response to* Defendants’ motion that he was openly carrying a firearm at the Secretary of State office “in order to promote awareness of and educate others, including law enforcement, on the legality of open carry,” (Plaintiffs Response Br. at 16), he cites nothing in the record to support this bare assertion by his counsel. Rather, Plaintiff testified that he went to the Secretary of State office “to get a new title” for his motorcycle, (Plaintiffs Dep. at 53), and at no point in his deposition testimony did he refer to the educational mission claimed in his summary judgment briefing and alleged in his complaint. More generally, Plaintiff testified that he had openly carried a firearm without incident in prior trips to the Jackson Crossing mall, and that he routinely carries a gun whenever he can legally do so, (see id. at 50, 90), suggesting that Plaintiff did not view his visit to the Secretary of State office as an especially noteworthy occasion for promoting awareness of Michigan’s open carry law.
Even assuming there was evidence that Plaintiff acted with the requisite intent to convey a particularized message, the circumstances surrounding Plaintiffs visit to the Secretary of State office do not give rise to a significant likelihood that this message would be understood by others in the office. First, Plaintiff was not carrying a sign, wearing a message on his clothing, handing out leaflets, or engaging in any other activity that could have clarified or lent additional support to his alleged advocacy for the right to openly carry a firearm. Nor did Plaintiff interact with anyone else in the Secretary of State office in an effort to draw attention to his purported message that’ Michigan law permits the open carrying of guns. Rather, Defendants aptly observe that Plaintiff was .“simply wearing his gun in an open manner,” (Defendants’ Motion, Br. in Support at 8), evidently relying on this conduct alone to convey his desired message. As Defendants point out, courts in this and other circuits have held that gun possession alone is unlikely to convey a particular message that would be understood by those who witnessed it. See, e.g., Deffert v. Moe,
Finally, even assuming that there was evidentiary support for Plaintiffs as
This record would not permit the inference that the Defendant officers acted in retaliation against Plaintiffs advocacy of Michigan’s open carry law. Instead, the record indicates that the officers (i) were investigating a report of a handgun in а backpack, rather than an exercise of open carry rights, and (ii) took action against Plaintiff, including leading him outside the Secretary of State office and then placing him under arrest, as a result of the officers’ concerns for the safety of others and their belief that Plaintiff was resisting their attempts to investigate his activities and ascertain his intentions. Given the lack of evidence that the Defendant officers acted in retaliation against Plaintiffs exercise of his right of free speech — or, indeed, that they even perceived Plaintiff as exercising such a right — the officers are entitled to summary judgment in their favor on Plaintiffs First Amendment claims of retaliatory seizure and arrest.
3. Plaintiffs Claim of an Abridgment of His Second Amendment Right to Bear Arms
In count II of his complaint, Plaintiff alleges that when the Defendant police officers “seize[d] Plaintiffs pistol without justification or provocation,” they thereby “violated his Second Amendment individual right to keep and bear arms.” (Complaint at ¶45.) As discussed below, the Court finds that the Defendant officers are entitled to qualified immunity from liability for this claimed violation, where the posited Second Amendment right upon which this claim rests is not clearly established.
