For his troubles, Embody has done something rare: He has taken a position on the Second and Fourth Amendment that unites the Brady Center to Prevent Gun Violence and the Second Amendment Foundation. Both organizations think that the park ranger permissibly disarmed and detained Leonard Embody that day, notwithstanding his rights to possess the gun. So do we.
This was a bad case taken forward by someone who doesn’t want to leave things to experts, so SAF went in with arguments that would kill the suit. The Court essentially concluded it was a legitimate Terry stop, so there was no 4th Amendment case to be made:
Embody does not quarrel with this accounting of what happened. To his mind, all that matters is that carrying an AK-47 pistol in a state park is legal under Tennessee law; the gun’s resemblance to an assault rifle, the conspicuous arming of it, his military clothing and the concerns of passers-by add nothing. But the constitutional question is whether the officers had reasonable suspicion of a crime, not whether a crime occurred. Otherwise, all failed investigatory stops would lead to successful § 1983 actions. Having worked hard to appear suspicious in an armed-and-loaded visit to the park, Embody cannot cry foul after park rangers, to say nothing of passers-by, took the bait. The officers stopped him only as long as it took to investigate the legitimacy of the weapon and, at his insistence, bring the supervisor to the park. No Fourth Amendment violation occurred.
The court skirted the Second Amendment issue by upholding the qualified immunity of the officers in question:
To the extent Embody means to argue that the Second Amendment prevents Tennessee from prohibiting certain firearms in state parks (and thus prohibited Ward from detaining Embody on suspicion of possessing an illegal firearm), qualified immunity is the answer. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). No court has held that the Second Amendment encompasses a right to bear arms within state parks. See District of Columbia v. Heller, 554 U.S. 570 (2008) (individual right to bear arms in the home); United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) (upholding regulation prohibiting firearms in national parks). Such a right may or may not exist, but the critical point for our purposes is that it has not been established—clearly or otherwise at this point. That suffices to resolve this claim under the Court’s qualified-immunity precedents. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
The Bradys are, of course, treating this like some kind of victory, but the fact is we got what we wanted here, and in a pretty non-damaging way. The Brady folks could have hoped for a lot more from a suit as reckless as this. The standard for overcoming qualified immunity is pretty high, and this dismissal here does not mean what the Brady folks would like it to mean. I am sure, however, we have not seen the last of Leonard Embody’s one man crusade to ruin Second Amendment precedent in the 6th Circuit.
When addressing a crowd of gun bloggers, Alan Gura mentioned the biggest threat to our Second Amendment rights was these kinds of oddball pro se litigants, who take forward bad cases with no legal expertise, and proceed to establish negative precedent that is difficult to overcome. So far, I think we’ve seen less of that than I expected. I applaud SAF and Mr. Gura for intervening in this case, and crushing it like the cockroach in the kitchen that it was.
I contend there is more writing from our founders that upholds the idea of carrying a firearm in parks than there is of them supporting the government holding land and calling it a park.
This. What a horrible ruling. Just seeing a guy in a park with a gun is no reason to stop and disarm him. That violates both the Second and the Fourth.
The court here went out of its way to not say anything about whether one has a right to carry in a park.
There is an important fact in the record but not in the decision.
When Leonard Embody went to the park dressed about the same but with a nice revolver openly carried in a holster on his belt, the ranger stopped him for about 5 minutes to see if he had a valid LTC (which one needs in TN to open carry.) He did and the ranger let him go on about his business.
This case is more about affray (which you probably can’t do historically/constitutionally) and not about simply carrying.
-Gene
PS – The actual link to the opinion is here – http://www.ca6.uscourts.gov/opinions.pdf/12a0293p-06.pdf
The link above is in error.
-Gene
It doesn’t appear that he was pro se on this. There is an attorney listed on the decision representing him. But this makes the pro se case Onderdonk v. Handgun Permit Review Board, 44 Md. App. 132, 134-35 (1979) look like positively inspired reasoning by comparison.
I have received a cryptic response from Embody that suggests that his goal is to damage the Second Amendment.
So he is a Moby? Good to know.
Maybe just clueless.
The more email I exchange, the more convinced that I am he is a fanatic of some sort–like the people who argue for the right to carry nuclear weapons because it’s a RIGHT DAMMIT!
Odd ball actions are usually followed by more odd ball actions. This crap of OC’ing for shock value and police response is beyond normal, so is pro se monkey business was just in line with his other odd behavior.
Very possibly. What tells me he was going for the former, besides the prior incident where a revolver didn’t do the trick, was his painting an orange ring on his muzzle, a somewhat silly thing required for airsoft guns. There’s no positive interpretation you can put on doing that to a real firearm.
Nothing beyond normal about exercising your rights, even (or especially) if its guaranteed to bring police response. Its how the right to videoing was finally recognized by courts. If we don’t push the cops understand our rights, they will take more and more.
In my mind, OCing is a perfectly valid method for stretching the limits of the right. But here’s the thing – when you’re doing something like this, engaging in an action that you know will provoke a response, as a part of a political effort, do so in a way that will make the other guy look like a jerk.
The oral argument in this case is… illuminating.
http://www.hoffmang.com/firearms/embody/11-5963-Embody-v-Ward-Oral-Argument-2012-07-18.mp3
-Gene
That was painful.
The best we could hope for from the Sixth Circuit with this kind of utterly stupidity by Embody. The opinion noted that the muzzle had orange paint, one of the facts that adds to the quite reasonable conclusion that Embody was up to something.
In the “Play stupid games, win stupid prizes” category, Embody was lucky that his prize was just the attorney fees from getting his stupid backside kicked in court. Good riddance.
I am a big open carry supporter but Embody’s actions were not helpful.
Open carrying a properly holstered sidearm = no big deal where legal.
Open carrying a long gun implies that you expect trouble. While it may be legal in many places I don’t support it unless (A) there is no option to legally carry sidearms or (B) you’re participating in an appropriate activity (like taking your long gun to the range, hunting, etc) or (C) it is carefully orchestrated activism for a calculated effect, preferably conducted as a group effort (under the perhaps mistaken theory that group efforts are less likely to be dominated by a single wingnut with a terrible idea).
THankfully it seems that damaging precedent was avoided.