Comp-tech
State Researcher
imported post
Avtomat wrote:
Avtomat wrote:
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Does Ala. Code 1975, §13A-11-52, forbid open carry?
- Thread starter Avtomat
- Start date
Jared
Regular Member
imported post
kingfish wrote:
Sure, go to groups.yahoo.com and type in the name Pacific Northwest Open Carry. The founder is Lonnie Wilson, he frequents this site.
He has gotten numerous cities in Oregon and Washington to go from the police drawing down on you for open carry to recognizing your legal right to open carry (some towns in Oregon you must have a CHL to open carry as per ORS 166.173)
kingfish wrote:
Sure, go to groups.yahoo.com and type in the name Pacific Northwest Open Carry. The founder is Lonnie Wilson, he frequents this site.
He has gotten numerous cities in Oregon and Washington to go from the police drawing down on you for open carry to recognizing your legal right to open carry (some towns in Oregon you must have a CHL to open carry as per ORS 166.173)
imported post
A newer case or statute, even if it does not expressly overturn a prior one, will trump the older one in case of conflict. This is a legal axiom. The fact that Reid was quoted doesn't mean squat by itself. What matters is what was said about Reid. If you cannot pick out the change that occurred in Isaiah, then I cannot help you. It is blatantly obvious. I can only assume some people just don't want to know. If you understand what is said in Isaiah , apply it to later statutes and understand statutory construction you will see that the possession of a license permits the holder to do two things that are otherwise illegal. (1) Carry a pistol in a vehicle (normally illegal even if unconcealed) and (2) Carry a concealed pistol. This section does not address the prohibition about carrying on the property of another. Again, the rules of statutory construction demand that force be given to different code sections if at all possible. It is possible.
If you do not have a license you may carry openly EXCEPT on the property on another or in a vehicle. If you have a license you may carry openly or concealed (even in a vehicle) EXCEPT on the property of another. Property of another does NOT include the public street, parks, government buildings (although there may be another law that prohibits carry - I just don't know). This distinction is clearly made in Isaiah. I understand that you wish it were otherwise. As I said initially, unless and until the Alabama Supreme Court rules one way or the other it is impossible to say with absolute certainty but I think my analysis is sound. In the mean time we are stuck with various appeals decisions and the personal interpretation of the local LEO.
Perhaps this analogy will be helpful.
1. It is illegal to drive on the sidewalk.
(It is illegal to carry a pistol on the property of another)
2. A HAZMAT endorsement permits you to haul hazardous materials.
(A pistol license permits you to carry in a vehicle or concealed)
3. Therefore a HAZMAT endorsement permits you to drive on the sidewalk.
(Therefore a pistol license permits you to carry on the property of another)
The conclusion is obviously false.
Comp-tech wrote:
A newer case or statute, even if it does not expressly overturn a prior one, will trump the older one in case of conflict. This is a legal axiom. The fact that Reid was quoted doesn't mean squat by itself. What matters is what was said about Reid. If you cannot pick out the change that occurred in Isaiah, then I cannot help you. It is blatantly obvious. I can only assume some people just don't want to know. If you understand what is said in Isaiah , apply it to later statutes and understand statutory construction you will see that the possession of a license permits the holder to do two things that are otherwise illegal. (1) Carry a pistol in a vehicle (normally illegal even if unconcealed) and (2) Carry a concealed pistol. This section does not address the prohibition about carrying on the property of another. Again, the rules of statutory construction demand that force be given to different code sections if at all possible. It is possible.
If you do not have a license you may carry openly EXCEPT on the property on another or in a vehicle. If you have a license you may carry openly or concealed (even in a vehicle) EXCEPT on the property of another. Property of another does NOT include the public street, parks, government buildings (although there may be another law that prohibits carry - I just don't know). This distinction is clearly made in Isaiah. I understand that you wish it were otherwise. As I said initially, unless and until the Alabama Supreme Court rules one way or the other it is impossible to say with absolute certainty but I think my analysis is sound. In the mean time we are stuck with various appeals decisions and the personal interpretation of the local LEO.
Perhaps this analogy will be helpful.
1. It is illegal to drive on the sidewalk.
(It is illegal to carry a pistol on the property of another)
2. A HAZMAT endorsement permits you to haul hazardous materials.
(A pistol license permits you to carry in a vehicle or concealed)
3. Therefore a HAZMAT endorsement permits you to drive on the sidewalk.
(Therefore a pistol license permits you to carry on the property of another)
The conclusion is obviously false.
Comp-tech wrote:
Comp-tech
State Researcher
imported post
apjonas .......