In District of Columbia v. Heller,
As this summary makes clear, Heller does not address the circumstances presented here — namely, the possession of a firearm outside the home. “While the Supreme Court spoke of a right of law-abiding, responsible citizens to keep and bear arms in case of confrontation outside the context of an organized militia, it did not say, and to date has not said, that publicly carrying a firearm unconnected to defense of hearth and home and unconnected to militia service is a definitive right of private citizens protected under the Second Amendment.” Powell v. Tompkins,
What is more, Plaintiff expressly acknowledges that “the Sixth Circuit Court of Appeals has not yet spoken on the issue of the right to bear arms outside the home since the Heller decision.” (Plaintiffs’ Response Br. at 12.) In recognition of the Court of Appeals’ silence on this subject, both the Sixth Circuit itself and a number of district courts in this circuit have invoked the doctrine of qualified immunity to dismiss Second Amendment claims similar to the one asserted by Plaintiff here, reasoning that the Second Amendment rights posited by the plaintiffs in these cases were not clearly established. See Embody v. Ward,
Against this substantial weight of authority invoking the doctrine of qualified immunity to dismiss § 1983 claims resting on a posited Second Amendment right to openly carry a firearm outside the home, Plaintiff points to decisions by other Courts of Appeals that recognize, or at least assume, that the protection of the Second Amendment extends outside the home. See Peruta,
These decisions fall short in several respects, however, of demonstrating that the Second Amendment right claimed by Plaintiff here was clearly established at the time of the incident giving rise to this suit. First, these out-of-circuit rulings cannot serve as notice to the Defendant officers of the contours of the Second Amendment right to keep and bear arms in the Jackson, Michigan jurisdiction in which they are employed. See Durham,
Finally, even if the out-of-circuit decisions cited by Plaintiff could be viewed as reflecting some sort of emerging consensus that the Second Amendment right to bear arms extends outside the home, each of these cases addressed the constitutionality of a state or local gun regulation, and not the lawfulness of a police officer’s encounter with a private citizen who is openly carrying a gun outside the home. Surely, then, any broader Second Amendment principles that might be gleaned from this case law concerning the constitutionality of gun regulations would not readily translate into clearly established law that governed the Defendant officers’ specific interaction with Plaintiff. Rather, this Court concludes, in accordance with the uniform weight of authority in cases decided within this circuit, that the Second Amendment right posited by Plaintiff here — ie., the right to openly carry a firearm outside the home — was not clearly established at the time of the incident giving rise to this suit.
4. Plaintiffs Claims of Unlawful Detention and Arrest in Violation of the Fourth Amendment
In Plaintiffs third and final federal § 1983 claim, as set forth in count I of his complaint, he alleges that the Defendant police officers violated the Fourth Amendment protection against unreasonable sei
(a) Plaintiffs Claim of Unlawful Detention
Turning first to the Defendant officers’ initial interaction with Plaintiff upon their arrival at the Secretary of State office, Defendants concede that the officers did not have probable cause at that point to arrest Plaintiff for any criminal offense. Rather, Defendants look to the familiar principles of Terry v. Ohio,
The Court finds that the Defendant officers’ initial encounter with Plaintiff was supported by reasonable suspicion of criminal activity. When Officer Mills first approached Plaintiff, he and the other Defendant officers had been informed by a police dispatcher that an individual with long hair in the Secretary of State office was “possibly in possession of a handgun in a backpack,” that the mall in which this office was located was a “weapons-free zone,” and that the individual who had triggered the call to the Jackson police department was “pacing back and forth” in the office, leаding the caller to be “nervous that something else was going on.” (Defendants’ Motion, Ex. 3, Police Reports at 2, 4, 7.) Upon the officers’ arrival at the Secretary of State office, they observed that there were roughly 50 or 60 people in the office, and they immediately identified Plaintiff as matching the description given by the dispatcher. (See id. at 3, 4.) In addition, when Officers Mills entered the office and approached Plaintiff, he noticed that Plaintiff was carrying a pistol in a holster on his right hip. (See id. at 4.)
Under the totality of these circumstances, then, the facts known to the Defendant officers indicated (i) that Plaintiff had entered a crowded Secretary of State office bearing a backpack with a handgun, (ii) that he was acting suspiciously by pacing back and forth in the office, and (iii) that he was carrying a weapon on his person. The Court is satisfied that these circumstances gave rise to reasonable suspicion that Plaintiff was engaged in criminal activity, including (but not limited to) carrying a concealed weapon in a backpack. While Plaintiff makes much of the
To be sure, Plaintiff correctly points out that it would not have been unlawful for him to carry a gun in his backpack, provided that he had a license to carry a concealed weapon. See Mich. Comp. Laws § 750.227(2).
