OPINION
Now pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. 44). Plaintiff filed a response to Defendants’ motion (Dkt. 45), and Defendants filed a reply (Dkt. 47). Plaintiff also recently filed a Notice of Supplemental Authority (Dkt. 51). Having conducted a Pre-Motion Conference in this matter and having fully considered the parties’ written submissions, stipulated statements of fact and accompanying exhibits, the Court finds that the relevant facts and arguments are adequately presented in these materials and that oral argument would not aid the decisional process. See W.D. Mich. LCivR 7.2(d). For the reasons that follow, the Court concludes that Defendants’ motion is properly granted.
I. FACTUAL BACKGROUND
Plaintiff is a resident of the City of Grand Rapids, Michigan (“the City”) (JSF
It is undisputed that Plaintiff was legally-entitled to openly carry his pistol (JSF ¶ 9). Specifically, the parties agree that openly carrying a pistol is lawful in Michigan, so long as the person is carrying the firearm with lawful intent and the firearm is not concealed, according to Michigan State Police Legal Update Bulletin No. 86 (id. ¶ 35). It is also not in dispute that all Grand Rapids Police Department Officers received a copy of MSP Bulletin No. 86 from the GRPD Training Unit Commander (id. ¶ 36). Further, the Grand Rapids Police Department has trained GRPD officers on the subjects of firearms laws and “open carry” through emails and in-house training sessions (id. ¶ 37).
On the day in question, a person in Plaintiffs vicinity called 911 to report a man with a gun, as follows:
THE CALLER: Hi, I just got out of church and I was driving down Michigan Street, and I don’t know if it’s illegal, but it looks like, maybe he’s not, but looks like the guy has got, a, a gun strapped to his right leg on the outside of his pants.
THE DISPATCHER: Okay, he’s got it in a holster?
THE CALLER: Yeah.
THE DISPATCHER: Okay, it’s not illegal to open carry.
THE CALLER: Oh, god; kind of alarming.
THE DISPATCHER: Well, you’ll probably be seeing more and more of it since all the school shootings and stuff people are exercising their open carry laws. THE CALLER: All right. It’s just kind of scary, because he’s wearing camouflage and, and do you have to have a license or?
THE DISPATCHER: Well—
THE CALLER: Just asking.
THE DISPATCHER: To have a handgun you have to have a, a weapons permit, yeah.
THE CALLER: Right. Because it is, it has to be a handgun, because it’s—
THE DISPATCHER: Right.
THE CALLER: But you can even carry a rifle down the street?
THE DISPATCHER: Well, brandishing a rifle and open carrying a handgun in a holster is two different things.
THE CALLER: Okay.
THE DISPATCHER: Okay.
THE CALLER: It just seemed alarming to me.
THE DISPATCHER: Okay. Where was this on Michigan Street?
THE CALLER: 1700 block of Michigan.
THE DISPATCHER: Uh-huh, and the person was in all camouflage?
THE CALLER: The shirt, it looked like a Columbia jacket, but it’s green.
THE DISPATCHER: Okay.
THE CALLER: But the pants were camouflage and the holster is clearly on the outside of his pants on his right leg. THE DISPATCHER: Okay. Which way was he walking? -
THE CALLER: He was walking, up, towards higher numbers.
THE DISPATCHER: Okay, but he wasn’t threatening anybody?
THE CALLER: No, he was by .himself.
(JSF ¶ 10).
