FLINT TWP, MI -- A Flint Township man has filed a lawsuit on claims he had to spend Christmas in jail when he was stopped by police while legally openly carrying his pistol.

Flint Township police argue the man's gun was concealed when he was stopped and the officer was within his rights to detain the man.

John David McMorris filed the lawsuit in February in Genesee County Circuit Court against Flint Township police. The case was moved to Detroit U.S. District Court March 17 by Troy-based attorney G. Gus Morris, who is representing police in the case.

McMorris, 21, claims that he was walking alongside Torrey Road near Bishop International Airport around 11:30 p.m. on Christmas Eve with his .40-caliber Smith & Wesson pistol openly carried in a holster on the outside of his clothing and coat when he was stopped by a Flint Township police officer.

Grand Blanc-based attorney Craig L. McAra, who represents McMorris, said his client lives near where he was stopped and was walking to the store.

"He had (the gun) for his personal protection," McAra said.

The officer was traveling northbound on Torrey Road in a marked police cruiser when he spotted McMorris, according to the lawsuit. The officer pulled his vehicle onto the shoulder of the road and activated his vehicle's emergency lights.

After responding to the call, the township's attorney said the officer again traveled down Torrey Road and saw McMorris. The officer stopped to check on the man and observed the gun when McMorris raised his hands.

The officer concluded that McMorris had concealed the gun under his coat since he did not see it when he initially passed the man and placed him under arrest since McMorris wasn't licensed to carry a concealed pistol, the township's attorney said.

The first time the officer passed McMorris was not included on the dashcam recording of the stop.

McMorris was handcuffed and placed in the back of the patrol car, according to the lawsuit. McMorris could be heard telling the officer he had a drink hours before the stop as the officer is searching him prior to putting him in the back of the car.

Officers attempted to administer multiple breathalyzer tests, but the video shows that the equipment's batteries appeared to be dead.

McMorris was then booked into the Genesee County Jail on allegations of carrying a concealed firearm without a permit, the lawsuit claims.

McAra said officers never conducted any other blood alcohol tests after the arrest.

McMorris claims that he was lodged at the jail until Dec. 26 -- forcing him to miss the Christmas Holiday -- until he was released without any charges filed.

"I think that was the biggest insult to injury," McAra said of his client being forced to spend Christmas in jail.

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 is seeking more than $25,000 in actual and punitive damages for civil rights violations, false arrest and malicious prosecution.

The case is pending in federal court. A trial is not expected until late 2014.

Flint Township police Chief George Sippert could not be reached for comment on the allegations.