I am done replying to any more of your blah, blah this and blah, blah that BS diatribes on what this should mean or that should mean by relation to HazMat or other such references.....I will continue to read what the courts have decided and what the laws in code prohibit....and DO NOT PROHIBIT
How can you be so adament that a PL DOES NOT allow carry on "property of another" when the state has given permission to carry concealed?......am I to leave my pistol on the edge of the street when I stop to buy gas?....to grocery shop? (both "property of another")......if I am licensed to carry, I have the right to carry anywhere that is not prohibited by code or "...personally communicated to me by the owner..." ....simple as that.
From the code....
Untill you can show something IN CODE or in a RELEVANT COURT DECISION, you are no more than wasting my, and other members time.....
apjonas .......
I am done replying to any more of your blah, blah this and blah, blah that BS diatribes on what this should mean or that should mean by relation to HazMat or other such references.....I will continue to read what the courts have decided and what the laws in code prohibit....and DO NOT PROHIBIT
How can you be so adament that a PL DOES NOT allow carry on "property of another" when the state has given permission to carry concealed?......am I to leave my pistol on the edge of the street when I stop to buy gas?....to grocery shop? (both "property of another")......if I am licensed to carry, I have the right to carry anywhere that is not prohibited by code or "...personally communicated to me by the owner..." ....simple as that.
From the code....
Untill you can show something IN CODE or in a RELEVANT COURT DECISION, you are no more than wasting my, and other members time.....
kurtmax_0
Regular Member
imported post
Actually. From my understanding of the code, as interpreted by court decisions and such, is that is is currently illegal to carry on another's private property even if you have a pistol permit.
The only reason this has probably never really gone to court is:
1. People with pistol permits generally carry concealed, so nobody knows when they are 'breaking the law' by carrying onto private property not under their control.
2. It isn't really illegal to carry onto private property.
My guess is that it's the first one, and most of the time it's a "don't ask don't tell" type of thing.
Ridiculous, I know.
Actually. From my understanding of the code, as interpreted by court decisions and such, is that is is currently illegal to carry on another's private property even if you have a pistol permit.
The only reason this has probably never really gone to court is:
1. People with pistol permits generally carry concealed, so nobody knows when they are 'breaking the law' by carrying onto private property not under their control.
2. It isn't really illegal to carry onto private property.
My guess is that it's the first one, and most of the time it's a "don't ask don't tell" type of thing.
Ridiculous, I know.
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I guess I need to address your arguments point-by-point. Please note I am not trying to be a smart aleck–I don’t know what kind of dispute you are in with that other guy.
WTF...here we go with the friggin Latin again....using legal terms doesn't impress any greater understanding of the issue upon you....understanding the plain written word is sufficient.
Although it has a Latin name, obiter dictum (“obiter dicta” when plural, sometimes just “dicta”) is a real legal doctrine frequently used by appellate courts. The doctrine holds that when a Court states things not necessary to the decision, those statements generally are not considered law.
The statement in Reid regarding whether open carry can be barred had nothing to do with the case; therefore, subsequent courts generally will not consider it law.
it was part of what led them to the decision that they made.......how can it not have ANY "legal consequence"?
No, it was not part of what led them to the decision they made; in fact, whether open carry could be barred had nothing to do with it because the issue was whether concealed carry could be barred.
It could be interpreted that way but, SCOTUS has ruled in several cases that a right cannot be abrogated away nor can it be licensed or taxed etc. ....now, if OC was "forbidden"....there could be NO LAWS CONTROLLING CONCEALED CARRY as they would be unconstitutional........one way or the other, OC or CC, must remain UNINHIBITED to remain constitutional.
Well, yes, rights cannot be “abrogated away,” but they certainly can be “licensed or taxed.” And even if you disagree, this is not the issue here. If you are saying that, if -52 bars open carry, then either -52 or -73 violates the RKBAs because the restrictions in -73 are too onerous and the right is too inhibited, then that’s fine–but your argument is that current laws are unconstitutional, not that current law allows open carry. Either OC is legal, or it is unconstitutionally illegal. It appears to me that -52 makes it illegal to carry on the property of others–I’ll leave whether that is unconstitutional to others....
Again...please see the cases cited in the "document".....in a nutshell, it is said that if you have a pistol license, sec 52 doesn't apply to you.....remember "EXCEPT AS OTHERWISE PROVIDED"?......think about it this way: you have a pistol license and carry a pistol in your car....now, when you stop to get gas, are you on "the property of another"?...what about the parking lot at the grocery store?...the home center?.....of course you ARE on "the property of another".....are you breaking the law under section 52?.....NO, because the state has given you permission under sec 73 to carry a pistol anywhere and anytime within the state that is not directly forbidden by The Code of Alabama.
