Baker v. Schwarb

Citations: 40 F. Supp. 3d 881; 2014 U.S. Dist. LEXIS 114685; 2014 WL 4111375Docket: Case No. 14-10784

Court: District Court, E.D. Michigan; August 19, 2014; Federal District Court

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Defendants’ motion for summary judgment has been granted in the case involving Plaintiffs James Baker and Shyama Nixon. On July 18, 2013, police responded to multiple 911 calls regarding two young men visibly armed with rifles and handguns walking on a city street in Sterling Heights, Michigan. Upon arrival, officers encountered Baker, dressed in black, and Nixon, who was recording the incident. Officers disarmed both men after an initial discussion, confirming their firearms were lawfully possessed. The encounter lasted approximately twenty minutes, during which Baker and Nixon were briefly detained and questioned.

Following the incident, Baker and Nixon filed a lawsuit against the City of Sterling Heights and several police officers, initially alleging violations of state law and federal constitutional rights under 42 U.S.C. § 1983. The court dismissed the state-law claims and the city as a defendant, leaving only the federal claims against the remaining officers. In their amended complaint, Plaintiffs continued to assert violations of their First, Second, and Fourth Amendment rights. The Defendants have sought summary judgment on these federal claims, which is now granted by the court. The case outlines the tension between the exercise of Second Amendment rights and public safety concerns, as demonstrated by the initial response to the armed individuals in a suburban environment.

Baker and Nixon were restrained by Officers Schwarb and Phillips while they asserted their constitutional rights. Baker asked if he was being detained, and the officer clarified that he was not under arrest. As Baker protested, Officer Schwarb retrieved Baker's identification from his wallet. Nixon invoked his right to remain silent and stated he did not consent to searches, emphasizing his First and Second Amendment rights. Officers confirmed that both were over 18, had no criminal records, and were legally carrying weapons. After approximately ten minutes, the officers un-handcuffed Baker and Nixon and returned their firearms. Sergeant Bonner, who arrived later, informed them they were free to leave since they were legally carrying their weapons. Baker declined to retrieve his gun in front of the police, fearing for his safety, to which Sergeant Bonner dismissed his concerns. Baker and Nixon subsequently edited and posted videos of the incident online before filing a lawsuit on February 20, 2014, against several police officers for alleged violations of their First, Second, and Fourth Amendment rights under Section 1983. The defendants are seeking summary judgment, asserting qualified immunity, which protects government officials from liability if their actions did not violate clearly established rights that a reasonable person would recognize. Summary judgment is appropriate only when there are no genuine disputes of material fact, requiring courts to view evidence favorably for the non-moving party and assess whether enough evidence exists for a trial.

Qualified immunity protects government officials from liability unless it is clear to a reasonable officer that their conduct was unlawful in the situation faced. The court follows a two-step process to determine entitlement to qualified immunity: first, whether the official's conduct violated a constitutional right viewed in the light most favorable to the plaintiff, and second, if that right was "clearly established" in the context of the case. The district court decides on qualified immunity as a legal question. If both questions are answered affirmatively, qualified immunity is defeated; if either is answered negatively, it is granted. Although defendants must raise the defense, the burden of proof lies with the plaintiff to demonstrate that qualified immunity does not apply.

Regarding the Fourth Amendment, plaintiffs allege three violations: lack of probable cause for searching them, absence of reasonable suspicion for detaining them, and failure to use the least intrusive means during the investigatory stop. The Fourth Amendment protects against unreasonable searches and seizures, requiring probable cause for a search. Probable cause is based on the officer's perspective at the scene, not hindsight. Plaintiffs contest a search for personal items, claiming there was no probable cause. However, defendants had reasonable grounds based on reports of minors potentially violating firearm possession laws, which supports their decision to conduct the search.