While open-carry laws may put police officers ... in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets. The Toledo Police Department has not authority to disregard this decision — not to mention the protections of the Fourth Amendment — by detaining every ‘gunman’ who lawfully possesses a firearm. And it has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen. We thus affirm the district court’s conclusion that, after reading the factual inferences in the record in [the plaintiffs] favor, [thе defendant officer] couldnot reasonably suspect that [the plaintiff] needed to be disarmed.
The Court agrees with Defendants that Northrwp is distinguishable here. In that case, the claim of reasonable suspicion for a Terry stop rested on two facts alone: (i) the plaintiffs open possession of a firearm, and (ii) a 911 call reporting a “guy walking down the street” who was “carrying a gun out in the open.” Northrup,
In light of this case law, even if it could be said that Northrwp represents the closest fit to the facts presented here — a premise which, as explained above, the Court does not accept — the doctrine of
Nonetheless, Plaintiff insists that the Defendant officers exceeded the scope of a permissible Terry stop when they forcibly removed him from the Secretary of State office after he refused the officers’ request to leave voluntarily.
The Court finds that the Defendant officers’ limited use of force in their initial encounter with Plaintiff did not exceed the scope of a lawful Terry stop. “It is well recognized that the right to make an ... investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Dorsey v. Barber,
This case law amply supports the degree of force used by the Defendant officers here in conducting a Terry stop and investigating their reasonable suspicions of unlawful activity. As they approached Plaintiff, the officers had been told that this individual had brought a backpack with a gun into the Secretary of State office and had been pacing nervously back and forth in the office, and they could see for themselves that Plaintiff was carrying a firearm in a holster on his hip. Under these circumstances, where Plaintiff was armed and there was reason to suspect he had engaged in criminal activity, the Defendant officers reasonably could have wished to avoid publicly questioning Plaintiff in a busy government office while surrounded by 50 or more people, including women and children. Indeed, the officers’ anticipation of, and desire to prevent, a public and potentially dangerous confrontation before a crowd of innocent bystanders was seemingly vindicated when Plaintiff rebuffed the officers’ initial, and admittedly “polite[ ],” (see Plaintiffs Response Br. at 9),
(b) Plaintiffs Claim of Unlawful Arrest Without Probable Cause
Having resolved Plaintiffs claim of unlawful detention in violation of the Fourth Amendment, the Court turns to the question whether the Defendant officers had a lawful basis for arresting Plaintiff after they had removed him from the Secretary of State office and concluded their investigation of his activities. Under core Fourth Amendment principles, the government’s seizure of a person must be “reasonable,” U.S. Const, amend. IV, and a seizure that rises to the level of an arrest must be supported by probable cause. See Kaupp v. Texas,
In this case, the Defendant officers’ investigation dispelled their suspicion that Plaintiff might have unlawfully possessed a firearm, since Plaintiff eventually produced his license to carry a concealed weapon and there is no evidence, in any event, thаt a gun was found in his backpack. Nonetheless, the Defendant officers arrested Plaintiff for resisting an officer in violation of a City of Jackson ordinance.
The Court finds that Plaintiffs arrest was supported by probable cause. When the Defendant officers first approached Plaintiff to investigate reports that an individual at the Secretary of State office had a gun in a backpack and was behaving suspiciously, they asked Plaintiff to step outside the office so that the officers could continue their inquiry into this armed individual’s activities away from the 50-plus other people in the office at the time. (See Defendants’ Motion, Ex. 3, Police Report at 4.) Plaintiff, however, refused this request, and instead offered that he was willing to speak with the officers inside the Secretary of State office. (Plaintiffs Dep. at 60.) The officers repeated their request that Plaintiff accompany them out of the office, but Plaintiff refused each such request, acknowledging that he generally was non-compliant with the officers’ appeals and that it was “possible” that he raised his voice during this interaction. (Id. at 61-63, 75.) In response, Sergeant Gross and Officer Mills each grabbed one of Plaintiffs arms and they forcibly removed him from the Secretary of State office, with Plaintiff testifying that he tensed up his arms and struggled with the officers as they led him from the building. (Id. at 67.)