The emergency operations communicator dispatched the following call to officers: “1721 and 1723 check the 1700 block of Michigan Northeast for a suspicious person. Caller saw an unknown male wearing a jacket and camouflage pants, appears to have a, a handgun in a leg holster. He was last seen walking eastbound on Michigan” (JSF ¶ 11). Officer Moe, identified by his cruiser number 1721, responded to
Plaintiff was not talking on a cellular telephone (JSF ¶ 14). Rather, he was singing “Hakuna Matata,” a song from the movie “The Lion King” (id. ¶ 15). Officer Moe followed behind Plaintiff in his cruiser until Plaintiff turned to cross the street and saw Moe’s cruiser (id. ¶ 16). Officer Moe stopped his cruiser in the middle of the street and approached Plaintiff on foot, with his service firearm drawn and pointed toward Plaintiff (id. ¶ 17). Officer Moe ordered Plaintiff to lie on the ground on his stomach (id. ¶ 18). Plaintiff complied (id.). Plaintiff repeatedly offered his identification to Officer Moe (id. ¶ 19). While Plaintiff was on the ground, Officer Moe handcuffed him behind his back and removed Plaintiffs pistol from its holster (id. ¶ 20). The following conversation transpired:
OFFICER MOE: Why do you have a hand gun on you?
PLAINTIFF: It’s my constitutional right to defend myself.
OFFICER MOE: Put your hands behind your back.
PLAINTIFF: May I ask why I’m being stopped?
OFFICER MOE: Because you’ve got a handgun walking down the street. PLAINTIFF: Lawful possession of a handgun is not a reason to cite me, or arrest me, or detain me, Officer. OFFICER MOE: Yes, it is until I figure out what is going on.
(id. ¶ 21). Plaintiff further explained that he was walking home after eating breakfast at a nearby restaurant (id.).
Shortly thereafter, Officer Johnston arrived on the scene and moved Officer Moe’s vehicle, parking it just north of the driveway where Moe had detained Plaintiff (JSF ¶ 22). Officer Moe helped Plaintiff to his feet and had him sit sideways in the back of Moe’s cruiser with his legs hanging outside the open door (id. ¶ 23). After Plaintiff was seated, Moe returned to the driver’s seat of the cruiser to run Plaintiffs information through Michigan’s Law Enforcement Information Network (LEIN) (id. ¶ 24). After Johnston moved his own vehicle in front of Officer Moe’s, he walked over to where Plaintiff was seated (id. ¶ 25). Officer Moe (seated in the front seat), Plaintiff (still sitting sideways in the backseat) and Officer Johnston (standing facing Plaintiff) engaged in a spirited conversation on matters of public policy (id. ¶ 26). Officer Johnston did not have physical contact with Plaintiff during the stop (id. ¶ 33).
Plaintiff asked Officer Moe to call a supervisor to the scene (JSF ¶ 27). Sergeant Stephen LaBrecque arrived on scene and removed the handcuffs (id. ¶ 28). Officer Moe unloaded the pistol and returned it to Plaintiff, along with the ammunition and his identification (id. ¶ 29). Plaintiff was not arrested or charged with any crime (id. ¶ 30). The entire contact lasted approximately thirteen minutes (id. ¶ 31). Sgt. LaBrecque wrote a memorandum to Captain Pete McWatters, Officer Moe’s commander, recommending that Officer Moe “would benefit from some additional training in handling ‘open carry’ issues” (id. ¶ 32).
Plaintiff initiated this case on December 20, 2013, amending his Complaint on February 24, 2014. Plaintiff alleges the following six claims against the City and Officers Moe and Johnston:
I. Fourth and Fourteeth [sic] Amendment Violations
II. Second and Fourteenth Amendment Violations
III. First and Fourteenth Amendment Violations
IV. Michigan Constitution Article 1 Section 6 Claim
V. State Law Assault and Battery
VI. State Law False Imprisonment
(Dkt. 14). Defendants filed an Answer (Dkt. 16), and, pursuant to the Court’s Case Management Order (Dkt. 12), the parties subsequently engaged in discovery and a case evaluation hearing in July 2014 (Dkt. 22). Following a Pre-Motion Conference in December 2014, the Court issued a briefing schedule on Defendants’ proposed motion for summary judgment (Dkt. 37). The parties filed their motion papers in March 2015 (Dkts. 40-50).
