Alabama S. Ct. strikes down vague law banning gun carry on "premises not one's own"

[Mike]

Alabama S. Ct. strikes down vague law banning gun carry on "premises not one's own"

http://www.al.com/news/birmingham/index.ssf/2015/09/holdalabama_supreme_court_stri.html

SNIP

The Alabama Supreme Court on Friday ruled a state law that banned the open carry of a gun on someone else's property is unconstitutional.

Friday's ruling by the court came in an appeal by Jason Dean Tulley, 38, of his Jacksonville city court conviction for openly carrying a pistol on his hip while inside the First Educators Credit Union on March 31, 2011.

. . .

The high state court's ruling overturns Tulley's conviction on the charge.

"This is definitely a victory for gun rights advocates," said J.D. Lloyd, one of Tulley's appellate lawyers. "More importantly, it's a victory for folks who believe in Due Process and don't want to see the Legislature passing vague criminal statutes."

. . .

Tulley was prosecuted in the City of Jacksonville municipal court for violating a state law – 13A-11-52 - that prohibited "carrying a pistol on premises not one's own or under his control," court records show.

Tulley appealed his conviction to the Circuit Court of Calhoun County and lost. The court of criminal appeals upheld the conviction. But on Friday the Alabama Supreme Court in a 5-3 decision ruled that the law was unconstitutional and unenforceable.

"At the heart of the case was their (the supreme court's) determination that the statute is unconstitutionally vague because it doesn't possess a punishment provision and the Code of Alabama doesn't supply a "catch-all" punishment provision for the offense," Lloyd said.

At one time the old law did have a punishment clause but in 1940 during revisions of the state code the punishment provision was dropped, court records show.

The Alabama Legislature in 2013 did update the law to include a phrase that states no one can carry on premises not there own or under their control "unless the person possesses a valid concealed weapon permit or the person has the consent of the owner or legal possessor of the premises."

But the revision did not add a punishment clause.

The Alabama Supreme Court noted that few cases in the long history of the law challenging convictions had ever reached them.

"It is telling that only three cases since the 1940 Code omitted the punishment provision from what is now 13A-11-52 have reached the appellate level; those three cases involved juvenile proceedings, which are quasi-criminal in nature," the court states in its ruling. "It does not appear that any of the juvenile defendants raised any issue regarding the failure of 13A-11-52 to provide punishment for the offense."

Cities can prosecute state crimes as municipal violations, Lloyd said. However, the Alabama Supreme Court ruled that because state law was unconstitutional, the prosecution by the city under that law is improper, he said.

In order to criminalize carrying a pistol openly on someone else's premises, Legislators "would have to go back in and fix it (the law) because this is an offense that can't be prosecuted right now," Lloyd said.
. . .

BREAK

NOTE: The Alabama Supreme Court's action - striking down section 13A-11-52 as void for vagueness was long overdue, and vindicates the long standing position by OpenCarry.org and Alabama gun rights groups.

 

[HPmatt]

How refreshing - a state Supreme Court defending citizens against non-existent laws. If only the SCOTUS would heed this example in respecting limitations of the Constitution.


Sent from my iPhone using Tapatalk

 

[color of law]

This is a case of trespass without even mentioning trespass. The city chose to pass a bogus law regulating private property by denying the private property owner any input as to how his private property is to be used.

 

[davidmcbeth]

What an opinion .... basically boiled down to this:

The state law is not a mandatory law but a directory one.

Directory provisions are really not enforceable.

The opinion could have been much better written as this is the basic conclusion they make. Since the state law provides no penalty its a directory law and the town cannot add to the state law to turn it into a mandatory state law.

There are many directory laws, this does not make the state laws unconstitutional but when a town tries to add to the state law then this is wrong as they have no authority to do that.

I am continually arguing laws .. directory v. mandatory nature of such (of course if a law favors me I claim its mandatory and if one is against me, hey-its just directory).

 

[Treborfoot]

49er's made this posted on Friday

The threads need to be combined


http://forum.opencarry.org/forums/showthread.php?130960-Supreme-Court-of-Alabama-aquits-Jason-Tulley

 

[hammer6]

so does this mean that we are now able to open carry in all Whataburgers in Alabama? regardless of whataburger's policy?

