dougwg

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1:09-cv-00190-RHB Fetters v. Reiss et al
Judge Robert Holmes Bell, presiding
Date filed: 03/05/2009
Date of last filing: 05/12/2009

Office: Southern Division (1)
Filed: 03/05/2009
Jury Demand:
Plaintiff Demand: $600000
Nature of Suit: 440
Cause: 28:1343 Violation of Civil Rights
Jurisdiction: Federal Question Disposition:
County: Barry Terminated:
Origin: 1 Reopened:
Lead Case: None
Related Case: None
Other Court Case: None
Def Custody Status:

plaintiff: Christopher Fetters represented by Steven W. Dulan
Phone: (517) 333-7132 Email: steve@stevenwdulan.com

defendant: Mark Reiss represented by Thomas R. Wurst Phone: (616) 831-1700
Email: wurstt@millerjohnson.com

defendant: Rick Yonker represented by Thomas R. Wurst
Phone: (616) 831-1700
Email: wurstt@millerjohnson.com

defendant: Unknown Party #1
defendant: Unknown Party #2

defendant: Mike Brookhouse represented by Douglas W. Van Essen
Phone: (616) 988-5600
Email: dwv@silvervanessen.com

defendant: Ottawa County Sheriff's Department represented by Douglas W. Van Essen
Phone: (616) 988-5600
Email: dwv@silvervanessen.com

defendant: Ottawa, County of represented by Douglas W. Van Essen
Phone: (616) 988-5600
Email: dwv@silvervanessen.com

defendant: Grand Haven, City of represented by Thomas R. Wurst
Phone: (616) 831-1700
Email: wurstt@millerjohnson.com

defendant: Dennis Edwards represented by Thomas R. Wurst
Phone: (616) 831-1700
Email: wurstt@millerjohnson.com

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Amended Complaint filed 18 March 2009:

1. Christopher Fetters (hereafter Plaintiff), after being assaulted and battered, his
person was then unreasonably and unlawfully seized, falsely imprisoned, and his due process rights and liberty rights were deprived in violation of the United States Constitution and federal statute, by government officials acting in concert and under color of law.

Parties, Jurisdiction and Venue

2. Plaintiff is an individual who resides in Freeport, Michigan.

3. Defendant Lt. Mark Reiss was at all relevant times a law enforcement officer of
Grand Haven, Michigan.

4. Defendant Officer Doe 1 (“Doe 1”) is a law enforcement officer for the City of
Grand Haven, Michigan.

5. Defendant Officer Doe 2 (“Doe 2”) is a law enforcement officer for the City of
Grand Haven, Michigan.

6. Defendant Dennis Edwards (“Director Edwards”) is the Public Safety Director of
the city of Grand Haven, Michigan Police Department.

7. Defendant Captain Rick Yonker is a law enforcement officer for the city of Grand
Haven, Michigan.

8. Defendant City of Grand Haven (“Grand Haven” or the “City”) is a municipal
corporation organized and existing under the laws of the State of Michigan having authority, duties and powers as provided under the laws of the State of Michigan and the Ordinances of the City of Grand Haven.

9. The City of Grand Haven Police Department (the “police department”) is a police
department existing and operating according to the laws of the State of Michigan within the Western Judicial District of the State of Michigan.

10. The Police Department is the City's agency, created and authorized by it to
conduct acts as alleged herein.

11. Defendant Lt. Mike Brookhouse is a law enforcement officer for the Ottawa
County Sheriff’s Department.

12. Defendant County of Ottawa is a municipal corporation organized and existing
under the laws of the State of Michigan having authority, duties and powers as provided under the laws of the State of Michigan.

13. Defendant Ottawa County Sheriff’s Department hereinafter referred to as
“Sheriff’s Department” is the County of Ottawa’s agency, created and authorized by it to conduct acts as alleged herein.

14. The Police Department had the responsibility for the hiring, training, supervision,
disciplining and retention of police officers it employed, including Reiss.