II. SUMMARY JUDGMENT STANDARD
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). The court must consider the evidence and all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
The moving party has the initial burden of showing the absence of a genuine issue of material fact. Jakubowski v. Christ Hosp., Inc.,
III. LEGAL ANALYSIS
A. Section 1983 Framework (Counts I-III)
42 U.S.C. § 1983 provides a right of action against every “person who, under color of [law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.... ” To prevail on a § 1983 claim, a plaintiff must (1) prove the violation of a right secured by the Constitution or laws of the United States, and (2) show that the deprivation of that right was committed by a person acting under color of state law. Harbin-Bey v. Rutter,
A municipal corporation is a “person” within the meaning of § 1983. Monell v. New York City Dep’t of Soc.
The inadequate-training theory that Plaintiff advances in this case (Dkt. 14, Am. Compl., ¶ 39; PL’s Resp., Dkt. 45 at 11-14) requires a plaintiff to prove three distinct facts: (1) “that a training program is inadequate to the tasks that the officers must perform”; (2) “that the inadequacy is the result of the city’s deliberate indifference”; and (3) “that the inadequacy is ‘closely related to’ or ‘actually caused’ the plaintiffs injury.” Alman v. Reed,
Last, a government official seeking qualified immunity may defend a § 1983 lawsuit on one or both of two grounds: (1) that his conduct did not violate the plaintiffs constitutional or statutory rights, or (2) that any right violated had not been “clearly established” at the time of the violation. Garceau v. City of Flint,
1. Fourth Amendment (Count I)
In Count I, Plaintiff alleges that Defendant Officers violated (a) his “right to be free from unreasonable searches and seizures of his person and property, protected by the Fourth Amendment, as incorporated by the Fourteenth Amendment,” and (b) his “right to liberty protected in the substantive component of the Due Process Clause of the Fourteenth Amendment, which includes personal safety and freedom from captivity” (Dkt. 14, Amend. Compl. ¶34). As for the City’s liability, Plaintiff alleges that the City (1) “authorized, tolerated, ratified, permitted, or acquiesced in the creation of policies, prac
The right at issue in Plaintiffs Count I is the Fourth Amendment right to be free from “unreasonable searches and seizures.” U.S. Const. Amend. IV. “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis,
Turning to Plaintiffs seareh-and-seizure Fourth Amendment claim in Paragraph 34(a) of Count I, Defendants do not dispute that Plaintiff was “seized” within the meaning of the Fourth Amendment, i.e., that Plaintiffs freedom of movement was restrained. Rather, Defendants argue that Officers Moe and Johnston are entitled to summary judgment because Moe was justified in stopping and briefly detaining Plaintiff as a community-caretaking function, or, alternatively as a reasonable investigatory stop (Defs.’ Br., Dkt. 46 at 3). Defendants point out that even if the investigatory stop was not reasonable, Officer Johnston did not violate Plaintiffs Fourth Amendment rights where Johnston did not play an active role in the stop (id. at 11). Next, Defendants argue that the City is entitled to summary judgment of Count I because it is not liable for constitutional violations that did not occur (id. at 12). Last, Defendants argue that even if Plaintiffs rights were violated, Plaintiff can point to no City custom or policy that was the moving force behind his constitutional injury (id. at 12-14). The Court will consider each argument, in turn.
(a) Exigent Circumstances
The Supreme Court has carefully crafted certain exceptions to the warrant requirement, one of which is the exigent-circumstances exception. Ziegler v. Aukerman,
A government actor, in order to satisfy the exigent-circumstances exception, must show that “there was a risk of ■ serious injury posed to himself or his fellow officer or others that required swift action.” Ziegler,
Defendants argue that Officer Moe’s actions in this case fall well within the scope of his community caretaking functions where (1) the stop was based on specific, articulable facts; (2) Officer Moe’s interest in determining that Plaintiff was not about to use his weapon to harm himself or others outweighs Plaintiffs interest in not being disturbed by government intrusion; and (3) the duration and (4) scope of the seizure were limited to accomplishing its purpose (Defs.’ Br., Dkt. 46 at 5-6, citing United States v. Garner,
Plaintiff responds that the facts of the cases upon which Defendants rely involved immediate threats and that he, in contrast, posed “no such immediate threat to justify a seizure” (Pl.’s Resp., Dkt. 45 at 7). Plaintiff indicates that “one-in-twenty people Officer Moe passes on a daily basis is carrying a firearm” and that “[a]nybody wearing a jacket could have ‘tactical accessibility’ to a firearm” (id. at 7-8). Indeed, Plaintiff opines that his “drop leg holster,” which Defendants characterize as a “tactical holster,” “actually increases the distance, and therefore time, to draw a firearm” (id. at 8). Plaintiff also asserts that Officer Moe’s actions — pointing a gun at Plaintiff from across the street, disregarding Plaintiffs attempts to offer his identification, and lecturing Plaintiff — “fall outside the scope of the community caretaker function” (id.).