Under comparable circumstances, the Sixth Circuit and courts in this District have found that there was probable cause, under either Michigan law or a municipal ordinance, to arrest an individual who obstructed a police officer’s investigation of the circumstances giving rise to a Terry stop. In King v. Ambs,
More recently, in Combs v. City of Birmingham, No. 12-14528,
These cases confirm that Plaintiffs conduct here rose to the level of resisting or obstructing the Defendant officers as they sought to investigate a report that someone in the Secretary of State office had a gun in a backpack and was acting suspiciously. As discussed earlier, the facts known to the Defendant officers upon their arrival at the Secretary of. State office gave rise to reasonable suspicion that Plaintiff was engaged in criminal activity. In addition, the Court has already determined that the officers acted within the scope of a reasonable investigation into these suspicions of criminal conduct when they approached Plaintiff, asked him to accompany them out of the office, and then forcibly removed him from the office after he refused to leave the premises voluntarily. In this initial encounter with the Defendant officers, Plaintiff refused the officers’ requests that he accompany them out of the Secretary of State office, and he concedes that he put up at least some resistance as the officers escorted him out of the building. This obstructive conduct then continued upon Plaintiffs removal from the office, as he refused requests for his identification, insisted that he had no obligation to either identify himself or produce a license to carry a concealed weapon, and demanded to know why the officers had “assaulted” and “attacked” him. These activities plainly impeded the Defendant officers as they exercised their authority under Terry to investigate their reasonable suspicions of criminal activity, and it follows that Plaintiffs actions provided probable cause to arrest him for violating the City of Jackson’s “resisting and obstructing” ordinance.
Plaintiffs sole effort to avoid this conclusion is not persuasive. In his view, the Defendant officers “had only engaged Plaintiff in a сonsensual encounter” at the time they approached him and asked him to step outside the Secretary of State office, and he thus acted within his rights by “statfing] that he would prefer to [remain] where he was.” (Plaintiffs Response Br. at 10.) As discussed earlier, however, Plaintiffs perception that he and the officers were engaged in a “consensual encounter” does not operate to limit the authority of the Defendant officers to take the measures appropriate to a Terry stop, so long as the officers had the requisite reasonable suspicion of criminal activity that would warrant these measures. The mere fact that the Defendant officers might have preferred to obtain Plaintiffs voluntary compliance with their investigative efforts did not preclude them from securing this compliance through more coercive means that, as explained earlier, nonetheless remained consistent with a lawful Terry stop.
Alternatively, even if the Court were to conclude that the Defendant officers lacked probable cause to arrest Plaintiff, Plaintiffs Fourth Amendment claim arising from this arrest would nonetheless be defeated by qualified immunity. As discussed, the facts of this case are similar to those presented in a number of prior decisions, including two published Sixth Circuit precedents, holding that there was probable cause to arrest the plaintiffs in those cases for resisting and obstructing a
C. Defendants Are Entitled to an Award of Summary Judgment in Their Favor on Plaintiffs State-Law Claims of Assault and Battery, False Imprisonment, and Replevin.
In counts IV, V, and VII of his complaint, Plaintiff has asserted state-law claims of assault and battery, false imprisonment, and replevin. The Court need not address these claims at any length, because Plaintiffs perfunctory discussion of these claims in his response to Defendants’ pending motion fails to provide any basis for denying Defendants’ request for summary judgment in their favor as to each of these claims.
