Mark
Mandell, Esq.
Young
men adorned in black garb with rifles slung across their backs walking by a
hospital are sure to raise some eyebrows, especially in the suburbs – but it’s
not necessarily illegal if you’re over 18 in Michigan. But is it a violation of
your constitutional rights if the police temporarily stop and disarm you to
ensure you are not unlawfully carrying?
District
Court Judge Robert H. Cleland recently handled such a case out of Sterling
Heights, MI, and his answer was a resounding, “No” – it is not a violation of
constitutional rights for police to temporarily stop you if they have probable
cause to believe you might be breaking the law.
Sterling
Heights police had received at least six phone calls from concerned residents
about individuals who looked like teenagers, dressed in all black with
sunglasses, and who were also openly carrying rifles and handguns. Police
stopped the individuals, peacefully disarmed them, and then confirmed they were
indeed over 18 and lawfully carrying. The guns were returned, and police went
on their way.
However,
following the incident, the two men who were stopped sued Sterling Heights, its
police department, and several officers. They alleged that the officers
violated their First, Second, and Fourth Amendment rights.
Judge
Cleland sided with the officers. The police officers have what is called
“qualified immunity,” whereby government officials are shielded from civil
liability when actions performed in their official capacity do not violate
“clearly established” rights. And the right to bear arms, like many rights, is
not absolute.
In
this case, the police officers also had probable cause to believe that the
individuals were violating the law – specifically a Michigan law which
prohibits people under the age of 18 from openly carrying firearms in public
without supervision of an adult. Given their youthful appearance, and one call
that refereed to the young men as teenagers, the officers were justified in
stopping and searching the individuals to confirm their age.
The
individuals who were stopped also alleged their First Amendment rights were
violated and that their open carrying of rifles constituted speech. They
referenced this year’s Memorial Day Parade where members of a group called
Michigan Open Carry marched while carrying guns. However, the Open Carry group
had registered in the parade and given prior notice that they would be open
carrying, while these two individuals were simply walking the streets in all-black,
foreboding attire.
In
the words of Judge Cleland, the two were clearly, “trolling for confrontation.”
But the overall point is that context matters, especially in lieu of recent
mass-shooting events in suburbs where the perpetrators were wearing similar
outfits. On the other hand, had these individuals been walking on a street in
the UP during hunting season, they may not have had any second looks.
It
is important to note that Michigan law does
prohibit the carrying of firearms in
certain locations, and private establishments can also prohibit firearms. If
you are over 18, then you can open carry in some public spaces. However,
depending on the circumstances and context, you may be subject to a search from
law enforcement.
In
the (colorful) words of Judge Cleland’s opinion:
“…in the contemporary reality of a
settled, peaceful suburban environment, where most of the hunting is done
between aisle three and the frozen food section, the sight of commandos with
AK-47s marching along the highway predictably grabs the attention of citizens
and law enforcement alike.”
If
you have questions about your rights, you can contact Mark Mandell or Don Knapp
with Fausone Bohn, LLP at (248) 380-0000.
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