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Thread: Arrested for open carry. Waiting for a ruling from the Court of Criminal Appeals

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    Arrested for open carry. Waiting for a ruling from the Court of Criminal Appeals

    All of the court documents and original video can be found here.

    http://bamacarry.org/forums/topic/ja...-jacksonville/




    Court of criminal appeals audio. Make sure to listen 28:00 - 33:00


    http://bamacarry.org/wp-content/uplo...lAppeals-1.mp4



    <START TIME 34:46>
    Prosecutor: "In my opinion Mr. Tulley was not... if 52 is a valid statue... he was not in violation when he walked into the credit union, because in the transcript of the trial in front of Judge Thomason in circuit court in Calhoun county the police officer could not state definitively that there was or was not a sign in the window instructing people not to bring weapons in even though it is credit union policy not to have weapons on the premises. Mr. Tulley became in violation when he did not leave when the security guard asked him to leave, and instead of leaving he stood and engaged the security guard arguing or discussing the ca... whether he had the right to have the gun, and this argument or discussion lasted approximately 20 minutes ( the entire thing only lasted 35 seconds) and the police report it lasted until 1:30 until 1:50, and I feel that that's an unreasonable amount of time for him to have stayed engaging the security guard with a gun on his hip. The proper thing that he should have done that day was take the gun to the car immediately, come back do his business in the credit union, and then if he wanted to engage the security guard in the discussion try to do so then."

    Judge: "So you're... you're conceding that notice was required of Mr. Tulley?"

    Prosecutor: "And Mr S.... the security guard did give him notice."

    Judge: "So if he had immediately turned around and left the premises and put his weapon back in his car he would not have violated the statue?"

    Prosecutor: "Yes. Um... focusing on something that is not just the law in our society: we are all concerned with the Bill of Rights and we do have a right to carry weapons under certain circumstances as long as we follow the law in this country, but at the same time we have to think about public policy and the safety of the citizens and I would like to talk about something that happened in Anniston Alabama in 1991. Three men walked into Shoney’s armed with shotguns, they hauled twenty people into the cooler and were threatening to kill them. One man, thank goodness had a gun, a concealed weapon, with a license. Looking at it from a purely common sense view, the law (find)?, if Mr. Terry at Shoney’s that day had had a gun on his hip in plain sight it is very possible that one of those three men would have shot him immediately when they saw that gun, knowing him to be a threat. Thank God he had it concealed and he had the opportunity to save not only himself but twenty other people. One must use common sense when carrying weapons, and because of all the problems that we're having in this country with shootings and things like that I think that when you start carrying a gun just... down the street it.... it scares people. I think that your decision here today will make a lot of difference in society and you should think about all the consequences. Um. Would yall like to ask me any more questions? I think I'm done. Thank you."
    Last edited by BamaCarry; 01-07-2014 at 10:06 AM.

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    When the guard asked him to leave, he should have left. The correct title of this thread would be "Arrested for trespass. Waiting for a ruling from the Court of Criminal Appeals."

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    Quote Originally Posted by eye95 View Post
    When the guard asked him to leave, he should have left. The correct title of this thread would be "Arrested for trespass. Waiting for a ruling from the Court of Criminal Appeals."
    That would have been an incorrect title since he wasn't arrested for trespassing, he was arrested for "carrying a pistol on premises not his own".
    Last edited by BrianB; 10-25-2013 at 10:52 AM.

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    Quote Originally Posted by BrianB View Post
    That would have been an incorrect title since he wasn't arrested for trespassing, he was arrested for "carrying a pistol on premises not his own".
    If that was the charge, I stand corrected on that point. However, he should have left when asked. If -52 has any validity (I don't believe it does), that should be the one instance, where the premises owner does not want carry, he has explicitly stated so, and the carrier does not comply with those explicit demands.

    The title should be "Arrested for carry on premises not one's own. Waiting for ruling from the Court of Criminal Appeals." The mode of carry was irrelevant to the arrest (save for the fact that concealed carry would likely have gone unnoticed). It was the carry itself that is the violation of the law. It would be nice if -52 gets tossed because of this case. Unfortunately, I think the only possible value of -52 has just been clearly illustrated.