Turning first to Plaintiffs claim of assault and battery, the Defendant officers’ challenge to this claim rests in part on an appeal to the immunity conferred upon governmental employees under Michigan law. In particular, under Michigan’s Governmental Tort Liability Act (“GTLA”) as construed by the Michigan Supreme Court, the individual Defendant police officers are immune from liability for the state-law intentional tort claims asserted in Plaintiffs complaint if — among other elements that are not at issue here — their actions “were undertaken in good faith, or were not undertaken with malice.” Odom v. Wayne County,
Against this backdrop, the Court’s earlier analysis of Plaintiffs Fourth Amendment claims applies with equal force to Plaintiffs state-law claim of assault and battery. As previously explained, the force used by the Defendant officers to remove Plaintiff from the Secretary of State office was within the reasonable scope of the coercive measures that are permissible under federal law when carrying out a Terry stop and investigating reasonable suspicions of criminal activity. In addition, the Court has determined that Plaintiffs arrest was supported by proba
Indeed, in his response to Defendants’ motion, Plaintiff evidently acknowledges that his state-law claim of assault and battery rises or falls with his federal Fourth Amendment claims. Specifically, Plaintiff states that he is content to “rely on his argument ... on his Fourth Amendment claim” to demonstrate “the unreasonableness of [the] Defendant Officers’ use of force.” (Plaintiffs Response Br. at 16-17.) Even assuming that this “argument” is not so perfunctory as to reflect the abandonment of Plaintiffs state-law claim of assault and battery, see Dillery v. City of Sandusky,
Next, Defendants correctly observe that “[i]n order to prevail on a claim of false arrest or false imprisonment” under Michigan law, Plaintiff “must show that [his] arrest was not legal, i.e., that it was made without probable cause.” Tope v. Howe,
Turning, finally, to Plaintiffs state-law claim of replevin, Defendants observe without dispute that the individual Defendant police officers are not in possession of Plaintiffs firearm, and thus cannot be held liable under a state-law theory through which Plaintiff seeks the return of this firearm. As for the Defendant City, to the extent that it is not immune from liability for its engagement in the governmental function of law enforcement when it allegedly came into possession of Plaintiffs gun, Defendants point to Plaintiffs admission at his deposition that he has never requested that this weapon be returned to him. (See Plaintiffs Dep. at 92.) The Michigan Supreme Court has held that a “demand for ... surrender” of the property at issue “is a prerequisite to an action in replevin.” Myers v. Sawvel,
IV. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’ December 1, 2014 motion for summary judgment (docket #12) is GRANTED.
Notes
. Plaintiff's complaint names the County of Jackson, Michigan as an additional defendant, but this party was dismissed in a stipulated order dated April 8, 2014.
. Defendants raise other arguments in their motion that Plaintiff does not oppose. First, Plaintiff concedes that his federal claims against the City of Jackson are subject to dismissal, either as incompatible with existing law or as lacking in evidentiary support. Next, Plaintiff acknowledges that he has not pled a separate claim for relief under the Fourteenth Amendment to the U.S. Constitution. Finally,
.Notably, there is no indication in the record that any of the Defendant law enforcement officers were deposed. Rather, apart from Plaintiff's own deposition, the police reports prepared by the Defendant officers provide the sole account of the events giving rise to this litigation, and Plaintiff and Defendants alike cite to and rely on these police reports in their summary judgment briefing.
. Defendants note that a "Code of Conduct” posted inside the Jackson Crossing mall prohibits the carrying or display of firearms except by law enforcement officers. (See Defendants' Motion, Ex. 2.) Plaintiff evidently would not have seen this sign as he entered the Secretary of State office, however, because he came in through an outside entrance rather than the mall entrance to the office. Moreover, Defendants do not contend that Plaintiff violated Michigan law by openly carrying a firearm in a Secretary of State office.
. Plaintiff explained that he “didn't feel comfortable leaving- my book bag in the car with my computer inside,” so he decided to bring it into the office. (Defendants' Motion, Ex. 1, Plaintiff’s Dep. at 48.)
.This account of the call was given by one of the Defendant police officers, Timothy Black. Another Defendant officer, William Mills, reported that he was advised by a dispatcher that "there was a subject that had a loaded handgun inside the Secretary of State,” and that this individual was a “white male with long dark hair, carrying a backpack.” (Id. at 4.) Finally, a third Defendant officer, Sergeant Paul Gross, stated that a dispatcher advised him "that there was a subject inside Jackson Crossing's Secretary of State Office who was in possession of a handgun, which was believed to be inside a backpack.” (Id. at 7.)