Defendants’ argument has merit.
Plaintiffs subjective assessment of whether his behavior posed an immediate threat is not the appropriate lens through which the officers’ actions are viewed. Rather, the Court “undertake[s] an objective assessment of an officer’s actions in light of the facts and circumstances then known to him.” Scott v. United States,
Here, Plaintiff was walking in a residential neighborhood across the street from a church in service on a Sunday morning (JSF ¶ 10; Defs.’ Ex. A., Dkt. 46-1, Moe Aff. ¶ 5). He was wearing camouflage pants and an FNP-45 Tactical pistol secured in a leg holster, with a TLR-2 rail mounted tactical light with a laser sight attached to the pistol (JSF ¶¶ 10-11; Moe Aff. ¶¶ 4-6, 23). Plaintiffs appearance and behavior, which included singing “Hakuna Matata” loudly enough to be heard from a police cruiser, was sufficiently alarming to a resident to call 911 (JSF ¶ 13; Moe Aff. ¶ 10). Officer Moe, an officer who spent more than eleven years assigned to the neighborhood where Plaintiff was walking, did not recognize Plaintiff and attested that he thought Plaintiff “may have had mental issues and was about to commit a violent crime” (JSF ¶ 13; Moe Aff. ¶¶2-3, 9-11).
The Court agrees with Defendants that the totality of the circumstances, and the inherent necessities of the situation, objectively demonstrate that a true immediacy existed, one that absolved Officer Moe from the need to apply for a warrant and receive approval from an impartial magistrate. Specifically, Officer Moe was justified in following up on the neighbor’s 911 call and using swift action to determine whether Plaintiffs behavior gave rise to a need to protect or preserve life or avoid serious injury, either of Plaintiff or of others in the neighborhood. Defendant officers are therefore entitled to judgment as a matter of law on this basis.
(b) Terry Stop
Alternatively, Defendants, analogizing to the facts in Embody v. Ward,
Plaintiff responds that “[t]he immediate case is easily distinguished from the Embody case” inasmuch as Plaintiff did not attempt to create a situation where “officers had to make a judgment call on whether this act was a crime” (Pl.’s Resp., Dkt. 45 at 9). Plaintiff asserts that the cases Defendants reference from the Eastern District of Michigan also “all share the commonality that there are statutory violations implicated by their facts,” whereas “Plaintiff in this case was not suspected of any crime at all” (id. at 9-10).
Defendants’ argument again has merit.