15. The Ottawa County Sheriff’s Department had the responsibility for hiring,
training, supervision, disciplining, and retention of police officers it employed, including
Brookhouse.

16. Plaintiff, at the time of this action, is a USAF Security Forces Member stationed
in Battle Creek, Michigan.

17. The amount in controversy in this action is in excess of Seventy-Five Thousand Dollars ($75,000.00).

18. This Court has original jurisdiction over Plaintiff's claims pursuant to 28 U.S.C.
§§ 1331 and 1343. The Court has jurisdiction over the request for declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. The Court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

19. Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b), as the actions
alleged herein occurred in the Western District of Michigan.

General Allegations

20. Plaintiff incorporates paragraphs 1 through 19 of this Complaint herein by
reference.

21. Plaintiff was not convicted of any criminal law violation.

22. Plaintiff, on August 2, 2008, at approximately nine o’clock p.m. arrived in
downtown Grand Haven to view the festival fireworks.

COUNT I
Assault and Battery

23. Plaintiff incorporates paragraphs 1 through 22 of this Complaint herein by
reference.

24. Plaintiff was grabbed on his right arm and was shoved against the wall of a brick
building.

25. Plaintiff immediately recognized “Doe 1” as a law enforcement officer and
instantly motioned surrender so as not to resist arrest.

26. As “Doe 1” was trying to take Plaintiff’s pistol off his hip, Plaintiff said, “It is
legal to open carry” to which “Doe 1” replied sharply (and falsely) “No, it is not!”

27. “Doe 1” eventually got Plaintiff’s pistol and holster off after about 6 yanks and
approximately 30 seconds (by this time Plaintiff’s pants were up to his chest), and then
proceeded to search Plaintiff and take everything out of his pockets and illegally confiscate his personal property. “Doe 1” had no cause or justification to do so.

WHEREFORE, Plaintiff demands personal judgment against Defendants in the amount
of One Hundred Thousand Dollars ($100,000.00) or such amount that he is otherwise found to be entitled to, plus costs, interest and attorney fees and an additional amount of Five Hundred Thousand Dollars ($500,000) for punitive and/or exemplary damages.

COUNT II
Unlawful Seizure and False Imprisonment
28. Plaintiff incorporates paragraphs 1 through 27 of this Complaint herein by
reference.

29. Defendants “Doe 1” and “Doe 2”, law enforcement officers, on August 2nd, 2008,
at approximately 9:00 pm, unreasonably and unlawfully seized Plaintiff's person without probable cause to believe a crime occurred.

30. Defendants “Doe 1” and “Doe 2” then escorted Plaintiff to a mobile police trailer
that the Police Department had parked downtown where Plaintiff was falsely imprisoned.

31. The trailer was a secured area used for arrested subjects. The secured area was
constructed of metal and wood.

32. Plaintiff, aware of his unlawful confinement, objected to his false imprisonment.

33. Defendants Brookhouse and Yonker, in close proximately to Plaintiff throughout
Plaintiff's false imprisonment, remained deliberately indifferent to Plaintiff and denied Plaintiff's pleas to be released.

34. Reiss, after two hours following Defendants' unreasonable and unlawful seizure
and false imprisonment of Plaintiff, allowed Plaintiff to be released from his unlawful
confinement.

35. Plaintiff’s pistol was not returned to him.

36. Plaintiff’s papers that he had on his person were not returned.

37. Plaintiff’s keys were not returned to him, and he had to later return to the trailer to
regain possession of his keys.

38. Defendants lacked legal authority to seize, detain, confine, imprison and deprive
Plaintiff of his liberty. Defendants were grossly negligent for unreasonably and unlawfully seizing, and subsequently confining Plaintiff.

39. The City of Grand Haven’s ordinance 24-55(3) “Possession/Display Firearm in
Public” was preempted by a Michigan Statute, MCL § 123.1102 in 1990, eighteen years prior to this incident.