I agree that if you have a pistol license, -52 does not apply to you–this is my point, and I have stated it several times. The question is, does -73 allow unlimited possession of a pistol? It allows one to carry a handgun “CONCEALED on or about his person.” You say that it does not prohibit open carry. I agree. But -52 is not the exception to -73, rather, -73 is the exception to -52.
In other words,
(1.) -52 forbids ALL possession of pistols on property of others, unless article 3 provides an exception
(2.) -73 is an exception, but it only states: “No person shall carry a pistol ... concealed on or about his person ... without a license”
-73 says nothing about open carry, it just provides an exception for concealed carry. No, it does not mandate or prohibit open carry. But, in terms of being an exception to -52, -73 only provides an exception for concealed carry.
I really do not want to go through every single case cited in that document, but if I have to...
I guess I need to address your arguments point-by-point. Please note I am not trying to be a smart aleck–I don’t know what kind of dispute you are in with that other guy.
WTF...here we go with the friggin Latin again....using legal terms doesn't impress any greater understanding of the issue upon you....understanding the plain written word is sufficient.
Although it has a Latin name, obiter dictum (“obiter dicta” when plural, sometimes just “dicta”) is a real legal doctrine frequently used by appellate courts. The doctrine holds that when a Court states things not necessary to the decision, those statements generally are not considered law.
The statement in Reid regarding whether open carry can be barred had nothing to do with the case; therefore, subsequent courts generally will not consider it law.
it was part of what led them to the decision that they made.......how can it not have ANY "legal consequence"?
No, it was not part of what led them to the decision they made; in fact, whether open carry could be barred had nothing to do with it because the issue was whether concealed carry could be barred.
It could be interpreted that way but, SCOTUS has ruled in several cases that a right cannot be abrogated away nor can it be licensed or taxed etc. ....now, if OC was "forbidden"....there could be NO LAWS CONTROLLING CONCEALED CARRY as they would be unconstitutional........one way or the other, OC or CC, must remain UNINHIBITED to remain constitutional.
Well, yes, rights cannot be “abrogated away,” but they certainly can be “licensed or taxed.” And even if you disagree, this is not the issue here. If you are saying that, if -52 bars open carry, then either -52 or -73 violates the RKBAs because the restrictions in -73 are too onerous and the right is too inhibited, then that’s fine–but your argument is that current laws are unconstitutional, not that current law allows open carry. Either OC is legal, or it is unconstitutionally illegal. It appears to me that -52 makes it illegal to carry on the property of others–I’ll leave whether that is unconstitutional to others....
Again...please see the cases cited in the "document".....in a nutshell, it is said that if you have a pistol license, sec 52 doesn't apply to you.....remember "EXCEPT AS OTHERWISE PROVIDED"?......think about it this way: you have a pistol license and carry a pistol in your car....now, when you stop to get gas, are you on "the property of another"?...what about the parking lot at the grocery store?...the home center?.....of course you ARE on "the property of another".....are you breaking the law under section 52?.....NO, because the state has given you permission under sec 73 to carry a pistol anywhere and anytime within the state that is not directly forbidden by The Code of Alabama.
I agree that if you have a pistol license, -52 does not apply to you–this is my point, and I have stated it several times. The question is, does -73 allow unlimited possession of a pistol? It allows one to carry a handgun “CONCEALED on or about his person.” You say that it does not prohibit open carry. I agree. But -52 is not the exception to -73, rather, -73 is the exception to -52.
In other words,
(1.) -52 forbids ALL possession of pistols on property of others, unless article 3 provides an exception
(2.) -73 is an exception, but it only states: “No person shall carry a pistol ... concealed on or about his person ... without a license”
-73 says nothing about open carry, it just provides an exception for concealed carry. No, it does not mandate or prohibit open carry. But, in terms of being an exception to -52, -73 only provides an exception for concealed carry.
I really do not want to go through every single case cited in that document, but if I have to...
Comp-tech
State Researcher
imported post
kurtmax_0 wrote:
kurtmax_0 wrote:
kurtmax_0
Regular Member
imported post
I'm just saying that's what it reads like in the code to me. In case law, it seems that a restriction on OC would be considered unconstitutional, regardless of what the state code is.
I think the main problem here is the legislature made a bunch of laws regarding firearms without reading them. Or they made it confusing on purpose to instill fear into people carrying firearms.
I'm just saying that's what it reads like in the code to me. In case law, it seems that a restriction on OC would be considered unconstitutional, regardless of what the state code is.
I think the main problem here is the legislature made a bunch of laws regarding firearms without reading them. Or they made it confusing on purpose to instill fear into people carrying firearms.
Comp-tech
State Researcher
imported post
Avtomat wrote:
Avtomat wrote:
imported post
Wow! This topic can really get people riled. You know, the fact that somebody has a different point of view or interpretation is not a slur upon your manhood. Even SCOTUS justices disagree - more often than not. I am not sure why some people are so invested in a particular belief that they fear engaging in a structured, calm, rational debate. Rather they throw mud and then pick up their ball and go home in a huff.
