On July 18, 2013, James Baker and a friend were openly carrying in Sterling Heights, Michigan.
The officers contacted the open carriers with drawn weapons, immediately disarming and handcuffing the two. According to the radio calls at the start of the video, there was no reasonable suspicion of criminal activity, just that two individuals were carrying rifles. One officer then searches Baker, removing his wallet and ID from the wallet.
This is problematic in a couple of ways. First, as was noted in an earlier post, open carry in Michigan is legal and is not reasonable suspicion for a stop. Second, even if we assume for the sake of argument that the officers had reasonable suspicion, Michigan law is clear that this does not provide an officer the authority to search for and seize an individuals wallet, then enter the wallet seeking an identification card or drivers license. People v. Williams, 234 N.W.2d 531 (Mich. Ct. App. 1975) (“Assuming the officer’s initial stop and questioning was proper in the present case,it is clear that the seizure of the defendant’s wallet cannot be justified as a protective pre-arrest search since the purpose of the search was not to seize a weapon.”).
Further, the officer knew that he wasn’t arresting Baker, as he told Baker just a few second later that he didn’t have a right to an attorney or to remain silent because he wasn’t under arrest (at 3:40). Additionally, the officer states later, on the radio that this is an “open carry issue” (at 4:30).
Later, when it is back to video, a sergeant is trying to sell the story that it is a “public safety” issue–but the police don’t have the authority to detain someone unless they have reasonable suspicion of a crime. The officers clearly have no grounds to detain the individuals for open carry where open carry is legal. The intent seems to be to chill the individuals from exercising their rights, which is a violation of 42 U.S.C. § 1983. See generally Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807 (6th Cir. 2007).
In the second video, the officer clearly doesn’t understand the law, asking if the individual has a permit for the firearms, apparently not knowing that no permit is required in Michigan to open carry.
The Chief of Police is Michael Reese, e-mail mreese@sterling-heights.net, phone 586-446-2810.
ExCop-Lawyer 
Jul 23, 2013 @ 11:07:20
Like most rhetorical questions I pose, will drawing a weapon and illegal search and seizure result in legal repercussions for the officer or does ignorance of the law make it okay?
Same situation except Joe Blow has his gun out and stops these two individuals before letting them go. What is the difference? Both stops are not justified.
Jul 23, 2013 @ 11:32:31
An officer has authority to draw his weapon for his safety, that is not a criminal offense. He did violate Baker’s civil rights, which would normally be handled civilly rather than criminally. That is based on prosecutorial discretion by the U.S. Attorney, who doesn’t have the staff to deal with minor cases like this.
The difference with Joe Blow is that Joe Blow does not have any duty to act like a police officer does.
Jul 27, 2013 @ 06:02:02
Police have the right to self-defense, that’s true. But they have it by being citizens (arguably by being human), not by being police. It comes down to a reasonable belief — a police officer who likes to draw his gun, wave it around and aim randomly into crowds just for fun won’t be an officer for long (and he’ll likely be trading in his blue suit for an orange one).
Anyone with a reasonable belief that they are in danger of losing their life or suffering great bodily harm is lawfully able to draw their sidearm.
The thorny issue is when a police officer’s belief isn’t reasonable, but he creates exactly that sort of reasonable belief in non-police by his actions.
Drawing down on a police officer is rarely wise, but it would be legal by statute and common law in quite a few situations.
Jul 23, 2013 @ 12:35:42
Except Joe Blow’s ignorance of the law would come back to bite him big time.
If civil rights are important than there are no such things as minor cases when law enforcement steps on them.
The Joe Blows of the world just want everyone to be held to the same legal standard of accountability. Maybe it’s coming in this case (most likely administrative) but the overall track record is spotty.
The next question is will Michigan PDs wisely use this video to “remind” everyone of OC laws, detention, and search and seizure allowances or will the same “oops, my bad” attitude continue? Judging by the increasing number of OC posts on your blog we see what to expect.
Jul 27, 2013 @ 06:06:04
You have to wonder, how is it that the feds have the resources to investigate prosecute someone for a few bits of marijuana shake, but don’t have the resources to even make a cursory investigation of crimes that could lead to impeachment if an elected official committed them.