40. The conduct of “Doe 1,” Doe 2,” Reiss, Brookhouse, and Yonker as set forth
above constituted an unreasonable search and seizure under the fourth Amendment of the United States Constitution and Art. I, §11 of the Michigan Constitution. In addition, such conduct constituted a violation of Plaintiff’s right To Bear arms under the Second Amendment and Art. I, §6 of the Michigan Constitution.

WHEREFORE, Plaintiff demands personal judgment against Defendants in the amount
of One Hundred Thousand Dollars ($100,000.00) or such amount that he is otherwise found to be entitled to, plus costs, interest and attorney fees and an additional amount of Five Hundred Thousand Dollars ($500,000) for punitive and/or exemplary damages.

COUNT III
Violation of Civil Rights, 42 U.S.C. § 1983, 42 U.S.C. § 1988

41. Plaintiff repeats paragraphs 1 through 40 of this Complaint and incorporates them
by reference.

42. This cause arises under 42 U.S.C. § 1983 and 42 U.S.C. § 1988, wherefore; this
Court has jurisdiction over the instant matter pursuant to 28 U.S.C. § 1343(a)(3) and § 1331.

43. The acts described herein occurred on August 2nd, 2008, within the Western District of the State of Michigan.

44. Prior to the events described herein, the City, Police Department, and Director
Edwards developed and maintained policies, practices and/or customs exhibiting deliberate indifference to the constitutional rights of citizens, including Plaintiff’s.

45. Prior to the events described herein, the County, Sheriff’s Department, and Lt.
Brookhouse developed and maintained policies, practices and/or customs exhibiting deliberate indifference to the constitutional rights of citizens, including Plaintiff’s.

46. As applied by Defendants, the Statutes and Protocols violated Plaintiff’s rights
against unreasonable searches and seizures under both the Fourth Amendment of the United States Constitution and Art. I, §6 and §11 of the Michigan Constitution.

47. Specifically, the City, Police Department, and Director Edwards failed to
adequately and properly supervise and train its police officers, including Reiss, in various aspects of law enforcement procedure and substance, including, but not limited to, detentions, searches and seizures, and on laws relating to the ownership and possession of firearms.

48. The above-described acts and omissions by the City, Police Department, and
Director Edwards demonstrated a deliberate indifference to the constitutional rights of citizens, and were the cause of the violations of Mr. Fetters’s Second, Fourth, and Fourteenth Amendments to the United States Constitution.

49. Specifically, the County and Sheriff’s Department, failed to adequately and
properly supervise and train its police officers, including Brookhouse, in various aspects of law enforcement procedure and substance, including, but not limited to, detentions, searches and seizures, and on laws relating to the ownership and possession of firearms.

50. The above-described acts and omissions by the County and Sheriff’s Department
demonstrated a deliberate indifference to the constitutional rights of citizens, and were the cause of the violations of Mr. Fetters’s Second, Fourth, and Fourteenth Amendments to the United States Constitution.

51. As a result of City’s, Police Department’s, Director Edwards’s, County’s, and
Sheriff’s Department’s violations of Plaintiff’s constitutional rights, Plaintiff suffered substantial injuries and damage.

52. During the events alleged in this Complaint, Defendants acted in concert, within
the scope of their employment and under color of law.

53. Plaintiff exercised his 4th Amendment right to be secure in his person against unreasonable and unlawful seizure.

54. Defendants, on August 2nd 2008, did assault and commit battery to Plaintiff’s
person, unreasonably and unlawfully seize, detain, confine, falsely imprison, and deprive Plaintiff of his liberty by placing him in a locked secured area without due process, without lawful justification, without reasonable suspicion, or probable cause to believe a criminal violation had been committed.

55. Plaintiff, aware of his unlawful and false imprisonment, assertively pleaded for his
release.

56. Defendants Brookhouse and Yonker, notwithstanding Plaintiff's pleas for release,
continued to act in concert and deprived Plaintiff of his U.S. Constitutional and Federal rights.

57. Plaintiff argues that the Defendant's issuance of the false ticket occurred in
retaliation for his exercise of his 4th Amendment right to be free of unreasonable seizure and false imprisonment.