. As noted earlier, any such signs declaring a "weapons-free zone” were posted in the Jackson Crossing mall, and not in the Secretary of State office, and Defendants evidently do not contend that the branch office itself was a gun-free zone.
. Defendants point out that this incident took place on May 15, 2013, the one-month anniversary of the Boston Marathon bombings, which involved backpacks containing homemade bombs.
. Plaintiff likewise testified that he recognized Officer Mills from a previous interaction with this officer. (Plaintiff's Dep. at 57.)
. Plaintiff explained at his deposition that he had been waiting at the Secretary of State office for roughly an hour when the officers arrived, so he "didn’t exactly feel like leaving” the office at that point and "losing [his] position” in line. (Id. at 50, 60.)
. Plaintiff acknowledged at his deposition that it was "entirely possible” that Officer Mills, or perhaps another officer, repeated the request that he step outside the office before the officers forced him out the door, and he agreed that he refused each such request and generally was non-compliant with the officers' appeals for him to accompany them out of the office. (Plaintiff's Dep. at 61-63, 75.) Plaintiff further testified that it was "possible” that he raised his voice during this interaction, though he stated that he did so "in order to be heard,” and that Officer Mills, likewise raised his voice in repeating his request that Plaintiff step outside. (Id. at 62-63.) Plaintiff denied, however, that he became confrontational, combative, agitated, annoyed, or upset during this initial interaction with Officer Mills. (See id. at 62, 75.)
.Officer Black likewise stated in his report that as Sergeant Gross and Officer Mills grabbed Plaintiff's arms and led him out of the building, Plaintiff "straightened his arms out and attempted to resist and continued to scream and yell about his rights." (Id. at 3.) Similarly, Sergeant Gross's report states that Plaintiff "immediately tensed up and refused to be escorted” as he and Officer Mills attempted to lead him out of the office, so that it was necessary to "forcibly remov[e]” him from the premises. (Id. at 8.)
. Sergeant Gross explained in his report that Officer Black was instructed to disarm Plaintiff as he was taken from the office in light of Plaintiff’s “failure to comply with Officer Mill[s]’[] commands and directives, in addition to his escalating defiant and unpredictable behavior,” leading Sergeant Gross to conclude that "there was no resolution in efforts to speak with [Plaintiff] or with getting him to cooperate with this investigation, while also maintaining the safety of the 50 to 60 men, women and children that were sitting nearby.” (Id. at 8.)
. Similarly, Sergeant Gross stated in his report that Plaintiff refused to produce a license authorizing him to carry a concealed weapon, even after being advised that the officers were investigating a report of a gun in a backpack. (Police Report at 8.) Rather, Plaintiff told Sergeant Gross that he was not carrying a concealed weapon and he "question[ed] the caller's information” to the contrary. (Id.) Sergeant Gross described Plaintiff as "extremely defiant,” “confrontational,” and "uncooperative” during this interview, refusing to provide such information as "his phone number, where he lived and wherе he worked,” ”recit[ing] certain federal, state and city ... laws” that he believed the officers had violated, and indicating "that he did nothing wrong and that he was protected by federal laws for carrying [his] weapon.” (Id.)
.The record does not disclose whether these items were searched or, if so, what was found in them. There is no claim that any sort of weapon was found in Plaintiff's backpack.
. As noted earlier, to the extent that Plaintiff's complaint could be construed as asserting a separate federal § 1983 claim resting on the protections and guarantees of the Fourteenth Amendment, Plaintiff has clarified in his response to Defendants’ present motion thal he is not pursuing any such claim. In addition, it is evident from the parties' summary judgment briefing that Plaintiff has abandoned the conspiracy claim asserted in Count VI of his complaint.
. Plaintiff further alleges in his complaint that the Defendant City of Jackson and Defendant Matthew R. Heins, the City’s director of police and fire services, are subject to liability for these alleged violations of his federal constitutional rights by virtue of having adopted policies, ratified the actions of the Defendant police officers, or failed to train the officers, such that they can be said to have caused the alleged constitutional violations. In his response to Defendants' motion, however, Plaintiff concedes that he has failed to uncover evidence in support of his federal claims of municipal liability. Thus, the Court need only address Plaintiff's federal § 1983 claims against the five individual Defendant law enforcement officers named in the complaint.
