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Thread: Alabama Sheriff Andy Hughes says no action will be taken against open carriers without his approval

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    The comment below, apparently posted by Sheriff Hughes, is interesting - it looks like Alabama Sheriffs are sitting up in their seats now and paying attention!

    When I first read Sheriff Hughes comment that "I did say that we didn’t have a law that specifically allowed open carry in public places" I did an eye roll - of course there is no statutory law in Alabama re open carry, just like there is no statutory law on open carry in the majority of US state which like Alabama, require no permit to carry openly!

    But then I read it again- Sheriff Hughes has a point in that 13A-11-52 appears to say that you can't carry a handgun on the premises of another, period. This does confuse people!

    But that being said, I think Sheriff Hughes statement that an AG opinion is not a good authority on open carry is kind of not cool - is not the Ag of Alabama the Chief law enforcement offical of that sovereign state? And there is not just 1 AG opinion on this subject declaring open carry legal - there are at least 3 AG opinions on this - and Sheriff Hughes' comment that "we need specific case law to address the issue" is also puzzling as there is already plenty of case law on this issue - in fact the case law, appellate court decisions which bind trial courts in Alabama often cite to Ag opinions and vice versa.

    Can somebody in Sheriff Hughes' county (Houston County) send him this case law?

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    Posted by: JSKeppy
    Date: May 06 2010 1:47PM


    I am a huge supporter of the 2nd amendment. I don’t believe militia can be interpreted to mean the military, law enforcement or the national guard. It means the “people”. I never said that open carry was illegal in Alabama. I did say that we didn’t have a law that specifically allowed open carry in public places. I would not be opposed to having a “true” open carry law in the state of Alabama if we could get one through the legislature.

    I believe that we should address open carry specifically so that the general public would know that there is a particular law that allows open carry and would not be alarmed at citizens openly carrying handguns in public places. If we don’t have a law then we need specific case law to address the issue. An AG’s opinion is just that, an opinion. The next AG could come in and issue a dissenting opinion on the same subject. Case law from a court has much more standing attached to it.

    If you read Title 13A-11-52 it says you can’t carry a pistol on or about your person except on your land, your house or fixed place of business, without a license. The license under 13A-11-73 is for concealed carry.

    I’m not saying I agree 100% with these laws but this is currently what we have in place in Alabama.

    In reference to the incident at Golden Corral, the Dothan Police Dept. responded to that call and the pistol permit that the sheriff said to revoke was issued in another county, not Houston county.

    I am very much in support of every law abiding citizen having a firearm and using it if necessary in the defense of themselves, their family, their property or a total stranger.

    I am an NRA certified instructor and myself and my whole family hunt and shoot recreationally.

    I would be glad to talk to you or anyone else on this issue. Please feel free to call me at my office @ (334)677-4888

    I am also instructing my deputies that if they come across someone carrying a handgun openly to contact me or my Chief Deputy personally before any enforcement action is taken.

    Thanks,

    Sheriff Andy R. Hughes

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    Regular Member FedFirefighter's Avatar
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    Now if we could just get Sheriff Sutton of Coffee Co. to rethink his stance on OC and the Constitution of AL., and the court rulings. I know he'll be getting some calls and e-mails from me.

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    Regular Member Brimstone Baritone's Avatar
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    Even though I agree that there is still a lot of investigation left to do on his part, at least he has decided to take personal responsibility for the situation. By tellign his deputies to check with him first, even if he does revoke a permit it is on him personally and not a funtion of the system.

    I say it is a good first step.
    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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    This doesn't sound like open carriers won't be hassled. It sounds like they will be hassled after the approval comes from the highest level. Not good enough.

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    eye95 wrote:
    This doesn't sound like open carriers won't be hassled. It sounds like they will be hassled after the approval comes from the highest level. Not good enough.

    Since open carry on someone else's private property still appears to be illegal,I think you should leave well-enough alone.

    Your time and efforts would be better spent with your state legislators.

