GRAND RAPIDS, MI - The city has asked a judge to dismiss a federal lawsuit filed by an open carry advocate whom police forced to the ground at gunpoint because he had a holstered firearm.

The city, in a request for summary judgment filed Thursday, March 5, said Officer William Moe responded appropriately when a woman called 911 to report a man walking with a holstered firearm.

Once he determined the armed man wasn't a threat or a felon, he let him go.

Johann Deffert says Grand Rapids police violated his constitutional rights, assaulted him and falsely imprisoned him March 3, 2014, on Michigan Street NE near Lakeside Drive. Deffert contended he was deprived of his liberty after police stopped him while he walked down the street.

His attorney says the city has taken a stance against those openly carrying firearms. Deffert filed a lengthy response to the city's motion for summary judgment.

Both sides essentially agree how events unfolded when Moe confronted Deffert, but differ on application of the law.

"Defendant Moe was justified in stopping and briefly detained Plaintiff as a community-caretaking function, or alternatively, as a reasonable investigative stop," according to the filing signed by assistant city attorneys Margaret Bloemers, Kristen Rewa and Elliot Gruszka.

The city said Officer Timothy Johnston, also named as a defendant, played no active role in the stop and did not have a duty to intervene.

The city also said that the officers have qualified immunity, which protects them while on duty from civil liability if their conduct does not violate laws or constitutional rights.

"Defendants are entitled to qualified immunity on Plaintiff's Second Amendment claim because at the time Defendant Moe seized Plaintiff's gun, any right to carry a firearm in public was not clearly established," the city attorneys wrote.

"Defendant City is entitled to summary judgment on Plaintiff's Second Amendment claim because the City is not liable for constitutional violations that did not occur. Even if Plaintiff's rights were violated, he can point to no City custom or policy that was the moving force behind his constitutional injury."

The city said Deffert's actions, walking down the street, talking to himself with an open firearm, was not expressive conduct protected by the First Amendment. The officers had immunity to the First Amendment claim because Deffert "cannot show that he was engaged in expressive conduct."

Deffert's attorney, Steven Dulan, opposed the motion.

He said the city, in declaring a community caretaker exception to justify stopping Deffert, cited cases where police react to an immediate threat. Unlike those cases, "(Deffert) was walking down the street and had not made any act or movement that suggested he was an instant threat to any person in his vicinity."

He said that the city justified stopping Deffert solely because of his openly carried gun.

"Defendants claim that the scope of Officer Moe's actions were limited to accomplishing his community caretaker function. Assuming, for the purposes of argument, that Officer Moe was engaged in a proper exercise of that function, his actions still extended beyond those which were reasonable. Before having any contact with Plaintiff, Officer Moe pointed a gun at Plaintiff from across the street and without regard for bystanders in traffic who passed between him and Plaintiff."

He said his client was "an individual partaking in lawful activity." The process of determining if Deffert posed a danger was slowed by the officer's "condescending remarks to his captive audience."

Dulan said that a city ordinance prohibiting the carrying of any firearm without the license to carry, possess or transport amounted to a "direct instruction" to police to bar citizens from bearing firearms inside the city.

He said the city was unaware that the firearms ban had been invalid since 1990. When it was brought to city leaders' attention, no one took action to repeal it.

"In their brief, Defendants speak of empathizing with the frustration of 'suddenly having to tolerate armed individuals.' This argument demonstrates the hostile environment toward a federal right existing within the government of Defendant City of Grand Rapids.

"The attitude with which the City approaches the concept of open carry fosters its officers' frustration and resentment toward those who would exercise a fundamental constitutional right," Dulan wrote.

He also contended that Deffert's "firearms-related symbolic speech" was protected by the First Amendment.

John Agar covers crime for MLive/Grand Rapids Press E-mail John Agar: jagar@mlive.com and follow him on Twitter at twitter.com/ReporterJAgar