Not a way to bring a 2A test case
Ruling here. A major consideration in a test case is to put forward a plaintiff who is as "clean" as possible, taking a position as reasonable as possible. Shelly Parker, Dick Heller, Otis McDonald. Here, plaintiff's idea of setting things up was to go walking thru a park, in camo, with a loaded AK pistol... and the tip painted orange, as if to pass for a toy gun. And carrying a tape recorder, just making clear he was anticipating something happening. As it turned out, he was detained but not arrested, and so he sues the officers for damages.
It was lucky -- actually, luck had little to do with it, it appears to have been SAF's strategy as amicus -- that the Second Amendment didn't take any damage. In a 1983 action, a defendant can argue qualified privilege, that a right was not "clearly established" at the time he acted. So the court simply concluded that maybe there is a right to do this, maybe there is not, but whatever it may be it was not clearly established at the time. Whew!
Some LEOs need a better understanding of the definition of a "rifle."
"Embody’s AK-47, carried openly and fully loaded through a state park, gave Ward ample reason for suspicion that Embody possessed an illegal firearm. The barrel was a half-inch shy of the legal limit, and, when coupled with the thirty-round ammunition clip, it reasonably could look more like a rifle than a handgun."
"The barrel was a half+inch shy of the legal limit" Does that mean you can stop me for doing 65 in a 70 because it "looked" like I was going to fast.
I don't expect LEOs to know all the firearms laws, but they better know the ones they are going to use to detain me.
LEOs have tough jobs and that's why they have qualified immunity, but the court should take it's time and get it right. In this case they got the opinion right, but for the wrong reason. The dicta leaves much to be desired.
Another case of a gun "looking" evil.
Posted by: Chuck at November 2, 2012 02:29 PM
Some of the people who advocate for gun rights do us no favors with their actions because the manner in which they do so increases the likelihood of unfavorable court decisions that could take years or decades to overcome.
Posted by: James at November 2, 2012 04:24 PM
There is no need for the gun-rights community to push the envelope regarding 2A issues, as the government and its minions seem to do that just fine without our help.
This case waas not so much about 2A or gun rights as it was about someone trying to prove their pet theory of how a specific law ought to be interpreted. A search of the gun fora using the plaintiff's name will document that as well as the almost desparate pleas trying to stop him before he screwed it up for everyone.
That we dodged a bullet with the ruling is quite the understatement.
Posted by: skidmark at November 3, 2012 04:22 AM
So... I googled a bit and wow...
The guy goes online with the handle kwikrnu, apparently has an FFL, and makes a habit of confrontations with the police.
Local newspapers refer to him as the Radnor Lake Rambo, and he more recently walked around town with an old Navy revolver in his hand citing an obscure old law that allowed such carry.
Posted by: Anon at November 3, 2012 08:04 AM
Embody does tend to push his luck and, considering his record of encounters with authority figures, if he ever does actually cross the line he will undoubtedly be prosecuted (persecuted maybe) as far as the law will allow. Whether or not we agree with him and his one man crusade, it's fairly obvious that he's done his research and knows his legal limitations.
I'm reminded of the actions taken in the 60's by Ms Rosa Parks and Dr. King. They and their followers pushed the envelope, embarrassed their peers, willingly went to jail for a cause they believed in, were ridiculed, and some were actually murdered.
I'm not sure whether Embody is right or wrong in what he's doing or how things will turn out for him or us. I have learned over the years that in order to effect change one often must use the law of the state in order to change the law of the state.
Posted by: Woody W Woodward at November 4, 2012 12:59 PM
Maybe, just maybe, to someone who doesn't live and breathe the firearms lifestyle, a Draco looks like an AK. Because it is. For an everyday LEO, a quick glance would probably result in the conclusion that it's a rifle. A short-barreled rifle. Because, that's exactly what it is, without a stock. And because it meets very stringent requirements, it is classified as a pistol. But that doesn't mean that it LOOKS like an everyday pistol. It still looks like an SBR. I fully don't expect LEOs to know every minutiae of the law, now do I expect them to be able to estimate barrel size to the millimeter just by looking at it. Frankly, I don't blame the LEOs who stopped him. It looked like a questionable individual was walking around with an SBR. They responded unbelievably reasonably, considering how "man with a gun" calls result with people carrying a handgun in their sunday best.
Posted by: cspradlin at November 4, 2012 01:38 PM
I have absolutely no problem with the Terry stop.
I speculate that the suspect explained the configuration of the pistol.
WITHOUT a stock it could not be a rifle. That is the very definition of a rifle.
Again, I don't expect any LEO to be a gun guy and understand every element of the law. BUT, if I'm going to be detained after my explanation of the legality of my gun (again I speculate)then someone should be acting quickly to prove that the gun I'm carrying is contraband or, allowing me to proceed.
Please don't think that I agree the complainant's actions here. I think he is a jerk.
I agree with David that brining this case is no way to help the cause.
And again, it was not the LEO's actions that I commented on, it was the court's dicta concerning the LEO's actions. "...it reasonably could look more like a rifle than a handgun." I don't think after a casual inspection that this could reasonably (as in RAS)be the case.
I probably should have not commented on this post.
I'm an NFA guy and don't expect to be detained beyond my explanation of the legality of my toy.
Posted by: Anonymous at November 4, 2012 02:44 PM
The reason he was detained so long was because he insisted on seeing a supervisor even after being told it would take a while.
It was not the determination of the rifle vs. pistol that took so long, it was the demand to see a supervisor.
Posted by: Gunstar1 at November 4, 2012 09:11 PM
Actually, it is entirely possible for a gun of that configuration to be an SBR.
For example, if it had EVER had a stock mounted, it would be an SBR -- even if the stock was later removed. (AK designs, unlike the quick conversion kits that the T/C SCOTUS case revolved around, do not have readily swappable barrels -- so it couldn't be a "carbine kit" with a 16" barrel mounted on a pistol, then later reverted to a pistol. Once a stock goes on an AK design, it's a "rifle", so SBR length definitions apply forever more.)
Posted by: Geodkyt at November 5, 2012 10:04 AM
Embody emailed me his epic failure at the Court of Appeals, boasting about it. Of course, this is a guy who thinks Alan Gura and the Second Amendment Foundation are on the side of gun control.
Posted by: Clayton E. Cramer at November 5, 2012 02:10 PM
Chuck, can you tell a 11½″ barrel from a 12½″ barrel at a glance?
Posted by: Tamfang at November 8, 2012 10:03 PM