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    Quote Originally Posted by eye95 View Post
    When the guard asked him to leave, he should have left. The correct title of this thread would be "Arrested for trespass. Waiting for a ruling from the Court of Criminal Appeals."
    I would think that after asking a guy to leave and then engaging him further makes the request moot.

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    Do you really think I'd ever engage you on-topic???

    There are plenty of adults around here for intelligent discussion.

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    Quote Originally Posted by eye95 View Post
    When the guard asked him to leave, he should have left.
    It sounds to me like there's a serious discrepancy between the defendant's claim (35 seconds, effectively an immediate compliance), and the police report (20 minutes).

    Quote Originally Posted by BamaCarry View Post
    (Prosecutor) ... this argument or discussion lasted approximately 20 minutes ( the entire thing only lasted 35 seconds)

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    And his video proves him right: 35 seconds, not 20 minutes. He said he would be glad to leave, and he did.

    It looks as if these were police officers working a private detail. I have no problem with private details, so long as the police are merely on hand to act as police, limited to their police powers. I have a huge problem with them acting as management's agents to announce (and sometimes create on their own) management policy.

    If these were actually security guards, disregard that part.


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    Clearly, we are not seeing the whole video. What else happened? Where is the arrest? What else led up to it?

    How can a prosecutor claim, even in arguments, that it took twenty minutes if there were such clear evidence of it taking only 35 seconds, without an objection from the defense being upheld? May we see the whole recording?

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    Quote Originally Posted by eye95 View Post
    Clearly, we are not seeing the whole video. What else happened? Where is the arrest? What else led up to it?
    As spelled out in the various attachments the arrest occurred days later after the officer checked with someone about what happened, it was determined there was probable cause to arrest for a crime, and a warrant for such was issued. I don't know if there were any details about how the arrest went down. The accused may have simply been notified and surrendered himself to authorities.

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    Quote Originally Posted by BrianB View Post
    As spelled out in the various attachments the arrest occurred days later after the officer checked with someone about what happened, it was determined there was probable cause to arrest for a crime, and a warrant for such was issued. I don't know if there were any details about how the arrest went down. The accused may have simply been notified and surrendered himself to authorities.
    So, how does a prosecutor get away with contending a falsehood (the 20 minutes) that can be proven false?

    There is something going on here that we are unaware of. What is it?

    I cannot and will not get indignant until I believe I have all the relevant facts. I clearly don't.


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    Interesting they didn't seek to show that the 'Security Guard' was a part-time employee and not a lawful "agent" of the Credit Union, and thus had no standing to cause an arrest, absent a clearly unlawful act.

    Likewise, strange the defense didn't contest the '20 minute' falsehood.

    In addition the prosecution's comment
    'Looking at it from a purely common sense view, the law (find)?, if Mr. Terry at Shoney’s that day had had a gun on his hip in plain sight it is very possible that one of those three men would have shot him immediately when they saw that gun, knowing him to be a threat'
    should have been immediately thrown out (?) by the judge as a prejudicial and purely speculative comment and NOT "common sense". IANAL.
    Last edited by Maverick9; 10-26-2013 at 10:55 AM.

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    Quote Originally Posted by BrianB View Post
    As spelled out in the various attachments the arrest occurred days later after the officer checked with someone about what happened, it was determined there was probable cause to arrest for a crime, and a warrant for such was issued. I don't know if there were any details about how the arrest went down. The accused may have simply been notified and surrendered himself to authorities.
    BTW, I won't go to BamaCarry. I have serious reservations about how they have done things to folks in the past and do things now. So, I have not seen any of the documents. If they were less interested in site-building and more interested in the cause, they would simply have cross-posted everything here. All I know is what I have seen in this thread.

    If they are looking for support or outrage or even no criticism from me, then they need to make the information available here that backs up their claims. All I have so far is 41 seconds of video (when I am sure there is a helluva lot more).

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    Let me see if I can answer everyone's questions.

    That is the entire video.

    2 of the officers were on duty and 1 was off duty working as a security guard. The off duty officer went to the magistrate 4 days later and swore out an arrest warrant.

    Jason was emailed a notice of the warrant and turned himself in the next day.

    Yes we linked the bamacarry page it took quit a bit to try and post all of the documents of the case in order. As you can see it is 4 pages long. If you go to page 4 the very last document is the cities motion to correct record. They lied so much that they started believing it them self's. Officers have told people many stories sense this day including that Mr Tulley was belligerently drunk.