. In light of these rulings, even if the Court were to determine that Plaintiff's open carrying of a firearm in this case was eligible for First Amendment protection as expressive conduct, it could not be said that the Defendant officers’ alleged transgression of this right violated clearly established law. Rather, the only case cited by Plaintiff as lending support to his claim of expressive conduct, Smith v. Tarrant County College District,
In Smith,
Importantly, the court in Smith did not consider, much less rule upon, the question whether the "empty-holster” protest qualified as expressive activity. Rather, the court and the parties alike evidently assumed that each of the advocacy efforts planned by the plaintiff SCCC members — including their wearing of empty holsters and SCCC T-shirts and their distribution of leaflets — were eligible for First Amendment protection, and the pertinent question before the court was whether the defendant college had identified sufficient grounds for limiting these activities to a campus "free-speech” zone rather the school’s classrooms and adjacent hallways. See Smith,
Even if Smith were a decision from within this circuit, it could not be said to have clearly established that Plaintiff's open carrying of a firearm was entitled to First Amendment protection as expressive conduct. As explained, Smith did not even consider what sorts of activities might count as speech under the First Amendment, but instead accepted as a given that the "empty holster” protest at issue in that case was a form of symbolic speech. Indeed, because an empty holster by itself serves no apparent purpose, this activity carries an inherent message that is not replicated through an individual’s open carrying of a firearm in accordance with Michigan law. Moreover, the "empty holster” protest in Smith was part of a larger advocacy effort that clearly implicated the First Amendment guarantee of free speech, as it included passing out leaflets and wearing T-shirts with the logo of the SCCC organization. Here, in contrast, Plaintiff’s open carrying of a gun was unaccompanied by any other means of conveying a message in support of Michigan's open carry law. Thus, the decision in Smith does not overcome the Defendant officers’ appeal to qualified immunity, and Plaintiff does not point to any other ruling that would have alerted a reasonable officer in Defendants’ position that Plaintiff was engaged in exрressive activity protected by the First Amendment.
. As noted earlier, Plaintiff evidently did not depose any of the Defendant officers, so the statements in their police reports concerning their motives for acting as they did stand uncontradicted in the record. This leaves Plaintiff facing an uphill evidentiary battle in his effort to show that the Defendant officers retaliated against his exercise of rights protected by the First Amendment.
. Notably, Plaintiff's counsel here also represented the plaintiff in Deffert. The incident giving rise to that case — the plaintiff's detention following a 911 call that a man dressed in camouflage' pants was walking along a public sidewalk in Grand Rapids, Michigan with a pistol in a holster strapped to his leg— occurred roughly two months before the incident at issue here, and it appears that the plaintiff in Deffert asserted largely the same federal and slate-law claims that Plaintiff has brought in this case. See Deffert,
. As Defendants point out, the Ninth Circuit issued its Penda decision in 2014, after the incident giving rise to Plaintiff's claims in this case, and this ruling therefore could not serve as notice of the state of the Second Amendment law at the time the Defendant officers took the actions challenged by Plaintiff. In addition, the Ninth Circuit has vacated this decision upon granting a request for en banc rehearing. See Peruta v. County of San Diego,
. As it turns out, Plaintiff had a license to carry a concealed weapon, and he produced it to Sergeant Gross after the Defendant officers removed him from the Secretary of State office. This after-the-fact discovery, however, does not defeat a finding of reasonable suspicion. ‘‘[W]hether a detained suspect is later determined not to have violated the law does not bear on whether the detaining officer had a reasonable suspicion to justify detention while pursuing an investigation.” Baker,
. At the time of the parties' initial summаry judgment briefing in this case, Defendants relied on the district court's decision in Northrup, but the Sixth Circuit had not yet ruled on the appeal from this decision. Following the Sixth Circuit’s recent ruling in Northrup, the parties were granted leave to file supplemental briefs addressing the impact of this appellate decision on Defendants' present motion, and the Court has reviewed and considered these supplemental briefs in resolving Defendants’ motion.