The fact is that people have been hassled and arrested for OC in Alabama. Eventually a case will work its way up the chain. I would rather everybody understand that there are two (at least) views on the subject and since there is not ALSUPCO decision on this point (the only remotely interesting decisions predating the current statutes by decades), there is uncertainty. I don't rule out a decision favoring the 52 is limited by 73 supporters but I have made a decent analysis of why this is wrong. Accept it or challenge it but don't believe that emotional spitballs are a substitute for sound legal reasoning.
One factor that may alter the picture is the concept of "the property of another." I don't have any legislative history but it is conceivable that this statute envisions private property. I don't mean private in the sense of non-governmental but rather that which is not open to the public. Thus the grocery store, gas station, etc. even though they are privately owned, being open to the public may not fall under the restriction. Sometimes literal readings are appropriate, sometimes not. Because under a tight reading of 52, you cannot invite a friend to bring his pistol to plink with you in the back 40. This, of course, is absurd. I don't think that anyone has argued that 73 permits you to carry a pistol into someone's house even if the owner objects. Yet because you can conceal with a permit you can deny the owner the opportunity to object. Somehow that doesn't seem reasonable. A recurring theme in the cases cited is the state's desire to curtail "offensive" use of a pistol (vs. defense of oneself or the state). Prohibiting the introduction of a pistol onto the property of another without the knowledge and/or consent of the owner supports that goal. I don't think the legislature intended to give pistol licensees that kind of power. They could have explicitly so stated (as they did for concealed carry and vehicle carry) but didn't. Either:
1. They didn't intend 73 to override 52 and didn't see the "except as otherwise provided" language as even relevant.
2. They wanted 73 to override 52 and thought the "except as otherwise provided" language achieved that goal.
3. They enacted the sections independently without even thinking of the consequences.
Since even supporters of the expansive view theory of 73 are afraid to OC, I hope the top state court takes a whack and give definitive guidance.
Alternatively, some nice legislator in Alabama could get a fresh (current) AG opinion. Does anybody know one?
We could also chip in to get an opinion from an AL lawyer. Until then I have my position and am sticking to it. I am always open to a well-structured argument as to why I am wrong. I just haven't seen one yet.
Wow! This topic can really get people riled. You know, the fact that somebody has a different point of view or interpretation is not a slur upon your manhood. Even SCOTUS justices disagree - more often than not. I am not sure why some people are so invested in a particular belief that they fear engaging in a structured, calm, rational debate. Rather they throw mud and then pick up their ball and go home in a huff.
The fact is that people have been hassled and arrested for OC in Alabama. Eventually a case will work its way up the chain. I would rather everybody understand that there are two (at least) views on the subject and since there is not ALSUPCO decision on this point (the only remotely interesting decisions predating the current statutes by decades), there is uncertainty. I don't rule out a decision favoring the 52 is limited by 73 supporters but I have made a decent analysis of why this is wrong. Accept it or challenge it but don't believe that emotional spitballs are a substitute for sound legal reasoning.
One factor that may alter the picture is the concept of "the property of another." I don't have any legislative history but it is conceivable that this statute envisions private property. I don't mean private in the sense of non-governmental but rather that which is not open to the public. Thus the grocery store, gas station, etc. even though they are privately owned, being open to the public may not fall under the restriction. Sometimes literal readings are appropriate, sometimes not. Because under a tight reading of 52, you cannot invite a friend to bring his pistol to plink with you in the back 40. This, of course, is absurd. I don't think that anyone has argued that 73 permits you to carry a pistol into someone's house even if the owner objects. Yet because you can conceal with a permit you can deny the owner the opportunity to object. Somehow that doesn't seem reasonable. A recurring theme in the cases cited is the state's desire to curtail "offensive" use of a pistol (vs. defense of oneself or the state). Prohibiting the introduction of a pistol onto the property of another without the knowledge and/or consent of the owner supports that goal. I don't think the legislature intended to give pistol licensees that kind of power. They could have explicitly so stated (as they did for concealed carry and vehicle carry) but didn't. Either:
1. They didn't intend 73 to override 52 and didn't see the "except as otherwise provided" language as even relevant.
2. They wanted 73 to override 52 and thought the "except as otherwise provided" language achieved that goal.
3. They enacted the sections independently without even thinking of the consequences.
Since even supporters of the expansive view theory of 73 are afraid to OC, I hope the top state court takes a whack and give definitive guidance.
Alternatively, some nice legislator in Alabama could get a fresh (current) AG opinion. Does anybody know one?