58. Defendants' conduct was undertaken under color of law and operated to deprive
Plaintiff of his federal rights guaranteed by the United States Constitution and Federal Statute.

59. Defendants violated 42 U.S.C. § 1983; Defendants' conduct operated to deprive
Plaintiff of his federal rights guaranteed by the United States Constitution and Federal Statute.

WHEREFORE, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988, Plaintiff seeks
damages against Defendants in the amount of One Hundred Thousand Dollars ($100,000) including punitive damages in the amount of an additional Five Hundred Thousand Dollars ($500,000) or such amount as the court or finder of fact deems proper, plus costs and attorney fees.

COUNT IV
Violation of the 4th and 14th Amendments

60. Plaintiff repeats paragraphs 1 through 59 of this Complaint and incorporates them
by reference.

61. This cause arises under Article 1, Section 2 of the 4th Amendment of the United
States Constitution. The acts described herein occurred on August 2nd 2008, within the boundary of Ottawa County, in the State of Michigan.

62. Plaintiff's Constitutional rights that Defendants violated include the following:

A. Plaintiff's right to liberty protected by the due process clause of the 14th
Amendment, which includes personal safety and freedom from
captivity.

B. Plaintiff's right to fair and equal treatment guaranteed and protected by the
equal protection clause of the 14th Amendment.

63. Plaintiff exercised his right to be free of unreasonable seizure guaranteed by
Article 1, Section 2 of the 4th Amendment of the United States Constitution. Plaintiff's right to be free of unlawful seizure in violation of the 4th Amendment of the United States Constitution cannot be justified by the Defendants' faulty investigation.

64. Defendants' conduct was undertaken under color of law and operated to deprive
Plaintiff of a federal right guaranteed by Article 1, Section 2 of the 4th Amendment of the United States Constitution.

65. Defendants violated Article 1, Section 2 of the 4th Amendment of the United
States Constitution when their conduct operated to deprive Plaintiff of a federal right guaranteed by the United States Constitution.

WHEREFORE, pursuant to Article 1, Section 2 of the 4th Amendment of the United States Constitution, Plaintiff seeks damages against Defendants in the amount of One Hundred Thousand Dollars ($100,000) including punitive damages in the amount of an additional Five Hundred Thousand Dollars ($500,000) or such amount as the court or finder of fact deems proper, plus costs and attorney fees.

COUNT V
Civil Conspiracy

66. Plaintiff repeats paragraphs 1 through 65 of this Complaint and incorporates them
by reference.

67. The Civil Rights Act of 1866, as amended, 42 U.S.C. §1985 and § 1986,
prohibits conspiracies to interfere with civil rights.

68. “Doe 1,” “Doe 2,” Reiss, Brookhouse, and Yonker violated 42 U.S.C. § 1985 in
that they entered into an agreement and combined among themselves and/or with others to engage in unlawful conduct, i.e. depriving Plaintiff of rights guaranteed to him under the Second, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

69. “Doe 1,” “Doe 2,” Reiss, Brookhouse, and Yonker have each done and/or have
caused to be done acts in furtherance of this conspiracy whereby Plaintiff has been injured and has been deprived of rights guaranteed to him under the Second, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

70. “Doe 1,” “Doe 2,” Reiss, Brookhouse, and Yonker each had actual knowledge of
the conspiracies to deprive Plaintiff’s of his rights protected by § 1985, and each had the power and opportunity to prevent the violations from occurring and/or continuing and failed to do so.

71. As a direct and proximate result of the foregoing, “Doe 1,” “Doe 2,” Reiss,
Brookhouse, and Yonker have caused Plaintiff to suffer significant indignities and financial and other damages and have deprived Plaintiff of his rights and privileges as a citizen of the United States.

WHEREFORE, Plaintiff seeks damages against Defendants in the amount of One
Hundred Thousand Dollars ($100,000) including punitive damages in the amount of an
additional Five Hundred Thousand Dollars ($500,000) or such amount as the court or finder of fact deems proper, plus costs and attorney fees.