“Police officers may not stop citizens minding their own business on a public street in the absence of reasonable suspicion that they have committed, or are about to commit, a crime.” Family Serv. Ass’n ex rel. Coil v. Wells Twp.,
In Embody,
The plaintiff sued the park ranger, claiming his Second, Fourth and Fourteenth Amendment rights had been violated. Pertinent here is the Sixth Circuit’s rejection of the plaintiffs Fourth Amendment argument. First, the Sixth Circuit reasoned that “Embody’s AK-47, carried openly and fully loaded through a state park, gave [the ranger] ample reason for suspicion that Embody possessed an illegal firearm.” Embody,
Similarly, in this § 1983 action, Plaintiff was walking in a residential neighborhood across the street from a church in service on a Sunday morning (JSF ¶ 10; Defs.’ Ex. A., Dkt. 46-1, Moe Aff. ¶ 5). He was wearing camouflage pants and an FNP-45 Tactical pistol secured in a leg holster, with a TLR-2 rail mounted tactical light with a laser sight attached to the pistol (JSF ¶¶ 10-11; Moe Aff. ¶¶4-6, 23). Like the park ranger in Embody, Officer Moe did not randomly stop Plaintiff. Rather, Plaintiffs appearance and behavior, which included singing “Hakuna Matata” loudly enough to be heard from a police cruiser, was sufficiently alarming to a resident to call 911 (JSF ¶ 13; Moe Aff. ¶ 10). Officer Moe, an officer with then 23 years’ policing experience, responded to the 911 call, observed Plaintiff and attested that he thought Plaintiff “may have had mental issues and was about to commit a violent crime” (JSF ¶ 13; Moe Aff. ¶¶2-3, 10-11). Officer Moe knew that Michigan law prohibits issuance of a firearms license to a person who is subject to an order of involuntary hospitalization due to mental illness, or an order of legal incapacity due to mental illness (Moe Aff. ¶¶ 20, 25-26); see Mich. Comp. Laws § 28.422(1) & (3)(a)(i)~ (ii) (License to purchase), § 28.425b(7)(d)(i )-(ii) (License applica- . tion).
Again, Plaintiffs subjective perspective of the circumstances is irrelevant to the Terry stop analysis. Like the plaintiff in Embody, Plaintiff repeatedly emphasizes that carrying his firearm on a public sidewalk is legal, assigning no significance to his location outside a church in service, the conspicuous placement of his firearm in a low leg tactical holster, the tactical light
The Court determines that under the totality of the circumstances, Officer Moe had reasonable suspicion to stop and only briefly detain Plaintiff. See Northrup v. City of Toledo Police Dep’t,
In sum, based on the applicable law, the facts viewed in the light most favorable to Plaintiff support alternate justifications for the warrantless seizure on March 3, 2013 and the legal conclusion that no Fourth Amendment violation occurred.
(c) Qualified Immunity
Even if Officer Moe’s actions violated Plaintiffs Fourth Amendment rights, Plaintiff did not, on these undisputed facts, have a “clearly established right” that was violated. Police officers of “reasonable competence” could disagree about whether Officer Moe’s conduct in temporarily disarming and briefly detaining Plaintiff for investigation would have violated Plaintiffs rights; therefore, the Court finds that Officer Moe is entitled to qualified immunity. See, e.g., Baker,
(c) The City
With regard to the City’s liability for the Fourth Amendment violation alleged in Count I, Plaintiff argues that by (1) “leaving enacted a statute which violated Plaintiffs rights” and (2) “training their officers within an environment hostile to Plaintiffs rights, Defendant City of Grand Rapids made a policy decision, which was the moving force depriving Plaintiff of his rights” (PL’s Resp., Dkt. 45 at 13-14). However, the City may not be held liable for a violation that did not occur. ‘Without a deprivation, policy does not matter.” Toth v. City of Toledo,
2. Second Amendment (Count II)
In Count II, Plaintiff alleges that “Defendant Officers’ decision to seize Plaintiffs pistol, without justification or provocation, violated his Second Amendment individual right, as incorporated by the Fourteenth Amendment, to keep and bear arms” (Dkt. 14, Amend. Compl. ¶ 43). As for the City’s liability, Plaintiff alleges that his injury was “a direct and proximate result of Defendant Officers’ actions and the policies, practices, and customs of the Grand Rapids Police Department and the City of Grand Rapids described above” (id. ¶44).