We could also chip in to get an opinion from an AL lawyer. Until then I have my position and am sticking to it. I am always open to a well-structured argument as to why I am wrong. I just haven't seen one yet.
Comp-tech
State Researcher
imported post
apjonas wrote:
apjonas wrote:
Wow! This topic can really get people riled. You know, the fact that somebody has a different point of view or interpretation is not a slur upon your manhood.
Never felt my manhood was at question......
Even SCOTUS justices disagree - more often than not. I am not sure why some people are so invested in a particular belief that they fear engaging in a structured, calm, rational debate. Rather they throw mud and then pick up their ball and go home in a huff.
Keep it rational, stick to gun law/property....no HazMat etc....and I'll gladly debate.
BTW, my "particular belief" is that our rights are being abused by LEO mis-applying laws as they are....I'm trying to figure out how to stop that.
The fact is that people have been hassled and arrested for OC in Alabama.
I agree 100%...how do we proceed to stop it...ASAP?....certainly not by arguing amongst ourselves.
Eventually a case will work its way up the chain. I would rather everybody understand that there are two (at least) views on the subject and since there is not ALSUPCO decision on this point (the only remotely interesting decisions predating the current statutes by decades), there is uncertainty. I don't rule out a decision favoring the 52 is limited by 73 supporters but I have made a decent analysis of why this is wrong. Accept it or challenge it but don't believe that emotional spitballs are a substitute for sound legal reasoning.
I have seen no "sound legal reasoning" in your view point....it doesn't seem, IMHO, to coincide with recent App court decisions.....and those are what we have now.....along with the Code of course.
One factor that may alter the picture is the concept of "the property of another." I don't have any legislative history but it is conceivable that this statute envisions private property. I don't mean private in the sense of non-governmental but rather that which is not open to the public.
All property is open to the public unless it is "posted in a conspicuous manner"....ie. anyone (the public) can drive onto my, or others, property unless..... "posted in a conspicuous manner, fenced, or otherwise enclosed in a manner designed to exclude intruders".....from the Code of Alabama.
Thus the grocery store, gas station, etc. even though they are privately owned, being open to the public may not fall under the restriction. Sometimes literal readings are appropriate, sometimes not. Because under a tight reading of 52, you cannot invite a friend to bring his pistol to plink with you in the back 40. This, of course, is absurd.
And yet you said that I was wrong when I said almost the same thing.......
I don't think that anyone has argued that 73 permits you to carry a pistol into someone's house even if the owner objects. Yet because you can conceal with a permit you can deny the owner the opportunity to object. Somehow that doesn't seem reasonable.
Oh no! what's happening...I'm feeling dizzy....we agree!
A recurring theme in the cases cited is the state's desire to curtail "offensive" use of a pistol (vs. defense of oneself or the state). Prohibiting the introduction of a pistol onto the property of another without the knowledge and/or consent of the owner supports that goal. I don't think the legislature intended to give pistol licensees that kind of power. They could have explicitly so stated (as they did for concealed carry and vehicle carry) but didn't. Either:
1. They didn't intend 73 to override 52 and didn't see the "except as otherwise provided" language as even relevant.
IIRC, was added to sec 52 when sec 73 was introduced into Code...1939 I think
2. They wanted 73 to override 52 and thought the "except as otherwise provided" language achieved that goal.
"Except as otherwise provided" was also added to sec 50 at the same time...
3. They enacted the sections independently without even thinking of the consequences.
They were independant...52 was 1911 iirc....73 was 1939...again, iirc
Since even supporters of the expansive view theory of 73 are afraid to OC, I hope the top state court takes a whack and give definitive guidance.
Alternatively, some nice legislator in Alabama could get a fresh (current) AG opinion. Does anybody know one?
I try not to fraternize with the enemy....... :uhoh:
We could also chip in to get an opinion from an AL lawyer.
I'll see what I can do on this one....I know a couple that might be willing....no idea what they may charge.
Until then I have my position and am sticking to it. I am always open to a well-structured argument as to why I am wrong. I just haven't seen one yet.
The App courts say so.......
imported post
Comp-tech wrote:
Comp-tech wrote:
So all you need to do iscarry a stack of court decisions and you should be good to open carry in Alabama.apjonas wrote:Wow! This topic can really get people riled. You know, the fact that somebody has a different point of view or interpretation is not a slur upon your manhood.
Never felt my manhood was at question......I don't think that anyone has argued that 73 permits you to carry a pistol into someone's house even if the owner objects. Yet because you can conceal with a permit you can deny the owner the opportunity to object. Somehow that doesn't seem reasonable.