    Frankly, whoever pushed that short-barreled shotgun bill through during thisyear's legislative sessionmight be able to carry the day for your cause as well.

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    Bird Dog wrote:
    Since open carry on someone else's private property still appears to be illegal,I think you should leave well-enough alone.
    huh? Did you not read the AG opinions and court cases explaining that open carry on foot on private property is not unlawful in Alabama?

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    Mike, this guy is a cop who came on here to defend the actions of the LEOs in Dothan. He refuses to acknowledge the meaning of the AG opinions and the ALSC rulings. He even went so far as to say it was OK to violate the rights of a citizen as long as he couldn't be held civilly liable.

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    eye95 wrote:
    Mike, this guy is a cop who came on here to defend the actions of the LEOs in Dothan. He refuses to acknowledge the meaning of the AG opinions and the ALSC rulings. He even went so far as to say it was OK to violate the rights of a citizen as long as he couldn't be held civilly liable.
    You're full of baloney. I have addressed the AG opinion and every one of those cases. You're the guy threatening people with lawsuits based on a New Mexico case that does not even apply in Alabama and quoting dicta from the 1840 Supreme Court opinion out of context.

    I have never said it's OK to knowingly violate somebody's rights. When the alleged right is unsettled, though, there's no way to know whether or not it is being violated until a court rules on the issue. Until then, the officer has to make a judgment call about what to do and the law grants him immunity for that.

    The intentional and knowing violation of somebody's rights is wrong, should render an officer civilly liable, and should subject an officer to criminal prosecution and termination of employment. I don't know I can be any clearer about that.

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    Bird Dog,
    When the alleged right is unsettled, though, there's no way to know whether or not it is being violated until a court rules on the issue.

    The right to bear arms is not an unsettled issue. It is clearly guaranteed by our constitutions. We don't have to wait for any part of ourgovernment to clarify anything:





    SECTION 2

    People source of power.
    That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient.
    The people of Alabama have spokenthruour constitutions and the right to bear arms is guaranteed byboth ofthem. Those constitutions have not been ammended to reflect anything different.

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    49er,

    When I was detained for OC, the officer asked me, "Why are you carrying that?" I replied, "It's legal, isn't it?" To which he snapped back, "I know the law!" (He didn't.)

    When you are speaking with LEOs (and you are), remember they seem to have a presumption of better knowledge and more authority than the citizen with whom they are speaking. This is often perceived as arrogance and is often met by resistance from the citizen to disastrous end. It is a wise officer who keeps his arrogance in check, as have all the officers I have ever dealt with officially.

    It is an unwise officer who takes his arrogance into his purely civilian encounters.

    At any rate, my point is that you should not be surprised if what you say about Rights, the Constitution, and the ultimate power of the People is falling on deaf ears when talking to an off-duty LEO.

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    eye95 wrote:
    He even went so far as to say it was OK to violate the rights of a citizen as long as he couldn't be held civilly liable.
    Now, eye, that is not at all what he said. Normally I would expect better from you.

    Go back and reread what he wrote. He pointed out that there was legal precedent that an LEO would not be held personally liable if he acted in good faith in an unclear situation. That is not at all the same as what you are implying.

    ETA: beaten to the punch by Bird Dog.
    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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    mcdonalk wrote:
    eye95 wrote:
    He even went so far as to say it was OK to violate the rights of a citizen as long as he couldn't be held civilly liable.
    Now, eye, that is not at all what he said. Normally I would expect better from you.

    Go back and reread what he wrote. He pointed out that there was legal precedent that an LEO would not be held personally liable if he acted in good faith in an unclear situation. That is not at all the same as what you are implying.
    Bird Dog wrote:
    mcdonalk wrote:
    And an officer never has the discretion to violate the rights of a citizen based on their interpretation of an unclear law.
    Actually, that's not the case.
    Actually, he did. He disputes that officers don't have discretion to violate rights. They absolutely don't. He goes on to argue cases that say they cannot be held civilly liable unless they know or should have known that their actions violate the rights of the citizen. In that regard he is correct.

