September 19, 2013
AUUW, Chicago, Illinois, Illinois Supreme Court, Law, Right to keep and bear arms, Second Amendment, Second Amendment to the United States Constitution, United States Constitution, United States Court of Appeals for the Seventh Circuit
This came out last week, but I wanted to wait and think about it before I began to bloviate about it.
The Illinois Supreme Court, in People v. Aguilar, 2013 IL 112116, ___ N.E.2d ___ (Ill. Sept. 12, 2013), ruled that the former version of the Aggravated Unlawful Use of a Weapon (AUUW), 720 ILCS 5/24-1.6, violated the Second Amendment of the U.S. Constitution.
Alberto Aguilar, then 17 years old, was arrested in the Little Village neighborhood of Chicago for AUUW and for Unlawful Possession of a Weapon (UPW), 720 ILCS 5/24-3.1. Aguilar was convicted in a bench trial and sentenced to two years of probation. He appealed and the appellate court affirmed the conviction. He then took the case to the Illinois Supreme Court.
As noted, the Court held that AUUW was unconstitutional at the time of the arrest, as it prohibited all carry of a firearm outside of the home. This is not surprising, given that the U.S. Seventh Circuit had made the same ruling in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). The Moore decision led to Illinois passing a concealed carry statute earlier this year, although it has not yet really taken effect yet (as no permits have been issued). The Illinois Supreme Court noted that they were ruling on the former law, not the current law. This means that the ruling will have a limited effect.
Of course, the gun rights people (at least those that are not lawyers) have put their own spin on this and I’m sure it won’t be long until some idiot decides that this means he can carry whenever and however he wants.
Some people will be getting their charges dropped, sure. The AUUW statute barred all carry until it was amended July 9, 2013, so people who were charged before that date have a pretty clear-cut road to the charges being dismissed. The problem arises with the skewed interpretation that some of the gun rights people are putting on this. They believe that since the old AUUW law was unconstitutional, then it was void (technically correct) and any amendment to the law was pointless (totally incorrect).
When the AUUW law was amended, it cured the problems brought up by both the Seventh Circuit and the Illinois Supreme Court. The AUUW law was unconstitutional because it had no provision for “bearing” arms outside of the home. As of July 9th, it has that provision. Ergo, it will be presumed to be a valid law again.
Someone is going to carry and become a new test case–and I wouldn’t want to be that guy, because he’ll lose.
September 19, 2013
police, Radley Balko, SWAT, United States, War on Drugs, Warrior Cop
The Windypundit has a series of posts reviewing “Rise of the Warrior Cop.”
Part 1, part 2, and part 3 are at the links, Mark does an excellent job of reviewing the book.
September 8, 2013
Law, Law Enforcement, Leonard Embody, Motion to suppress, Open carry, Open carry in the United States, police, Preliminary hearing, Probable cause, Second Amendment, Second Amendment to the United States Constitution, Tennessee
Well, Leonard Embody has given me further information for my blog.
His preliminary hearing was held recently. A preliminary hearing is solely for a judge to make a determination if there was probable cause for the arrest. That’s it. A couple of other matters can be addressed, like a motion to suppress evidence or a motion to dismiss, but those are based on factors surrounding the stop and the arrest, not general law.
So Embody shows up, pro se and is representing himself, and makes a motion to suppress. Of course, he has no clue about what he is doing, so when he is arguing his motion, he starts to offer testimony and the prosecutor objects. Eventually the judge decides to hear the testimony of the officer, who states that as soon as he saw Embody, that he could see an AR-15 slung across his back. As he got closer, he could tell that there was what appeared to be a silencer attached to the rifle, and the officer did not yet realize that the rifle was in a form-fitted kydex case. At that point he had reasonable suspicion to stop based on Tennessee law, since the possession of a silencer is a felony.
That would pretty much do it for the motion to suppress and motion to dismiss.
Of course, Embody brings up all sorts of irrelevant issues during his cross of the officer, the prosecution objects, and the judge sustains the objections. Embody then tries to introduce the ATF documents which would show that the silencer was legal, but has no idea how to lay the foundation nor how to authenticate the documents so he could get them admitted. I was actually very impressed with the patience that the judge had with Embody.
So now the prosecution has a finding that there was probable cause for the arrest and it will go to a grand jury for indictment. And if Embody does not get much better at the legal issues, he’s going to be convicted. He really needs to hire an attorney.
And the best line from the video is from the judge, near the very end. “I don’t think Mr. Embody is crazy, I think he’s stupid.” I will defer to the judge’s wisdom and leave that determination to my readers.
Apparently Embody has a copy of the recording of the hearing and put it up on YouTube. I’ve linked to it below.
September 7, 2013
Gun control, Law Enforcement, Nevada, Open carry in the United States, Police abuse, Second Amendment, Second Amendment to the United States Constitution, Sheriff, Washoe, Washoe County, Washoe County Nevada
Nevada is an open carry state, allowing the unconcealed carry of both handguns and longarms.
Unless, of course, one has a disqualifying factor, such as mental disease or defect, a felony conviction, etc.
Apparently, that also includes being black, at least in Washoe County.