Oh no! what's happening...I'm feeling dizzy....we agree!A recurring theme in the cases cited is the state's desire to curtail "offensive" use of a pistol (vs. defense of oneself or the state). Prohibiting the introduction of a pistol onto the property of another without the knowledge and/or consent of the owner supports that goal. I don't think the legislature intended to give pistol licensees that kind of power. They could have explicitly so stated (as they did for concealed carry and vehicle carry) but didn't. Either:
1. They didn't intend 73 to override 52 and didn't see the "except as otherwise provided" language as even relevant.
IIRC, was added to sec 52 when sec 73 was introduced into Code...1939 I think
2. They wanted 73 to override 52 and thought the "except as otherwise provided" language achieved that goal.
"Except as otherwise provided" was also added to sec 50 at the same time...
3. They enacted the sections independently without even thinking of the consequences.
They were independant...52 was 1911 iirc....73 was 1939...again, iirc
Since even supporters of the expansive view theory of 73 are afraid to OC, I hope the top state court takes a whack and give definitive guidance.
Alternatively, some nice legislator in Alabama could get a fresh (current) AG opinion. Does anybody know one?
I try not to fraternize with the enemy....... :uhoh:
We could also chip in to get an opinion from an AL lawyer.
I'll see what I can do on this one....I know a couple that might be willing....no idea what they may charge.
Until then I have my position and am sticking to it. I am always open to a well-structured argument as to why I am wrong. I just haven't seen one yet.
The App courts say so.......
Comp-tech
State Researcher
imported post
apjonas wrote:
We can't just "sit and wait" on the AlSupCo to sort this out, we may not see that in our lifetime....hell, they may be avoiding the issue entirely.
If you can cite Code that proves me wrong, I'll change my opinion.....
The point here is that, if it is legal, they have no right to hassle or intimidate people for doing it....
this shit needs to stop!
Carrying a stack of court decisions won't do any good..LEOs aren't going to take time to read squat that a citizen hands them in that regard....it will take re-education at best, lawsuits at worst.....
apjonas wrote:
Not that you were concerned about DLs...but they do deal with a totally different set of laws....in that regard, it just makes more sense to at least "stick" with the same code section.....
IMO, analysis of the law isn't needed and isn't the issue...what IS needed, again IMO, is to get LE "on the same page" as the courts.
At this point in time, IMO, what the AlSupCo might say isn't important.....my point of contention is the court decisions that we have now seem to be "on our side" yet LE doesn't.....again, LE is not following case law nor the Code for that matter.
We can't just "sit and wait" on the AlSupCo to sort this out, we may not see that in our lifetime....hell, they may be avoiding the issue entirely.
13A-7-1 through 13A-7-4 covers trespassing....if a driveway isn't "posted", gated etc., anyone (public) may enter....to say otherwise would mean that a neighbor couldn't ask to use your phone or to borrow something...a stranger couldn't ask directions....a salesman couldn't "call" etc. without trespassing.
If you can cite Code that proves me wrong, I'll change my opinion.....
I can't find it at the moment but I know that you have always held the opinion that "private property" is off limits...even to a PL holder....you did finally concede that businesses ect might not be considered private in that they are "open to the public"....
I think it started out as a racial issue a long time ago...they (LEO) didn't want "just anybody" to carry openly so they decided to stop everyone from OCing...and they still don't want OC even though it is legal.
The point here is that, if it is legal, they have no right to hassle or intimidate people for doing it....
this shit needs to stop!
Carrying a stack of court decisions won't do any good..LEOs aren't going to take time to read squat that a citizen hands them in that regard....it will take re-education at best, lawsuits at worst.....
imported post
You stated:
All property is open to the public unless it is "posted in a conspicuous manner"....ie. anyone (the public) can drive onto my, or others, property unless..... "posted in a conspicuous manner, fenced, or otherwise enclosed in a manner designed to exclude intruders".....from the Code of Alabama.
This statement is false. Did you think your willful strategic omissions would not be noticed?**
(4)Enter or remain unlawfully. A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public* does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land**, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
*If all property were, by default, open to the public there would be no need to make this statement.
§ 13A-7-2.Criminal trespass; first degree.(a)A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a dwelling.
No notice, postingor fencing is required. Nor is the owner required to first request the person to depart.
§ 13A-7-3.Criminal trespass; second degree.(a)A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.
This is the only section that discusses fencing Because of this notice given it is a more serious matter (class C misdemeanor vs 3rd degree (below)which is a "violation")
§ 13A-7-4.Criminal trespass; third degree.(a)A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.
No notice, posting or fencing is required. Nor is the owner required to first request the person to depart.
I realize that the various levels may be confusing and that the definitions employed may or may not be the same as common usage. I think we can find common ground on this issue. Perhaps a few examples would help:
1a. Person X enters your house, knowing that it is a house without your permission = First Degree Criminal Trespass.