    However, he went further than that. He is saying that officers do have the discretion (that indicates an active knowledgeable choice) to violate a citizen's rights--as long as they can hide behind qualified immunity, "Oh, Your Honor, I didn't know..."

    I expect more from our LEOs. His is a despicable POV. If an officer is going to seize a citizen and his property, he damn well better know the law and not rely on qualified immunity to protect himself from horrible choices. That protection was instituted to protect officers from good faith errors, not from wanton disregard for what the law might be.

    No officer has the discretion to violate the rights of a citizen, whether or not the officer thinks the law is clear. Bird Dog thinks he does. That is what makes LEOs just as dangerous to the public as criminals. Fortunately, most LEOs don't have this disgraceful POV.

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    Bird Dog wrote:
    You're the guy threatening people with lawsuits based on a New Mexico case that does not even apply in Alabama
    That depends on what you mean by the word "apply" - sure, its not binding authority, but it certainly is pursuasive authority, and the US S. Ct. cases cited to by that opinion, e.g., Florida v. JL, etc,are binding authority upon the state and federal courts of Alabama - you will find that 4th amendment law is quite developed and applicable to cases where police seize people for carrying a gun as much as if they seized themfor carrying a cell phone.

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    In my own humble opinion, Bird Dog's biggest mistake is one of the key elements that seem to prove his chosen profession. Similar to many cops out there, he absolutely refuses to accept any situation which shows him to be wrong.

    People on this board have been humbled by other people on this board time and again. I know I have. We raise questions, they are discussed, we are proven wrong about one thing, right about another. You just have to learn to be humble and rejoice that you have learned something when you are proven wrong!

    Every time Bird Dog hits a wall with his argument (and while some of his arguments seem halfway well founded, some have fallen flat on their face), he either completely ignores the post refuting him, or just blindly refuses to accept the obvious.

    As I was reading today, the most obvious instance of this was the Hyde case cited from Birmingham. The fact was raised that this was not even about handguns at all!! This argument has now been proven dead (as eye95 suggested). No one on here is discussing the fact that long guns can be restricted in Alabama... Yet Bird Dog refuses to admit defeat and misdirects suggesting this only "demonstrates that the open carry of long guns can also be regulated." Well... no, 'also' nothing. It demonstrates that this entire case only deals with long guns.

    In the only statement left that I will actually make to this close minded individual: Bird Dog, you will earn a bit more respect on here if you admit when you are proven wrong. Keep an open mind when others make points that you can't refute. And certainly, demand the same from those you are arguing with. But you will not make any progress whatsoever when you speak with a completely closed mind and refuse to acknowledge it when something you say actually is disproven. Make sense? This is not an attack... we all just need to learn to be humble, you win some, you lose some. Take it in stride, and with class, and you'll do alright.

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    Mike wrote:
    That depends on what you mean by the word "apply" - sure, its not binding authority, but it certainly is pursuasive authority, and the US S. Ct. cases cited to by that opinion, e.g., Florida v. JL, etc,are binding authority upon the state and federal courts of Alabama - you will find that 4th amendment law is quite developed and applicable to cases where police seize people for carrying a gun as much as if they seized themfor carrying a cell phone.
    St. John is not even persuasive authority because it addresses an entirely different statute. The New Mexico statute at issue in St. John is worlds apart from 13A-11-52. St. John offers no insight on how a court should interpret -52.

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    dixieborn wrote:
    In my own humble opinion, Bird Dog's biggest mistake is one of the key elements that seem to prove his chosen profession. Similar to many cops out there, he absolutely refuses to accept any situation which shows him to be wrong.

    People on this board have been humbled by other people on this board time and again. I know I have. We raise questions, they are discussed, we are proven wrong about one thing, right about another. You just have to learn to be humble and rejoice that you have learned something when you are proven wrong!

    Every time Bird Dog hits a wall with his argument (and while some of his arguments seem halfway well founded, some have fallen flat on their face), he either completely ignores the post refuting him, or just blindly refuses to accept the obvious.

