All The Open Carry Folks wanted a court decision......

[BadgeBunny]

The suspicion was not based on openly carrying a handgun that reasonably appeared to be a handgun. It was based on openly carrying a handgun that reasonably looked like an illegally modified rifle. Additionally, the defendant had painted the tip of the barrel orange, which aroused further suspicion that it might be an attempt to disguise an illegally modified rifle.

Furthermore, you can thank the NRA for the Second Amendment's limitation to a handgun for purposes of self defense within one's home.

However, I don't expect people who don't read before posting or commenting to comprehend that. Most people will just take the title of the thread or an excerpt and run with it, while in reality the full story is needed.

No, actually, I think we all pretty much understand the situation. This is EXACTLY what happens when people think they are being clever. It just mucks the entire world up for the rest of us ...

Besides, the facts of case law will never be exactly on point moving forward, so lawyers are free to apply this precedent as they see fit and see what sticks. The judges will sort it all out for us. **rolleyes** Thanks to some moron who needed a little more attention than Mommy and Daddy gave him ...

 

[hrdware]

The suspicion was not based on openly carrying a handgun that reasonably appeared to be a handgun. It was based on openly carrying a handgun that reasonably looked like an illegally modified rifle. Additionally, the defendant had painted the tip of the barrel orange, which aroused further suspicion that it might be an attempt to disguise an illegally modified rifle.

Furthermore, you can thank the NRA for the Second Amendment's limitation to a handgun for purposes of self defense within one's home.

However, I don't expect people who don't read before posting or commenting to comprehend that. Most people will just take the title of the thread or an excerpt and run with it, while in reality the full story is needed.

This ^.

I agree that the park ranger had reasonable suspicion of a crime and the stop was warranted.

 

[hrdware]

.....now they've got one.

http://www.volokh.com/2012/08/30/unusual-fourth-amendment-second-amendment-case/

Unfortunately it didn't turn out the way they wanted and has now resulted in a circuit court affirming the authority of a police officer to stop, disarm, and detain a person carrying a firearm openly for the purpose of determining if it is being carried legally.

If only the militant wing would've kept their junk concealed and stopped trying to make a point with their iphones......

Michael Brown

I have to disagree a bit. I didn't see that the ruling (or the events) said it was to see if it was being carried legally, it was to see if the weapon itself was an illegal weapon. Call it semantics if you want, but the two things are different.

 

[MLRyan]

Additionally, the defendant had painted the tip of the barrel orange, which aroused further suspicion that it might be an attempt to disguise an illegally modified rifle.

Isn't this like, extremelly illegal? Modifying a firearm to make it appear as a toy or non firearm? That alone should be enough to confiscate the weapon. I wonder if some of these "gun enthusiasts" that go out and make problems like this are actually "anti gun enthusiasts."

 

[VladdDImpaler]

I could be wrong, but I'm pretty sure the laws on the books only make it illegal to modify a toy gun to appear real, not the other way around.

 

[henschman]

Well I hope to god the Supreme Court doesn't take this on cert. It is a very poorly set up test case. To have the best chance of a positive outcome, a test case needs to be set up very carefully with a sympathetic defendant -- which Mr. Embody is decidedly not. Glocktogo is right -- he sounds like a pure attention seeker, rather than someone who is actually trying to advance the cause of liberty through a test case. If that was his intent, he went about it in a very poor manner by introducing extra BS that could create reasonable suspicion and make him less sympathetic, like the camo, orange flash hider, and choosing a gun that is so close to the legal length limit.

Personally I actually agree that there was RS present here, but not for the reason the Court said... to me, the facts all add up to a reasonable person thinking that the guy is a nut-job, and I think there would be reasonable suspicion that he is about to shoot the place up, which was obviously the worry of the people who called the cops. Also, in this situation, the disarmament could be justified by RS that he is armed and dangerous, since there are actually facts that would tend to support a belief that he is more dangerous than your average lawfully carrying gun owner. It is actually very similar to the situation in the original Terry v. Ohio case, in which a cop saw a guy with a trench coat with a big bulge under it loitering around a convenience store entrance, and the Court found that it was justified to stop him due to reasonable suspicion that he was about to rob the place, and that he was justified in frisking and disarming him based on a reasonable suspicion that he was both armed and dangerous.

The RS might be dispelled quickly enough by talking to the guy, once it becomes obvious that he is an activist who is hoping to provoke a police response, but even after releasing him I would still think it would be prudent to have some officers watching him with weapons in hand as long as he stays out in public, ready to drop him if he starts to draw a bead on anybody or whatnot.

 

[Michael Brown]

I have to disagree a bit. I didn't see that the ruling (or the events) said it was to see if it was being carried legally, it was to see if the weapon itself was an illegal weapon. Call it semantics if you want, but the two things are different.

You may interpret it how you want.

I am confident that judges will not agree.

Michael Brown

 

[mons meg]

You may interpret it how you want.

I am confident that judges will not agree.

Michael Brown

Mike, do you mean "different judges may interpret this in different ways?"

I just read through the entire opinion (fairly short by Appellate standards), and I think it's important to remember they were affirming the summary judgment by the District Court for the defendant in the 1983 suit that Embody brought against Ward, the park ranger, because the stop was deemed "reasonable" by both courts. They found the stop reasonable, IMO, because of the over-the-top actions by Embody. I don't think it follows at all that the stop and follow-on detention would have happened had Embody been carrying a 1911 pistol on his hip.

ALSO:

Embody’s Second Amendment claim fares no better. Noting that state law authorized
him to carry this gun in the park, he argues that temporarily disarming him necessarily was a
“per se Second Amendment violation.” Br. 10. But § 1983 claims are designed to vindicate
federal law, not state law. He offers no explanation why the officers’ alleged failure to comply
with state law itself violates the United States Constitution in general or the Second
Amendment in particular. The “[m]ere violation of a state statute does not infringe the federal
Constitution.” Snowden v. Hughes, 321 U.S. 1, 11 (1944).

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).

Highlights are mine; I guess to sum it all up, I don't think this case has any special meaning or usability as case law past the immediate issue, but IANAL.

 

[mons meg]

Having trouble editing my previous post. In a nutshell, I don't think this case is any sort of watershed, nor will it change Terry standards.

 

[Blurplers]

it was way over the top to carry such a weapon. if it had been a normal semi pistol (1911 perhaps), he wouldnt hav got stopped. Hell ill be open carrying at times, not always, but if i was ever stopped by a PO to make sure im carrying legally, i wont hav a problem with it unless hes an ******* about it or i get wrongfully arrested, which i doubt would happen. Hes just doing his job, better he check than not and that person murders someone.