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.