1b. A life insurance salesman enters your house with your permission for a sales presentation. You think he has departed but he actually has hidden in the basement = First Degree Criminal Trespass.
2a. Neighborhood kids jump into your fenced and gated storage shed = Second Degree Criminal Trespass.
2b. After delivering a load of bricks to your fenced and gated storage shed, the deliveryman decides to take a four hour nap on your sandbags = Second Degree Criminal Trespass.
3a. Your neighbor walks onto your lawn to let his dog do its business = Third Degree Criminal Trespass.
3b. You invite your neighbor to splash about in your kiddie pool. You call it a day and say goodbye and go into your house. Neighbor decides another hour in the pool would be fun = Third Degree Criminal Trespass.
4. A transient sits down and makes a campfire on a parcel of land you own in the country, which is overgrown and without any structures = no violation
5. A transient does the same after climbing over the 6' fence you erected = Third Degree Criminal Trespass
6. Bill Gates walks onto your unimproved property passing a large neon sign that says "Private Property - No Trespassing" = Third Degree Criminal Trespass.
7. Salma Hayek enters your parcel of raw land demanding sex from you. You say "Get off of my land." She refuses = Third Degree Criminal Trespass. You undergo a mental health evaluation.
Note: Permission (explicit or implicit) from the owner/possessor or authorized agentis a "license" to enter (for a specific purpose/time). This covers the neighbor, the lost motorist, etc. There is no general license for the public to enter your home or property (except as provided in the statute). Nor is there a general license for the public to enter a business premises except at the times and for the purposes the owner permits.
You stated:
All property is open to the public unless it is "posted in a conspicuous manner"....ie. anyone (the public) can drive onto my, or others, property unless..... "posted in a conspicuous manner, fenced, or otherwise enclosed in a manner designed to exclude intruders".....from the Code of Alabama.
This statement is false. Did you think your willful strategic omissions would not be noticed?**
(4)Enter or remain unlawfully. A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public* does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land**, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
*If all property were, by default, open to the public there would be no need to make this statement.
§ 13A-7-2.Criminal trespass; first degree.(a)A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a dwelling.
No notice, postingor fencing is required. Nor is the owner required to first request the person to depart.
§ 13A-7-3.Criminal trespass; second degree.(a)A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.
This is the only section that discusses fencing Because of this notice given it is a more serious matter (class C misdemeanor vs 3rd degree (below)which is a "violation")
§ 13A-7-4.Criminal trespass; third degree.(a)A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.
No notice, posting or fencing is required. Nor is the owner required to first request the person to depart.
I realize that the various levels may be confusing and that the definitions employed may or may not be the same as common usage. I think we can find common ground on this issue. Perhaps a few examples would help:
1a. Person X enters your house, knowing that it is a house without your permission = First Degree Criminal Trespass.
1b. A life insurance salesman enters your house with your permission for a sales presentation. You think he has departed but he actually has hidden in the basement = First Degree Criminal Trespass.
2a. Neighborhood kids jump into your fenced and gated storage shed = Second Degree Criminal Trespass.
2b. After delivering a load of bricks to your fenced and gated storage shed, the deliveryman decides to take a four hour nap on your sandbags = Second Degree Criminal Trespass.
3a. Your neighbor walks onto your lawn to let his dog do its business = Third Degree Criminal Trespass.
3b. You invite your neighbor to splash about in your kiddie pool. You call it a day and say goodbye and go into your house. Neighbor decides another hour in the pool would be fun = Third Degree Criminal Trespass.
4. A transient sits down and makes a campfire on a parcel of land you own in the country, which is overgrown and without any structures = no violation
5. A transient does the same after climbing over the 6' fence you erected = Third Degree Criminal Trespass
6. Bill Gates walks onto your unimproved property passing a large neon sign that says "Private Property - No Trespassing" = Third Degree Criminal Trespass.
7. Salma Hayek enters your parcel of raw land demanding sex from you. You say "Get off of my land." She refuses = Third Degree Criminal Trespass. You undergo a mental health evaluation.
Note: Permission (explicit or implicit) from the owner/possessor or authorized agentis a "license" to enter (for a specific purpose/time). This covers the neighbor, the lost motorist, etc. There is no general license for the public to enter your home or property (except as provided in the statute). Nor is there a general license for the public to enter a business premises except at the times and for the purposes the owner permits.
Comp-tech
State Researcher
imported post
apjonas wrote:
apjonas wrote:
imported post
For goodness sakes man, calm down and carefully read what I wrote. In some cases, you are challenging positions that I am not taking. Afterwards, if you still disagree with me, tell me why my interpretation of the law is wrong. I quoted verbatim directly from the Alabama Code. I didn't just make this stuff up. Now I concede that an actual case may consider many things besides the statute but that does not change what the statute says.
