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Thread: Advice Needed

  1. #1
    Regular Member FedFirefighter's Avatar
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    As you all have heard, the news about Dianosis is front and center right now. I happen to live very close to him, and OC in the same "neck of the woods" almost daily. I am on the fence now as to whether I should continue to OC in town like I have been, or CC for a while until this cools off or something comes of it. I don't want to go to jail anymore than the next guy, or can't really afford a lawyer, but, part of me thinks IF I have a similiar confrontation, that may be what is needed to bring more attention and more education to open carry. I'm not looking to find confrontation by any means, but I have been OC'ing a while now and grown quite fond of exercising that right, with no problems. Any advice would be greatly appreciated.

    The other question I had was, which of the documents proving OC's legality do any of you carry with you, if any, and which do y'all think is the one most convincing (cut & dry) to have with you if confronted?

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    I live in Houston County and I personally know an attorney in Coffee County who I've talked with last year concerning OC'ing in AL

    Although I was surprised and angeredby this recentincident, OC'ing in Alabama without further headacheswill require the Legislature to ammend or repeal Section 13A-11-52 of the Code or a state court case ruling on this incident or another similar incident.

    What is working against us is Section 13A-11-52, and thata law enforcement agencyis not legallybound by a previous Attorney General's opinion giving a different interpretation of that section of the Code.

    In other words,if a particular law enforcement agency chooses to charge you with violating Section 13A-11-52 of the code for OC'ing off of your private property or land, a previous Attorney General's opinion is not a legal defense and is not legally enforceable to prevent the officer or agency from charging you with violating Section 13A-11-52.

    Section 13A-11-73 of the Code overrides Section 13A-11-52 but ONLY when CC'ing with a permit.

    Unfortunately, I see the issue needing to be resolved by an Act of the Legislature, by ammending or repealing Section 13A-11-52 (the section which literally outlaws OC when not on your private property/land or your own business)

    The AL Constitutional provision (Article I, Section 26: "That every citizen has a right to bear arms in defense of himself and the State") most likely could not be used to challenge the OC banin state court because the right to bear arms has not been completely eliminated (that is, the State still provides you the ability to CC a handgun with a license when the handgun is concealed on or about your person or in an automobile.)

    This is difficult to swallow, and not what anyone wants to hear, but this is coming from an attorney friend of mine from Coffee County.

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    Section 13A-11-73 of the Code overrides Section 13A-11-52 but ONLY when CC'ing with a permit.
    Bearing arms is a constitutional right. The Alabama Supreme Court ruled that bearingarms openly is the only manner they can be born for defensive purposes when it ruled that laws against concealed carry such as 13A-11-73 were legal. It expressly prohibited laws such as 13A-11-52 when interpreted to prohibit both methods of carry as being unconstitutional. The only way 13A-11-52 could withstand consistent constitutional scrutiny by our courtsis for it to apply only to concealed carry.

    A constitution overrides a law. We have two of them in Alabama that guarantee the right to bear arms...theConstitution of the US and the Constitution ofAlabama. Both state thatthe right to bear armsshall not be infringed.

    1. Freedom of speech cannot be confined to your own property.
    2. Freedom of religion cannot be confined to your own property.
    3. etc. etc. etc.



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    Armorer, have your attorney friend look at the AL SC rulings. It is they who provide the basis for the AG rulings. The SC has clearly said that OC cannotbe outlawed.

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    Regular Member FedFirefighter's Avatar
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    So Eye, where can I find the SC rulings you speak of? Am I correct in assuming that a Sheriff cannot legally revoke your permit just for OC'ing?

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    FedFirefighter wrote:
    So Eye, where can I find the SC rulings you speak of? Am I correct in assuming that a Sheriff cannot legally revoke your permit just for OC'ing?
    Check out the "This law seems to prohibit a lot of OC" thread. I came to OCDO thinking that OC had to be illegal based on -52. Near the end of the thread, someone cited the SC ruling that I think is the lynch-pin for legal OC. It basically says that OC cannot be banned. Therefore -52 can only apply to CC, and -73 is the current law on the subject of CC.

    I'll bump the thread.

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    Regular Member FedFirefighter's Avatar
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    Thanks

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    Regular Member Brimstone Baritone's Avatar
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    Armorer wrote:
    I live in Houston County and I personally know an attorney in Coffee County who I've talked with last year concerning OC'ing in AL
    Welcome to OCDO. Glad you took an interest in the situation.