Gabriel Nobles was carrying a rifle in Washoe County when he was confronted by the Sheriff’s Office, put on the ground at gun point, and held there. His only offense was that he was a young black man carrying a rifle slung across his back. We’ve seen plenty of videos of similar activity, but nothing like this. I can see nothing in the video that justifies the deputies conduct.
Of course, at the end of the stop, Gabriel is given his rifle back and sent on his way.
September 6, 2013
Bail bondsman, Hidalgo County Texas, McAllen Texas, Open carry in the United States, police, Police station, Sheriff, South Texas, Texas
Well, about a month ago, Zach did something that may hurt him in the long run. He was running around south Texas, open carrying his AK, and apparently thought it was a good idea to have his picture taken with the rifle in front of local police stations.
This went well until he got to McAllen. They didn’t like the idea, so they told him to leave (apparently giving him a trespass warning, it’s not clear), which he did.
Then he thought about it. And went back.
But only after calling them and telling them he was coming back.
Yeah, that’s a good idea. It’s legal, don’t get me wrong, but poking a sleeping mountain lion with a sharp stick has never struck me as being especially bright. But, hey, if that’s your thing…
So of course the police are there and when he doesn’t comply with their commands, arrest him for having a firearm where prohibited, see Tex. Pen. Code Ann. § 46.03. That’s a felony.
Now granted, from what I’ve seen, it’s a BS charge, because you have to actually go into the building to be charged with it, and the AK never left his car. So Zach sees the inside of a jail cell, then a judge, who sets bond at $25K (meaning a bail bondsman will likely charge $2,500, and maybe twice that, since he’s not from the area). You don’t get that money back, either. Of course his rifle and cellphone are now evidence, and the last I saw, they had a hold placed on his truck.
Of course the DA should drop the charges, but this is Hidalgo County, where the niceties of the law haven’t always been observed, like the sheriff’s son (head of a local drug task force) who was indicted and pled guilty for stealing drug loads. Or the eleven recruits in the academy fired by the sheriff last year for trying to cheat on tests. Or the previous sheriff and county commissioners in the 1990s. Or – well, you get the picture.
August 7, 2013
Law Enforcement, Leonard Embody, Nashville, Nashville Tennessee, Open carry, police, Radnor Park Rambo, Radnor State Park, Second Amendment to the United States Constitution, Tennessee, Whackjob
Leonard Embody is a registered nurse, a licensed federal firearms dealer, and a gun rights activist. He also, in my opinion, is somewhat of a whackjob.
In 2009, Embody carried an AK-47 pistol into a state park. For some reason he painted the tip of the pistol orange. He also dressed up in camouflage gear before doing so, becoming known as the Radnor Park Rambo. He sued over being detained in the incident and lost on summary judgment, the court holding that the detention and temporary seizure of the gun was reasonable. Embody v. Ward, No. 3:10cv-00126, 2011 U.S. Dist. LEXIS 79153, 2011 WL 2971055 (M.D. Tenn. July 20, 2011). He then appealed and lost that appeal when the Sixth Circuit affirmed. Embody v. Ward, 695 F.3d 577 (6th Cir. 2012), cert. denied, 133 S. Ct. 770, 184 L. Ed. 499. This was also covered by “The Volokh Conspiracy“, with Embody participating in the comment section (which has over 600 comments). As Volokh noted, it is rare when the Brady anti-gun people and the Second Amendment Foundation are on the same side, and that was against Embody.
Embody has carried a loaded black-powder pistol in his hand (i.e., not in a holster) while in Belle Meade, TN in 2010. Tennessee law preempts local regulation of guns, but grandfathers in existing local gun laws. In Belle Meade, there was a provision of the law that stated “except the army or navy pistol which shall be carried openly in the hand.” Belle Meade Mun. Code § 11-602 (1987), repealed Ord. #2010-7, Sept. 2010. Obviously the city did not like the idea of individuals carrying revolvers around in their hands. This also caused the Belle Meade police to request that the state revoke Embody’s concealed carry permit, alleging that he was a danger to the public. The State Police did revoke his permit and his administrative appeal failed, launching a new lawsuit, this one challenging the constitutionality of the Tennessee firearm statutes. The trial court granted the state a summary judgment, and the appellate court affirmed. Embody v. Cooper, No. M2012-01830-COA-R3-CV, 2013 Tenn. App. LEXIS 343, 2013 WL 2295671 (Tenn. Ct. App. May 22, 2013).
Now the whackjob has gotten arrested. He was walking around downtown Nashville handing out flyers while wearing body armor. Slung on his back, he had a rifle that was in a kydex case, which means that it was form fitted to the rifle and that it was obvious that it could contain a rifle. And Tennessee does not allow a person to openly carry a loaded rifle. So when police officers were called, saw the case, they immediately had reasonable suspicion to check if he was in fact carrying a rifle. So when they opened the case, they found that it had a silencer on the end, which is a felony in Tennessee. There is a defense, but since Embody was not talking to the officers, he couldn’t prove that he had a National Firearms Act license for the silencer. It also was hilarious that Embody was screaming that they needed probable cause to detain and search him, which was not correct. The arrest affidavit is here.