. Notably, the police dispatcher who received the 911 call informed the caller that it was legal for the plaintiff to openly carry a ■ handgun so long as he had a permit to carry a concealed weapon.
. As a threshold matter, Plaintiff questions whether the Defendant officers were even engaged in a Terry stop at the time they removed him from the office. As both he and Defendants agree, the officers did not even need reasonable suspicion in order to approach Plaintiff and ask him questions. See Northrup,
The logic of this argument is flawed. Even if the Defendant officers’ conduct upon initially approaching Plaintiff was consistent with a consensual encounter, this does not mean that the officers necessarily were limited to the scope of a consensual encounter in their subsequent dealings with-Plaintiff. Rather, the officers could'have hoped to secure Plaintiff's cooperation through a wholly consensual approach, but then shifted to more Terry-like investigative measures once this cooperation was not forthcoming. So long as the Defendant officers had a reasonable suspicion of criminal activity when they initially approached Plaintiff, they were free to employ the investigative techniques of a consensual encounter or a Terry stop as they saw fit, and their initial choice of the former approach did not foreclose the option to move to the latter as warranted by circumstances. A citizen/officer encounter need not be pigeonholed, labeled, and analyzed solely by reference to how the encounter is initiated, nor is it legally relevant to the question before the Court that Plaintiff might have perceived this encounter as consensual in nature.
. At a minimum, the Court finds that qualified immunity shields the Defendant officers from liability for the force they used during their Terry stop of Plaintiff. Apart from the above-cited case law, in which courts in this circuit and elsewhere approved the use of analogous types and degrees of force under circumstances similar to those presented here, it is noteworthy that Plaintiff has cited no case whatsoever that could have alerted the Defendant officers to the unlawfulness of their actions. As it is Plaintiffs burden to show that the Defendant officers are not entitled to qualified immunity, see Sheets, 287 F.3d at 586, the Court readily concludes that Plaintiff has not mеt this burden.
. The pertinent Jackson ordinance provided at the time that "[n]o person shall willfully and knowingly hinder, oppose, obstruct or resist any law enforcement officer or official or employee of the city in performing his duties as such.” City of Jackson Ordinances § 18-31, available at https://www.municode. com/library/im/jackson/codes/code_ofL ordinances?nodeId=PTIICOOR_CH180F_ ARTIIOFAFGOFU&codeArchiveDate=2014-12-23.
Similarly, Defendants point to a Michigan statute that prohibits an individual from, among other things, "obstructing] ... a person who the individual knows or has reason to know is performing his or her duties.” Mich. Comp. Laws § 750.81d(l). This same statute confirms that a "person” includes "[a] police officer of this state or a political subdivision of this state,” and it defines' “ob-
. The officers, for their part, stated in their reports that as they escorted Plaintiff from the office, he tensed up, pulled away, and protested in a loud voice that the officers had no right to do what they were doing. (See Police Report at 3, 5, 8.)
. Again, the East Lansing ordinance at issue in Risbridger,
. The issue of probable cause was largely undisputed in Risbridger. Instead, the principal question before the court was whether the plaintiff's Fourth Amendment rights were violated when he was "subject[ed] ... to criminal sanctions for refusing to provide identification during a valid Terry stop.”
Shortly after Risbridger was decided, this same Fourth Amendment issue was raised before this Court in Mans v. Tuckey,
. A different provision of Michigan’s GTLA immunizes the Defendant City of Jackson from tort liability so long as it was “engaged in the exercise or discharge of a governmental function.” Mich. Comp. Laws § 691.1407(1). In their present motion, Defendants argue that the individual Defendant police officers were engaged in a governmental function as they investigated a report of criminal activity, and Plaintiff does not contend otherwise (or even address this question) in his response to Defendants’ motion. Accordingly, Plaintiff's state-law tort claims against the Defendant City are barred by governmental immunity.