Jul 23, 2013 @ 22:04:14
Some people might take offense to this, but I have to say I am a person who likes to exercise my rights and open carry so don’t get me wrong on my comment and this is just my opinion, but I hate to see these utube videos were the person is fighting with the cops. A cop is only doing his job. You might have a cop that thinks only he/she needs to have a gun well in court they will find out differently and you might get some money but the ones who just want to id you, give em a break, someone calls they have to respond, it’s what we expect of em if we would call 911. You carry an AR-15 down the street your asking for attention and the only attention you’re going to get is from a cop. People are scared cause of what has happened in the past, cops are as well cause they don’t know what they’re going up against. People like these guys are why people are fighting for gun control, and why cops are hard on us that OC, I have had 2 times where cop has approached me and ask me why I am OCing and I tell em for protection and it’s my right, they ask for id and 5mins later I am on my way with my gun. I have nothing to hide and now if a cop in the town sees me without mine they ask why ain’t ya carrying today. They know who I am, now on easier on the next person they see OCing, Just want to say, if ya carry do it smartly and make it easier on the rest of us, let the public see us in a good way instead of this crap about us fighting with the cops. this is my opinion
Jul 24, 2013 @ 08:07:33
In my Putnam county open carry incident Deputy Griffin was indignant with me for asserting my right to remain silent. After asserting my right to remain silent under a barrage of questions by multiple LEO’s Deputy Griffin scoffed ” I haven’t even read you your rights”. This has happened to me a few times and as we can see in this and hundreds of YouTube videos police seem to think that we can’t assert our right to remain silent until we’ve given them enough evidence to be arrested and Mirandized!
ECLS,what’s up with this?
Jul 24, 2013 @ 08:33:58
Officers are taught that they only have to advise a suspect of Miranda rights if the suspect is in custody (arrested). Non-custodial questioning is not covered by a requirement for a Miranda warning.
Many officers (myself included) would try and ask as many questions as possible before taking a suspect into custody for that exact reason, to get as much evidence as possible prior to arrest and prior to the Miranda warning.
By refusing to answer their questions, you were not “cooperating” and were not acting like most people (who don’t realize that cooperating is not going to help them, but will provide evidence to the police).
Some officers believe that the right to remain silent doesn’t kick in until the officer advises the suspect of their rights. The officer is wrong, but that’s what some believe.
Jul 24, 2013 @ 12:55:25
ECLS, thanks for the reply. I remember years ago when the move over – slow down law went into effect in Florida JSO was out educating the public about the new law. They would have one car pulled over for speeding and then about three more cops flagging people over to educate them about the new law. I was flagged over and the first question the young officer asked me was “do you know why I stopped you?” At the time I was the typical clueless citizen and I responded ” I guess I was speeding”. Next thing I know this Officer is giving me a roadside lesson on my rights and how I just confessed to speeding. He said that people like me make it to easy for cops! He educated me on the new law,advised me to learn my rights and sent me on my way! That was pretty cool!
Jul 24, 2013 @ 10:59:03
In most people the need to respond when directly addressed is powerful. See all the videos where people assert their right to silence but…just…keep…talking.
Jul 24, 2013 @ 12:23:54
And police officers will use silence to get people to talk.
I used that when I was a detective. You ask a question and then keep your mouth shut. After the silence becomes uncomfortable, the person will normally start talking.
Jul 24, 2013 @ 12:43:19
Rick, I’m guilty of continuing to talk after asserting my right to remain silent.I’m getting better at shutting up.
Jul 27, 2013 @ 06:10:27
Technically, the fifth amendment protects a right to not self-incriminate, not a right to remain silent. It’s easier for most people to just plain shut up than to not say anything that can’t be twisted against them, so most people think of it as the right to remain silent.
But nothing would prevent you from clamming up about everything but the latest local baseball game, and still being protected by the fifth amendment.
Jul 27, 2013 @ 06:13:52
I’ve never personally encountered it, but I’ve seen a fair number of videos where police express an idea along the lines of “there’s no way a law could give someone the right to do whatever.”
The real irony is that in a lot of those places, it’s the same statute that says a citizen can carry that also authorizes police to. Pennsylvania, for example.
It amuses me to ponder how police would react to a retort of “Well, do you have a permit for that pistol?”
Aug 03, 2013 @ 05:42:55
Many thanks to the true patriot who risked his life defending our 2nd amendment rights. He risked getting murdered by police so that we retain our rights, “A RIGHT NOT EXERCISED IS A RIGHT LOST” Thomas Jefferson . It’s ridiculous that a man walking down the street lawfully was handcuffed and had his muzzle crown mashed into the dirt and grass before the police would talk to him. He has a right to keep and bear arms and the police had no right to disarm him.