Yet Another Wrong Headed Lawsuit

A

Al Norris

Moderator Emeritus
What is the offense of committing an affray?

It is a form of disorderly conduct; it is a breach of the peace; it disturbs the peace of the community, often to the terror of the people.

On or about Dec. 29th, 2010, Leonard Embody, went to a nature conserve (a public park) dressed in camo's and with an openly carried Draco AK-47 handgun, strapped to his chest (a single point sling, as you would a rifle). This handgun, while of an unusual design (meaning: not often seen) also had the barrel tip painted blaze orange, as if it was a toy. Embody had a TN CCW, which allowed him to carry his handgun openly, under TN law.

Embody was subsequently detained by the park officers (and the Metro Police) for about 2,5 hours while "things" were sorted out. He was then released and his firearm was returned. Embody then filed a lawsuit for unlawful detention and violation of his 2A rights.

The trial court found that his 4A claim was unfounded. That he had committed an offense tantamount to disorderly conduct. The court also dismissed his 2A claim on other grounds.

Embody appealed to the 6th Circuit, where the case remains at the present.

Here is the Internet Archive and Docket of the trial court.

Mr. Embody's deposition (a large PDF) where he admits to the action as a way of confronting and antagonizing the authorities. He also admits to painting the barrel tip blaze orange, because he believed the police would think twice about shooting him, if they thought he had only a toy gun.

Monday, the SAF and CalGuns Foundation filed an amicus brief in favor of the the appellee and the lower court.

This brief was designed to control any damage that might result in the Circuit upholding the "other grounds" that the district court used to dismiss the 2A portion of the lawsuit.

What Alan Gura is saying is that when people go out of their way to intentionally confront the police with intentionally disguised firearms, they commit an affray and the Heller terms of "dangerous and unusual weapons" come into play and neither the action nor the firearm is protected by the 2A.

Alan Gura was very careful in defining this "dangerous and unusual" passage, so as not to tie it to any specific type of firearm, but to actions that could cause alarm in ordinary citizens (hence the definition for "affray" at the start of this post).

Embody has joined, posted and been banned by many forums. I could direct you to the relevant threads at CalGuns.net, but we have had our own thread with this individual, here at TFL. To get an idea, see this thread and take particular note of the OP.
 
Why would anyone in their right mind disguise a live firearm as a toy by painting the tip....was he crossing his fingers that the police shot him over a "toy" or something?


While I don't agree with what the guy is doing, would he have been comitting a crime if the guns tip had not been painted orange?


Alan Gura was very careful in defining this "dangerous and unusual" passage, so as not to tie it to any specific type of firearm, but to actions that could cause alarm in ordinary citizens
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Dangerous IMO, Regular OC might not cause "alarm" in say rural PA but "might' cause "alarm" in Philidephia...so now OC is ok some places and not in others?
 
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Al Norris, I have read of this person and his actions for a while now. I am sure Mr Gura understands the views of Mr Embody from his various post here and elsewhere. I will be reading through Mr Gura's brief, though I feel it is in a way damage control.

I feel that Mr Embody has a strong chance of causing more harm, then any good his actions are likely to bring. I would like to bring out something that you mentioned from Mr Embody's deposition. "Mr. Embody's deposition (a large PDF) where he admits to the action as a way of confronting and antagonizing the authorities. He also admits to painting the barrel tip blaze orange, because he believed the police would think twice about shooting him, if they thought he had only a toy gun." By his own deposition, Mr Embody seems to have intended to either conceal or to disguise the Draco so, "the police would think twice about shooting him, if they thought he had only a toy gun." With that said, I wonder if the more Mr Embody pushes this, if such things as painting an orange tip, etc on a firearm brings it into an NFA area, since the intent was to disguise, conceal, or mislead others in to thinking it is not a firearm, only a "toy". Or, if the "dangerous and unusual weapons" may bring about a ground for banning or restricting such firearms since as you noted, and I quote, "dangerous and unusual weapons" come into play and neither the action nor the firearm is protected by the 2A."

Edit to add -> While the charge, and conviction of affray seems to be a reasonable response to the actions of Mr Embody, I feel more concerned he will keep pushing until some damage has been done, either by this event, or others in the future he seems to always have in mind. I doubt if he will be happy with any likely outcome. There is also the old saying of, "The justice we want, we seldom get, and the justice we get, we seldom want."
 
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This guy is a nut! In CT, concealed carry is legal but if the gun is exposed and someone calls the police, you can be arrested for disturbing the police. Legally, you can carry open but it is advised that you don't for that reason. Why chance it? Anything can happen in that situation. Rookie cop answers the call first. Man with a gun in cammies. In light of some recent events, it naturally puts people in a heightened sense of alarm. Cop asks man to put the weapon on the ground, man doesn't hear. Where it goes from there is anyone's guess. Wasn't a guy in NY shot 41 times reaching for his wallet a few years ago? Just lunacy IMO. Legal or not, you are putting yourself at risk to prove something? Weird.
 
