funny how things work out

Well, this is starting to get interesting. As I mentioned yesteday, good ol’ Leonard Embody / kwikrnu had his handgun carry permit revoked by the state of Tennessee on the basis that he “poses a material likelihood of risk to the public”. What I did not mention, because I did not know it at the time, is that determination was directly related to this letter from the Belle Meade police department:

I [Thomas Sexton] am the Criminal Investigator for the Belle Meade Poilce Department and in that capacity request that the Handgun Carry permit issued to Leonard Stanni Embody be revoked.

This request is not made lightly and based on the increasingly unsafe methods of displaying and/or carrying a firearm by Leonard Stanni Embody over the past 24 months.

Leonard Stanni Embody has shown by his actions that he is repeatedly engaging in behavior while carrying or displaying a firearm that compromises the safety of the general public, responding law enforcement officers, and his own

On January 22, 2010 Leonard Stanni embody did knowingly and willfully carry a weapon within the City Limits of Belle Meade. Leonard Stanni Embody did carry the weapon in an unsafe manner, in an unsafe location and in an unsafe condition. Tennessee Code Annotated 39-17-1342 (a) (3) states that any actions by the permit holder that poses a material likelihood of risk or harm to the public will be grounds to suspend or revoke a handgun permit.

Recent incidents have been well documented and published by Leonard Stanni Embody clearly show that his actions clearly are for his own benefit and do not represent the actions of a responsible citizen wishing to safely carry a handgun for legitimate purposes.

As a reminder for those who have not been keeping up with kwikrnu’s exploits, he openly carried, in his hand, a replica of a Navy Model 1851 blackpowder revolver, and was unsurprisingly stopped and questioned by Belle Meade police officers. The city ordinances of that area are somewhat peculiar, predate Tennessee’s preemption laws, and read:

11-602. Weapons and firearms generally.
It shall be unlawful for any person to carry in any manner whatever, with the intent to go armed, any razor, dirk, knife, blackjack, brass knucks, pistol, revolver, or any other dangerous weapon or instrument except the army or navy pistol which shall be carried openly in the hand. However, the foregoing prohibition shall not apply to members of the United States Armed Forces carrying such weapons as are prescribed by applicable regulations nor to any officer or policeman engaged in his official duties, in the execution of process, or while searching for or engaged in arresting persons suspected of having committed crimes. Furthermore, the prohibition shall not apply to persons who may have been summoned by such officer or policeman to assist in the discharge of his said duties. (Ord. 71-6, § 2.12. 1987 Code, § 10-212)

Leonard Embody / kwikrnu maintains that he was carrying the firearm with the barrel pointed at the ground, that his finger was not on the trigger, that the hammer was down on an empty chamber, that he wore a reflective vest in accordance with another Belle Meade ordinance, and that he obeyed the above ordinance by carrying the right model firearm in his hand.

I will 100% agree that having a revolver’s hammer down on an empty chamber is far from an “unsafe condition” – that model revolver has no real “safety”, per se, but in its current arrangement, a discharge would require the hammer to be completely pulled back and the trigger to be pulled. Likewise, I am not entirely sure how walking in the street (as required by Belle Meade – they do not have sidewalks, and instead make cars get out of the way of joggers/walkers – go figure) with a mandated reflective vest is an “unsafe location”, especially given that the incident was passed by joggers doing the same thing.

However, I will also 100% agree that carrying a firearm openly in your hand qualifies as an “unsafe manner” of doing so – not only are you more likely to drop it, or grip it more tightly and accidentally trip the trigger, but other handgun carriers (such as myself) are very likely to understandably misinterpret your actions and take necessary steps to keep our families and ourselves safe. Likewise, slinging an AK-47 style rifle across your back is unsafe in much the same manner, especially when the firearm in question was chosen specifically for its confusing appearance, and was decorated in a fashion to intentionally and maliciously deceive onlookers and police officers. I do not know to what other issues Mr. Sexton is referring in that 24-month window, but those two pretty much seal the deal for me.

Kwikrnu’s claim throughout the entire Belle Meade debacle was that he was only abiding by the above-quoted city ordinance, so obviously what he was doing was both safe and legal (*more on the “safe” part later). This is where the “interesting” kicks in – yesterday, the NRA-ILA put up an alert regarding Belle Meade, reading:

On Wednesday, March 17, the Belle Meade Board of Commissioners will consider a proposed ordinance (Ordinance 2010-2) that would forbid any person with a handgun carry permit to carry within the city limits.

Not only does this legislation create a victim zone inside Belle Meade by disarming law-abiding citizens, it is also a clear violation of Tennessee’s preemption statutes.

Belle Meade’s response?

“There is a rumor going around that we are going to ban handguns, guns in the city,” said Mayor Gray Thornburg.

She said the rumor is a “complete misunderstanding.” The city is merely realigning their ordinance to be in line with state regulations.