Respectfully submitted,
The Law Offices of Steven W. Dulan, P.L.C.
Attorneys for Plaintiff Christopher Fetters
Dated: March 18, 2009 By:_________________________________
Steve W. Dulan (P54914)
1750 E. Grand River, Suite 101
East Lansing, Michigan 48811
Telephone: (517) 123-4567

jfl

Very interesting !!!
Thanks for sharing ... keep us posted.

__________________
The first rule of a gunfight: "Don't be there !"

jfl (NRA Life Member/Instructor - GOA - IDPA - GSSF - ex-IHMSA)

44magnum

i hope mr fetters is sucessful

Eagleks

Hope he wins it all too !!! Glad to see he filed it.

If we don't stand up for our rights, we won't have any.

gglass

I don't know this judge's track record, but with these credentials on his resume he can't be too bad.

Civic & Other Activities
Federalist Society for Law and Public Policy Studies
Board of Directors, Piatt Lake Bible Conference, 1995-1997
Board of Directors, International Aid
Board of Directors, Christian Counseling Center
Christian Legal Society

__________________
"Let me guess... This isn't about the alcohol or tobacco."

Cupcake

Excellent. I was hoping this case would go somewhere.

__________________
Sixto for President!

retsupt99

'Bout time...

Attention, City of Grand Haven...open your wallet..wide!

Every city that thinks it can make its own laws should earn a very expensive day in court.

__________________
"That I cannot do."

"Give this to, uh, Clemenza. I want reliable people, people who aren't going to be carried away. After all we're not murderers in spite of what this undertaker thinks."


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NRA Life Member

Sig 210

#1
Exactly.

chains1240

Thank you for posting this. I worked in Grand Haven for 6 1/2 years and hung around there for about 18. I was not aware of this incident. Please keep us informed of what happens.
Found this while searching for a related article on preemption:
May 12, 2009

FOR IMMEDIATE RELEASE:

The Law Offices of Steven W. Dulan, PLC announces federal civil rights suit against City of Grand Haven and Ottawa County over open-carry ordinance.

The suit, brought under Title 42, Section 1983 of the U.S. Code, was filed on behalf of Christopher Fetters, an off-duty Air Force Security Officer who was attending the Coast Guard Festival in Grand Haven last year. Mr. Fetters was openly carrying a holstered pistol, which is legal under Michigan law, as in most states. He was arrested and detained and charged with a violation of a Grand Haven city ordinance prohibiting open carry of firearms. His gun was initially seized, although it was later returned.

Michigan law prohibits local units of government from making any law with respect to firearms, (MCL 123.1102.) The public policy goal of the statute is to provide a uniform system of gun laws statewide so that citizens do not have to guess regarding what local rules might exist as they move from one locality to the next.

The complaint alleges, among other issues, violations of Mr. Fetters' civil rights under the 2d, 4th, and 14th , Amendments to the U.S. Constitution, and Article I, Section 6 of the Michigan Constitution, which reads, "Every person has a right to keep and bear arms for the defense of himself and the state," when he was physically restrained, disarmed, and subjected to verbal harassment and ridicule by law enforcement personnel.

Criminal charges were later dropped by the Grand Haven City Attorney's Office, after being informed of the unenforceability of their ordinance. No allegations were ever made that Mr. Fetters ever threatened anyone, or in any other way disturbed the peace on the day of his arrest. He is demanding damages for violation of his civil rights as a citizen of the United States and of Michigan.

The case has been filed in the U.S. Court, Western District of Michigan in Grand Rapids and has been assigned Case Number 1:09-CV-00190.

-END-

Steven W. Dulan is a current member of the Board of Directors of MCRGO.

SelfDefense

Exactly! Why have local laws when we can submit to a government and king across the ocean? And if we disagree with the king's mandate we should pay hundreds of thousands of dollars.

Sounds like a plan.