Legal or not, you are putting yourself at risk to prove something? Weird.
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Like back during the civil rights demonstrations?

Not equating this guy with them beyond the legal but different behavior.
 
The gentleman in NYC was named Diallo and shot at 41 times and hit 17 IIRC. He was stopped as being suspected of being a rapist in the area. He made the mistake of presenting his wallet as was done to the police normally in his native country. The exact interpretation of the shooting is complex but not really relevant to this case. It does point out thought that armed interaction with the police is dangerous.
 
Like back during the civil rights demonstrations?

Not equating this guy with them beyond the legal but different behavior.
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No, not like back during the civil rights demonstrations. The intent of those demonstrations was to gain attention to and change the laws that set apart an entire group of people just because they didn't have light skin.

Mr. Embody's actions were designed solely to...well, I honestly am not sure what he was trying to do, other than to actively solicit a confrontation with the police to satisfy his ego.

Mr. Embody carried a "handgun" because the law said that he could. The protesters of the '60s intentionally violated laws that they knew to be wrong. Not even comparable.

He's what we colloquially call, in these parts, a "dumbass".
 
I am curious whether suspending a firearm from a single point sling could be construed as brandishing as opposed to simple carrying. Normally, open carry of a handgun involves pmaintaining it within a restraint such as a holster or a pocket. Obviously, Embody's actions were intended to cause as much confusion, commotion and fear as possible, and dangling a firearm out in front of him would only contribute to that.
 
Glenn, exactly my point. Not that it pertained to the case, but what could happen when dealing with a charged situation.
 
I can't see where ho committed any crime (unless being stupid is a crime) but he sure exercised poor judgement and bad manners. I don't see where his right were violated either. If you exercise poor judgment and bad manners you should have to deal with the results.
 
I just finished going through Mr Gura brief and Mr Embody's deposition.

Even more so now, I tend to feel that Mr Embody was being trying to provoke his own arrest, for some strange showboat type ideals. In his deposition he goes on to say on page 51 and 52, how things posted under his username(s) may or may not have been wrote or edited by him. He seems, to me at least, to be paranoid of everyone.

It seems also, that in this, and other cases Mr Gura is level headed and out to protect, as well as enhance our 2nd ammendment rights. In his brief, he states, "Plaintiff’s intentionally provocative conduct in no way represents the manner in which millions of Americans responsibly and effectively exercise their right to bear arms every day. Plaintiff should be grateful for what he conceded was the police’s calm, courteous and respectful professionalism in dealing with his behavior. Plaintiff might well have posed a threat to others at Radnor Lake State Park. But his ill-advised, if not actually frivolous litigation proved conclusively to jeopardize the security of Second Amendment rights," in the introduction, page 3.

Throughout the brief Mr Gura seems, again to me at least, that Mr Embody was not acting in a normal way, which would/should be protected under the 2nd ammendment. Mr Gura even quotes My Embody stating, "I can’t wait for a cop to arrest me because I open-carried a handgun and someone called 9-1-1. It almost happened twice but no cigar yet. Maybe carrying a PLR-16 or AK pistol will change that." Page 28

I dont see where Mr Embody can win in this case. He seems to be his own worse enemy. It seems like if nothing had happened at the park, he would have kept uping the likelyhood to force the police to respond.
 
Sigh . . . .

There are those people out there who just love the battle. It doesn't matter what the battle is about. A true gadfly.
 
A guy goes around like that, it has a certain profile that some people, including cops, are sensitive to. It could easily get him killed, civil rights or no civil rights. So be a martyr if it floats the boat. And be prepared to go down with the ship when the plug is pulled.
 
Every group of people has it's individuals that make the entire group look bad. This guy just happens to be one of those individuals for gun owners.
 
Patriot86 said:
Why would anyone in their right mind disguise a live firearm as a toy by painting the tip....was he crossing his fingers that the police shot him over a "toy" or something?
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No. He was afraid that in provoking the encounter, he might be shot. So in painting the firearm to look like a toy, he was looking at insurance that he wouldn't be shot.

I think it wise to remember that Mr. Embody was not charged, let alone convicted of anything in this encounter.

