When it comes to reasonable articulable suspicion under the Fourth Amendment, the only opinions that really matter are those of the people who are authorized to give those opinions. Under the United States Constitution, that authority is vested in the "Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. Art. 3, Sec. 1 and 2. That means the top authority goes to the United States Supreme Court, and directly below, to the United States Circuit Courts of Appeals.
Regarding Mr. Embody:
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. Embody v. Ward, 695 F.3d 577, 581. (6th Cir. 2012).
Keep in mind that the Sixth Circuit includes Ohio as well as Tennessee.
Regarding reasonable articulable suspicion in general, everyone wants to acknowledge this:
Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. United States v. Black,707 F.3d 531, 540 (4th Cir. 2013).
But nobody wants to acknowledge this:
Based on McRae's admission that he was carrying a handgun in his waistband, the officers had reasonable suspicion to believe that McRae was committing a crime under Florida law - carrying a concealed weapon. *** Under Florida law, " [a] person who carries a concealed firearm on or about his person commits a felony of the third degree." *** Notably, the possession of a valid permit for a concealed weapon is not related to the elements of the crime, but rather is an affirmative defense. (Citations and footnotes omitted.) United States v. Lewis, 674 F.3d 1298, 1304 (11th Cir. 2012).
Bottom line: When a statute describes an offense, followed by "this section does not apply to," the initial provision constitutes the elements of the offense, and the subsequent provisions constitute an affirmative defense, placing a burden on the defendant to establish the same. Sometimes, the affirmative defense can be established without a trip to the courtroom, such as establishing the possession of a concealed handgun license in response to suspicion of carrying concealed weapons or possession of a firearm on D-permit liquor premises, or establishing NFA registration in response to a suspicion of illegal possession of a dangerous ordnance (silencer). Nevertheless, under
Lewis, the rule of law is :
The Supreme Court has made it abundantly clear that, although an individual may ultimately be engaged in conduct that is perfectly lawful - as turned out to be the case with McRae - officers may "detain the individual[ ] to resolve the ambiguity." Id.
I'm quite sure that some folks don't want to hear that, but it doesn't make it any less the truth.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
Open carry is a First Amendment exercise.