“I know that a whole bunch of people in Belle Meade own guns, and I’m sure that there are plenty who have permits to carry,” she said. “They are absolutely right. I wouldn’t violate somebody’s Second Amendment right by banning guns.”

The current Belle Meade municipal code includes a section on firearms and weapons that says “it is unlawful for any person to carry in any manner whatever, with the intent to go armed and razor, dirk, knife, blackjack, brass knuckles, pistol, revolver or any other dangerous weapon or instrument…”

It also includes the phrase “except the army or navy pistol which shall be carried openly in the hand.”

The new ordinance deletes the exception that would include the Navy black powder pistol Leonard Embody carried when he walked down Belle Meade Boulevard in mid-February.

You will notice that Mayor Thornburg very successfully defended herself from a particularly vicious strawman – no one, not even the NRA, claimed that Belle Meade was trying to ban all handguns or all firearms inside the city, but rather that they were considering an ordinance that would forbid anyone from carrying a handgun.

Now, as I mentioned, Tennessee does have preemption, which basically means localities within the states cannot regulate the ownership, transportation, carrying, or selling of firearms any more than the state does. Unfortunately, that preemption only activated in 1986, and any already-existing municipal codes were “grandfathered” in… and Belle Meade’s “in the hand” code is one such example. Furthermore, changing/editing an already-existing city ordinance is not treated as creating a new one by the state, so it is still grandfathered (and, yes, there is all manner of room for abuse in that arrangement).

So what does this intended ordinance-change actually do? It removes “except the army or navy pistol which shall be carried openly in the hand” from the above-quoted ordinance.

What does that do? Frankly, I have no idea. A commenter at OCDO has this insight:

Well the family lawyer got back to me this morning, he is a practicing attorney in Davidson County where this incident occured. here are some simple reasons why it is legal for HCP holders in TN to carry. It is considered a defense to the red [bold] portion of the law found in many local municipalities.

“Under T.C.A. § 39-17-1307(b) if you carry a firearm, with the intent to go armed, you could be charged with “unlawful possession” unless you have a “defense” recognized by law. Unlawful possession under this subsection of the Tennessee Code is a misdemeanor. ”

There are currently several statutory defenses available under the Tennessee Code. The most obvious defenses apply to those who have lawful gun carry permits issued by the Department of Safety or are otherwise authorized by law to carry firearms. (i.e. a police officer or member of the military)

kwik would have been completely legal to carry a holstered loaded pistol openly or concealed without worry. From what I told my attorney he believes simply kwik mis-interpreted the law.

[0640 18MAR10 Update]In an email, Steve in TN has this insight:

I called a guy I know in the BMPD and he specifically stated that permits will be honored just as they always have been.

[/Update]

That seems to be the impression that I, speaking as a non-lawyer, am getting from the Mayor’s statements and my reading of the ordinance as well – with the current verbiage, open carry of an Army or Navy revolver is legal with or without a handgun carry permit in Belle Meade, and all other forms of carry are legal with the permit. The city council appears to be considering just getting rid of the archaic “in the hand” bit, and relying solely on the state’s permitting process instead – but, again, I am not a lawyer, so I obviously have no clue what I am talking about.

Additionally, this seems like the kind of thing that could have been brought up at a city council meeting, with the observation that this ordinance is horribly out of date (bear in mind cartridge pistols started taking over shortly after the production of the Army/Navy Model 1851s), and the city might just have ended up doing exactly the same thing as it is doing now… only without the publicity orgy, the detain-and-question, and all the rest of the froofera. Of course, Leonard Embody / kwikrnu appears to have made absolutely no attempt to question or challenge this law in a letter to the city/mayor, or through an appearance at a city council meeting, and instead went straight for the method that would get him the most attention and the most exposure – apparently the term “escalation” is not in his vocabulary.

So where are we in all of this? In a continuation of a pre-existing pattern of attention-whoring, self-serving, potentially-dangerous activities, kwikrnu did something – something that might have been completely unecessary – to make a point, when that point could have been, far more easily, brought up in a simple conversation or letter, and, in the process, got his Handgun Carry Permit suspended for finally providing the state the proverbial straw that broke the proverbial camel’s back.

Is that a win? Sure, if you care about knocking down a potentially-irrelevant city ordinance, no matter the cost. Me, I just consider that pyrrhic idiocy.

(*) Legal does not necessarily equate to safe, and safe does not necessarily equate to legal. It is not, and never should have been, our government’s role, at any level, to legalize safe activities or ban unsafe activities.

(Courtesy of Everyday, No Days Off.)

(Obligatory disclaimer that I really should integrate with the terms of use: I am not a lawyer. I do not portray one on television. I did not sleep at a Holiday Inn last night. My understanding of the law is based on my own personal interpretation and reading of it, and should not be considered to be binding, factual, or actual. Likewise, any opinions expressed here are mine and mine alone, and are just that – opinions.)