 

[color of law]

so does this mean that we are now able to open carry in all Whataburgers in Alabama? regardless of whataburger's policy?

No, it does not mean that. It means the city does not have authority regulate guests of private property owners.

 

[OC for ME]

http://www.ago.state.al.us/Page-Alabama-Weapon-Law
[h=5]Section 13A-11-52[/h][h=4]Carrying pistol on private property; who may carry pistol.[/h] Except as otherwise provided in this article, no person shall carry a pistol about his person on private property not his own or under his control unless the person possesses a valid concealed weapon permit or the person has the consent of the owner or legal possessor of the premises; ...

The off-duty cop did not like the mouthy uppity citizen...who complied

An off-duty police officer working security at the credit union told Tulley to leave the credit union and put the gun in his car. Tulley, who at the time also had a conceal carry permit, argued his rights but eventually complied. Tulley was charged days later.

Win? Not hardly...

 

[Treborfoot]

http://www.ago.state.al.us/Page-Alabama-Weapon-Law
Section 13A-11-52

Carrying pistol on private property; who may carry pistol.

Except as otherwise provided in this article, no person shall carry a pistol about his person on private property not his own or under his control unless the person possesses a valid concealed weapon permit or the person has the consent of the owner or legal possessor of the premises; ...

Win? Not hardly...

Tulley was convicted under a previous version of 13A-11-52..Bold in quote above was added in 2013

------------------------------------------------

It had never been determined in the State of Alabama that the legislators had the power to restrict concealed weapons and apply penal penalties.

Now RKBA in the Alabama Constitution has changed. The constitution was amended on 11/04 2014. Will that help or harm Alabama?

------------------------------------------------
State vs Reid (Reid arrested for statute making concealed carry unlawful)

The Court avoided making a direct and explicit ruling concerning the constitutionality of the statute, focusing instead on whether there had been evidence to support the giving of the jury charges requested by the defendant.

R. BERNARD HARWOOD, JR
Retired Alabama Supreme Court Justice

State vs Reid link
http://www.guncite.com/court/state/1al612.html

--------------------------------------------------------

During the Alabama Constitutional Convention of 1901 an ordinance that would have allowed the state legislators to license the carry of small arms was rejected..page 172; Ordinance No. 87, by Mr. Ferguson:

-----------------------------------------------------
13A-11-52

The Alabama Supreme Court addressed the question in Isaiah v. State. 176 Ala. 27, 58
So. 53 (1912). At issue was a statute passed in 1909 stating that "t shall be unlawful for any
person to carry a pistol about his person on premises not his own or under his control," etc. The
majority opinion of the Court held that because it was dealing with a criminal statute, which had to
be strictly construed, it should be restrictively held to mean "that a person is prohibited from
carrying an unconcealed pistol only upon 'premises' not his own or under his control; that is, he
may carry it anywhere except upon the premises of another." In other words, the Court construed the statute to mean that it was "intended to prevent one person from going armed with a pistol upon the premises of another, and does not prohibit the carrying of same, if not concealed, upon the highway or elsewhere other than upon the premises of another."
R. BERNARD HARWOOD, JR
Retired Alabama Supreme Court Justice

If you carried onto premises of another it was considered "Offensive Carry".


Isaiah vs State link
http://www.guncite.com/court/state/58so53.html
-------------------------------------------------
13A-11-52

Technically there were not many places you could carry a handgun except at your home, your business or on the road from 1907 until the Alabama Uniforms Firearm Act of 1936..The criminal penalty was removed.. Through a may issue license the state could technically control who carried a handgun...The reasoning for leaving -52 in the code sans penalty was the exception code for LE to carry on any premise performing the lawful discharge of their duty.


Pre 1936 0pen carry was discouraged and concealed carry was unlawful unless you had a very good reason to conceal carry...The problem was the courts never heard a good reason...View the following ruling from the Alabama Criminal Court of Appeals below.
------------------------
13A-11-52

Citing from Little vs State

"This exception was ingrafted upon it out of regard for and in recognition of a general public prejudice against and condemnation of the practice of private citizens going dangerously armed in connection with the right to prepare for self-defense and was intended to conserve this right and at the same time save the citizen whose life was in danger from incurring public ridicule and condemnation by allowing him to carry weapons concealed and thus be ready to defend himself without offending public sentiment." Reach's Case, 94 Ala. 113,11 So. 414; Shorter v. State, 63 Ala. 129; Stroud v. State,55 Ala. 77.