(a) Qualified Immunity
In support of summary judgment in their favor on Count II, Defendants point out that “the right [to bear arms is] not a right to keep and carry any weapon whatsoever, in any manner whatsoever and for whatever purpose” (Defs.’ Br., Dkt. 46 at 15, quoting District of Columbia v. Heller,
Plaintiff responds that “[i]t is obvious that bearing arms outside one’s home is a right that has been protected under the Second Amendment since its adoption” (PL’s Resp., Dkt. 45 at 15). Relying on McDonald v. City of Chicago,
Courts may exercise their sound discretion in deciding to first address (1) whether facts alleged or shown by plaintiff make out violation of constitutional right, or (2) if so, whether that right was clearly established at the time of the defendant’s
Deciding whether a law is “clearly established” in an inquiry that must be “undertaken in light of the specific context of the case, not as a broad general proposition.” Floyd v. City of Detroit,
As Plaintiff himself concedes, “neither the Sixth Circuit nor the Supreme Court have spoken on the specific issue of open carry” (PL’s Resp., Dkt. 45 at 16). See Tyler v. Hillsdale Cnty. Sheriff's Dept.,
(b) The City
With regard to the City’s liability for the Second Amendment violation alleged -in Count II, Plaintiff briefly argues that “[t]hrough its requirement of licensing, Grand Rapids restricts the right to carry that is guaranteed under the Second Amendment” (PL’s Resp., Dkt. 45 at 18). Plaintiffs argument implicates Grand Rapids City Code § 9.173.3, which the parties agree provides that “[n]o person shall carry any firearm upon his or her person in any public street, alley or other place open to the public in the City of Grand Rapids,” unless the person is licensed by the state to do so, or the weapon is unloaded and visibly inoperable (id. at 12, 17; Defs.’ Reply, Dkt. 47 at 6 n. 3).
Officer Moe attested that “[n]o city ordinance factored into [his] decision
Further, as Defendants point out, Plaintiff does not specifically argue that § 9.173 violates the Second Amendment, only that the ordinance conflicts with state law (Defs.’ Br., Dkt. 46 at 17; PL’s Resp., Dkt. 56 at 17-18). The ordinance’s illegality under state law can neither add to nor subtract from its constitutional validity. See Snowden v. Hughes,
In short, all three Defendants are entitled to summary judgment of Count II in their favor.
3. First Amendment (Count III)
In Count III, Plaintiff alleges “Defendants’ actions violated the following Constitutional rights of Plaintiff’: (a) “Plaintiffs right to core politicial [sic] speech protected by the First Amendment and incorporated by the due process clause of the Fourteenth Amendment, which includes conduct intended to rally public support for a particular cause,” and (b) “Plaintiffs right to symbolic expression protected by the First Amendment and incorporated by the due process clause of the Fourteenth Amendment, which includes conduct intended to inrcrease [sic] awareness of a particular cause” (Dkt. 14, Amend. Compl. ¶ 47). As for the City’s liability, Plaintiff again alleges that his injury was “a- direct and proximate result of Defendant Officers’ actions and the policies, practices, and customs of the Grand Rapids Police Department and the City of Grand Rapids described above” (id. ¶ 48).
To the extent Plaintiff attempts to allege two different constitutional violations in Count III of his Amended Complaint, the distinction has since become lost. In his brief response to Defendants’ arguments for summary judgment of Count III, Plaintiff references only “firearms-related symbolic speech,” and the Court therefore determines that any “political speech” claim has been waived.
Defendants argue that Officers Moe and Johnston are entitled to summary judgment of Count III because Plaintiff cannot show that he was engaged in expressive conduct (Defs.’ Br., Dkt. 46 at 18). Defendants assert that even if Plaintiff was engaged in expressive conduct, the officers’ actions were a justifiable and very brief restriction of expressive conduct permitted under the O’Brien test (id. at 20-21). Alternatively, Defendants argue that the officers are also entitled to qualified immunity on Plaintiffs First Amendment claim because openly carrying a firearm is not a clearly established form of expressive conduct (id. at 21-22).
In his Amended Complaint, Plaintiff alleges that his act of openly carrying a pistol in public was intended, “in part, to increase awareness that open carry is lawful in Michigan and to rally public support” (Dkt. 14, Amend. Compl. ¶ 46). In his one-paragraph response to Defendants’ argu
Defendants are entitled to summary judgment of Count III.