    "That, in Oral Arguments before this Honorable Court on April 23, 2013, Attorney
    Marilyn May Hudson stated to this Court that the encounter between Mr. Tulley and Officer
    Clayton at the First Educators Credit Union on March 31, 2011 lasted from 13:30 p.m. to 13:50
    p.m. This statement was made in error based on Mrs. Hudson's recollection of information
    contained in a police report that is not part of the Record on Appeal. "

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    Arrested for open carry. Waiting for a ruling from the Court of Criminal Appeals

    It is quite believable that the 40 seconds is the entire encounter. However, the entire video?? Did he turn it on and off at just the right moments?

    Video of a few minutes before and after will help establish the point that the actual encounter was 35 seconds.

    By talking about appeals court ruling, are we saying that he was convicted both at the magistrate level and at a jury trial?


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    Oh, and I am not going to BamaCarry. I will only consider what is posted here or linked to non-BamaCarry sites.
    Last edited by eye95; 10-28-2013 at 10:24 AM.

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    There are some places to make a statement and get into a constitutional/legal debate with someone to prove a point. In a bank with gun on your hip while arguing with someone who can lawfully tell you to beat it, is probably not the best place.

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    Several of the other files are failing to upload because of their size.

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    Section 13A-11-52 - Carrying pistol on premises not his own; who may carry pistol.

    Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office, or to United States marshal or his deputies, rural free delivery mail carriers in the discharge of their duties as such, bonded constables in the discharge of their duties as such, conductors, railway mail clerks and express messengers in the discharge of their duties.



    Is there another law involved that requires signage? This law speaks nothing to requiring the OP to know if the premises owner allows carry ~ the law notes that carry is simply not allowed by anyone other than that noted in the statue.

    And it looks like the cop violated the law .. he was not there in his professional capacity as a cop discharging his duties.

    The law does not allow a premises owner to "allow" carry IMO. The Credit Union is not "his own" nor "under his control" for either the OP or the cop.


    Another thread in respect to this law..
    http://forum.opencarry.org/forums/sh...read-13A-11-52
    Last edited by davidmcbeth; 10-28-2013 at 04:45 PM.

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    Quote Originally Posted by davidmcbeth View Post
    Is there another law involved that requires signage? This law speaks nothing to requiring the OP to know if the premises owner allows carry ~ the law notes that carry is simply not allowed by anyone other than that noted in the statue.

    The law does not allow a premises owner to "allow" carry IMO. The Credit Union is not "his own" nor "under his control" for either the OP or the cop.
    The answer is in one of the posted briefs. Short version is that the defendant argues that the uniform firearms act, enacted subsequent to the statute you quoted, is in conflict and permits his conduct.
    Last edited by BrianB; 10-28-2013 at 04:25 PM. Reason: Mistook one poster for another.

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    Quote Originally Posted by BrianB View Post
    The answer is in one of the posted briefs. Short version is that the defendant argues that the uniform firearms act, enacted subsequent to the statute you quoted, is in conflict and permits his conduct.
    He is unfamiliar with the peculiarities of -52. -52 has been overridden by -73, but remains on the books for some strange reason. Every time someone has been convicted under it, the conviction has been overturned. It is like one's appendix. It might have had a function at one point in time. It does not now. Even more to the point, there is no penalty in the law for "violating" this non-law.

    However, I would not expect that troll to try to figure that out before jumping into a conversation in which he is worse than ignorant, and pretend that he knows something. Hell, there is an audio recording of him out there that clearly demonstrates that he does not even understand his own State's law (CT, BTW; he does a lame job of hiding that fact).

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    1. Jason Tulley did not enter the credit union with a pistol for "offensive purposes":

    Isaiah v. The State.
    [NO NUMBER IN ORIGINAL]
    SUPREME COURT OF ALABAMA
    176 Ala. 27; 58 So. 53; 1911 Ala. LEXIS 401
    June 30, 1911, Decided

    "...Said section 2 is not violative of section 26 of the Bill of Rights, as it merely prevents the carrying of arms for offensive purposes, and does not deprive a person of the right to bear arms in defense of himself or the state..."






