A he-said-they-said case that is getting a lot of attention as concealed carry and open carry laws continue to make the news.
A man who was walking through Flint Township in Michigan on the night of Christmas Eve last year claims he was wrongfully arrested while walking to a nearby store.
John David McMorris was openly carrying his .40-caliber Smith & Wesson pistol in a holster on the outside of his coat when he was stopped by a passing police officer who claimed he could not see the gun, and that McMorris was violating the concealed carry laws of the state as he only has an open carry license.
The officer was traveling down the road McMorris was walking along when he pulled onto the side and flipped on his lights. McMorris, as seen in the dashcam video below, clearly turns around, raises his hands, and follows all of the appropriate procedures one would need to do if they were stopped by the police while carrying their weapon.
What strikes us as odd though is how this officer seemed to know McMorris was carrying, especially since his claim is that he couldn’t see it, thus the concealed carry violation. When the officer drives up, the holstered gun can be clearly seen on the man’s right side, which is not facing the road. According to the township’s attorney, “the officer passed McMorris about 15 minutes prior to the meeting on his way to another call. Morris said the officer flashed his bright lights at McMorris and could clearly see his right side but did not observe any gun.”
Regardless, McMorris is cooperative and apologetic, but based on the response the officer gives, “Sorry will get you in jail. That’s what sorry’s goin’ to get ya,” it seems like this officer may have already made up his mind before even speaking with him. Watch the entire dashcam footage broken up in the three videos below. Note that there is not any footage being presented at this time of the first time the officer passed McMorris.
The township’s attorney is defending the arrest, stating that the officer passed by again in order to check on the man, and saw the gun when he raised his hands. This is how they seemed to have come to the conclusion that he was breaking the law: the officer didn’t see it the first time, came back and saw it, thus a violation.
Once McMorris is in the back of the patrol car, he informs the officer he had a drink quite a few hours ago. When the officer attempts to test him the breathalyzer equipment fails, likely due to dead batteries. According the the lawsuit, McMorris was then booked into the Genesee County Jail on allegations of carrying a concealed firearm without a permit. At no time did the police attempt to test his blood alcohol level again.
McMorris claims to have been in jail until December 26th, which caused him to miss family get togethers and other holiday activities. “I think that was the biggest insult to injury,” McAra said of his client being forced to spend Christmas in jail. According to MLive.com,
John Pierce, an attorney and advocate with Virginia-based OpenCarry.org, questioned the validity of the arrest, saying that it appears McMorris was arrested after the officer failed to notice that McMorris may have been engaged in legally open carrying of the firearm when the officer passed him the first time.
“I think the township is in real trouble with this one,” Pierce said, noting that the gun was visible when the officer actually made the arrest.
Pierce said that for a gun to be considered openly carried it has to be visible to someone approaching the side of the person where the gun is holstered. He added that in cold-weather states like Michigan, where jackets and coats are the norm for large portions of the year, it may make sense for those wishing to open carry to obtain their concealed pistol license to prevent a situation such as this from happening.
Overall, Pierce said, litigation over this type of incident is rare across the country.
“This is a fairly uncommon situation,” Pierce said, noting that a majority of cases stem from officers not being familiar with open carry laws or racist actions when minorities are arrested for open carrying.
The lawsuit filed by McMorris is seeking $25,000 in actual and punitive damages for civil rights violations, false arrest and malicious prosecution.
The case is pending in federal court, and a trial is not expected until late 2014. Flint Township’s police Chief George Sippert could not be reached for a comment, according to MLive.com, but we’d be love to hear what he has to say about all this.
After watching the dash cams, and knowing that there is no footage of the first time the officer passed the man, do you think this was a legitimate arrest? Share your thoughts in the comments below.