Actually you are so far off the reservation that I am not going to wait.
For goodness sakes man, calm down and carefully read what I wrote. In some cases, you are challenging positions that I am not taking. Afterwards, if you still disagree with me, tell me why my interpretation of the law is wrong. I quoted verbatim directly from the Alabama Code. I didn't just make this stuff up. Now I concede that an actual case may consider many things besides the statute but that does not change what the statute says.
Actually you are so far off the reservation that I am not going to wait.
Comp-tech
State Researcher
imported post
apjonas.....
Section 13A-7-1 Definitions. The following definitions are applicable to this article:
(1) PREMISES. Such term includes any "building," as herein defined, and any real property.
(2) BUILDING. Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.
(3) DWELLING. A building which is used or normally used by a person for sleeping, living or lodging therein.
(4) ENTER OR REMAIN UNLAWFULLY. A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to ("real property" such as a driveway, yard etc. is "implicitly" open to the public unless it is "posted"...a dwelling IS NOT because it is "otherwise enclosed in a manner designed to exclude intruders") enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
I'm done arguing this point with you...I know what I say is true from personal experience on the complainant side
....all your smarta$$ snide remarks and insults will not change what the law says......
apjonas.....
Section 13A-7-1 Definitions. The following definitions are applicable to this article:
(1) PREMISES. Such term includes any "building," as herein defined, and any real property.
(2) BUILDING. Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.
(3) DWELLING. A building which is used or normally used by a person for sleeping, living or lodging therein.
(4) ENTER OR REMAIN UNLAWFULLY. A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to ("real property" such as a driveway, yard etc. is "implicitly" open to the public unless it is "posted"...a dwelling IS NOT because it is "otherwise enclosed in a manner designed to exclude intruders") enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
I'm done arguing this point with you...I know what I say is true from personal experience on the complainant side
....all your smarta$$ snide remarks and insults will not change what the law says......
imported post
Ah, come on. I want to hear the details of your story. I didn't realize that you were a party to such a case.
What do you think "open to the public" means in the statute? Can you give an example of some premises that is not "open to the public"?
You have stated so far that a driveway is "open to the public" and therefore I must inform anybody that comes onto it to leave and receive a refusal before a trespass has occurred. Is that correct?
§ 13A-7-1.Definitions.The following definitions are applicable to this article:(1)Premises. Such term includes any "building," as herein defined, and any real property.(2)Building. Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.(3)Dwelling. A building which is used or normally used by a person for sleeping, living or lodging therein.(4)Enter or remain unlawfully. A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
§ 13A-7-2.Criminal trespass; first degree.(a)A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully (that is, he is not licensed, invited or privileged to do so) in a dwelling.(b)Criminal trespass in the first degree is a Class A misdemeanor.
In general, is a dwelling considered "open to the public"? Why or why not?
§ 13A-7-3.Criminal trespass; second degree.(a)A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.(b)Criminal trespass in the second degree is a Class C misdemeanor.
Could a dwelling be covered under this section?
§ 13A-7-4.Criminal trespass; third degree.(a)A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.(b)Criminal trespass in the third degree is a violation.
What type of premises would be covered here (and not under the other two)? Is it necessary for notice to leave be given and refused before trespass occurs? Give an example of a premises "open to the public" to which this applies. How about one not "open to the public"?
Ah, come on. I want to hear the details of your story. I didn't realize that you were a party to such a case.
What do you think "open to the public" means in the statute? Can you give an example of some premises that is not "open to the public"?
You have stated so far that a driveway is "open to the public" and therefore I must inform anybody that comes onto it to leave and receive a refusal before a trespass has occurred. Is that correct?
§ 13A-7-1.Definitions.The following definitions are applicable to this article:(1)Premises. Such term includes any "building," as herein defined, and any real property.(2)Building. Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.(3)Dwelling. A building which is used or normally used by a person for sleeping, living or lodging therein.(4)Enter or remain unlawfully. A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
§ 13A-7-2.Criminal trespass; first degree.(a)A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully (that is, he is not licensed, invited or privileged to do so) in a dwelling.(b)Criminal trespass in the first degree is a Class A misdemeanor.
In general, is a dwelling considered "open to the public"? Why or why not?
§ 13A-7-3.Criminal trespass; second degree.(a)A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.(b)Criminal trespass in the second degree is a Class C misdemeanor.
Could a dwelling be covered under this section?
§ 13A-7-4.Criminal trespass; third degree.(a)A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.(b)Criminal trespass in the third degree is a violation.
What type of premises would be covered here (and not under the other two)? Is it necessary for notice to leave be given and refused before trespass occurs? Give an example of a premises "open to the public" to which this applies. How about one not "open to the public"?