    2. Officer Clayton erroneously charged Jason Tulley with an offense for an action that Clayton himself was involved in, i.e. possessing a pistol openly on the premises of another. A cop who moonlights as a security guard is acting in his individual capacity as a private citizen and not as a peace officer of the state:



    " ...Here, Jones was pursuing a personal activity—performing the duties of his "moonlighting" employer, the bank. There was no prior offense committed in his presence upon which he was acting. Therefore, because Jones was not engaged in the active discharge of his lawful duties as a peace officer at the time of the assault, the conviction must be reversed. See generally, Hutto v. State, 53 Ala.App. 685, 304 So.2d 29, cert. denied, 293 Ala. 758, 304 So.2d 33 (1974); Curlin, supra; and Williams v. State, 45 Wis.2d 44, 172 N.W.2d 31 (1969)..."

    Robinson v. State, 361 So. 2d 1113 - Ala: Supreme Court 1978
    http://scholar.google.com/scholar_ca...=en&as_sdt=4,1




    "... The clear import of these cases is that when an off-duty police officer witnesses a criminal offense or suspects criminal activity, the officer's status changes and, from that point on, he is considered to be acting in his capacity as a police officer and not in his capacity as a private citizen, i.e., he is considered to be "on duty." ...

    Johnson v. State, 823 So. 2d 1 - Ala: Court of Criminal Appeals 2001



    Even if Clayton had witnessed a crime while moonlighting as a security guard for the credit union, he was not acting as a peace officer before seeing a crime being committed. If Tulley is guilty, then Clayton is guilty of the very same crime he charged Tulley with committing.

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    eye95,
    "...It was the carry itself that is the violation of the law. It would be nice if -52 gets tossed because of this case. Unfortunately, I think the only possible value of -52 has just been clearly illustrated."


    I believe you are clearly wrong.


    The scope of the Alabama statutes forbidding the carrying of pistols onto property not one's own or under one's control has been defined by our state's court of last resort since 1911:

    "...Said section 2 is not violative of section 26 of the Bill of Rights, as it merely prevents the carrying of arms for offensive purposes, and does not deprive a person of the right to bear arms in defense of himself or the state." (See: Isaiah v. The State.[NO NUMBER IN ORIGINAL]SUPREME COURT OF ALABAMA 176 Ala. 27; 58 So. 53; 1911 Ala. LEXIS 401 June 30, 1911, Decided )



    Jason Tulley did not enter the credit union for "offensive purposes". He entered the credit union while armed with a pistol for his own defense to conduct legitimate business there.
    Last edited by 49er; 10-29-2013 at 12:53 PM.

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    You have a great point if -52 is Section 2. Is that demonstrable? A continuous, unbroken lineage from the statute called "Section 2" and today's "-52"?

    BTW, well formed argument in those two posts! Thanks for that.


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    The history line that appears in the current version of the statute appears as follows:

    (Acts 1919, No. 204, p. 196; Code 1923, §3487; Code 1940, T. 14, §163; Code 1975, §13-6-122.)


    The history of our current state constitution, the supreme law of our state, includes a Declaration of Rights that dates back to its ratification in 1901:

    "SECTION 36

    Construction of Declaration of Rights.
    That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate."



    Our courts tell us that they make every attempt possible to uphold a statute without violating our constitutions. Our constitutions do not protect the bearing of arms for OFFENSIVE purposes. The former statute was upheld by our state's court of last resort only on those grounds.


    Here's how they have explained it more recently:



    "In Monroe v. Harco, Inc., 762 So.2d 828 (Ala.2000), this Court restated the long-standing rules governing the review of an act of the Legislature under constitutional attack:

    "`In reviewing [a question regarding] the constitutionality of a statute, we "approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government."' Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 159 (Ala.1991) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)). Moreover, `[w]here the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction [that] would uphold it.' McAdory, 246 Ala. at 10, 18 So.2d at 815. In McAdory, this Court further stated:

    "`[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment 973*973 of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.'
    "246 Ala. at 9, 18 So.2d at 815 (citation omitted). We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits. Id."
    762 So.2d at 831..."


    Quoting: Kirby v. State, 899 So. 2d 968 - Ala: Supreme Court 2004

    link: http://scholar.google.com/scholar_ca...en&as_sdt=4,64

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