Conduct alone may be “‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’” Texas v. Johnson,
Even assuming arguendo that Plaintiffs intent after eating breakfast on March 3, 2013 was to carry his FNP-45 Tactical pistol with a TLR-2 rail mounted tactical light and laser sight in his leg holster to increase awareness on the topic of gun control, the Court agrees with Defendants that the record nonetheless does not support a great likelihood that the message would be understood by those who viewed Plaintiff. Plaintiff concedes that he was neither chanting nor reciting slogans concerning the right to bear arms or open carry, nor was he carrying any banner, sign, flag or poster advocating the right to bear arms or open carry (JSF ¶41). His outerwear did not contain a slogan or statement advocating the right to bear arms or open carry, and his t-shirt, while arguably exhibiting such a slogan, was admittedly covered up when Plaintiff encountered Officer Moe (id. ¶¶ 42-43; PL’s Resp., Dkt. 45 at 18). Neither Officer Moe nor the person who called 911 apprehended Plaintiffs intended message. The caller was merely alarmed. And Officer Moe, who attested that “Deffert’s behavior was not consistent with my experience with open carry advocates,” similarly opined that Plaintiffs behavior was instead “more consistent with tactical preparedness for unlawful purposes” (Moe Aff. ¶ 40).
Even assuming arguendo that Plaintiff was engaged in protected speech such that the First Amendment comes into play, the next question is whether the officers’ actions interfering with Plaintiffs purported expressive conduct were sufficiently justified. See generally O’Brien,
In any event, the Court agrees with Defendants that where Officer Moe had the constitutional power to detain Plaintiff, see supra, there is no genuine issue of material fact on this record that his actions were taken in furtherance of an important or substantial government interest — to ensure that Plaintiff was not a danger to himself or the public, and not to suppress Plaintiffs “speech.” See Tanks v. Greater Cleveland Reg’l Transit Auth.,
In sum, based on the applicable law, the facts viewed in the light most favorable to Plaintiff fail to demonstrate that any First Amendment violation has occurred. Because Plaintiff fails to demonstrate the violation of a clearly established constitutional right, the individual Defendants are also entitled to the protection of qualified immunity. Officers Moe and Johnston are therefore entitled to summary judgment on Plaintiffs Count III. Likewise, the City is entitled to summary judgment on Plaintiffs Count III because a municipality cannot have Monell liability for a constitutional violation that did not occur.
B. State-Law Claims (Counts IV-VI)
Last, Plaintiff alleges a violation of his “individual right to keep and bear arms under the Michigan Constitution” (Count IV), Assault and Battery (Count V) and False Imprisonment (Count VI). Having dismissed the claims over which it has original jurisdiction, the Court, in its discretion, declines to exercise supplemental jurisdiction over the state-law claims in Counts IV through VI. See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs,
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (Dkt. 44) is properly granted. An Order will be entered consistent with this Opinion. Because this Order resolves the last pending claim in this case, the Court will also enter a corresponding Judgment. See Fed. R. Civ. P. 58.
Notes
. The parties agreed to a joint statement of uncontested material facts related to Defendants' motion (Dkt. 40, J. Statement of Facts [JSF]), some of which is drawn from the 911 telephone call and the officers' in-car video system recordings.
. Plaintiff’s original Complaint named Grand Rapids Police Chief Kevin Belk and Sergeant
. As Defendants point out in Reply (Dkt. 47 at 3), Plaintiff did not respond to their argument that Officer Johnston did not participate in the initial stop of Plaintiff and that it was reasonable and permissible for Officer Johnston to rely on information provided by Officer Moe in assisting with the stop (Defs.’ Br., Dkt. 46 at 11). Consequently, even if the officers were not entitled to summary judgment on these alternate bases, Officer Johnston is nonetheless entitled to summary judgment because Plaintiff failed to present evidence that creates a genuine issue of material fact as to whether Officer Johnston violated his Fourth Amendment rights.