Officer Phillips could not locate identification on Nixon to ascertain his age. Although Officer Schwarb's report omitted specific mention of the Plaintiffs' ages, this does not undermine his reasonable belief that they might be under 18. Once it was confirmed that the Plaintiffs were over 18, their property was returned. The officers had probable cause to search for identification due to the Plaintiffs' youthful appearances, as permitted by M.C.L. 750.234f. Additionally, the officers reasonably believed the Plaintiffs were violating local ordinances on disturbing the public peace and loitering. Disturbing the public peace is defined as causing public disturbance or endangering safety (Sterling Heights, MI. Ordinance 35-19(M)). The Plaintiffs acknowledged they were openly carrying firearms to desensitize the public and educate law enforcement on the legality of open carry, indicating an awareness that their actions could provoke sensitivity and disturbance. Officer Schwarb responded to 911 calls regarding the Plaintiffs' behavior and observed them armed with long guns and holstered handguns, which could reasonably alarm the public. The officers had probable cause to suspect the Plaintiffs were causing a public disturbance and loitering. The Plaintiffs argued against the enforcement of local ordinances regarding firearms citing M.C.L. 123.1102, which restricts local government regulation of firearms. However, the court found the argument unconvincing, noting a lack of case law on the interaction between state open carry rights and local ordinances. Field preemption was not deemed logically relevant in this context.

The ordinances in question pertain to public disturbances and loitering, without addressing firearm regulations. Even without probable cause, the Defendants can prevail, as reasonable determinations of probable cause, even if incorrect, are not actionable. Law enforcement officials may reasonably arrive at mistaken conclusions about probable cause without facing personal liability. The Plaintiffs' behavior, perceived as confrontational and unusually visible in their firearm display, further supports this view.

In Terry v. Ohio, the Supreme Court established that officers may stop and question individuals based on reasonable suspicion of criminal activity, even in the absence of probable cause. The Fourth Amendment protects against unreasonable searches and seizures, requiring specific, articulable facts that can collectively support reasonable suspicion, which must be more than vague hunches. Courts evaluate reasonable suspicion by considering the totality of the circumstances, including the basis for the stop and the scope of intrusion into personal security. 

To establish reasonable suspicion for an investigatory stop, an officer needs less than a preponderance of evidence. However, a higher degree of intrusion necessitates stronger suspicion of wrongdoing. The Plaintiffs argue that the officers lacked reasonable suspicion due to reliance on anonymous 911 calls and the legality of their actions, as well as their lack of flight upon seeing the officers. Nonetheless, taking all circumstances into account indicates that the officers reasonably suspected the Plaintiffs were engaged in or intending to engage in criminal activity.

Defendants responded to multiple 911 calls regarding two heavily armed individuals outside a hospital. Upon confrontation, one individual, Baker, provided an evasive response when questioned. The officers had reasonable suspicion that the individuals might be engaged in, or about to commit, criminal activity, emphasizing that reasonable suspicion can arise from legal activities in certain contexts. Citing past cases, the document notes that the constitutional focus is on whether officers had reasonable suspicion, rather than whether a crime had occurred. The context is critical; for example, a group of armed men may provoke suspicion in specific settings, such as a diner or church, while being less concerning in others, like an NRA convention. The officers in this case had grounds for an investigatory stop based on the unusual presence of armed individuals. The plaintiffs' argument referencing a recent organized march by a group was deemed irrelevant since they did not notify the city or display any political intent during their actions. The context of their armed presence, particularly on Memorial Day, further underscored the officers' reasonable suspicion, distinguishing it from a structured, permitted event.

Defendants acted reasonably in stopping and temporarily detaining Plaintiffs based on the totality of circumstances. The court found that the officers had a proper basis for the stop and assessed the reasonableness of their intrusion. Plaintiffs argued that the seizure of their firearms was unreasonable since they had indicated they would not touch them, did not flee, and posed no immediate threat. However, the court noted that officers were not required to accept Plaintiffs’ statements at face value and were justified in taking precautionary actions, including temporarily seizing weapons during a Terry stop for public safety. Citing relevant case law, the court affirmed that the seizure was reasonable given the context—Plaintiffs were heavily armed in a public area without demonstrating an intent to educate others about firearm laws.

Regarding the method of identifying Plaintiffs, the court stated that the officers had probable cause to search, providing them with reasonable suspicion to act as they did. The law supports that officers can use precautionary measures, including handcuffing, during a Terry stop when justified by circumstances. The scope of the search was appropriate and aligned with the situation. As a result, the Defendants did not violate Plaintiffs’ Fourth Amendment rights and are entitled to qualified immunity.

