March 2016 - Parks & Recreation - 48

L AW R E V I E W

Amendment rights by subjecting
him to an unreasonable seizure and
his Second Amendment rights by
disarming and detaining him for carrying a weapon condoned by state
law. The federal district court granted
Ward's motion for summary judgment, effectively dismissing the lawsuit. Embody appealed.
As noted by the federal appeals
court, the " question raised by this §
1983 action is whether Ward violated Embody's rights under the Fourth
(and Fourteenth) Amendment, which
protects individuals against 'unreasonable searches and seizures.' "
As cited by the federal appeals
court, the following well-known rules

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. All of this explains
the reactions of visitors to the park, who
became frightened at the sight of a man in
camouflage carrying an AK-47 across his
chest, including one couple who reported a
man with an " assault rifle. " Making matters worse (or at least more suspicious), Embody had painted the barrel tip of the gun
orange, typically an indication that the gun
is a toy. An officer could fairly suspect that
Embody had used the paint to disguise an
illegal weapon.
Further, in the opinion of the appeals
court, " the scope of Ward's investiga-

Embody's AK-47, carried openly and fully loaded
through a state park, gave Ward ample reason for
suspicion that Embody posessed an illegal firearm.
of criminal procedure would govern
the constitutionality of an encounter
in which an individual is temporarily
detained by law enforcement:
Before conducting a temporary investigatory stop, a law enforcement officer must
have a " reasonable " suspicion of criminal
activity based on " specific and articulable
facts " known to the officer at the time of
the stop. The length of the stop and the
extent of intrusion must be " reasonably
related in scope to the circumstances which
justified the interference. "
Applying these rules to the facts
of the case, the federal appeals court
concluded " an officer could reasonably suspect something was amiss. "
Embody's AK-47, carried openly and fully loaded through a state park, gave Ward
ample reason for suspicion that Embody
46 Parks & Recreation

tion also was reasonably related to the
circumstances that justified the stop. "
Ordering Embody to the ground at gunpoint was not an excessive intrusion given
the existence of a loaded weapon, the risk
to officer (or public) safety if Embody had
been up to no good and the danger to law
enforcement whenever it disarms an individual suspected of crime.
Although the rangers detained Embody
for two-and-a-half hours, he points to no
lack of diligence by Ward in trying to confirm (or allay) his suspicions. The officers
took the time needed to determine whether
the AK-47 was a handgun, whether Embody had a permit for it, whether he had
illegally modified it and whether he posed
any other safety threats.
According to the federal appeals
court, the issue was not whether Em-

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body had committed a crime when
carrying an AK-47 pistol in a Tennessee state park. Rather, the constitutional question before the court was
" whether the officers had reasonable
suspicion of a crime, not whether
a crime occurred. " Otherwise, the
federal appeals court noted that " all
failed investigatory stops would lead
to successful § 1983 actions. " Under
the circumstances of this case, the
appeals court found reasonable suspicion of a crime did indeed exist.
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.
Accordingly, in the absence of an
unreasonable search and seizure of
his person, the federal appeals court
found no Fourth Amendment violation had occurred.
Since Tennessee " state law authorized him to carry this gun in the
park, " Embody had also argued that
" temporarily disarming him " violated
the Second Amendment. The court
rejected this argument. According to
the appeals court, " no court has held
that the Second Amendment encompasses a right to bear arms within state
parks. " On the contrary, in the landmark Heller case, the holding of the
Supreme Court of the United States
was limited to recognizing a Second
Amendment right of the individual
" to bear arms in the home. "
James C. Kozlowski, J.D., Ph.D., is an
attorney and Associate Professor in the
School of Recreation, Health, and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

March 2016 - Parks & Recreation

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