This decision is a very quick read and worth reading..

https://casetext.com/case/little-v-state-169

 

[Brimstone Baritone]

What an opinion .... basically boiled down to this:

The state law is not a mandatory law but a directory one.

Sure, if it helps you to think about it like that. What actually happened is that 13A-1-2 defines an OFFENSE as "Conduct for which a sentence to a term of imprisonment, or the death penalty, or to a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state." And 13A-1-3 lists the purpose of the Title as "To give fair warning of the nature of the conduct proscribed and of the punishment authorized upon conviction;" Since 13A-11-52 did not have a punishment prescribed by law, it was not, legally, an offense under the Code of Alabama. Because there was confusion as to whether it was meant to be an offense or not, it was on its face Void for Vagueness.

At least that's the way I saw it four years ago. Seems I wasn't far off.

 

[49er]

An unconsitutional law is NOT directory ... it is null and void

“...It is generally recognized that

"[a]n act of a legislature not authorized by the constitution at the time of its passage is absolutely void, and, if not reenacted, is not validated by a subsequent amendment to the constitution or by the adoption of a new constitution which merely permits the passage of such an act...."

Bucher v. Powell County, 180 Mt. 145, 589 P.2d 660, 662 (1979), quoting C.J.S. Constitutional Law § 45 (1984) at 141; Porto Rico Brokerage Co. v. United States, 22 C.C.P.A. 236, 71 F.2d 469 (1934); Stockyards Nat'l Bank v. Bauman, 5 F.2d 905, 906-07 (8th Cir.1925); City of Little Rock v. Cavin, 238 Ark. 333, 381 S.W.2d 741 (1964); Banaz v. Smith, 133 Cal. 102, 65 P. 309 (1901); State v. Bates, 305 N.W.2d 426 (Iowa 1981); State v. O'Malley, 342 Mo. 641, 117 S.W.2d 319 (1938); In re Graves, 325 Mo. 888, 30 S.W.2d 149 (1930); State ex rel. Woodahl v. District Court, 162 Mont. 283, 511 P.2d 318 (1973); Whetstone v. Slonaker, 110 Neb. 343, 193 N.W. 749 (1923); Fellows v. Shultz, 81 N.M. 496, 469 P.2d 141 (1970); Paluck v. Board of County Comm'rs, Stark County, 307 N.W.2d 852, 855 (N.D.1981); and State v. Chaney, 23 Okla. 788, 102 P. 133 (1909).

The rationale underlying such a rule is explained in Whetstone v. Slonaker:

"It is held in Finders v. Bodle, 58 Neb. 57, 78 N.W. 480, that an act of the Legislature, passed in violation of the Constitution, is void from the date of its enactment, and —

"`An unconstitutional statute creates no new rights and abrogates no old ones. It is for all purposes as though it had never been passed.'

"It is held by the United States Supreme Court in Norton v. Shelby County, 118 U.S. 425, 442, 6 Sup.Ct. 1121, 1125 (30 L.Ed. 178), that —

"`An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.'

"Cooley in his work on Constitutional Limitations (7th Ed.) at page 259, lays down the rule thus:

"`When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void.... And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force.'"

Id., 110 Neb. at 345, 193 N.W. at 749.

We adhere to this general rule, ...

Ex parte Southern Ry. Co., 556 So. 2d 1082 - Ala: Supreme Court 1989

http://scholar.google.no/scholar_ca...29&q="constitution+is+void"&hl=en&as_sdt=4,64

 

[Kirbinator]

the city motioned for rehearing.

I think this borders on malicious prosecution since it's a $249 fine and it's been appealed to the ALSC. :banghead:

 

[Kirbinator]

Further on this:

After judgement was rendered in favor of Tulley, the City of Jacksonville appealed on the (simplified) basis that they are unable to pick and choose which laws to enforce since the legislature passed them. The crux of the matter is that Jacksonville's Ordinance O-514 exceeded the authority delegated by the Alabama Constitution of 1901, as it assigned punishments where no punishments existed in state law. Accordingly, the ALSC has denied the appeal of The City of Jacksonville with full-concurrence of the justices without an opinion. Judgement stands with prejudice in the favor of Jason Tulley.