    As I was reading today, the most obvious instance of this was the Hyde case cited from Birmingham. The fact was raised that this was not even about handguns at all!! This argument has now been proven dead (as eye95 suggested). No one on here is discussing the fact that long guns can be restricted in Alabama... Yet Bird Dog refuses to admit defeat and misdirects suggesting this only "demonstrates that the open carry of long guns can also be regulated." Well... no, 'also' nothing. It demonstrates that this entire case only deals with long guns.

    In the only statement left that I will actually make to this close minded individual: Bird Dog, you will earn a bit more respect on here if you admit when you are proven wrong. Keep an open mind when others make points that you can't refute. And certainly, demand the same from those you are arguing with. But you will not make any progress whatsoever when you speak with a completely closed mind and refuse to acknowledge it when something you say actually is disproven. Make sense? This is not an attack... we all just need to learn to be humble, you win some, you lose some. Take it in stride, and with class, and you'll do alright.

    I do not believe the Alabama Court of Criminal Appeals' holding about the constitutionality of the gun ordinance in Hyde had anything to do with the type of gun involved. I just disagree with your opinionthat Hyde does not address the issue of whether a statute or ordinance can constitutionally restrict the open carry of a firearm.Hyde makes clear that open carry is not an absolute right and can be restricted (at least to some extent) without running afoul of the constitution.

    I'm not saying Hyde prohibits open carry of pistols, but I am saying itdisproves the claim that no law can constitutionally restrict the open carry of a firearm.


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    Bird Dog wrote:
    Mike wrote:
    That depends on what you mean by the word "apply" - sure, its not binding authority, but it certainly is pursuasive authority, and the US S. Ct. cases cited to by that opinion, e.g., Florida v. JL, etc,are binding authority upon the state and federal courts of Alabama - you will find that 4th amendment law is quite developed and applicable to cases where police seize people for carrying a gun as much as if they seized themfor carrying a cell phone.
    St. John is not even persuasive authority because it addresses an entirely different statute. The New Mexico statute at issue in St. John is worlds apart from 13A-11-52. St. John offers no insight on how a court should interpret -52.
    OK, look, the St. John case was not about any statute at all - just a simple 4th amendment violation.

    The same would be true in Alabama - there is no statutory construction needed because -52 does not apply to open carry - the -52 statute has ALREADY been more narrowly construed by the courts of Alabama than the plain text would suggest, i.e., no law is broken by open carrying on premises of another, -52 notwithstanding.

    There is no mystery here - and no more statutory construction needed on -52 -the trial courts are already bound by appeals court decisions in this matter. There is no mystery about what -52 means - its pretty limited, does not apply to open carry on foot.

    So the facts of a police seizure of an open carrier in Alabama for merely entering the premises of another while open carrying would be the same as St. John, and thus 4th amendment law comes into play in a fairly straight forward manner.

    Does mere open carry raise reasonable suspicion of a -52 violation? No, we know that already. Hence seizure of person violates 4th amendment.

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    eye95 wrote:
    *A bunch of stuff that shows that I was wrong and that I should have re-read what Bird Dog saud*
    I apologize. I was at work, and it seems I missed that part. I would hope that was just a poor choice of words on his part, but either way I was wrong above.

    @ Bird Dog: I hope that that was just a poor choice of words, and that you didn't mean to assert that it is okay to knowingly potentially violate rights just because the law may be unclear. Judging from your later posts I am inclined to believe you do your best to uphold what you have been trained to believe is applicable law.
    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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    Annnnd the whole point of the post flew right over his head. Oh well, I tried.

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    Mike wrote:
    - the -52 statute has ALREADY been more narrowly construed by the courts of Alabama than the plain text would suggest, i.e., no law is broken by open carrying on premises of another, -52 notwithstanding.

    Where do you find this? Which case?

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    eye95 wrote:
    Actually, he did. He disputes that officers don't have discretion to violate rights. They absolutely don't.
    You and I actually agree on this issue. I'm just not making myself clear.