    Although I was surprised and angeredby this recentincident, OC'ing in Alabama without further headacheswill require the Legislature to ammend or repeal Section 13A-11-52 of the Code or a state court case ruling on this incident or another similar incident.
    I would hazard to guess that not even this will alleviate all OC problems. It is just a function of the society we live in. I'm just glad we don't have it as bad as other parts of the country.

    What is working against us is Section 13A-11-52, and thata law enforcement agencyis not legallybound by a previous Attorney General's opinion giving a different interpretation of that section of the Code.
    We have more than an AG opinion, or else I would agree. The ALSC has ruled in State v. Reid that OC cannot be outlawed. Yes, that is an 1840 case, but it has never been overturned. If that still isn't good enough for you, in 1997 KJ v. State that "13A-11-52 applies only the extent that it is consistent with ยง 13A-11-73 because it is the later statue and a complete revision of the subject matter." Thus, -52 has been declared bad law. And even if this weren't the case, any charge under -52 has to be prosecuted in accordance with -55.
    "In an indictment for carrying weapons unlawfully, it is sufficient to charge that the defendant carried concealed about his person a pistol, or other description of firearms, on premises not his own, ... and if the evidence offered to excuse the charge raises a reasonable doubt of the defendant's guilt, the jury must acquit him."
    Even without any AG opinions (and there are more than the one) we have a solid foundation for exercising our rights.

    In other words,if a particular law enforcement agency chooses to charge you with violating Section 13A-11-52 of the code for OC'ing off of your private property or land, a previous Attorney General's opinion is not a legal defense and is not legally enforceable to prevent the officer or agency from charging you with violating Section 13A-11-52.
    I agree. I don't think it matters, but I agree. The case would be unwinnable unless you were otherwise engaged in illegal activity. If you are convicted, get a better lawyer for your appeal.

    Section 13A-11-73 of the Code overrides Section 13A-11-52 but ONLY when CC'ing with a permit.
    Not according to KJ v. State

    Unfortunately, I see the issue needing to be resolved by an Act of the Legislature, by ammending or repealing Section 13A-11-52 (the section which literally outlaws OC when not on your private property/land or your own business)
    I agree.

    This is difficult to swallow, and not what anyone wants to hear, but this is coming from an attorney friend of mine from Coffee County.
    I certainly hope he is not your personal attorney. Please direct him toward the cases I cited and see if the case law on the subject can sway his opinion. For more information, including other relevant cases, I invite you to http://www.alabamaopencarry.com

    Once again, welcome.

    There was a time that the pieces fit, but I watched them fall away, mildewed and smoldering, strangled by our coveting. I've done the math enough to know the dangers of our second guessing. Doomed to crumble, unless we grow and strengthen our communication. -Tool, "Schism"

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    I trust him as a good man and attorney, but when I briefly spoke with him last year about OC he did tell me he hadn't researched "precedent" and was only giving his opinion of the -52 and -73 parts of the code I cited to him.

    I understand that the Reid case gave a clear ruling, but it's my understanding that a Legislative branch of government can and does pass an Actand have it signed by the Executive into law that would be in conflict with that earlier court case and although it may bein conflict with that earlier court case....it would take a new court case, or new "challenge," for a court to strike down that subsequent Act.. ?

    The more recent court cases like KJ I'm not knowledgeable about but I maintain a deep uncertainty about how an OC situation would be handled and I have no monetary means to defend myself in a court for a possible OC charge.

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    Regular Member Brimstone Baritone's Avatar
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    Oh, I get that. I wasn't trying to be harsh, and I hope it didn't come across that way. My welcome was sincere, and I hope you stick around. Unfortunately you're right. For the most part laws, even unconstitutional ones, can't be challenged without 'standing'. This means someone has to be willing to be the test case, and most people would understandably rather not push their luck.
    There was a time that the pieces fit, but I watched them fall away, mildewed and smoldering, strangled by our coveting. I've done the math enough to know the dangers of our second guessing. Doomed to crumble, unless we grow and strengthen our communication. -Tool, "Schism"

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    Confusion, orvagueness,in itself is a contributing factorthat can be raised instriking down laws that are in violation of our constitutions. When sheriffs and attorneys general disagree on what the law requires, men of ordinary intelligence cannot be expected to know. Constitutional rights cannot be given and then taken away every time we cross a county line.

    http://law.jrank.org/pages/11152/Voi...-Doctrine.html



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    OC an airsoft/bb-gun. Unless the tip can be seen, it will be assumed to be a real firearm, so expect the trouble that may result. Being an Airsoft or BB-gun will prevent the firearms charge, or make it an easy Not-Guilty.

    And don't even let them null-prosse the case.
    It takes a village to raise an idiot.

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