The narrowly defined subject matter of this case focuses on the (il)legality of the Jacksonville ordinance, so this case is of limited value in other defenses against 13A-11-52, but it is noted that while 13A-11-52 exists on the books and was recently amended, no punishment has been assigned to the "offense" therefore the law (Act) as published in The Code Of Alabama is unenforceable.

http://www.al.com/news/birmingham/index.ssf/2015/11/alabama_supreme_court_wont_rev.html
http://www.al.com/news/birmingham/index.ssf/2015/09/holdalabama_supreme_court_stri.html

Robert Kennedy's case continues as he is more or less being tried under Act 2013-238 for a supposed violation of the NRA-sponsored act:
http://www.al.com/news/birmingham/index.ssf/2015/09/alabama_voter_convicted_for_op.html
http://www.al.com/news/birmingham/index.ssf/2014/07/pelham_voter_openly_wearing_pi.html

 

[BB62]

So where do things currently stand?

 

[Kirbinator]

Ex parte Tulley, 199 So. 3d 812 - Ala: Supreme Court 2015 - Google Scholar

scholar.google.com

Tulley v. City of Jacksonville, 199 So. 3d 827 - Ala: Court of Criminal Appeals 2016 - Google Scholar

scholar.google.com

199 So.3d 827 (2016) Jason Dean TULLEY
v.
CITY OF JACKSONVILLE.
CR-11-1880.
Court of Criminal Appeals of Alabama.
February 12, 2016.
Appeal from Calhoun Circuit Court, (CC-11-1157).

Joseph J. Basgier III and Brett M. Bloomston, Birmingham; and J.D. Lloyd, Birmingham, for appellant.

Marilyn May Hudson, Jacksonville, for appellee.


On Remand from the Alabama Supreme Court


PER CURIAM.

In accordance with the opinion of the Alabama Supreme Court in Ex parte Tulley, 199 So.3d 812 (Ala.2015), we reverse the trial court's judgment and remand this case to the trial court for proceedings consistent with that opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, KELLUM, BURKE, and JOINER, JJ., concur.

 

[49er]

The opinion of the Alabama Supreme Court in the Tulley case is clear and convincing evidence that those who supported the statute instead of our state's Constitution have violated their oaths of office. That's first degree perjury, a class C felony, yet none have been prosecuted for their crimes.

We place a lot of trust in public servants and delegate a lot of authority to them on nothing but their word that they will support our Constitutions. Their oaths of office should be enforced instead of being ignored. When our high courts find their acts to be unconstitutional, then they should be prosecuted for their crime. Until we find a way to enforce oaths of office, we are fighting a losing battle.

 

[FreedomVA]

The opinion of the Alabama Supreme Court in the Tulley case is clear and convincing evidence that those who supported the statute instead of our state's Constitution have violated their oaths of office. That's first degree perjury, a class C felony, yet none have been prosecuted for their crimes.

We place a lot of trust in public servants and delegate a lot of authority to them on nothing but their word that they will support our Constitutions. Their oaths of office should be enforced instead of being ignored. When our high courts find their acts to be unconstitutional, then they should be prosecuted for their crime. Until we find a way to enforce oaths of office, we are fighting a losing battle.

Eliminate QI

 

[OC for ME]

The problem with the courts and the legislatures is that the courts are loath to hold a future legislature liable for the failings of past legislative acts...lazy logic to be sure...but it is what it is.

 

[OC for ME]

The opinion of the Alabama Supreme Court in the Tulley case is clear and convincing evidence that those who supported the statute instead of our state's Constitution have violated their oaths of office. That's first degree perjury, a class C felony, yet none have been prosecuted for their crimes.

We place a lot of trust in public servants and delegate a lot of authority to them on nothing but their word that they will support our Constitutions. Their oaths of office should be enforced instead of being ignored. When our high courts find their acts to be unconstitutional, then they should be prosecuted for their crime. Until we find a way to enforce oaths of office, we are fighting a losing battle.

Your observation is spot on...unfortunately the courts defer to the voters to fix unruly elected reps...ironic, is it not.