    I am not saying that officers ever have the discretion to consciously violate someone's rights. By definition, a deliberate violation of a constitutional right is a non-discretionary act.An officer who violates a clearly established right acts beyond his discretion, and immunity is withheld.

    What I'm saying is that when faced with an unsettled legal issue, officers dohave the discretion to make a reasonable interpretation of the law. After the fact, a court may later clearly define the right in a way that reveals the officer unknowingly violated it. In those circumstances, immunity shields the officer from personal liability.

    Agood example of what I'm talking about is the U.S. Supreme Court decision in Arizona v. Grant, 129 U.S. 1710 (2009). Prior to that decision, it was commonly believed that officers could conduct a complete search of the passenger compartment of an automobile whenever they arrested an occupant. Officers relied on a prior Supreme Court decision called New York v. Belton, which seemed to indicate that such searches were authorized under the Fourth Amendment.

    In Grant, the Supreme Court ruled that those searches violate the vehicle owner's Fourth Amendment rights (except in certain limited circumstances).

    In other words, we now know thatevery time an officer conducted such a search prior to Grant, he unknowingly violated somebody's rights. The Supreme Court actually addressed this issue in a footnote: "Because a broad reading of Beltonhas been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding."

    I would compare 13A-11-52 to Belton. -52 seems to indicate that a person cannot openly carry a pistol on private property that is not his own, much like Belton seemed to indicate that officers could lawfully search a car whenever they arrested an occupant. I realize -52 has been judiciallylimited somewhat, but I do not agree that it has been judicially limited to the extent that people on this board argue.

    I am saying that if an officer interprets -52 to prohibit open carry in a restaurant (which is private propertynot his own), I believe the courts would protect that officer with immunity, even if they later explicitly rule that open carry in a restaurant is lawful. I just do not believe the law is sufficiently clear to put officers on notice that an arrest for open carry in a restaurant violates clearly established law.

    I believe you and I got confused because I should have explained the difference between discretionary and non-discretionary acts: An officer never has the discretion to violate somebody's clearly established rights. If the officer knowingly violates somebody's rights, by definition he is not performing a discretionary act. I should have explained that.

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    dixieborn wrote:
    Annnnd the whole point of the post flew right over his head. Oh well, I tried.
    You did try.

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    eye95 wrote:
    dixieborn wrote:
    Annnnd the whole point of the post flew right over his head. Oh well, I tried.
    You did try.
    If you will identify the post that you want me to admit I was wrong in, I will gladly take another look at it.

    I agree that Hyde only addressed long guns, but I do not agree that its holding is irrelevant to open carry in general. The fact remains that Hyde specifically upheld the constitutionality of an ordinance that restricted the open carry of certain firearms under certain circumstances. In doing so, Hyde demonstrated that the constitution does not grant an absolute right to open carry in all situations.

    In other words, Hyde shows that a statute like 13A-11-52 is not automatically unconstitutional just because it might restrict open carry. Hyde proves that Alabama courts very well may uphold such restrictions.

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    I just noticed the post in which I referred to the Birmingham ordinance as a "handgun ordinance." I was wrong about that. It was not a handgun ordinance.

    Until persuaded otherwise, however, I still stand by my position that the Hyde case demonstrates that all regulation of open carry is not automatically unconstitutional.

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    *sigh* I am going to regret having responded, but...

    Ignoring, solely for the sake of argument, that -73 is a complete revision of the matter, -52 refers to pistols (handguns only). Therefore, comparison to the Birmingham ordinance fails on at least two counts:

    1. The ordinance does not apply to pistols.

    2. The ordinance is no more a gun law than a law stating that you may not say, "I'm going to kill all you sumbitches!" while in possession of a handgun would be gun law. Such a law and the ordinance both are laws against a behavior in the context of possessing a gun, not against the possession of the gun itself (an argument that has thus far been ignored).

    Should such a law be passed, it would simply be outlawing a specific form of assault, and clearly would not be gun law.


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