Hardcase said:
Mr. Embody's actions were designed solely to...well, I honestly am not sure what he was trying to do, other than to actively solicit a confrontation with the police to satisfy his ego.
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I have read enough of Kwikrnu's posts at CalGuns.net (he was banned there), OpenCarry.org (he was banned there) and here (I'm breaking a mod rule - I banned him here), to know he was fighting for the sole act of fighting. It was and is a crusade without any defined goal. As such, it could be disastrous for our side, since all 2A civil rights is in its infancy.

csmsss said:
I am curious whether suspending a firearm from a single point sling could be construed as brandishing as opposed to simple carrying. Normally, open carry of a handgun involves pmaintaining it within a restraint such as a holster or a pocket. Obviously, Embody's actions were intended to cause as much confusion, commotion and fear as possible, and dangling a firearm out in front of him would only contribute to that.
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Which is why Alan Gura went to the lengths he did in showing it was the action of the plaintiff and not the firearm that was the problem.

Most, if not all, responsible gun owners do not carry in a manner that suggests they are on patrol in a hostile country.

MTT TL said:
I can't see where h[e] committed any crime (unless being stupid is a crime) but he sure exercised poor judgement and bad manners.
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Since he wasn't cited or charged, we can only speculate.
 
Mr. Embody's actions were designed solely to...well, I honestly am not sure what he was trying to do, other than to actively solicit a confrontation with the police to satisfy his ego.
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Actually, he's out to solicit a lucrative lawsuit. He said so himself. I can't remember which forum he stated that in, but I can dig it up.

He unintentionally set another disastrous precedent in Tennessee. He went walking down the streets of Belle Meade (again, looking to provoke a lawsuit) carrying a Colt Navy clone in his hand. Following his detention and subsequent losing lawsuit, the state revoked his carry permit. Basically, the cause for doing so was "acting like an unstable nutjob."

Part of me is glad that his permit was revoked, but part of me really worries about a precedent that says the state can revoke a permit for simply acting weird. Where's the line drawn, and who draws it?

Believe it or not, there are people who cheer Mr. Embody on, and that's what he's looking for. He stated on his thread here that he couldn't care less about furthering the cause of the 2nd Amendment.

Gura's used Embody as an example once before, and in an amicus for Masciandaro:

Mr. Embody was temporarily detained by police because, to the alarm of various park visitors, he was walking about in camouflage with an AK-47 pistol slung over his back, the barrel tip of which he had painted orange to disguise as a toy. Regardless of whether any one of these facts are properly the subject of criminal prohibition, their combination was plainly intended to provoke a confrontation with police. Upon verifying that Embody’s particular AK-47 was lawfully carried, he was let go.

Having obtained his desired confrontation, Embody sued the police. The court noted that a significant question existed of whether Embody’s particular weapon enjoyed constitutional protection, but it was easier to dismiss the case because the orange-barreled AK-47 was carried in a park, particularly in light of the Fourth Circuit’s precedent in this case.

Just as differences exist among various government-owned properties designated as “parks,” so too are there differences between people like Mr. Embody, who actively sought police confrontation, and Petitioner Masciandaro, who slept peacefully in his car with an ordinary gun he keeps for self-defense. (...) Unlike Embody’s behavior, Petitioner’s actions are typical of the manner in which Americans exercise the right to bear arms, and would provide this Court a better platform upon which to announce a rule of constitutional law for the responsible majority of the people. [pp. 21-22]
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A quick synopsis might help:

  1. Leonard Embody was temporarily detained in Radnor Lake State Park in Tennessee wearing camo clothing and carrying a Draco AK-47 handgun on a sling on his chest. The gun's muzzle was painted orange and resembled a toy gun.

  2. Park Rangers had received several concerned inquiries from members of the public prompting the detention. During the course of that temporary detention, the police verified that the gun was legal and that it was legal for Embody to be carrying it. Embody was released at that point and left free to go about his business.

  3. Embody was neither arrested or charged with anything.

  4. Embody then sued the Park Ranger who had detained him.

  5. The defendant Park Ranger moved for summary judgment, and the Unites States District Court for the Middle District of Tennessee, granted that motion ending Embody's suit (Embody v. Ward, No. 3:10cv-00126, Unites States District Court for the Middle District of Tennessee, Nashville Division, 20 July 2011). The court found that the temporary detention was reasonable given Embody's conduct.

  6. Embody has appealed to the Sixth Circuit.

Our concern is that the District Court in granting the defendant's motion for summary judgment stated that (Embody v. Ward, No. 3:10cv-00126, 20 July 2011, at pg 11):
...Given that Plaintiff was in personal possession of a loaded weapon in a public park, the Court concludes that the temporary seizure of Plaintiff's weapon did not violate the Second Amendment...
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It would not be in our interests for that to stand.

But given the record in this case, especially Embody's own statements in his deposition, defending his antics is a lost cause. So the challenge here is to distinguish the carrying of arms for self defense from Embody's provocative and clownish behavior.
 
His actions are so detrimental to the image of gun owners, its almost like he's working for the VPC.

I've been encouraged, for the most part, by the way firearms related court rulings have gone over the last several years.

I really hope this man, his inane behavior and law suit don't give us a set back.
 
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