On Second Amendment grounds, Plaintiffs contended that the removal of their firearms without probable cause or reasonable suspicion constituted a violation of their right to "keep and bear arms." However, the court found the arguments presented by Plaintiffs to be unclear and insufficient to establish a violation of constitutional rights.

Plaintiffs claim that their rights to openly carry firearms and to bear arms for self-defense were violated by the officers. However, their argument is unconvincing. While they assert that Michigan law permits open carry of firearms, supported by a 2012 Michigan State Police Legal Update, this update only confirms that no law prohibits open carry, not that it is explicitly legal. Furthermore, 42 U.S.C. § 1983 claims focus on federal law, not state law, making the alleged violation of state law irrelevant for their claim. The violation of a state statute does not constitute a constitutional infringement. 

Regarding their Second Amendment claim, the court notes that while the right to bear arms for self-defense is recognized, its application outside the home remains unresolved. The Supreme Court rulings in District of Columbia v. Heller and McDonald v. Chicago establish the right to possess firearms but indicate that this right is not absolute and does not extend universally beyond the home. As such, the specific right claimed by Plaintiffs is not clearly established, granting Defendants qualified immunity for the Second Amendment claim.

On the First Amendment front, Plaintiffs' argument lacks clarity. Although they allege violations of free speech rights, including core political and symbolic speech, they do not address the political speech claim in their response, effectively forfeiting that argument.

Plaintiffs argue that their First Amendment rights were violated when officers interrupted their walk promoting open carry. However, the court finds this argument unconvincing. The First Amendment protects both verbal and symbolic speech, but for conduct to qualify as symbolic speech, there must be an intent to convey a specific message and a likelihood that viewers will understand that message. In previous rulings, such as in Nordyke v. King, carrying a firearm may be considered expressive conduct, but typically, merely possessing a gun does not imply an intent to communicate. The case of Burgess illustrates that if reasonable officers could disagree on whether the plaintiffs' actions constituted protected symbolic speech, they are entitled to qualified immunity.

In this instance, the court determines that the plaintiffs’ actions—wearing an unconcealed weapon and a shirt referencing the right to bear arms—did not convey a clear message, as they provided no visual context for their actions. Observers did not interpret their conduct as a demonstration of rights but rather felt alarmed for their safety, indicating a lack of understanding of any intended message. Therefore, the plaintiffs’ conduct does not qualify as protected speech under the First Amendment. The court concludes that the defendants are entitled to qualified immunity concerning the plaintiffs’ First Amendment claims, as well as claims under the Fourth and Second Amendments. Consequently, the defendants' motion for summary judgment is granted.

A separate judgment will be issued following a May 22, 2014 scheduling conference where the court confirmed the existence of at least three videotaped recordings related to the case: one from Baker’s sunglasses, one from Nixon’s cell phone, and one or more from the officers’ in-car cameras. The parties concurred that the essential facts were unlikely to be disputed, prompting the court to decide on the Defendants’ anticipated motion for summary judgment prior to issuing a scheduling order. While the parties highlighted different facts, the court determined that the material facts remain undisputed. 

Defendants noted that the City of Sterling Heights Police Department received nine emergency calls regarding the incident, while the City of Troy also received calls, as the Plaintiffs briefly entered Troy. Plaintiffs contended that six calls were recorded by the time Officer Schwarb arrived at the scene. When Baker inquired if they were committing a crime, Officer Schwarb replied that they were trying to ascertain the situation, as their presence was alarming to the public. Officer Langenderfer, who also responded to the scene and recorded the encounter on his dashcam, did not interact with the Plaintiffs.

The court referenced public perceptions related to firearm incidents, noting that one 911 caller reported seeing "two gentlemen walking on the side of the road with large guns," questioning whether that was normal. The objectives of Michigan Open Carry, Inc. were outlined, emphasizing public education on the legality of open carry and advocating for the lawful rights of gun owners. Furthermore, the court addressed the Plaintiffs' argument regarding the Second Amendment's implications for openly carrying firearms, stating that this right is not clearly established, citing the case of Burgess v. Town of Wallingford, which indicates that the right to openly carry a firearm outside the home lacks clear legal recognition.